MAN CHEUK HEI ALICE v. THE HONG KONG HOUSING AUTHORITY AND ANOTHER

HCAL 2142/2019

[2020] HKCFI 1339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2142 OF 2019

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JUDGMENT

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Introduction

1.  On 26 July 2019, the Applicant filed her Form 86 (the “Form 86”).  She seeks:

(a)  an extension of time for her to file an application for leave to apply for judicial review; and

(b)  if time is extended, leave to apply for judicial review for a certiorari to quash the following decisions:

(i)   the decision (the “Termination Decision”) of the Hong Kong Housing Authority (“HKHA”) made on 31 October 2019 to terminate the tenancy of Flat 3510, Fuk On House, Ka Fuk Estate, Fanling (the “Flat”) and to issue the notice to quit (the “Notice to Quit”); and

(ii)  the decision (the “Tribunal Decision”) of the Housing Appeal Tribunal (the “Appeal Tribunal”) made on 22 January 2019 confirming the Termination Decision.

2.  On 28 August 2019, Chow J ordered that there be a rolled‑up hearing.

3.  This is the rolled‑up hearing.

The evidence

4.  Before me are the following affirmations:

(a)  the Applicant’s affirmation of 26 July 2019 in support of her Form 86 (“A/1^st”);

(b)  the affirmation of Mr To Chak Foo dated 1 November 2019 (“Mr To” and “To/Aff”) made for and on behalf of the HKHA. Mr To is a Housing Manager of the HKHA. Part of his job duties is to handle the tenancy matters of Ka Fuk Estate; and

(c)  the Applicant’s 2^nd affirmation of 28 November 2019 in reply (“A/2^nd”).

5.  The Appeal Tribunal as usual takes a neutral stance to the applications. No evidence has been filed on its behalf.

The Flat, the Applicant, and the Tenancy Agreement

6.  The Flat is a public housing unit.

7.  The size of the Flat is 16.9 sq m.

8.  On 19 January 2015, the Applicant was allotted the Flat. The tenancy agreement for the Flat (the “Tenancy Agreement”)[1] was dated 19 January 2015. It was signed by the Applicant as the tenant.

9.  Clause II(20) of the Tenancy Agreement stipulates, amongst other term, that:

“ ... It is expressly agreed that the Tenant and all family members listed shall take up the tenancy of the said premises within one month after the commencement of the tenancy, and thereafter retain regular and continuous residence therein.”

10.  Schedule 7 of the Tenancy Agreement is a table which bears the heading of “Tenant and Family Member(s) (see Clause II(20))”. In that Schedule, only the name of the Applicant appears.

The complaint, the investigations, and the Notice to Quit

11.  The following facts are gathered primarily from To/Aff.

12.  In February, the District Tenancy Management Office (“DTMO”) of the HKHA received a complaint that the tenant for prolonged period did not occupy the Flat.

13.  HKHA as a result undertook an initial investigation (the “1^st Stage Investigation”). Between 28 February and 16 May 2018, HKHA scheduled 3 visits to the Flat. On all those 3 occasions, no one answered the door.

14.  From 1 March to 16 May 2018 (a total of 77 days):

(a)  according to the electricity meter, only 17.9 K[2] of electricity had been consumed; and

(b)  according to the water meter, only a negligible 0.0001 unit of water had been consumed.

15.  Between 25 May and 28 August 2018, an in‑depth investigation (the “2^nd Stage Investigation”) was carried out by the Public Housing Resources Management Sub‑section (“PHRM”). During that period of 96 days:

(a)  the total electricity consumption of the Flat was found to be 44.3 K (equivalent to average daily consumption of 0.4615 K);

(b)  the total water consumption of the Flat was found to be 0.7569 unit (equivalent to average daily consumption of 0.0079 unit);

(c)  members of the PHRM made a total of 17 random home visits to the Flat[3] (including twice in the morning (at 0730 and 0755), twice at night (at 2120 and 2040), once on a Saturday (at 1545), and once on a Sunday (at 1620). On each of those visits, the doorbell to the Flat was pressed. No one answered the door.

