黃桂林 v. HONG KONG HOUSING AUTHORITY

HCAL 159/2018

[2019] HKCFI 940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 159 OF 2018

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D E C I S I O N

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1.  In his original home-made Form 86 dated 5 February 2018, the Applicant applied for leave to apply for judicial review of the decision of the Hong Kong Housing Authority (“the HA”) requiring him to move out of his public rental housing unit at Flat 328, Hung Cheong House, Hung Fuk Estate, Hung Shui Kui, Yuen Long, Hong Kong (“the Unit”).

2.  On 12 February 2018, the court directed that the question of leave to apply for judicial review should be considered at an oral hearing, with liberty to the HA to file evidence and attend the hearing to resist the application, in view of the Applicant’s failure to clearly set out the intended grounds of judicial review or the relevant background facts in either the Form 86 or his first affirmation in support of the application.

3.  On 25 May 2018, the Applicant was granted legal aid in these proceedings.  On or about 16 July 2018, the Applicant gave notice of intention to amend the Form 86, and sent to the court a draft Amended Form 86 dated 13 July 2018 prepared by his lawyers.  On 18 January 2019, the Applicant submitted to the court a draft Revised Amended Form 86.

4.  In the draft Revised Amended Form 86, the Applicant seeks to challenge:

(1)   the decision of the HA on 29 November 2017 to issue a Notice to Quite (“NTQ”) requiring him to vacate from the Unit; and

(2)   the decision of the Appeal Tribunal (Housing) (“the Tribunal”) on 11 December 2017 to confirm the NTQ.

5.  The leave hearing took place on 29 January 2019, and the application proceeded on the basis of the draft Revised Amended Form 86.  For reasons which I shall briefly explain below, I consider the intended application for judicial review to be reasonably arguable with a realistic prospect of success.

BASIC FACTS

6.  The Applicant first applied to the HA for public rental housing (“PRH”) on 31 May 2010.  At that time, he was unmarried and was therefore eligible to apply as an “Non-Elderly One-Person Applicant”.  A person who applies for PRH as an Non-Elderly One-Person Applicant is placed in a separate, shorter, queue than those applying in the category of “General Applicants”.

7.  On 15 March 2011, the Applicant got married to Ms Li Wei Ying (“Ms Li”), who was at that time a Mainland resident and had no right of abode in Hong Kong.

8.  On 14 April 2015, the HA notified the Applicant that he would be allocated the Unit.

9.  On 28 July 2015, Ms Li obtained a One-Way Permit, and on 15 August 2015, she came to settle in Hong Kong. According to the HA’s policy:

(1)   On the day that Ms Li obtained her One-Way Permit, the Applicant became no longer eligible to apply for PRH as a Non-Elderly One-Person Applicant.

(2)   The Applicant ought to have immediately informed the HA of the fact that his wife had obtained a One-Way Permit (which he failed to do).

(3)   Should the HA determine that Ms Li was eligible to be allocated a PRH unit together with the Applicant, they would be treated as General Applicants and placed in the “Ordinary Two-Person Family” queue.

10.  On 25 August 2015, the Applicant attended the Management Services Office of Hung Fuk Estate to undergo the flat in-take procedures.  On that date, the Applicant made what the HA contends to be a false declaration (“the Declaration”) that (i) Ms Li was currently residing in the Mainland, (ii) she did not have a One-Way Permit, and (iii) she did not have a Hong Kong identity card.

11.  On the same date, ie 25 August 2015, the HA granted a tenancy of the Unit to the Applicant.  It is the HA’s position that, had it been aware of the fact that the Applicant was no longer eligible to be considered as a Non-Elderly One-Person Applicant as from 28 July 2015, the Applicant would not have been allocated the Unit, and he and Ms Li would have to wait much longer in the Ordinary Two-Person Family queue before they would be allocated a PRH unit.

12.  On 10 November 2016, the HA became aware of the fact that Ms Li had obtained a One-Way Permit on 28 July 2015 when the Applicant tried to add her name to the Unit’s tenancy.  Following the HA’s investigation of the matter, on 26 April 2017, the Applicant was charged for the offence of knowingly made a false statement under Section 26(1)(c) of the Housing Ordinance, Cap 283 (“the Ordinance”).  On 24 August 2017, the criminal proceedings against the Applicant came to an end because the prosecution decided to offer no further evidence against him, for reasons which it is not necessary to set out in this decision.

