RE CHAN KWOK HUNG

HCMP 1094/2026

[2026] HKCFI 5539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1094 OF 2026

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REASONS FOR JUDGMENT

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1.  For the reasons explained below, at the conclusion of the hearing I acceded to the application made by an ex parte Originating Summons taken out on 7 July 2026.  By it the Applicant applies under inherent jurisdiction of the court to vacate the registration in the Land Registry of 4 Notices registered by the Hotel and Guesthouse Accommodation Authority (“the HGA Authority”) pursuant to section 5B of Hotel and Guesthouse Accommodation Ordinance, Cap. 349 (“HGAO”) against his property known as 1/F and the Roof, No. 22-23 San King Terrace, Sai Kung, New Territories (“the Property”).

2.  The Applicant commenced these proceedings by an ex parte OS following the observations made by Deputy High Court Judge Gary CC Lam in Famous Charm Ltd v Secretary for Justice [2026] 1 HKLRD 919 at §§32 – 37.  I respectfully agree with the view of Deputy Judge Lam expressed there that the Land Registrar and the Prosecution Division of the Department of Justice have no legal role to play in such an application such that they should not be joined in normal course of event, and therefore similar application should normally be made ex parte.  I would respectfully support that view for the reason expressed in paragraph 14 below.

3.  The following background facts I find established by the Applicant’s affirmation and the documentary evidence there produced:

(a)  The Property is a residential unit situating on Sections B and C both of Lot No. 678 in D.D. 215. The Applicant purchased and was assigned the Property in December 2016 as an investment, to earn rental income and maybe as residence after retirement.  He remains its registered owner since.

(b)  By the first tenancy of a 2 years’ term, the Applicant rented the Property to a tenant Ms Chris Lynn O’Brien from 1 February 2022 to 31 January 2024, which was then renewed by another tenancy also of 2 years, to expire on 31 January 2026.  Both tenancy agreements contain Clauses 3 and 4 whereby the tenant respectively agreed not to part with possession of part of the Property and to comply with all ordinances and regulations of Hong Kong.

(c)  In March 2024, the Applicant was informed by the Home Affairs Department (“HAD”) that they had reasonable grounds to believe the Property had been used as an unlicensed guesthouse contrary to HGAO.  The Applicant attended the office of the HGA Authority on 31 March 2024 for an interview and gave a witness statement stating that he had no knowledge of such contravention.

(d)  In December 2024, the Applicant was informed by HAD that the tenant was convicted of an offence under HGAO.

(e)  Upon expiry of the 2^nd term, the tenant did not renew the tenancy.  When putting up the Property for sale or leasing, the Applicant was informed by the estate agent that 2 sets of 2 Notices (“the 4 Notices”), with memorial numbers 24100200650041, 24100200650051, 25010700530015 and 25010700530029, had been registered against the Property, namely:

(i)  Two Notices of Charge Laid dated 23 July 2024 was respectively registered against each of Section B and Section C of Lot No. 678 of D.D. 215 on 2 October 2024 pursuant to section 5B(1) of HGAO; and

(ii)  Two Notices of Conviction dated 21 October 2024 was respectively registered against each of Section B and Section C of Lot No. 678 of D.D. 215 on 7 January 2025 pursuant to section 5B(1) of HGAO.

(f)  With the 4 Notices so registered, the Applicant was unable to sell the Property, and it was leased out since March 2026 to a limited company as its staff quarters, but only with an express term in the tenancy agreement referring to the 4 Notices and warranting that it is legal for the Applicant to rent out the Property and that the Applicant would be seeking to vacate the registration of the 4 Notices.

4.  The 2 Notices of Charge Laid were worded the same save the addresses, so were the 2 Notices of Convictions.  They read as follows:

“ Notice of Charge Laid

Address of the Premises:

1/F & THE ROOF NO.22 [NO.23] SAN KING TERRACE SAI KUNG NEW TERRITORIES

NOTICE is hereby given pursuant to section 5B(1) of the Hotel and Guesthouse Accommodation Ordinance (Cap.349) (“the Ordinance”) that two charges have been laid against one person on 19^th July 2024 for an offence under section 5/5A of the Ordinance in relation to the above premises.

Dated this 23^rd day of July 2024.

