CHAN YIK TUNG v. THE HONG KONG HOUSING AUTHORIY

HCMP No. 2111 of 1989

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. This is a sad case, sad in the sense that the applicant, so he claims, is fighting for his survival and survival in the sense of preserving his cooked food licence granted by the Housing Authority in the Tung Tau Estate New Market.

2. A decision was taken by the Housing Authority on the service of a notice to quit against the applicant. The consequence would no doubt be drastic, leading to the eviction of the applicant from his rented space and the cessation of his cooked food hawker operation.

3. After the issuance of the notice to quit, the matter went before the Tenancy Appeals Committee pursuant to section 21 of the Housing Ordinance. The Tenancy Appeals Committee duly confirmed the notice to quit. The applicant felt aggrieved, hence these proceedings for judicial review.

4. The proceedings were divided into two parts: the first part concerning jurisdiction was disposed of in favour of the applicant. This is the second chapter of the proceedings. The allegation made on behalf of the applicant is that an irrelevant consideration had been taken into account by the Housing Authority in its decision to issue the notice to quit. The same irrelevant consideration was, so the applicant maintains, canvassed before the Tenancy Appeals Committee which allegedly also embraced it. The matter said to have been wrongly taken into account by the Housing Authority and its Tenancy Appeals Committee is their alleged concern that I.C.A.C. investigations and/or intervention in the applicant's breaches of tenancy terms would likely be imminent if no action against the applicant was taken.

5. Deponents of affirmations filed on behalf of the Hong Kong Housing Authority have been tendered for cross-examination. We have had no less a responsible officer than Mr Choy Ki Wong, the Chief Housing Manager who was at the material time in charge of the whole Hong Kong Island as well as a part of Kowloon. He confirmed that soon after the file for the applicant had arrived at his desk, he gave it his proper consideration. Evidently, circumstances were such that he was left with little alternative but to approve the recommended issuance of a notice to quit. He explained to the Court that none of his subordinates involved had any authority to decide on a notice to quit concerning the applicant.

6. Suffice it for me to say that the applicant had been a recalcitrant, misbehaving tenant. He claims to have been driven by personal and trading circumstances to, time and again, infringe the Tenancy Agreement granted to him by the Hong Kong Housing Authority. Shortly stated, a provision of the Tenancy Agreement prohibited the sale of "Dim Sum" in his tall. And for reasons he explained, despite his numerous promises to desist from all activities in breach of that tenancy restriction, he was invariably tempted to and did return to practices contrary to his tenancy obligations. The applicant had been warned verbally and in writing more times than any reasonable authority can be expected to tolerate. Leniency and indulgence were generously extended to him. If I may say so, the Hong Kong Housing Authority is an arm of our governmental institution, which has done us all proud in its performance. It would not be beyond the realms of imagination to suggest that in the process of its dealings with the public, particularly residents of housing estates, it has grown to be admirably patient and tactful. But enough is enough. The stage must have been reached at which admonition had to be backed by action. The file was placed before Mr Choy and a decision was taken. Even counsel for the applicant could himself offer no other alternative which would have been legitimately open to the Chief Housing Manager in the circumstances.

7. The main thrust of the argument advanced on behalf of the applicant by his counsel is that the Court should draw an inference from the proximity of the visit of I.C.A.C. on the 15th May 1989 to the recommendation for a notice to quit to issue made at the end of May 1989 that regard must have been improperly given to I.C.A.C. 's intervention. That, in my view, is a bold step to jump.

8. Be that as it may, this time element could not have operated on the approval given to the recommendation by the Chief Housing Manager, Mr Choy. Mr Choy took the decision almost immediately upon the presentation of the file to him. Needless for me to repeat that Mr Choy had little alternative but to approve the recommended notice to quit. Mr Choy noted in the file that there were I.C.A.C. enquiries, but he was not given in detail or at all, the precise nature of the I.C.A.C. enquiries nor the information that they sought. There is no evidence that either the I.C.A.C. visit or the motive, if any, of his subordinates had influenced Mr Choy. Neither the time element nor the I.C.A.C. involvement, as it is now called in these proceedings, could in the circumstances have had any bearing on his decision-making process in approving the issuance of the notice to quit.

9. When the matter was brought before the Tenancy Appeals Committee, so it is suggested, the I.C.A.C. involvement was presented as a relevant factor at the hearing. But that is not supported by the viva voce evidence of Mr Choy. According to Mr Choy who was responsible for compiling the documents for the Tenancy Appeals Committee, a reference was made therein to : "I.C.A.C. had involvements in the case", but he was adamant that the reference was "just to let members know that I.C.A.C. had investigated the case". Mr Choy was emphathic that the disclosure was made merely as part of the background information with no importance attached. In fact, the Housing Authority had numerous I.C.A.C. referrals every month.

10. Mr Choy was present when another Housing Authority officer Mr Wong opened the case before the Tenancy Appeals Committee. According to Mr Choy, Mr Gong (lid not even read out the discussion paper containing a reference to the I.C.A.C. visit. Mr Wong simply supplied core information, "like the name of the applicant, the address of the tenancy, the date and the grounds on which the tenancy was terminated ,the reasons given by the applicant and the Department's view of the case". Mr Choy had the benefit of his independent personal recollection and he had also refreshed his mind from the minutes of the meeting. He stated categorically that Mr Wong did not specifically mention the involvement of I.C.A.C. to the Tenancy Appeals Committee. This part of his evidence is at variance with the applicant's case, who also attended at the hearing. The applicant seemed to be a little confused under cross-examination. It is understandable that as an interested party, he displayed some determination to commit himself to a fixed version favour able to his application. I have very little hesitation in preferring the evidence of Mr Choy to that of the applicant's.

11. The proceedings therefore are devoid of any complexity or merit. No legal principle is involved and the factual issues are all one way. It cannot be said that the Hong Kong Housing Authority or its Tenancy Appeals Committee had taken in consideration any irrelevant matter as alleged or at all. In the result, the applicant cannot succeed. It remains for me to order that the application be dismissed with costs to the respondent.

12. Costs for the first part of the proceedings were reserved. The applicant was successful on the preliminary issue. It would seem that the applicant should have costs on the preliminary issue against the respondent. It may well be, subject to what counsel have to say, that these are proceedings in which costs would set off, one set against the other. It may well be that the proper order should be : no order as to costs.