13.  On 29 September 2017, the HA issued the NTQ to the Applicant, requiring him to vacate from the Unit on or before 31 October 2017, pursuant to Section 19(1)(b) of the Ordinance, which provides as follows: “Notwithstanding the terms thereof, the Authority may terminate any lease – (b) otherwise, by giving such notice to quit as may be provided for in the lease or 1 month’s notice to quit, whichever is greater”.

14.  On the same date, ie 29 September 2017, the Applicant lodged an appeal to the Tribunal against the HA’s decision to issue the NTQ pursuant to Section 20(1) of the Ordinance.  The Applicant’s main factual case is summarized in paragraph 7 of Ms Senia Ng’s Skeleton Submissions for the Applicant dated 21 January 2019, as follows:

“The Statements[1] were made during an intake interview which was conducted between the Applicant and one Ms Chung Siu Ying (“Ms Chung”) of Shui On on 25 August 2015. According to the Applicant, he had brought along Ms Li with him to the intake interview together with all relevant documents including Ms Li’s One-way Permit (“OWP”) and their marriage certificate. The Applicant asked Ms Chung how he should fill in Ms Li’s particulars into Form HD88C and Form HD1020C (“the Forms”), but Ms Chung told him that it was not necessary to do so as Ms Li had not yet obtained a Hong Kong Identity Card (“HKIC”) and did not have any work, assets or income. The Applicant originally thought that once Ms Li had obtained a OWP, she would be considered as being settled in Hong Kong, but Ms Chung’s indication of the importance of the HKIC suggested otherwise. The Applicant’s understanding was thus contradicted by what Ms Chung had said to him, but since Ms Chung was, to him, in a position of authority as a representative of HA, the Applicant trusted Ms Chung and believed in what she said. However, he then did not know how to fill in the Forms, and in a very confused state of mind upon being misled by Ms Chung, he wrote the Statements. Ms Chung signed on the Forms confirming her attestation as witness.”

15.  The Applicant’s appeal was heard on 5 December 2017.  At the hearing of the appeal, the Applicant made submissions, and answered questions put to him by the representative of the HA and the Tribunal.  On 11 December 2017, the Tribunal confirmed the NTQ under Section 20(3)(b) of the Ordinance.  It can be seen from the Tribunal’s reasons for decision contained in its letter dated 25 January 2018 that the Tribunal reached its decision by a majority of 2 to 1, with the majority taking the view, inter alia, that the Applicant could not possibly have forgotten about the physical circumstances of his wife at the time when he made the Declaration on 25 August 2015 in view of the fact that she only got her One-Way Permit about a week previously[2], and he made a false statement that his wife was currently residing in the Mainland and had not yet obtained a One-Way Permit.

DISCUSSION

16.  Four intended grounds of judicial review are advanced by Ms Ng on behalf of the Applicant in her Skeleton Submissions, namely:

(1)   illegality;

(2)   procedural impropriety;

(3)   proportionality; and

(4)   irrationality.

17.  At the hearing on 29 January 2019, Ms Ng focused her argument under Ground (1).  Ms Ng argues that the HA and the Tribunal fettered their discretion and/or failed to take into account all relevant considerations. This ground should, I believe, more appropriately be regarded as a ground based on “irrationality” instead of “illegality”.  Leaving this matter aside, the crux of Ms Ng’s argument is that the HA and the Tribunal were required to determine the Applicant’s allegation that he had been misled by Ms Chung as summarized in paragraph 14 above which, it is said, “affected his mind” in making the Declaration (see paragraph 33 of Ms Ng’s Skeleton Submissions).  She argues that “the knowledge and state of mind of the Applicant in making the [Declaration], and the context upon which the [Declaration was] made are relevant and material factors that the HA and the Appeal Tribunal should have taken into account” (see paragraph 34 of Ms Ng’s Skeleton Submissions).  Strong reliance is placed upon the following passages in the judgment of Deputy High Court Judge Andrew Cheung (as he then was) in Lo Yuet Hing v Hong Kong Housing Authority [2002] 4 HKC 391, at paragraphs 21 to 23 –

