HCMP002013/1986
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
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IN THE MATTER OF an application for Judicial Review
and
IN THE MATTER OF an Occupation Permit No.18555 in respect of Section No.2 of Site No.81 of Rennie's Mill Village Cottage Area, Kwun Tong, Kowloon, Hong Kong issued by the Hong Kong Housing Authority in favour of one YU TECK SEIK
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Coram: The Hon. Mr. Justice Mayo in Court
Date of Hearing: 25 & 26 February 1991
Date of Delivery of Judgment: 7 March 1991
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JUDGMENT
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1. This is a rather long outstanding Judicial Review. It arises out of a dispute over rights to occupy a house which was constructed in the Rennie's Mill Village Cottage area at Kwun Tong.
2. The Applicant and her late husband came to the area in 1958. They obtained permission in 1960 to erect premises from the Social Welfare Department and thereafter the administration of the area was undertaken by the Resettlement Department.
3. It is the Applicant's case that she and her husband erected 2 houses in the area known as Houses 80 and 81.
4. In early 1961 the Resettlement Department undertook a screening operation and in addition to members of the Applicant's family a Mr. Lam Kai Cheung was also recorded as being a member of the household. The explanation given by the Applicant for this was that Mr. Lam was a kinsman and a friend of long standing. Entirely without prejudice to their rights they permitted him to occupy part of House 81.
5. It would appear from the papers which were before me that the Applicant's husband wrote to an Officer in the Resettlement Department in 1961 in these terms:
"The structure newly built on Site No. 80, Section 2, Rennie's Mill Village Cottage Area belongs to me (SEE Sing) while the one on Site No. 81 of the same section was constructed by LAM Kai-cheung. As I, SEE Sing, is the householder of the two structures at Nos. 81 and 80, both cottages are considered to be mine. To seek truth from facts and to define clearly the property ownership and responsibility to pay permit fees, I request that the following portions be registered under the ownership of LAM Kai-cheung. They include the two storeys of the new structure built by LAM Kai-cheung at Site No. 81, the kitchen and the roof to the east of the upper floor, half of the open areas, courtyard and water pond on the same level, together with the kitchen and toilet to the east and west of the lower floor, as well as the water pond and open areas on the same level, plus the upper and lower floors of the main block in entirety. Relevant plans have been prepared and it is hoped that separate ownership be approved so that permit fees can be paid accordingly to avoid confusion."
6. It is the Applicant's contention that her husband never wrote this letter which she claims was a forgery. The contents of this letter has been a bone of contention between everyone concerned with this matter. It has never been resolved whether the letter was genuine or not. Certainly, Miss Hartstein for the Crown does not accept that the letter was a forgery. The other party to the proceedings besides the Housing Authority Mr. Yu Teck Seik derives his title to occupy the property from Mr. Lam and he definitely does not accept that the letter was a forgery. He claims to be an Assignee of the interest in House 81 from Mr. Lam who can no longer be traced.
7. It was Mr. Yu's attempts to get the whole situation regularized that has led to the present proceedings.
8. He repeatedly requested the Housing Authority which is the successor in title to the duties performed by the Resettlement Department to issue him with an Occupation Permit for House 81. At first, the Housing Authority declined to accede to his requests. However, at the end of 1985 and the beginning of 1986 after pressure was brought to bear upon the Housing Authority, they decided to issue the Occupation Permit to Mr. Yu which is the document the subject matter of the relief claimed in Para. 2(1) of the Statement filed pursuant to Order 53 rule 2 of the Rules.
9. Although the Applicant denied any knowledge of the circumstances surrounding, the issue of this Occupation Permit it is clear to me from a letter she wrote dated the 16 December 1985 that 2 officers from the Housing Authority did indeed attend upon her and that she was generally aware of what was being proposed.
10. They intended to issue the Occupation Permit in question to Mr. Yu subject to obtaining from him an undertaking to the effect that he would not attempt to dispose of his interest in the House until the matters in dispute between him and the Applicant had been resolved.
11. I have attempted to outline as briefly as I can the main factual issues relevant to this Application.
12. The said Occupation Permit was issued on the 15 March 1986 and the application for leave to apply for Judicial Review was not made until 15 September 1986 which was well outside the 3 month period referred to in Order 53 rule 4(1). No satisfactory explanation or excuse was given for this delay. Reference was made to correspondence which was being exchanged between the Applicant's solicitors and the Housing Authority. In particular Mr. Lai for the Applicant placed reliance upon a letter dated 11 July 1986 from the Housing Authority to the solicitors when they explained their understanding of the legal position. I regret that I do not consider it to be reasonable to simply wait on receiving a reply from another party to litigation and then claim that you are absolved from responsibility for delay,. It is also worth noting that no reference is made to the said letter in the statement filed in support of the application.
13. I regret that having regard to all of the surrounding circumstances I would dismiss this application on the ground of undue delay alone. However, just in case I have not exercised the discretion reposed in me validly I propose giving substantive reasons why I consider this application should be dismissed.