16.  Overall, during the period between 1 March and 28 August 2018 (181 days in total), there were 155 days on which the Flat consumed no water, and 61 days on which the Flat consumed no electricity.

17.  According to Mr To[4]:

“ Based on our estimate, a general household of 1 member shall incur about 2.16 K per day for electricity and 0.06 unit per day for water.”

18.  On 16 August 2018, PHRM left a note[5] (the “Appointment Letter”) at the Flat. The Applicant was asked to make an appointment with the PHRM Investigation Officer on or before 31 August 2018. According to Mr To[6]:

“ The purpose of this appointment is to enable PHRM to verify if the record of the reading may be caused by the disrepair or malfunction of the installations and to liaise with the Applicant to hear her version of the story reconciling the low consumption rate and the absence of any occupant in the Flat.”

19.  The Applicant contacted the PHRM Investigation Officer on 28 August 2018. She was told that her file was closed. No appointment was hence made.

20.  On the basis of the evidence that had been gathered, HKHA came to the decision that the Applicant had acted in breach of Clause II(20) of the Tenancy Agreement. The Notice to Quit of 31 October 2018[7] was then issued. The Applicant was given one month’s notice to vacate the Flat.

21.  According to Mr To[8], other than the 1^st Stage and 2^nd Stage Investigations, DTMO had instructed staff of Property Management Services Office (“PMSO”) to keep track of the water and electricity consumption of the Flat and to pay visits to the Flat from 3 May 2018 to 28 November 2018. The records of those visits during that period was included as Annexure 6 of the Memo (as defined below). Those visits that were made between 1 September and 28 November 2018 (hence after the Termination Decision) have been called by Mr To “Post Termination Investigation”, which term I will adopt.

The Appeal Tribunal

22.  On 6 November 2018, the Applicant lodged an appeal against the Termination Decision. She has the right to do so under s 20(1) of the Housing Ordinance, Cap 283 (the “HO”).

23.  The Appeal Tribunal was subsequently appointed under s 7A(6) of the HO. The Applicant’s appeal was scheduled to be heard on 11 January 2019.

24.  On 21 December 2019, to facilitate the hearing of the then pending appeal, HKHA prepared and submitted a document entitled “Summary for Memorandum of Meeting”[9] (the “Memo”). A copy of the Memo had been served upon the Applicant before the hearing of the appeal.

25.  On 11 January 2019, the Appeal Tribunal heard the Applicant’s appeal. The Applicant personally attended the hearing. Notes of proceedings[10] (“Notes of Proceedings”) and transcript of the hearing[11] (the “Transcript”) are available. She was explained the procedure to be adopted. She was afforded the opportunity to ask representatives of the HKHA questions. She was further afforded opportunity to explain her grounds of appeal. Members of the Appeal Tribunal asked her questions, which she was afforded the opportunity to answer.

26.  By letter of 22 January 2019, the Appeal Tribunal notified the Applicant of its decision that the Notice to Quit was confirmed.

The Applicant’s application for legal aid

27.  On 8 February 2019, the Applicant made an application for legal aid. The Applicant says[12] that she did so with the intention of lodging judicial review against the Termination Decision and the Tribunal Decision.

28.  By letter of 26 March 2019, the Applicant was informed by the Legal Aid Department that her application for legal aid was refused.

29.  On 8 April 2019, the Applicant lodged an appeal against the refusal of her application for legal aid.

30.  By letter of 26 April 2019, HKHA requested the Applicant to provide information on the progress of her application for legal aid. By email of 9 May 2019, the Applicant provided certain information to the HKHA.

31.  By letter of 28 May 2019, HKHA wrote to the Applicant and informed her that the time for her to lodge judicial review had expired. She was further informed by the HKHA eviction action would be resumed.

