DENG, SUET YAN v. HONG KONG HOUSING AUTHORITY AND ANOTHER

CACV 4/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 4 OF 2017

(ON APPEAL FROM HCAL NO 16 of 2015)

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

1.  The applicant was a tenant in a public housing unit at Tuen Mun. On 30 January 2014, the Housing Authority issued a Notice to Quit in respect of his tenancy on the ground that he had failed to retain regular and continuous residence in the unit in breach of Clause II (20) of the Tenancy Agreement of 28 April 2006.The applicant appealed to the Appeal Panel (Housing).

2.  The applicant did not dispute that he did not reside at the unit at the material times.  Investigation conducted by the Housing Authority revealed that from 22 January to 22 November 2012 there was no electricity consumption and at various points in time in 2013 when 25 visits were paid to the unit the applicant was not present.  There was also no water consumption from 7 May to 11 November 2013 and negligible electricity consumption.  From 29 October 2013 to 16 October 2014, according to immigration records, he was absent from Hong Kong for 252 days (out of a total of 353 days).

3.  The applicant’s case was that there was harmful volatile organic compound [“VOC”] in the air and water at the unit and he could not safely reside in it.  He also said he had complained to the Housing Authority regarding the same but did not receive any positive response. 

4.  At the hearing before the Panel, the applicant produced some laboratory test reports to demonstrate that the levels of VOC in the air and water at the unit exceeded some standards he referred to.  

5.  The Panel upheld the decision of the Housing Authority after hearing the applicant.  The decision was communicated to the applicant by a letter of 31 October 2014 and the reasons for the decision were set out in a minutes of 19 November 2014.

6.  In its reasons for decision, the Panel rejected the applicant’s case in these paragraphs:

“ 11. 上訴審裁小組考慮署方及上訴人所呈交的書面資料，以及上訴各方在聆訊上的提問及陳述後，得出以下結論：

(一) 署方的調查報告顯示，上訴人有長期離港的記錄，單位的水電用量低，曾經連續189天記錄得「零」耗水量，及156天記錄得「零」耗電量，署方有理據發出遷出通知書；

(二) 上訴人的上訴理由是上址單位的空氣及水質有問題，他身體多病痛，因為上址單位並不適合上訴人居住，他希望調遷至適合他居住的單位；此外，他認為上址單位並不適宜出租，房屋署要負起復修單位的責任，房屋署出租不適合人居住的單位，因此遷出通知書無效，他要求調遷至紅磡或其他屋邨的公屋單位居住；

(三) 上訴人提交的空氣及水質檢查報告，並沒有提及上址單位的空氣及水樣本對人類的影響，不論報告有沒有簽署，報告並未能證實上址單位並不適合人居住，因此，上訴人的上訴理據並不成立；

(四) 上訴人提供的醫療記錄（AP5）及（AP6）並沒有足夠證明顯示上訴人需要因病患而得到酌情考慮，至於上訴人認為他的身體情況並不適合在上址單位居住，上訴人已選擇到國內居住，在聆訊會上，他承認現時是在國內居住，但他有需要中港兩地往來；

(五) 文件（AP1）只能顯示上訴人曾經在香港城市大學就讀，沒足夠證據顯示上訴人在就讀香港城市大學期間有在上址單位居住；

(六) 文件（HA2）附件的資料記錄了上址單位在過去接近11個月的水電記錄 ，自2014年2月5日至2014年10月22日止（共260天），電錶讀數停留在04542.1度，並沒有變動，即「零」用電記錄；而上述時間的用水記錄，只有4天記錄得有用水量；相信上訴人在房屋署發出遷出通知書之後，仍然是非持續居住上址單位；

(七) 上訴人如有經濟或者其他需要酌情考慮的理由，應該要先得到有關的機構，例如社會福利署的批核，並發出證明文件支持上訴人有特殊酌情需要，委員已考慮上訴人提供的病歷資料，看不出上訴人需要特別酌情考慮。”

7.  Dissatisfied with that decision, the applicant sought leave to apply for judicial review against the decision. The application was heard by Au J and the applicant was represented by counsel at the hearing.  The grounds for seeking leave were set out in the Re-re-amended Form 86 attached to a summons of 13 June 2016.  Broadly speaking, three grounds were advanced: (1) Failure on the part of the Panel to investigation in breach of the Tameside duty[1]; (2) Procedural unfairness; and (3) apparent bias on the part of the chairlady of the Panel.