14. The said statement filed in support of the application is in this form:
"STATEMENT FILED PURSUANT TO ORDER 53
RULE 3
THE RULES OF SUPREME COURT
1. The name and description of the Applicant is CHAN PO WAN of Section No.2 of Site Nos.80 & 81 of Rennie's Mill Village Cottage Area, Kwun Tong, Kowloon, Hong Kong.
2. The reliefs sought are: -
(i) An Order of Certiorari to (remove) into this Honourable Court and quash the Occupation Permit No.18555 in respect of Section No.2 of Site No.81 of Rennie's Mill Village Cottage Area, Kwun Tong, Kowloon, Hong Kong issued by the Hong Kong Housing Authority in favour of one YU TECK SEIX (hereinafter referred to as "the said Occupation Permit", "the suit premises", "the Authority" and "Yu" respectively);
(ii) A Declaration that the Applicant was at all material times and still is entitled to possess or otherwise occupy the whole of the suit premises; and
(iii) An Order of Mandamus directed to the Authority to issue another Occupation Permit in respect of the suit premises in favour of the Applicant.
AND that' all necessary and consequential directions be given.
[AND that all proceedings on the said Occupation Permit including and in particular District Court Action No. K.C.J.5748 of 1986 by Yu against the Applicant herein for, inter alia, possession of the suit premises be stayed until after the hearing of the Motion or further order.]
3. The grounds upon. which the said reliefs are sought are as follows:-
(i) That no full and sufficient inquiry was made by the Authority before it issued the said Occupation Permit in favour of Yu;
(ii). That the Applicant was not afforded any opportunity by the Authority, properly or at all, to be heard on the right of occupation and/or right to be issued with an Occupation Permit in respect of the suit premises;
(iii) That the Authority erred in issuing the said Occupation Permit in relying upon a letter purportedly signed by one SEE SING, the Applicant's (late) husband but in fact not so duly signed and/or forged;
(iv) That the Authority erred in issuing the said Occupation Permit or otherwise entitling Yu to occupy the suit premises exclusively;
(v) That there was a denial to the Applicant of natural justice; and/or
(vi) That the Authority acted without or in excess of its jurisdiction.
DATED this the 15th day of September 1986."
15. It will be appreciated from the extensive relief which was sought that it was intended that the whole background of the disputes between the parties would be ventilated. Accordingly the Applicant's solicitors applied to the Court for directions which would embrace mutual discovery and inspection of documents. They also applied for an order that Deponent's of affidavits should make themselves available for cross-examination.
16. This application was heard by Mr. Justice Hooper on 6th December and the 31st March 1987 and in a Ruling dated the 16th April 1987 Hooper J. gave his reasons for refusing to make the Discovery and related orders. This Ruling was never the subject of any appeal. Consequently, Mr. Lai for the Applicant informed me that he was unable to pursue the application for the Declaration and the Mandamus referred to in the relief sought. I might add that I have some sympathy for Mr. Lai in expressing this view and one result of this is that I formally dismiss these parts of the Application. The only part of the application still to be dealt with is application for a writ of certiorari in relation to the issuance of the said Occupation Permit.
17. Matters were then allowed to lie fallow until the application was recently resurrected.
18. Indeed it would appear that the main stimulae for getting the proceedings on the move again was the existence of the possession action which Mr. Yu had commenced in the District Court earlier to remove the Applicant from her physical possession of the upper floor of House 81. This action had been started shortly after the issuance of the said Occupation Permit.
19. Mr. Yu's solicitors had indicated that they proposed applying for the trial of the possession action. This seems to have prompted the Applicant to proceed somewhat belatedly with the present application.
20. The Crown's main ground in opposition to this application is that when the Housing Authority issued the Occupation Permit to Mr. Yu it was acting in a private and not a public capacity. This being the case the present application was misconceived as private acts are not amenable to Judicial Review. Miss Hartstein placed reliance upon a passage from the speech of Lord Edmund Davies in Hang Wah Chong Investment Co. ltd. v. Attorney General 1981 H.K.L.R. 336 at p.341:
"Somewhat more formidable than the foregoing is the point (scarcely hinted at in the appellants' printed Case, but nevertheless spaciously developed by their learned counsel) relating to the role assigned to the Director of Public Works under the contract and particularly in relation to Special Conditions 6 and 7. It has already been observed that he is by definition also the Building Authority, and he is charged with many duties falling within the public domain, in relation to which it might well amount to an abuse of power were he to demand a premium as a condition precedent to acceding to a suppliant's request. Was the Director, ask the appellants, not operating in the public domain when saddling his approval of the appellants' building plans in 1976 with a demand for an extremely high premium which bore no apparent relation to the terms of the appellants' application? And, in consequence, was he not therefore imposing an insupportable condition on his compliance amounting to an abuse of power?