32.  On 26 July 2019, the Applicant filed her Form 86.

The proposed grounds

33.  The following grounds are gathered from the Form 86 filed by the Applicant.

34.  Ground (1) relates to her application for an extension of time. She says an extension may be granted to her as she had an honest albeit erroneous belief that her application for legal aid was the intended application for leave to apply for judicial review itself.

35.  Grounds (2) to (5) are as follows:

“(2) The [HKHA] and the [Appeal Tribunal] fettered their discretion and/or failed to take into account all relevant considerations (which were required to be but were not properly determined), in particular:-

(i) The Applicant’s allegation that the records of investigation visits conducted by the [HKHA] (‘the Investigation Records’) was inaccurate and/ or unreliable and/ or untrue;

(ii) The fact that all the investigations were conducted either early in the morning (i.e. at either around 7 a.m. or 9 a.m.) or evening at around 9 p.m. when the Applicant was never home according to her work schedule and the relevant evidence provided by the Application at the Appeal Hearing;

(iii) the Applicant’s habits of living and the relevant evidence provided by the Applicant at the Appeal Hearing;

(iv) The fact that the Applicant works at a clubhouse which provides shower facilities, usage of which is encouraged by the Applicant’s employer;

(v) The fact that the Applicant had to take care of her dog which was ill during the period from around March to August 2018 and the relevant evidence provided by the Applicant at the Appeal Hearing;

(vi) The fact that the Applicant had to attend evening classes after work until around May 2018 and the relevant evidence provided by the Applicant at the Appeal Hearing; and

(vii) The error made by the [HKHA] in relation to the date of deadline on the [Appointment Letter].

(3) The [HKHA] and the [Appeal Tribunal] took into account irrelevant considerations including whether those Investigation Records challenged by the Applicant was favorable to the Applicant’s case — which clearly does not have bearing on their reliability and/ or veracity.

(4) Due to their failure to take into account all relevant considerations as mentioned at (2) above and their error to take into account irrelevant considerations mentioned at (3) and in any event, the [HKHA] and the [Appeal Tribunal] failed to arrive at a reasonable and/ or rational conclusion based on all the relevant materials before them that:-

(i) The Investigation Records were simply inaccurate and/ or unreliable and/ or untrue, and/ or to the very least unreliable for the purposes of issuing the [Notice to Quit] as they do not provide sufficient/ safe basis for the conclusion that the Applicant had not been in regular and continuous residence in the Flat during the Material Period; and

(ii) The Applicant had provided plausible reasons for (with evidence in support of the same) low consumption of water and electricity in the Flat during the Material Period and these readings therefore do not provide sufficient/ safe basis for the conclusion that the Applicant had not been in regular and continuous residence in the Flat during the Material Period.

(5)  The [HKHA] had admittedly breached natural justice by depriving the Applicant of the opportunity of scheduling a visit, the lack of which had led to the issuance of the [Notice to Quit] whereas the [Appeal Tribunal] had failed to take into account such failure/ error on the part of the [HKHA] in dealing with the Appointment Letter and in any event fettered their discretion and/ or failed to arrive at a reasonable and/ or rational conclusion that the [Notice to Quit] was simply issued on an erroneous basis with no fault on the Applicant’s part.”

Extension of time

36.  I have been referred to AW v Director of Immigration (unrep, CACV 63/2015, 3 November 2015) wherein Kwan JA, with reference to the judgment of G Lam J in Re Thomas Lai [2014] 6 HKC 1, set out at §27 the principles to be applied in considering an application for extension of time for leave to seek judicial review. I apply those same principles.

37.  I reiterate that all applications for leave to apply for judicial review should be made promptly. This is important. Unless they are made promptly, and unless a disciplined approach to late applications is taken, there is a real risk that public administration will be unduly disrupted, and policies and decisions put into prolonged uncertainty.

38.  I do not lose sight on the other hand that what may constitute a good reason for extending time is a multi‑faceted question, the answer to which would depend on the circumstances of each case.

