CHAN CHI CHEONG MARSHA v. 上訴委員會 (房屋)

HCAL 814/2024

[2024] HKCFI 1618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 814 OF 2024

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D E C I S I O N

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A.  Introduction

1.  By his Form 86 dated 21 May 2024, the Applicant seeks leave to apply for judicial review so as to challenge a decision (“Decision”) of the Appeal Panel (Housing) (“Appeal Panel”) to confirm the Notice to Quit issued by the Hong Kong Housing Authority (“HKHA”) to him on 31 January 2024.

2.  By the Decision, the Appeal Panel rejected the Applicant’s appeal against the issuance to him of the Notice to Quit, terminating the lease of, and requiring him to vacate his HKHA public rental housing unit (“Unit”). Though the Applicant provided his address in his Form 86, he did not specify the address of the Unit in his Form 86 and supporting affirmation dated 22 May 2024 (“Affirmation”).

B.  Background

3.  The background as set out in the Affirmation is broadly as follows.

4.  The Applicant has been in rent arrears several times – in the circumstances of the socio-economic downturn caused by the pandemic, and the Government’s introduction of a relief measure that public housing tenants could apply to the Housing Department (“HD”) for rent deferral.

5.  The Applicant says the first time was in 2021, when he had to appeal so as to get back the tenancy agreement of the Unit, following the mistake committed by the staff of the HD who had lost application documents for rent deferral and only notified the Applicant of the loss after the application deadline had expired. As a result, the Applicant was not able to apply for the Hong Kong Government’s rent payment relief measures on that occasion. The decision of the Appeal Panel at that time was that the Applicant was allowed to get back the tenancy agreement and to pay back the rent arrears by instalments.

6.  The second time was in 2022, when the Applicant says there was another error made by the HD staff. As the details of the alleged error and its follow-up do not concern the subject of this application, it is not necessary to repeat the details here. On that occasion, the Appeal Panel allowed the cancellation of the Notice to Quit issued in February 2022 after the Applicant paid back all the rent in arrears by instalments.

7.  The Applicant says that the third time of rent arrears was in 2022. The Applicant says it was fortunate on that occasion that the Appeal Panel heard his submissions and made “a lenient decision”.

8.  In the present application, the Applicant objects to and seeks revocation of the Appeal Panel’s Decision to confirm the Notice to Quit issued to him on 31 January 2024 in respect of the fourth occasion of rent in arrears.

C.  The Intended Challenge

9.  As mentioned above, these proceedings were commenced on 22 May 2024.

10.  In the part of the Form 86 where the Applicant has identified the relief sought, he stated (in English translation):

1.  To quash/reverse the decision of the Appeal Panel affirming the HKHA’s decision to issue a Notice to Quit to the Applicant on 31 January 2024 to repossess the public rental housing unit occupied by the Applicant.

2.  To request the Appeal Panel to re-determine whether the HKHA should cancel the repossession of the Applicant’s public housing unit and allow him to reinstate his public housing tenancy agreement upon payment of all rent arrears.

3.  Prohibit/remove the 5-year freeze on the Applicant’s right to apply for public rental housing from 1 March 2024 to 28 February 2029 by the HKHA.

4.  Prohibit/remove the HKHA’s restriction on the Applicant that the 5-year freezing period will not be counted as part of the waiting time for public rental housing when he applies for public rental housing.

5.  Prohibit/remove the HKHA’s restriction on the Applicant that when he is allocated a public housing unit, he will not be allocated a public housing unit that is superior in terms of location, age and floor level to the public housing unit in which he is residing.

6.  Such further and/or other relief as the Court thinks fit.

11.  In the Affirmation, the Applicant’s “dissatisfactions” about the Decision and intended “Grounds” of Review are set out, and can be summarized as follows:

(1)  The Applicant is over 50 years old and for this reason, he is often rejected when he seeks employment. But the Applicant still insists on finding a job to earn money and does not apply for Comprehensive Social Security Assistance.

(2)  It is not the Applicant’s intention to default on the payment of monthly rent. In order to pay the rent, the Applicant has borrowed more than tens of thousands of dollars from relatives or friends to pay the rent in full.

(3)  The Applicant had proposed various immediate remedies to members of the Appeal Panel at the fourth appeal hearing.

(4)  It was only on the fourth time that the members of the Appeal Panel did not give due consideration to the above reasons which were beyond the control of the Applicant, the various remedies proposed by the Applicant, and the fact that the economic environment of Hong Kong in the year 2024 would be even worse than that in the preceding years.

(5)  Moreover, staff of the HD had expressed to members of the Appeal Panel that even if a determination was made to repossess the public housing unit occupied by the Applicant, if the Applicant had nowhere to stay, the HD will provide temporary accommodation to the Applicant. However, this is simply not the case. If the HD repossesses the Applicant’s public housing unit, the Applicant can only apply for a bed in a short-term temporary accommodation centre, which is geographically remote and has poor living conditions, or be forced to choose to sleep outdoors.

(6)  Moreover, since the Notice to Quit contains a 5-year freezing period, the Applicant cannot apply for various types of temporary subsidised housing during the 5-year freezing period. Therefore, the Applicant has reason to believe that members of the Appeal Panel were influenced by the inaccurate information provided by the HD staff before they made the decision to confirm the Notice to Quit.

(7)  In a case of rent arrears due to natural disasters, epidemics, deterioration of socio-economic environment, etc., which are beyond the ability of individuals to resolve, the following rulings are made against the Applicant: (a) repossession of the public rental housing unit; (b) no application for public rental housing during the 5-year freezing period; (c) the 5-year freezing period will not be counted as part of the waiting time for public rental housing; (d) when the Applicant is allocated public rental housing, he will not be allocated a public rental housing unit which is better in terms of location, age and floor level than his original public housing unit; (e) the number of years of waiting time after re-application for public rental housing.

(8)  In practice, the Applicant says, this is a case of multiple punishments for the same offence, and the penalties are too harsh, unfair and unreasonable.

12.  The Applicant did not provide any supporting documents for the present application. He has not even provided a copy of the Decision, and he did not provide any evidence for substantiating his allegation that the Appeal Panel members were influenced by any inaccurate information provided by the HD staff.

13.  But it seems the thrust of his case is that the Appeal Panel ought to have exercised leniency again, and that the orders made were too harsh, or that the Appeal Panel failed carefully to consider his practical circumstances. He does not assert that the orders made in the Decision were not open to the Appeal Panel as possible orders. Essentially, the Applicant complains that insufficient weight was given to his circumstances and the effect of the decision.

14.  This kind of complaint is not fertile territory for an application for leave to apply for judicial review, where (if an applicant is to be granted leave) the applicant must identify reasonably arguable public law grounds of review which have a realistic prospect of success. Unless the criticism amounts to an accepted allegation of Wednesbury unreasonableness or irrationality, the Court will not ordinarily interfere in the weighing exercise performed by the decision-maker.

15.  In any event, having considered the materials which have been provided by the Applicant, I do not find any reasonably arguable public law grounds. On the facts as explained by the Applicant, there is no reasonably arguable illegality, irrationality or unreasonableness in the public law sense.

D.  Result

16.  In the circumstances that the Applicant has failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success to challenge the Decision, the application for leave to apply for judicial review is dismissed.

17.  I make no order as to costs.