LAU CHO WING v. CHEN SHU HUI AND OTHERS

HCAL 2283/2023

[2024] HKCFI 574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2283 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant in this application was the 1^st defendant to a claim to possession of premises at Flat B, 3/F, 81 Broadway, Mei Foo Sun Chuen, Kowloon, Hong Kong (“Property”), made in High Court proceedings HCA 2769/2017. The Applicant resides in the Property. The 2^nd defendant in HCA 2769/2017 was all (other) occupiers of the Property. The plaintiff in HCA 2679/2017 was a Chen Shu Hui, claiming as owner of the Property.

2.  This application arises out of a Writ of Possession dated 3 August 2023, issued in HCA 2769/2017 following an order made by Master Kent Yee on 29 July 2022 (“Order”). By his Form 86, the Applicant seeks leave to apply for judicial review so as to challenge the Writ of Possession as well as a related Notice to Occupier to Quit. The thrust of the application lies in the Applicant’s claim that the Writ of Possession and Notice(s) to Occupier to Quit are invalid, and that the Order on which they were based should not have been granted where there is doubt as to whether Chen Shu Hui is the only legal and beneficial owner of the Property.

3.  The Applicant seeks the following relief:

(1)  Dismissal of the Order made by Master Kent Yee on 29 July 2022.

(2)  An order requiring Chen Shu Hui to confirm if she is the only legal and beneficial owner of the action concerning the Property.

(3)  A declaration that the Writ of Possession is invalid for the original copy was not filed with the court.

(4)  A declaration that the Notices to Occupier to Quit bearing no seal mark of the Bailiff Section are invalid.

(5)  A stay of the Order and Writ of Possession, with no possession procedure to be carried out until the statutory requirements have been fully complied with.

4.  Having considered the materials, I am satisfied that this application can appropriately be dealt with on the papers. This is my Decision.

B.  The Basis of the Application

5.  By his Form 86 and supporting affirmation, the Applicant makes the following points (in my summary of them):

(1)  On 22 November 2023, the three-paged Writ of Possession was posted on the metal door of the Applicant’s residence, i.e. the Property.

(2)  The Writ of Possession had no date of filing and no seal mark of the High Court fixed against the name of the Registrar.

(3)  The other document was a Notice to Occupier to Quit signed by the Senior Bailiff, which had only the Judiciary logo, no regional emblem of the HKSAR and no seal mark of the Kowloon Bailiff Section.

(4)  As the Writ of Possession was not shown on the index of court documents in HCAL 2769/2017, that contravenes the High Court Ordinance and Rules of the High Court (“RHC”).

(5)  The Applicant wrote to the Bailiff Section on 22 and 29 November 2023.

(6)  On 14 December 2023, the Applicant found a Notice to Occupier to Quit posted on the metal door. It had no seal mark of the Bailiff Section and bore the words “Final” (in English) and “this is the final notice” (in Chinese).

(7)  The Applicant wrote to the Bailiff Section on 14 and 15 December 2023.

(8)  Also on 14 December 2023, the Applicant made a Land Registry search against the Property, which showed the owners as Wong Ping Chor and Chen Shu Hui, meaning the latter was not the only owner.

(9)  Chen Shu Hui had stated in her claim and other pleadings that she had automatically succeeded all interests of her husband in the Property the subject matter of the action, and was the only legal and beneficial owner of the Property. However, the succession of the estate in relation to the Property has still not been completed. Therefore, credibility is in great doubt.

6.  The Applicant also referred to RHC Order 113 rule 7, that Order 45 rule 3(2) shall not apply in relation to an order for possession under Order 45, but no writ of possession to enforce such an order shall be issued after the expiry of 3 months from the date of the order without leave of the Court.

7.  The Applicant then posed two questions:

(1)  Where the Writ of Possession was issued on 3 August 2023, and the Bailiff Section sought to enforce it on 22 November 2023, and by reference to RHC Order 113 rule 7, can the Court explain if a further application for leave is required?

(2)  Do the Order of 29 July 2022, the Writ of Possession and the Notices to Occupier to Quit comply with the formats, legal regulations and procedures?

C.  Any Merits for Grant of Leave?

8.  Posing questions in that form, rather than stating actual allegations of public law errors, is not a good starting point for an application for leave to apply for judicial review – even if the questions are said to be rhetorical. Rather, it is incumbent upon an applicant for leave to identify specific public law grounds of review, which can be shown to be reasonably arguable with a realistic prospect of success.

9.  In any event, the starting point of the consideration in this case is that there has been a judicial determination in the form of the Order dated 29 July 2022. I note from the Order itself that it was made on the evidence filed in the action including evidence from the 1^st defendant (i.e. the Applicant) and after hearing submissions from Counsel for the plaintiff and from the 1^st defendant (i.e. the Applicant) acting in person. If the Applicant was dissatisfied with the Order, his potential remedy did not lie in an application for judicial review, but in an appeal.

10.  Incidentally, I note from the Document Index for HCA 2769/2017 provided by the Applicant with his application, there is reference to a Notice of Appeal dated 17 August 2023 against the decision of a master. Though it is not clear from the index alone who is the appellant and from which decision the appeal was made, I note that from another index to a hearing bundle for 11 September 2023, it seems that there were two Notices of Appeal issued by the Applicant on 17 August 2023, and he appears to have filed one or more affidavit/affirmation(s) on the same date.

11.  I would also note that the basis upon which the Applicant seems to suggest that the Order should not have been made – namely that there is some doubt as to whether Chen Shu Hui is the sole legal and beneficial owner of the Property – is something upon which he apparently could, and so should, have given evidence and/or made submissions prior to the making of the Order (if indeed he did not do so). This Court exercising its judicial review jurisdiction does not act as an appellate court, not least when the point now relied upon either was or could have been deployed prior to the making of the Order.

12.  Hence, the first and second heads of the claimed relief – which seek dismissal of the Order and for Chen Shu Hui to confirm if she is the sole owner of the Property – are bound to fail.

13.  Indeed, the remainder of the Applicant’s points – namely that the Writ of Possession and the Notices of Occupier to Quit are somehow invalid for being in breach of procedural requirements – are also points that could have been raised in HCA 2769/2017, if the Applicant wishes to avoid the consequence of those documents. In fact, the Notice to Occupier to Quit dated 22 November 2023 specifically identified that any occupier who claims a right to remain on the premises in question (i.e. the Property) should make application to the Court of First Instance of the High Court without delay.

14.  Though the Applicant wrote to the Bailiff Section, he was obviously not satisfied with the response. However, the Applicant was informed that the Writ of Possession posted on the Property the subject of the Order to deliver up vacant possession was a sealed copy issued by the High Court, an official court document, and the original of the writ was filed with the Bailiff Section. The potential application to the Court of First Instance which might have been made by the Applicant in response to the Notice to Occupier to Quit was not an application by way of judicial review.

15.  In the premises, none of the other heads of the claimed relief can succeed.

D.  Result

16.  In short, the Applicant has failed to identify a decision or decisions amenable to judicial review, with any public law grounds of review which are reasonably arguable with any realistic prospect of success.

17.  In the circumstances, the application for leave to apply for judicial review is dismissed. I make no order as to costs.