39.  In the present case, I note that the Applicant applied for legal aid about 10 days after she was notified of the Tribunal Decision. When legal aid was refused, she sought an appeal within 2 weeks. This case in my view does not fall into the type of cases where the applicant sleeps upon their rights, so that they should be barred from pursuing judicial review irrespective of the merits of the proposed application.

40.  I note also that this is a rolled‑up hearing.

41.  On the facts of this case, I am prepared to take a practical approach and proceed first to consider the merits of the Applicant’s proposed application for leave. I will at the end of this judgment come back briefly to this question of extension of time.

Grounds (2) to (4)

42.  I have reproduced above Grounds (2) to (4) set out in the Applicant’s Form 86.

43.  Mr Lam, counsel for the HKHA, submits at §5 of his submissions that those grounds should properly be regarded collectively as a ground based on irrationality. He relies on黃桂林 v HKHA [2019] HKCFI 940, per Chow J at §17.

44.  I agree. Indeed, in the course of the hearing, Ms Chan, counsel for the Applicant, accepted that to be so.

45.  Mr Lam further submits at §§6 and 7 of his submissions that:

“ 6. The test is thus Wednesbury reasonableness, i.e. whether a decision is so unreasonable that no reasonable tribunal could have made that decision.

   7. The reality is that the Applicant had run her appeal before the [Appeal] Panel based on evidence which the [Appeal] Penal, after assessment, found to be inadequate. Assessment of evidence is a matter for the [Appeal] Panel, not this Court, and this application is not to be treated as an appeal of fact (Deng Suet Yan v HKHA [2017] 4 HKLR 73 … §§26, 28 per Lam VP).”

46.  I set out §§ 6 and 7 of Mr Lam’s written submissions in full because in the course of the hearing, Ms Chan informed this Court that she also accepted those 2 paragraphs.

47.  During the hearing, Ms Chan further conceded that the appeal process before the Appeal Tribunal is adversarial in nature, and there is no Tameside duty on the Appeal Tribunal to conduct any inquiry on its own volition.

48.  Indeed, in the light of Deng Suet Yan, I do not believe Ms Chan has any option other than making the above concessions.

49.  Deng Suet Yan was also a case in which the applicant sought leave to challenge the HKHA’s decision to evict him, and the Appeal Tribunal’s subsequent decision to confirm the same. In that case, in the course of his appeal before the Appeal Tribunal, the applicant adduced a report which he claimed proved that the flat concerned was uninhabitable as there was a volatile organic compound (“VOC”) in the air and water. He claimed that that was the reason why he did not live in that flat. On the evidence before it, the Appeal Tribunal concluded that the case of the applicant on the inhabitability of the flat was not proved. The applicant’s application for leave to apply for judicial review was dismissed. In dismissing the applicant’s appeal, Lam VP observed and held as follows:

“ 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 mainland China.

21. Thus, it cannot be said (as Mr Ng tried to argue before us) that the Panel had not asked itself the right questions. It plainly had. Nor can it be said that the Panel had not taken reasonable steps to acquaint itself 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.

…

24. Mr Ng submitted that with such evidence the Panel should, in line with its Tameside duty, pursue further inquiries …

…

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 (Cap.283) 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 s.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 failed to adduce sufficient evidence to support his own ground of appeal … 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.”

50.  Despite Deng Suet Yan, and despite her concessions, Ms Chan nonetheless submits that this is an appropriate case for this Court to review the facts because, so she submits, the Tribunal Decision was not supported by substantial evidence, that there has been misdirection of material facts, and that the Appeal Tribunal has disregarded material facts.

51.  I have no hesitation is rejecting those submissions. I have considered the Notes of Proceedings. I have also considered the Transcript. The Appeal Tribunal has carefully considered and weighed the evidence adduced respectively by HKHA and the Applicant. In my view, the Applicant’s case that the Tribunal Decision is Wednesbury unreasonable is unarguable.

