楊國銓 v. 香港房屋委員會 (上訴委員會)

HCAL 698/2024

[2024] HKCFI 1335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 698 OF 2024

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D E C I S I O N

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A.  Introduction

1.  By his Form 86 dated 30 April 2024, the Applicant seeks leave to apply for judicial review so as to challenge a decision of the Appeal Panel (Housing) (“Appeal Panel”) made at a hearing on 21 March 2024 (“Decision”).

2.  By the Decision, the Appeal Panel rejected the Applicant’s appeal against the issuance to him of a Notice to Quit, terminating the lease of, and requiring him to vacate, his Hong Kong Housing Authority residential unit at the Lei Yu Mun Estate (“Unit”).

B.  Background

3.  The background leading up to the Decision is broadly as follows.

4.  The Applicant, his wife and his mother (“Mother”) were residents at the Unit.

5.  By letter dated 31 January 2024, the Hong Kong Housing Authority enclosed a formal Notice to Quit issued under section 19(1)(b) of the Housing Ordinance Cap 283 (“HO”), so as to terminate the tenancy of the Unit. The basis for termination identified was because of a false declaration dated 6 January 2017, under the Civil Service Public Housing Quota Scheme 2015/2016, that the Applicant/residents had not owned any domestic premises in Hong Kong since the date of the application, which led to allocation of the Unit. However, a domestic property was held at the time, and up to the present. The letter states that, had the household made a truthful declaration, then the Applicant would have been ineligible for public housing, and any such application would have been voided.

6.  The letter also notified the right of appeal pursuant to section 20(1) of the HO. The Applicant made such an appeal to the Appeal Panel, and the appeal was heard on 21 March 2024.

7.  From a note of the appeal hearing, it seems that the Decision was made at the hearing, and reasoned on the following broad basis (in my summary of the adjudication and ruling):

(1)  The Appeal Panel fully considered all documents and information and the representations made, including those made by the Applicant about the situations of his family, assets and living conditions.

(2)  According to the materials obtained from the Housing Department’s investigation, the Mother, i.e. a registered family member under the tenancy agreement, owns a private residential property in Aberdeen, Hong Kong.

(3)  During his application for the Civil Servant Public Housing Quota Scheme and when filling in the declaration, the Applicant did not fully disclose the total family assets including the situation of having a residential property, as a result enabling him for allocation to live in the Unit. Therefore, the Housing Department has ground for issuing the Notice to Quit to the Applicant.

(4)  The Appeal Panel members understood the Mother’s residential property has been ‘reverse mortgaged’ to the bank, which will periodically pay annuity on a monthly basis to the Mother, enabling her to rely on it during her lifetime.

(5)  How the Mother spends and uses the money received by her monthly is not a factor mandatorily to be considered in the appeal hearing.

(6)  The Applicant said he previously enquired with the Quartering Division of the Hong Kong Police Force, but objectively, he confirmed in the hearing, during the time of handling of the procedures for living in the Unit and handover of the keys of the Unit, even though the staff of the Housing Department asked about him whether he and his family members as registered under the tenancy agreement own any residential property in Hong Kong, he did not disclose to them that the Mother owns that residential property in Aberdeen.

(7)  Had the Applicant fully disclosed to the Housing Department about the situation of that residential property, he would not have been eligible for the Civil Servant Public Housing Quota Scheme, and he would not have been allocated the Unit in 2017 for him and his family members as registered under the tenancy agreement to live in.

(8)  The Applicant did not provide sufficient and convincing materials to prove that he has genuinely obtained instructions for not being required to disclose to the Housing Department the fact that the Mother owns a residential property, even though (a) the staff of the Housing Department enquired with him according to procedures, and (b) the declaration also required him to declare whether he and his family members as registered under the tenancy agreement (including the Mother) own any residential property.

(9)  In addition, after the tenancy agreement of the Unit has been confirmed for termination, if the Applicant and the family members as registered under the tenancy agreement cannot find a place to live in, the Housing Department may consider arranging them to live in temporary accommodation, and there will not be an issue of having no place to live in.