It has to be observed in the first place that it is common ground that the Conditions of sale operate in lieu of the terms of the contemplated Crown lease which was never granted. Secondly, no difference relevant to the present appeal can be drawn between a lease granted by a public body, or indeed the Crown, and a private lease (Wade; 'Administrative law,' 4th Edn. p.644). Thirdly, the view expressed by Huggins, J.A in the Supreme Court that "The Director of Public Works has many responsibilities besides those imposed by the Buildings Ordinance" appears well established; one of those responsibilities being that of acting as the Crown's land agent. And appellants' counsel did not challenge the conclusion of Huggins, J.A. that "... the Director of Public Works can bind himself in his capacity as the Building Authority without binding himself in his capacity as land agent and vice versa"."
21. Miss Hartstein submitted that in the present case the Housing Authority performed many acts and that it was necessary to distinguish between those which were in the private domain and those in the public domain.
22. Some assistance can be derived from a consideration of s.16 of the Housing Ordinance Cap.283:
"16. Leases of land in estates
(1) Subject to this Ordinance, the Authority may -
(a) let to any person, for any period, any land in an estate, subject to the payment of such premium, rent or other consideration as the Authority may determine; and .
(b) fix the terms, covenants and conditions on which any land in an estate may be let or occupied.
(2) Where the Authority grants a lease under subsection (1) of Crown land in an estate of which control and management has been vested in it under section 5, 37 or 38, the person occupying the land under and in accordance with the lease shall be deemed, for the purposes of sections 4 and 6 of the Crown Land Ordinance (Cap. 28), to be occupying the land under a licence issued under section 5 of that Ordinance."
23. I am satisfied that when the Housing Department issues to a party an Occupation Permit it is performing a function which is analogous to that of a landlord and that it should be characterised as an act in the private domain.
24. The consequences of such a distinction were considered by Mr. Justice Jackson Lipkin on p.54 of Re Yau Fook Hong Co. Ltd. [1985] H.K.L.R. 42:
"In my judgment this is clearly not a matter of public law nor can it be said to be in anywise acts of the Director under the Crown Lands Resumption Ordinance. It is, of. its very nature, a matter of contract and of private law. The applicants, among many, many others, voluntarity accepted Letters A and B instead of proceeding under the Crown Lands Resumption Ordinance. The applicants tendered in the knowledge that the government did not bind itself to accept any application put forward (See paragraph 2 on p.57 of the, bundle). The applicants knew that, in certain circumstances, the choice between them and another applicant, or other applicants, having tendered in the same amount, would be decided otherwise than by choice - (see paragraphs (a) and (c) on p .56 of the bundle). The applicants knew that, if their tender were unsuccessful, someone else's would be successful. But such successful party would not be, and could not be, a party to a motion for judicial review. Furthermore, the applicants were well aware at all times that the authority of the Director to choose the tenderer offering the highest-calculated land exchange entitlement was and is derived solely from agreement between each tendered and the Director, as is made. abundantly clear from the explanatory statement, the application notice and the application form (to which I have already referred)."
With respect I would agree with the views expressed by Jackson Lipkin, J.. The result of this conclusion is that these proceedings are misconceived and should accordingly be dismissed.
25. I would however add that even if I am wrong in coming to this conclusion I would still have been disposed to dismiss the application on its merits.
26. Mr. Lai's main contentions in support of the application were that the Housing Authority were acting in excess of its jurisdiction when it issued the Occupation Permit and contrary to the Rules of Natural Justice. Neither of these contentions can be maintained.
27. When the Housing Authority issued the Occupation Permit it was performing a statutory function which it is charged to exercise pursuant to provisions in the Housing Ordinance Cap.283. It was clearly not acting in excess of its jurisdiction as there is no convincing evidence of any impropriety in this connection.
28. Also I do not consider that it can be convincingly argued that the Housing Authority acted in any way in breach of the Rules of Natural Justice. Mr. Lai referred to a number of the leading cases on Judicial Review including Ridge v . Baldwin [1964] A.C.40, Regina v. Liverpool Corporation [1972] 29B. 299 and Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C.374. The main thrust of his arguments was that the Applicant had been afforded an insufficient opportunity of putting forward her version of events. This contention is unsustainable. As I have stated earlier initially it was the Applicant's case that the first she knew of the Occupation Permit was after it had been issued. This version of her evidence cannot in my view be reconciled with the contents of a letter written by her on 16 December 1985 where she refers to 2 officers from the Housing Department attending upon her and the context of the letter strongly suggests that the subject of the issuance of the Occupation Permit was indeed ventilated.
29. There is also all the earlier correspondence which was exchanged on the subject of the respective rights of the Applicant and Mr. Yu to occupy House 81. There can be no doubt that the Applicant has had every opportunity of making out her case. Indeed, it is difficult to see what more the Housing Authority could have done to provide the Applicant with a fair hearing.
30. For the reasons I have given I dismiss this application. I will hear the parties on costs.
(Simon Mayo)
Judge of the High Court
Representation:
Mr. Thomas Lai instructed by Liu, Chan & Lam for Chan Po Wan/Applicant
Mr. Rimsky Yuen instructed by So & Co. for Yu Teck Seik/ Respondent
Miss. V. Hartstein and Ms. l. Shine of A.G.'s Chambers for Crown