[21] In my judgment, the decision of the 1^st Respondent must be disturbed for two reasons. First, as was indeed accepted by counsel for the 1^st Respondent during the hearing, in a case of the present type, the knowledge or the lack of knowledge on the part of the tenant of the illegal activities that had been carried on in the premises is a relevant factor or consideration to take into account in the exercise of the 1^st Respondent's statutory power and discretion under section 19(1) of the Ordinance. This is indeed commonsense - for, everything else being equal, one would legitimately expect the treatment to be meted out to a tenant who was totally ignorant of the criminal activities should be different from that to be meted out to a tenant who was aware of those activities being carried on in his premises.

[22] As I said, counsel for the 1^st Respondent does not dispute with this at least as a matter of theory, but he argues that in practice given the reasons set out above, the 1^st Respondent is in no, or no good position, to verify these claims of innocence or ignorance that were invariably made by the tenants and their family members in cases of the present type. So in effect, a practice or policy has grown up that the 1^st Respondent would not determine or come to any conclusion on whether these claims were well founded or not. Indeed, Mr Ng, in his submission, says that not even a presumption of innocence or for that matter, a presumption of guilt, is applied by the 1^st Respondent to deal with these usual claims of ignorance. The 1^st Respondent simply makes no determination and comes to no conclusion on the claims. That notwithstanding, according to counsel as well as the evidence filed, what, as a matter of practice or policy, happened and what happened in the present case, was that "due weight" or "consideration" was accorded to the claim in the deliberation process.

[23] In my judgment, this is wrong. Once it is accepted, quite inevitably, that knowledge or ignorance is a relevant consideration for the 1^st Respondent to take into account in the exercise of its discretion under section 19(1) of the Ordinance, it is incumbent upon the 1^st Respondent to make a determination or to come to a conclusion, based on whatever material or information that is available to or before it, on the veracity of the claim of innocence or ignorance on the part of the tenant or the other family members. Without making such a determination or reaching such a conclusion, there is really no way that the 1^st Respondent could accord "due weight" or "consideration" to the claim of innocence; and without making the determination or reaching the conclusion, a relevant factor or consideration must, by definition, have been left out from the consideration of the 1^st Respondent, and that must quite fatally taint any decision reached by the 1^st Respondent in the purported exercise of its discretion under section 19(1) of the Ordinance.

18.  Lo Yuet Hing was a case where the HA terminated the lease of a 71-year old disabled tenant following the conviction of her adopted son, who also resided in the PHR unit, of the offence of trafficking in dangerous drugs based on his possession of dangerous drugs found inside a drawer of an unused mahjong table in the adopted son’s room in the subject premises.  The tenant and her two other adult sons who resided in the PHR unit all maintained their innocence when interviewed by the management staff of the HA.  Nevertheless, the HA issued a notice of quit to the tenant without making any determination on the claims of innocence by the tenant and other members of the family.

19.  On behalf of the HA, Ms Prisca Cheung argues that there is a fundamental distinction between Lo Yuet Hing and the present case, in that the HA issued NTQ to the Applicant in this case not as a penalty or in consequence of the fact that he had made a false declaration, but because the Applicant should never have been allocated the Unit in the first place.  According to Ms Cheung, even if the HA or Tribunal had made a detailed fact-finding investigation into the events of 25 August 2015 and concluded in the Applicant’s favour that he had been misled by Ms Chung as alleged, the same conclusion would have been reached that the Applicant ought to give up the Unit.  Ms Cheung says that the Applicant’s “loss of entitlement” to the Unit occurred before the date of the false Declaration on 25 August 2015 (viz on 28 July 2015 when Ms Li obtained the One-Way Permit), and not because of the false Declaration (see paragraphs 12, 13, 23 and 24 of the Skeleton Submissions of the HA dated 23 January 2019).  In making this submission, Ms Cheung relies heavily on the HA’s policy or guidelines on how to deal with false declaration cases.  In particular, in the HA’s Estate Management Division Instruction No.M17/2011, titled “Guidelines on Handling Suspected False Statement” dated 23 August 2011, the following is stated –

