MAK LAI WAH v. HOUSING AUTHORITY AND ANOTHER

HCAL 1033/2025

[2025] HKCFI 3502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1033 OF 2025

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J U D G M E N T

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A.  Introduction

1.  The Applicant and the Interested Party (“Daughter”) are the registered tenants/household members of a public housing unit in Kwai Shun House, Kwai Fong Estate (“Unit”), and have been since the commencement of the material tenancy in 2005. The following facts are of particular relevance:

(1)  Although the Daughter has at all material times remained as a registered tenant/household member, she in fact moved out of the Unit when she married her husband (“Husband”) as long ago as 2009.

(2)  From the date when the Daughter moved out of the Unit to take up residence with the Husband in their matrimonial home, plainly the Daughter had no need for public housing.

(3)  Nevertheless, in numerous dealings with the 1^st Putative Respondent (“HA”) since 2009, the Applicant and the Daughter have at least implicitly held the Daughter out as continuing to be resident at the Unit (and so also having a continuing requirement for public housing). That was not true.

(4)  In 2015, in dealings with the HA about possible relocation of the Applicant and the Daughter to smaller accommodation than the Unit, the Daughter apparently described herself as being “unmarried”. That was not true.

(5)  In 2019, the Daughter purchased a domestic property (“Flat”). Her evidence in these proceedings is that the real owner of the Flat is the Husband, that she is a bare trustee, and that she was only named as the legal owner so as to avoid the additional stamp duty as would otherwise have been payable if the property were placed in the Husband’s name, because the Husband was already the beneficial owner of another property held in his name. For that to have been effective, the Daughter would have had to have declared to the Stamp Duty Office that she was acting on her own behalf (i.e. was the legal and beneficial owner) when purchasing the Flat. But, on her current evidence, that was not true.

(6)  As the registered tenants/household members, the Applicant and the Daughter were required to make biennial declarations as to their income and assets, necessary under the well-off tenants policies (“WTP”).

(7)  In 2020, 2022 and 2024, the Applicant and the Daughter made declarations that they did not own any domestic property in Hong Kong. At least as to registered or legal ownership, that was not true.

(8)  Further, the very making of the declarations was obviously for the purposes of demonstrating that the Applicant and the Daughter were both still eligible for public housing. But, as a result of the Daughter’s financial and personal circumstances (even leaving any question of the Flat out of the equation), both knew that was not true.

2.  The HA served a notice to quit (“NTQ”) in November 2024. The essential basis for the NTQ was that the Applicant and the Daughter had made false declarations in 2020, 2022 and 2024 that neither of them owned domestic property in Hong Kong, when in fact the Daughter purchased the Flat in 2019 and continued to hold it.

3.  The Applicant and the Daughter appealed to the 2^nd Putative Respondent (“AP”). The appeal was heard on 20 March 2025, and as well as complaints about the way in which the matter had been dealt with by the HA, the main thrust of the argument on appeal was that the Daughter did not in fact own the Flat, she was a bare trustee, the beneficial ownership of the Flat was held by the Husband, and so there had been no false declaration. It is clear that the members of the AP fully understood and addressed their minds to that argument, including by reference to materials provided by the Applicant/Daughter before and at the hearing.

4.  By its decision dated 28 March 2025 (“AP Decision”), the appeal was dismissed and the NTQ was upheld. The AP was not satisfied on the materials that the declarations made by the Applicant and the Daughter were not false, so considered that there was a proper basis for the NTQ, and that there were no other reasons why the eviction should not be enforced.

5.  By Form 86 dated 30 April 2025, the Applicant sought leave to apply for judicial review so as to challenge both the NTQ and the AP Decision. I gave directions to bring the matter to a rolled-up hearing fixed for 5 August 2025. Because of a black rainstorm signal, the hearing was automatically adjourned to 6 August 2025.

6.  In support of the Applicant’s application, the following affirmations were filed and served: two affirmations of the Applicant; two affirmations of the Daughter; and an affirmation of the Husband. The Applicant sent a reply to the HA’s submissions to the Court by fax on 5 August 2025.

7.  On behalf of and in opposition to the application, the HA filed the affirmation of Ms Tang Sau Chun Janey, Housing Manager / Kwai Chung 4.

8.  At the hearing, the Applicant appeared in person (where I had repeatedly refused her application that she should be represented in Court by the Daughter). Nevertheless – on her request to change my previous page-limit directions – I had already permitted the Applicant to file lengthy (more than 90-page) written submissions in advance of the hearing. She also filed written reply submissions. Plainly, as with most of the papers filed for the Applicant in this case, those submissions were actually drafted by the Daughter.

9.  It can also be noted that, in correspondence prior to the hearing, the Applicant said that she had approved and had nothing to add to the written materials filed on her behalf, and the Daughter said that she had no submissions to make as interested party (and even that she had no interest which might need protection). This stance was confirmed by both of them at the hearing.

10.  The HA was represented by Ms Prisca Cheung of Counsel. She had also filed skeleton submissions in advance.

11.  The AP is an independent statutory appeal panel, and was, as would be expected, neither present nor represented, and its presence was excused. Hence, the real contest is between the Applicant and the HA.