52.  Ms Chan at §13 of her written submissions relies on De Smith’s Judicial Review (7^th Edition) §§11-047 and 11-052, that:

“ Despite dicta attempting to restrict judicial review on questions of fact to situations where the public authority is acting ‘perversely’, review of facts has been permitted in the following situations: (a) where the existence of a set of facts is a condition precedent to the exercise of a power … ; (b) where there has been a misdirection, disregard or mistake of material fact; and (c) where the decision is unsupported by substantial evidence.

…

   [Decisions unsupported by substantial evidence] encompasses situations where there is ‘no evidence’ for a finding upon which a decision depends or where the evidence, taken as a whole, is not reasonably capable of supporting a finding of fact. Such decisions may be impugned as ‘irrational’ or ‘perverse’, providing that this was a finding as to a material matter …”

53.  This is however not a case of there being “no evidence” for a finding; nor one where the evidence taken as a whole “not reasonably capable of” supporting the finding. Ms Chan at §14 of her written submissions suggests that the evidence before the Appeal Tribunal does not “sufficiently support” the conclusion, and that the Applicant had provided “plausible reasons” in relation to certain factual matters which the Appeal Tribunal did not accept. Those on the facts of this case are matters that go to assessment of evidence, which, as observed by Lam VP in Deng Suet Yan, are for the Appeal Tribunal.

54.  Ms Chan then submits[13], with reference to the explanations given by the Applicant before the Appeal Tribunal (as set out in Ground (2)(iii), (iv), (v) and (vi)), that “[the Appeal Tribunal] did not properly challenge such explanations and were therefore bound by her evidence on them”. But:

(a)  the appeal process before the Appeal Tribunal is adversarial in nature;

(b)  there is no Tameside duty on the Appeal Tribunal to conduct any inquiry on its own volition;

(c)  Ms Chan has now accepted the above to be so;

(d)  further, in the course of the hearing, I invited Ms Chan to explain to me what, in her submission, the outer parameters of any such duty to challenge on the part of the Appeal Tribunal, if one existed, were. I asked specifically whether the Appeal Tribunal has the duty to “put case” to the Applicant. With respect, Ms Chan was not able to define the scope of such an alleged duty;

(e)  In the end, Ms Chan realistically abandoned the point, which I in any event would have rejected.

55.  Ms Chan then submits that[14]“[the] accuracy and/or reliability of the Investigation Records were simply inaccurate and/or unreliable and/or untrue, and/or to the very least unreliable for the purposes of issuing the [Notice to Quit]”. But those parts of the records under challenge, as accepted by Ms Chan, were all part of the Post Termination Investigation. They were carried out by the PMSO, but not DTMO or PHRM. In effect, the Applicant’s case in this regard as put forward by Ms Chan is that in the light of certain inaccuracies in some of the visits which formed part of the Post Termination Investigation, all investigation records “on the whole”[15], even in respect of those carried out by the PHRM as part of the 2^nd Stage Investigation, have become unreliable. I have considered the nature of those challenges. I see no basis for that submission[16]. The Appeal Tribunal has in any event considered the evidence and the challenges (see §31(5) of the Notes of Proceedings). I repeat, assessment of the evidence is for the Appeal Tribunal.

56.  In conclusion, Ms Chan at §15 of her written submissions submits, with reference to §8.23.1 of Supperstone, Boudie & Walker on Judicial Review (5^th Edition), that the Tribunal Decision “is not reasonably capable of being supported by the evidence taken as a whole” (her original emphasis). I do not agree. In my view, it was reasonably open to the Appeal Tribunal, on the evidence before them, to reach the Tribunal Decision. This is not a matter for judicial review.

57.  I dismiss Grounds (2) to (4).

58.  Having expressed my view above, there is no need for me for the disposition of Grounds (2) to (4) to express my view on the strength of the evidence adduced by the HKHA against the Applicant before the Appeal Tribunal. But if necessary, I would rule that the evidence against the Applicant was on the whole, and in particular given the evidence on the meter readings, overwhelming. This view of mine may however be relevant to the disposition of Ground (5), which I now turn to.