[25] In considering the tenancy actions (apart from or in addition to the prosecution actions), the general principle is to revert the tenancy conditions of the party concerned to the situation should he/she act honestly at the time of making the statement …

[27] Basing on the rationale that the HA should terminate a tenancy which would otherwise have been terminated if the tenant had acted honestly at the time of making statement, consideration has to be given to whether a tenancy should be terminated where –

(a)   a tenant/licensee or any AP is convicted of making a false statement knowingly at the time of his/her declaration under various housing management policies, in contravention of s.26(1); or

(b)   there is unequivocal evidence that a tenant/licensee or any AP has made a false statement but he/she cannot be prosecuted/convicted mainly due to action being time-barred or failure to prove the knowingly element of the case.

[30] If the fact of false statement has been established (whether by prosecution/conviction or no information can be laid) and the HA considers that the tenant/licensee should not have been eligible for allocation of additional housing resources or continuation of receiving public housing subsidy, it is open for the HA to terminate the tenancy by NTQ pursuant to s.19(1)(b) of the Housing Ordinance …

20.  Substantially the same policy is also set out in the HA’s management instruction manual on the subject of “Tenancy Enforcement”, Paper No A6 titled “Appeal against Termination of Tenancy”, at paragraphs 14.9, 14.10 and 14.6.

21.  Ms Cheung also argues that there is clear, incontrovertible, evidence that the Applicant made a declaration knowing that its contents were false on 25 August 2015, notwithstanding his allegation of having been misled by Ms Chung and that he was “confused”.  In this regard, Mr Cheung relies on the Applicant’s admission to the Tribunal at the hearing of the appeal on 5 December 2017 as well as his earlier admission to the HA in the course of a cautioned interview on 10 February 2017.

22.  While I consider Ms Cheung’s argument to have considerable force, Ms Ng’s contention that the HA and Tribunal were required to determine the Applicant’s state of mind when he made the false Declaration on 25 August 2015, which she says should include a consideration of the Applicant’s allegation that he was misled by the HA’s staff or agent (Ms Chung) into making the false Declaration, cannot be brushed aside at this stage.  Had this been a rolled-up hearing, I would have gone on to determine the issue finally.  However, in view of the state of the application then before the court on 12 February 2018, the present hearing was fixed to determine the question of leave to apply for judicial review only, and the relevant question for determination at this stage is whether the intended application for judicial review is reasonable arguable with a realistic prospect of success.  In my view, it is.  Having reached this conclusion, it would not be appropriate for me to express any further view on the merits of the Applicant’s case, particularly since whatever provisional view that I have reached may be changed after the parties have made full submissions on the issue at the substantive hearing of the application for judicial review.  Neither is it necessary for me to deal with the other grounds of judicial review advanced by Ms Ng on the Applicant’s behalf in this decision, nor would it be appropriate for me to do so in view of the fact that some of those grounds may raise issues overlapping with the question of whether the HA and Tribunal were under a duty to determine the Applicant’s state of mind when he made the false Declaration on 25 August 2015.

DISPOSITION

23.  For the foregoing reasons, I grant the Applicant leave to apply for judicial review on the basis of his draft Revised Amended Form 86.  The costs of the application for leave, including the costs of the hearing on 29 January 2019, shall be in the cause, save that there shall be no order as to the Applicant’s costs of preparing the draft Amended Form 86 dated 13 July 2018 or the undated Revised Amended Form 86 submitted to the court on 16 July 2018 and 18 January 2019 respectively.

24.  The Applicant shall submit to the court agreed directions for the further conduct of this application for judicial review, and inform the court of the available dates of their counsel for a 1-day substantive hearing during the period from August to December 2019, within 14 days from the date of this decision.  In the event that the parties are unable to agree on the directions, they shall respectively submit to the court their proposed directions together with the available dates of their counsel as aforesaid within 21 days from the date of this decision.  The court shall take into account counsel’s availability, but will not be bound by the same, when fixing the hearing date.

25.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.