8.  On 12 December 2016, Au J refused to grant leave.  The reasons of the judge were set out in the CALL-1 Form, a copy of which was sent to the applicant.  The gist of the reasons can be found at paragraph 5:

“ 5. These grounds are not reasonably arguable:

(1) The Tribunal was not satisfied that the Reports (or other medical reports provided by the applicant) showed that the air and water samples would cause such health hazard to the applicant as he alleged to be suffering from. This is a fact finding conclusion that was reasonably open to the Tribunal to reach given that the Reports or the other reports do not state or contain any statements suggesting that these samples (with those VOC substances found to have contained in them at such quantity) would cause any health hazards, let alone causing the applicant’s alleged illnesses.

(2) Mr Law seeks to argue that the Table prepared by the applicant showed the relevant “standards” of the relevant VOC imposed by relevant organisations entitled “HKSWD”, “USBPAMCLG” and “USBPAMCL”. As such, there was at least prima facie evidence to show that the water and air samples contained certain identified VOC in such a quantity which went beyond these standards. However, as accepted by Mr Law when pointed out to him by the court, there was no objective evidence before the Tribunal to show (a) what these organisations are, (b) what these standards meant for, and (c) whether and how these standards are applicable to Hong Kong.

(3) It is in this respect that Mr Law further submits that the duty of fairness on the Tribunal (in particular when it is heightened and when the applicant was acting in person) is such that would require the Tribunal to (a) point to the applicant what was lacking in his evidence, (b) if the applicant could not answer it, the Tribunal should have adjourned the hearing to allow the applicant to look for the missing evidence, and (c) conduct the adjourned hearing later to see whether the applicant could come back with the evidence or not.

(4) The court does not accept the submissions. As rightly accepted by Mr Law, the applicant in the appeal bore the burden to show by sufficient and credible evidence at least a prima facie case that the air and water from the Flat contained such VOC which could render the Flat inhabitable in causing him the alleged illnesses. When the reports evidence advanced by the applicant were reasonably regarded by the Tribunal to be deficient to support even a prima facie case, it cannot be right that the Tribunal then has a duty of fairness and inquiry (even if, without determining that, heightened as contended for) to effectively “teach” the applicant how further to conduct and prove his own case. Mr Law’s reliance on R (on the application of Sayers) v Leasehold Valuation Tribunal [2005] EWHC 503 does not support his proposition. As observed by Collins J (as he then was) at p 605 lines 21-23, any duty on a tribunal to “seek out evidence” in circumstances where there appears to be a “difficulty, a discrepancy, or a question mark as to whether, in truth” the case does properly come before the relevant tribunal is limited to circumstances where there is already sufficient and credible evidence put before the tribunal to mount a prima facie case. As emphasized by Collins J, it would be too much to expect the tribunal to investigate itself and to seek out evidence when it “was not reasonably seen to be something which ought to be investigated”.

(5) In relation to the proposed ground based on interruption by the Chairlady at the hearing, insofar as the court can read from the transcript, the instances of alleged “interventions” made by the Chairlady relate to the Chairlady effectively seeking to require the applicant to stop repeating his submissions and answers in light of the limited issues raised in the appeal. In the court’s view, in light of the way and extent the applicant had been making submissions (as reflected in the transcripts) and the limited scope of the issues raised in the appeal, the Chairlady was justified to do so in exercising her power and discharging her duty to properly manage the hearing. This complaint has no merits.

(6) Finally, the apparent bias ground is equally a non-starter.  The applicant sought to ask the Tribunal to answer a rhetoric question posed by him.  As the Chairlady rightly pointed out, it was not for the Tribunal to answer such a question and she was correct in pointing it out to the applicant and asked him (in a firm way) to conduct his appeal in a measured manner.  It was reasonably open to the Chairlady to feel not respected when the applicant posed that question to the Tribunal, in particular in light of the fact that the appeal (which involved a limited scope of issues) had lasted for already two days.  Objectively read, it is not reasonably arguable that it would appear to an objective person, apprised of the relevant background and the circumstances pertaining to the appeal hearing, to find that there was a real possibly that the Tribunal will be biased in light of those commented by the Chairlady.”  

9.  The applicant appealed against the decision of Au J.  After hearing counsel, we dismissed the appeal and ordered the applicant to pay the costs of the Housing Authority in the appeal, such costs shall be taxed if not agreed.  We now give reasons for our decision.