8.  It seems that the Applicant would have known of that reasoning because of his presence at the appeal hearing on 21 March 2024. But, even if not, he now knows of that reasoning as he has been able to produce the note of the appeal hearing as an exhibit to his further affirmation (see below).

9.  By letter dated 26 March 2024, the Appeal Panel (Housing) wrote to the Applicant formally informing him that it had decided to invoke section 20(3)(b) of the HO to confirm the Notice to Quit regarding the Unit.

10.  Nevertheless, the Applicant apparently wrote on 3 April 2024 to say that to state the outcome of the appeal was not a summary of the reasons for the decision. The Appeal Panel (Housing) sent a holding response on 9 April 2024.

11.  On 3 May 2024, the Applicant was sent a copy of the note of the appeal hearing (see above), which he was able to, and did, exhibit to a further affirmation in these proceedings. As already identified, that note summarizes the reasons for the Decision.

12.  In the meantime, a notice to occupiers was issued to the Applicant on 18 April 2024. Further, on 29 April 2024, the Applicant was sent an Eviction Notice, requiring him to cease using and occupying the Unit on or before 20 May 2024, failing which the Hong Kong Housing Authority would carry out an eviction operation to recover the Unit.

C.  The Intended Challenge

13.  As set out above, these proceedings were commenced on 30 April 2024.

14.  In the part of the Form 86 where the Applicant has identified the relief sought, he stated (in English translation):

Based on my and my family’s current household and financial circumstances and the retirement benefits to which I am originally entitled, I sincerely ask to maintain the right to residence at the original address, so that it can be the last stop for me and my family.

15.  In an attachment to the Form 86, the Applicant’s “dissatisfactions” about the Decision are set out, and can be summarized as follows:

(1)  The Applicant applied for a government job in 1982, partly on the basis of housing benefit as being one of the welfare benefits at the time of retirement.

(2)  His father passed away in 2003, and his mother has had physical and mental health problems from time to time.

(3)  In 2007, the Applicant applied to the Police Quartering Division to have his mother to reside with him and his wife – who provided most of the care for the mother in her daily routines – and approval was subsequently given.

(4)  The Applicant retired at the end of 2014.

(5)  The Applicant applied for a public housing unit for retirement in 2015/2016.

(6)  When the Applicant filled out the form, he consulted the Quartering Division because it had his family’s records. He says he was informed orally that where an elderly parent needed support and care, it did not matter whether she had a property or not.

(7)  He has a government pension, but that barely allows him to make ends meet each month, and the cost of living in Hong Kong is hard to bear.

(8)  He was adjudicated bankrupt in 2020, and the bankruptcy period ends on 25 August 2024.

(9)  At the appeal hearing on 21 March 2024, his and his family’s practical circumstances and the content of the documents submitted by him were not taking into consideration carefully before termination of the lease.

16.  Hence, the thrust of the Applicant’s case is that the Appeal Panel failed to consider carefully his and his family’s practical circumstances and the content of the documents submitted by him before dismissing his appeal and rejecting the termination of the lease. Essentially, the Applicant complains that insufficient weight was given to his circumstances and documents.

17.  This kind of complaint is not fertile territory for an application for leave to apply for judicial review, where (if an applicant is to be granted leave) the applicant must identify reasonably arguable public law grounds of review which have a realistic prospect of success. Unless the criticism amounts to an allegation of Wednesbury unreasonableness or irrationality, the Court will not ordinarily interfere in the weighing exercise performed by the decision-maker.

18.  In any event, having considered the materials, I do not find any reasonably arguable public law grounds. On the facts as explained in the Decision, there was no reasonably arguable unreasonableness or irrationality in the public law sense.

19.  The Applicant’s submissions in the appeal (which he has essentially repeated in these proceedings) were considered and addressed in the Decision, and there is nothing to suggest that the Appeal Panel could not properly have reached the conclusions it did on the materials before it, and the representations made on those materials by the parties.

D.  Result

20.  In the circumstances that the Applicant has failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success to challenge the Decision, the application for leave to apply for judicial review is dismissed.

21.  I make no order as to costs.