(NG Mee-chi)

  For Hotel and Guesthouse Accommodation Authority”

“ SUMMONS NO. KTS 16151/2024

Notice of Conviction

TO: HOTEL AND GUESTHOUSE ACCOMMODATION AUTHORITY

Re: 1/F & THE ROOF NO.22 [NO.23] SAN KING TERRACE SAI KUNG NEW TERRITORIES

NOTICE is hereby given pursuant to section 5B(1) of the Hotel and Guesthouse Accommodation Ordinance (Cap.349) (“the Ordinance”) that 1 person(s) has/have been convicted of an offence under section 5/5A of the Ordinance in relation to the above premises on 21.10.2024.

Dated this 21^st day of Oct 2024.

(Edward WONG)

  Magistrate”  

5.  The Applicant relies on Famous Charm Ltd in which the applicant there succeeded in a similar application to vacate the registration of a notice given pursuant to section 145A(2), and registered pursuant to section 153M, of the Crimes Ordinance, Cap. 200 against the premises in relation to which a person has been convicted of an offence of keeping a vice establishment under section 139 thereof.  It was held in Famous Charm Ltd that with the passage of the periods of time relevant under the provisions in the Crimes Ordinance, the notice no longer served any purpose and no longer affected the property while the notice would have a negative impact on the sale of the property, and it was just and convenient to exercise the court’s inherent jurisdiction to vacate the registration of the notice.

6.  With that said, I turn to examine the purpose of issuing and registering the 2 types of notices under section 5B of HGAO, which has to be ascertained from interpreting the relevant provisions in the wider context of the ordinance.

7.  As stated in the long title of HGAO, it is an ordinance to provide for the regulation, control and safety of hotel and guesthouse accommodation and for connected purposes.  Such regulation, control and safety are achieved principally by a licencing regime with the HGA Authority as the responsible authority whose decision is subject to the appeal procedure therein provided.  To make the licencing regime efficacious, offences of operating unlicensed hotel or guesthouse and owning or being a tenant of unlicensed hotel or guesthouse are introduced by sections 5 and 5A.  Further enforcement is provided, among others, by the making of a closure order closing the premises for a period of 6 months under section 20A.  The closure order may be rescinded, suspended, varied, or revived under respectively sections 20C, 20D, 20E, 20F and 20H.

8.  Relevant to the present application is the notice procedure stipulated under section 5B.  The registration of a notice under section 5B is expressly referred to only in section 20C and not in any other provision in HGAO.

9.  I will set out at this juncture the relevant parts of sections 5B, 20A and 20C, highlighting the pertinent part by underlining for easy reference:

“5B. Notice relating to specified offence to be registered in Land Registry

(1) If any of the following events occurs in relation to any premises, the Authority must arrange for a written notice about the event to be registered in the Land Registry—

(a) a charge against a person for a specified offence is laid or withdrawn;

(b) a person is convicted or acquitted of a specified offence;

(c) a person’s acquittal of a specified offence is appealed against;

(d) an appeal against a person’s acquittal of a specified offence is allowed without a conviction.

…

(4) A notice under subsection (1) must be prepared—

(a) for a notice about an event mentioned in subsection (1)(a) or (c)—by the Authority; or

(b) for a notice about an event mentioned in subsection (1)(b) or (d)—by the court or magistrate concerned.

(5) For a notice prepared by the Authority, the Authority must, as soon as reasonably practicable after the event occurred, arrange for the registration of the notice under subsection (1).

(6) For a notice prepared by a court or magistrate—

(a) the court or magistrate must, as soon as reasonably practicable after the event occurred, send the notice to the Authority; and

(b) the Authority must, as soon as reasonably practicable after receiving the notice, arrange for its registration under subsection (1).

(7) A notice required to be registered in the Land Registry under this section is taken to be an instrument affecting land, but a failure to register the notice does not affect its validity as against any person.

(8) In this section—

…

specified offence (指明罪行) means an offence under section 5 or 5A.

…

20A. Closure order

(1) A court or magistrate may make an order under this section (closure order) in respect of any premises if—

(a) a person is convicted by the court or magistrate of a specified offence in respect of the premises (present conviction);

(b) the Authority applies in writing for the order; and

(c) the court or magistrate is satisfied that the conditions specified in subsection (2) are fulfilled.

(2) The conditions are that—

(a) there is a previous conviction in respect of the premises;

(b) the Authority has, in respect of the previous conviction, acted in accordance with subsection (3); and

(c) the specified offence to which the present conviction relates was committed within the period beginning on the date after, and ending 16 months after, the date of the previous conviction.