10.  In the appeal, Mr Ng, representing the applicant, relied on substantially the same grounds canvassed before the judge.  Counsel however grouped the apparent bias ground under the heading of procedural unfairness.  We shall deal with this head of challenge first.

11.  Mr Ng pinpointed four matters under this head of arguments:

(a) The applicant was not properly informed of the procedure in advance;

(b) The Panel allowed different representatives from the Housing Authority to give answers without any sequences and without proper advance notice of their capacity and evidence;

(c) Unjustified intervention; and

(d) Apparent bias.

12.  Counsel said by reason of these matters (taken collectively) the applicant’s ability to effectively prepare and advance his case had been hampered and the process was unfair.

13.  We are not impressed by this submission.  One should bear in mind that this is an administrative appeal process and there should be some flexibility and informality in the procedure. As long as the process as a whole gives an appellant a fair opportunity to present his or her case, the law does not insist on a certain procedure (which may be applicable in judicial proceedings) to be adopted.

14.  We do not see any ground for complaint regarding the lack of advanced notice on procedure to be adopted and the procedure actually adopted for answering questions from the applicant. First, as accepted by Mr Ng, the chairlady had explained the procedure at the beginning of the hearing on the first day of hearing (28 August 2014).  Second, the hearing lasted two days and after the evidence of the Housing Authority there was an adjournment of about 2 months before it was resumed on 27 October 2014. The applicant had the opportunity to reflect on the procedures during the adjournment.  Third, the applicant had adequate opportunity to cross-examine the witnesses of the Housing Authority.  We reject the submission of Mr Ng that the applicant had not been able to cross-examine effectively by reason of the procedures adopted.  The chairlady had good reasons to reject the applicant’s request for further questioning of the witnesses of the Housing Authority in light of the basis on which the request was made.  Fourth, on the crucial issue in the appeal: the impact of the VOC, those witnesses did not have much input. Essentially, it was simply a matter of the sufficiency of the applicant’s evidence in that respect (which we shall discuss below).  Fifth, Mr Ng had not been able to draw our attention to any particular aspect in the course of evidence which arguably occasioned unfairness to the applicant in the presentation of his case or in his challenge to the case of the Housing Authority. 

15.  There is no basis for Mr Ng to suggest that the applicant was in a disadvantaged position because of his lack of legal representation.  He could have chosen to be legally represented and he did not do so.  Further, he was a law student and based on our reading of the transcript, we do not see any handicap on his part in cross-examining and presenting his case. 

16.  We agree with Au J that there is no reasonably arguable case of undue intervention by the chairlady in the process.  Mr Ng referred to the stopping of the questioning by the applicant regarding repair and maintenance.  The chairlady took the view that the case was not about repair and maintenance.  That interruption should be viewed against the background that by that stage the applicant had already questioned the Housing Authority witnesses regarding actions taken by them in respect of his complaint about the air and water at the unit.  The representative of the Housing Authority explained what action had been taken and the examination of the complaint of toxic gas by the Fire Services in August 2013 upon an emergency call made by the applicant himself[2].  Thus, the chairlady was justified in taking the view that the applicant was moving onto some other maintenance issues which had nothing to do with the present case.  This is particularly so when the applicant did not explain he was actually reverting back to the topic he had already covered and why he needed to do so.

17.  We are also in agreement with the judge that the applicant does not have a reasonably arguable case on apparent bias.  We have read the parts of the transcript which Mr Ng relied upon to run this part of his argument.  Whilst there are remarks from the chairlady which we would not endorse, we do not find anything remotely approaching the threshold which could form the basis of a reasonable argument that a fair-minded and informed observer would find a real possibility of bias. 

18.  On the whole, we do not find the case of the applicant on procedural unfairness to be reasonably arguable.     

19.  Turning now to the Tameside duty, Mr Chan SC (leading Ms Cheung) helpfully reminded us of the relevant principles as set out by Hallett LJ in R (Plantagenet Alliance) v Secretary of State for Justice [2015] 3 All ER 251 at [100]:

“ (2) Subject to a Wednesbury challenge (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223), it is for the public body, and not the court to decide upon the manner and intensity of inquiry to be undertaken (R (on the application of Khatun) v Newham London BC (Office of Fair Trading, interested party) [2004] EWCA Civ 55, [2004] LGR 696, [2005] QB 37 at [35] per Laws LJ).