Ground (5)

59.  Mr Lam has cited to me Cheung Shing Ki v The Housing Appeal Panel (unrep, HCAL 66/2000, 2 March 2001). By way of supplemental submissions filed on 9 June 2020 (after the hearing but with leave), he relies on ATV v Communications Authority (No.2) [2013] 3 HKLRD 618 (per Kwan JA at [54(6)]) and Yeung Bing Kwong Kenneth v Mount Oscar Ltd [2019] 3 HKLRD 575 (per Kwan VP at §24) and submits that in the context of the principles of natural justice, the extent of what fairness demands is dependent on the context of each case.

60.  In her supplemental submissions dated 12 June 2020 (filed again with my leave after the hearing), Ms Chan highlighted §54(8) of the judgment in ATV. She submits that the test is whether there is a risk of prejudice. She has also raised for my consideration Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679 and Ng Man Yin v Registration of Persons Tribunal [2014] 1 HKLRD 1118, which I have considered. She has in addition cited Kwok Ka Yin Phyllis v The Solicitors Disciplinary Tribunal (unrep, HCAL 93/2004, 12 July 2006) for the proposition that even in situations where technical breach of procedural fairness has resulted in no prejudice at all in terms of substantive merits and outcome, the courts should proceed with great caution.

61.  With respect to counsel, I have reservations about the applicability of ATV, Chu Ping Tak and Ng Man Yin to the present case. All 3 cases were concerned about non‑disclosure of materials: in ATV, refusal by the Communications Authority to disclose certain interview records; in Chu Ping Tak, non‑disclosure of a 21‑page document which the Deputy Commissioner of Police had seen before dismissing the applicant’s appeal to him; and in Ng Man Yin, refusal by the Registration of Persons Tribunal of the applicant’s application for disclosure of unredacted correspondence which the Commissioner of Registration had relied upon. In a case of non‑disclosure of potentially relevant materials, the outcome of the decision if the disclosure had been made could be difficult to gauge. We are however not concerned with those scenarios.

62.  It may also be noted that judicial review is a discretionary remedy. Even if there had been any breach of natural justice, the absence of any risk of any substantial resulting prejudice is a factor to be taken into account when deciding whether any relief may be granted.

63.  In the present case, it is true that the Applicant was invited by the Appointment Letter to make an appointment with the PHRM Investigation Officer on or before 31 August 2018, but that when she ultimately called on 28 August 2018, she was told that her file was closed.

64.  I however agree with Mr Lam that the Applicant has suffered no prejudice as a result. In my view, there is no risk of any prejudice:

(a)  the HKHA need not have provided the Applicant with the opportunity to arrange for an appointment in the first place, as there is no rule which requires it to do so;

(b)  The Applicant has been afforded the chance to run an appeal before the Appeal Tribunal;

(c)  Her complaint in relation to the Appointment Letter was raised before the Appeal Tribunal, which the Appeal Tribunal had taken into account[17];

(d)  The Appeal Tribunal has considered her case in full; and

(e)  As I have observed above, the overall evidence against the Applicant was overwhelming;

(f)  This is not one of those cases relating to non‑disclosure of potentially relevant materials where the outcome of the decision, if the disclosure had been made, could be difficult to gauge.

65.  I dismiss Ground (5).

Back to the Applicant’s application for extension of time

66.  I now come back to the Applicant’s application for extension of time. In the light of my views and conclusions on the substantive grounds which the Applicant intends to put forward, I refuse also the Applicant’s application for extension of time. This court does not act in vain.

Disposition

67.  For the reasons set out above, I dismiss (and would have dismissed) all the applications made by the Applicant via the Form 86.

Costs

68.  I made a costs order nisi that the Applicant should bear HKHA’s costs of the action, to be taxed if not agreed.