(3) For subsection (2)(b), the Authority has acted in accordance with this subsection if—

(a) within 14 days after the date of the previous conviction, the Authority has—

(i) published—

(A) a notice in English in 1 newspaper published in Hong Kong in the English language; and

(B) a notice in Chinese in 1 newspaper published in Hong Kong in the Chinese language; and

(ii) affixed both notices to a conspicuous part of the premises to which the previous conviction relates (previous conviction premises); and

(b) each of the notices mentioned in paragraph (a)—

…

(iv) includes a statement to the effect that a closure order may be made in respect of the premises if—

(A) within the period beginning on the date after, and ending 16 months after, the date of the conviction, any person commits a specified offence in respect of the premises; and

(B) the person is convicted of the offence.

(4) …

(5) A closure order must—

(a) identify the premises to which the order relates; and

(b) direct that the premises are to be closed from the date specified in the order for 6 months.

…

(9) In this section—

…

specified offence (指明罪行) means an offence under section 5 or 5A.

…

20C. Rescission of closure order on application

(1) If a closure order is made in respect of any premises on the basis of a present conviction within the meaning of section 20A, an interested person for the premises may apply in writing to a court or magistrate for the order to be rescinded.

(2) A person is an interested person for any premises if the person becomes a purchaser, mortgagee or chargee in good faith for valuable consideration of an interest in the premises (bona fide purchaser)—

(a) after the date on which a notice about the previous conviction within the meaning of section 20A was registered under section 5B(1); and

(b) before the date on which a notice about laying of the charge resulting in the present conviction was registered under that section.

…”

10.  Thus, under section 20A, if in respect of the same premises anyone is convicted of a section 5 or 5A offence within a period of 16 months after the date of the prior conviction of an offence under sections 5 or 5A (and upon the fulfilment of section 20A(3)) a closure order may be made closing the premises for 6 months. Notably, the proximity of time of the conviction of the offences – the second offence (resulting in the present conviction) is committed within a 16-month period counting from the date of the last conviction – is a necessary condition for the making of a closure order.

11.  Therefore and quite evidently, the purpose of issuance and registration of a Notice of Conviction in the Land Registry is to provide a means of notice (through searching the Land Register) to the public, particularly a potential purchaser, tenant or mortgagee, who intends on acquiring or dealing with the subject premises, so that he would know whether there has been a previous conviction and whether his purchase or dealing with the premises would be at risk of a closure order in case there was another conviction within 16 months of the last.

12.  The purpose of the issuance and registration of a Notice of Charge Laid is in my view equally clear.  On the one hand, a Notice of Charge Laid would inform that there may be a conviction following in due course.  On the other and more specifically, under section 20C, a person would qualify as an “interested person” to apply for the recission of an existing closure order if he becomes a “bona fide purchaser” (as defined in that section) after a Notice of Conviction was registered and before a Notice of Charge Laid resulting in the present conviction is registered.  Thus, a purchase would not be a “bona fide purchaser” within the meaning of section 20C if he becomes one after a Notice of Conviction and another subsequent Notice of Charge Laid were registered.

13.  In the present case, the conviction date of the section 5/5A offences was 21 October 2024.  More than 20 months have lapsed from then to the issuance of this ex parte OS on 7 July 2026.  There has since been no other Notice of Conviction or Notice of Charge Laid registered in respect of the Property.  With such passage of time, no closure order could be made under section 20A based on the 21 October 2024 convictions.  As no such closure order could be made, there is also no question of recission such that the purpose of the 4 Notices under section 20C is simply not engaged.

14.  I thus conclude that the 4 Notices no longer serve any purpose under HGAO and no longer affect the Property.  In this connection, I observe that HGAO contains no provision making the registration of such Notices by itself a penalty for punishing offenders of HGAO.  Incidentally and therefore, I think that the Prosecution Division of the Department of Justice has no interest or role to play in an application like this and it would be up to the Applicant to persuade the court his case for vacating the registration.

15.  So long as the 4 Notices are not vacated from the Land Register despite no longer serving any of the intended purposes, they continue to negatively impact for quite a long while the marketability and value of the Property in terms of putting it up for sale or rent by the Applicant.  As said, I do not think HGAO intends such continuous negative impact to be a form of penalty, not to say a long-lasting one.

16.  HGAO contains no provision for vacating the registration of such Notices even though the same may no longer affect land in circumstances such as the present ones.  However, it is well established that the court has inherent jurisdiction to vacate the registration of an instrument not affecting land.

17.  In the premises, I find it just and convenient to exercise the inherent jurisdiction to order the vacation of the 4 Notices from the Land Register, and at the hearing made an order in terms of the draft submitted with no order as to costs.

18.  I thank Mr Chan for his assistance.