(3) The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision (R v Kensington and Chelsea Royal London BC, ex p Bayani (1990) 22 HLR 406 at 415 per Neill LJ).

(4) The court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient (per Schiemann J in R v Nottingham City Council, ex p Costello (1989) 21 HLR 301; cited with approval by Laws LJ in (R (on the application of Khatun) v Newham London BC at [35]).

(5) The principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant, but from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion (R v Secretary of State for Education, ex p Southwark London BC [1995] ELR 308 at 323 per Laws J).

(6) The wider the discretion conferred on the Secretary of State, the more important it must be that he has all relevant material to enable him properly to exercise it (R v Secretary of State for the Home Dept, ex p Venables, R v Secretary of State for the Home Dept, ex p Thompson [1997] 1 All ER 327 at 378, [1998] AC 407 at 466).”

20.  In the present case, the Panel had examined the applicant’s complaint about the presence of VOC against the evidence put forward by the applicant.  Their conclusion was that the reports relied upon by the applicant did not establish that the unit was uninhabitable.  The Panel also considered another fact pointing against the applicant’s case of not residing there on account of it being uninhabitable. It took account of his decision to reside in the mainland. 

21.  Thus, it cannot be said (as Mr Ng tried to argue before us) that the Panel had not asked itself the right question.  It plainly had.  Nor can it be said that the Panel had not taken reasonable steps to acquaint with all relevant considerations.  It had paid regard to the relevant evidence.

22.  The real complaint of the applicant was the Panel’s rejection of the reports as evidence showing that the unit was uninhabitable. 

23.  In this connection, it should be noted that the case of the applicant, as understood by the Panel, was that the unit was uninhabitable.  It was not simply a matter of VOC being found at the unit or health hazard.  There are different degrees of health hazards.  The Panel apparently took the view that one cannot regard the presence of VOC above some standards as sufficient proof of the unit being uninhabitable.

24.  Mr Ng submitted that with such evidence the Panel should, in line with its Tameside duty, pursue further inquiries.  Whilst accepting that the manner and intensity of inquiry are matters for the Panel (subject to the test of Wednesbury reasonableness), Mr Ng contended no reasonable tribunal would have accepted that the test result of the Fire Services Department carried on 31 August 2013 as sufficiently cogent to rebut the combined effect of the reports and the standards the applicant relied upon.

25.  On the other hand, Mr Chan submitted that it was reasonably open to the Panel to come to the conclusion it did on the question of habitability of the unit in view of the evidence tendered before it.  Mr Chan also said that there was no basis to query the test result of the Fire Services Department. 

26.  On proper analysis, we think it is more a matter of the Wednesbury rationality of the Panel’s assessment of the evidence than a matter of their discharge of the Tameside duty.  The stark reality was that the applicant had run his appeal before the Panel based on evidence which the Panel, after assessment, found to be inadequate.

27.  The Housing Ordinance does not impose any duty on the Panel to conduct an inquiry on its own volition.  Its function is simply to hear and decide an appeal under Section 20 of the Housing Ordinance.  There is obviously no duty on the part of the Panel to direct further evidence to be obtained when a party fail to adduce sufficient evidence to support his own ground of appeal.  Mr Ng did not explain in his written submission what other step or steps the Panel should have undertaken in the discharge of the Tameside duty.  In his oral submission, he argued that the Panel could direct the Fire Services Department to conduct some tests.  We doubt if the Panel has the power to direct investigation by a party not before it as there is nothing in the Housing Ordinance to suggest that the Panel could give such direction.  As Mr Chan submitted, the appeal process is primarily an adversarial one.  In a situation like the present one, we do not think it is reasonably arguable that the Panel had a duty to intimate to the applicant that the reports and the standards he relied upon were inadequate to prove his case. 

28.  Assessment of evidence is a matter for the Panel.  We agree with the judge that it was reasonably open to the Panel, on the evidence before them, to conclude that the case of the applicant on habitability of the unit was not established.

29.  We do not think there is a reasonably arguable case on breach of the Tameside duty on the part of the Panel.

30.  For these reasons, the appeal must be dismissed as the judge was correct in refusing to grant leave.

31.  We have not discussed if the European jurisprudence and English authorities on proportionality regarding decisions evicting a person from public housing are applicable in Hong Kong as we do not find it necessary to do so.  In the absence of any argument in that respect from Mr Chan, we prefer to leave that question open in this judgment as we have been able to determine the appeal without deciding it.