12.  At the end of the hearing, I reserved my decision to be handed down later in writing. This is my Judgment.

B.  Further Background

13.  The background as can be drawn from the materials from both sides is broadly as follows.

14.  Under the WTP, public rental housing (PRH) households are required to vacate their units irrespective of their levels of household income or assets if they own any property in Hong Kong. There is a requirement for tenants and household members to make a biennial declaration, including as to their income and whether they have domestic property ownership in Hong Kong on the relevant snapshot date.

15.  By declaration forms in 2020, 2022, and 2024, the Applicant and the Daughter declared (amongst other things) that they did not have domestic property ownership in Hong Kong. This is so, notwithstanding that the relevant declaration form identified the specific guidelines for completing the declaration as to domestic property ownership as follows:

(1) For example, in the 2020 form, it was materially stated:

(1) Ownership of Domestic Property in Hong Kong means the tenant/licensee and/or his/her household member(s):

(i) own(s) or co-own(s) or has/have an interest in any domestic property in Hong Kong (including but not limited to trustee, executor, administrator or beneficiary having an interest in any domestic property in Hong Kong); or

(ii) has/have entered into any agreement (including provisional agreement) to purchase any domestic property in Hong Kong; …

(2) For example, in the 2024 form, it was materially stated:

“Ownership of domestic property in Hong Kong” means the cases where the tenant/licensee and/or his/her household member(s) has/have:

(i) owned or co-owned any domestic property in Hong Kong or any interest in such kind of property; or

(ii) entered into any agreement (including preliminary agreement) to purchase any domestic property in Hong Kong; or …

16.  A person has ownership within the policy definition if he or she has any interest in any domestic property in Hong Kong.

17.  It might also be noted that an exemption from the “no-domestic-property” requirement may be granted on a discretionary basis to households which fulfil certain requirements, including that the interest in the domestic property was acquired through operation of law, but he cannot be disposed of, and there is an inability to reside in the premises. It must be obvious that ownership of a property at which a tenant or household member could reside would take those persons outside the policy which is intended to safeguard the rational allocation of public housing resources.

18.  However, the Housing Department (“HD”), i.e. the executive arm of the HA, conducted a land search at the Land Registry on 16 August 2024, which revealed that the Daughter signed an agreement for sale and purchase of the Flat on 12 June 2019 and an assignment on 15 August 2019 and she remained the registered owner of the Flat.

19.  The HA was of the view that:

(1)  The Applicant and the Daughter failed to declare her ownership of the Flat when completing the WTP 2020 (April), 2022 (April) and 2024 (April) Declaration Forms in May 2020, May 2022 and May 2024 respectively.

(2)  Had the Applicant and the Daughter honestly declared the Daughter’s ownership of the Flat in the 2020 WTP Declaration Form, they would not have been eligible to continue residing in the PRH Unit.

20.  Pursuant to the WTP Instruction, on 30 September 2024, the HA issued a Pre-NTQ Advanced Warning Letter, notifying the Applicant in advance that by reason of her false declarations in the 2020, 2022 and 2024 WTP Declaration Forms wherein she had concealed the household’s domestic property ownership, the Applicant was no longer eligible for her PRH Unit and an NTQ would be issued by the end of October 2024, requiring her to vacate her PRH Unit by 30 November 2024.

21.  It was not until 3 November 2024 that the Applicant claimed for the first time that the Daughter was holding the Flat on trust for the Husband (“Trust Allegation”). The Applicant also submitted some “Post-NTQ documents”.

22.  The appeal hearing was held on 20 March 2025. By the AP Decision dated 28 March 2025, the AP confirmed the NTQ.

23.  In reply to the Applicant’s written request dated 2 April 2025 and 5 April 2025, the AP, by letter dated 17 April 2025, provided the Applicant with a copy of its Notes of Proceedings, which set out the following reasons for the AP Decision confirming the NTQ (in English translation):

Deliberation and Decision

46. After considering the written information provided by the [Housing] Department and the Appellant, and the statements and responses made by various parties to the appeal at the hearing, the Tribunal unanimously decided to confirm the NTQ issued by the HA on the following grounds-

(1) According to the records of the Land Registry, the Appellant’s daughter, Ms CHEUNG Ka-yan, signed an assignment to purchase the Property on 15 August 2019. As at 16 August 2024 (date of land search by the Department), Ms Cheung still had ownership of the Property.

(2) Ms CHEUNG Ka-yan stated that she neither owned the Property nor the interests of the Property, and she only held the Property on behalf of her husband Mr Ng. However, the Tribunal found insufficient objective evidence (such as legal documents) to support Ms Cheung’s claim.

(3) Moreover, according the policy of the Department, the definition of “domestic property ownership in Hong Kong” includes execution of any agreement (including provisional agreements) to purchase any domestic property in Hong Kong by a household, and according to the records of the Land Registry, Ms CHEUNG Ka-yan signed an assignment to purchase the Property on 15 August 2019.

(4) In view of the above considerations, Ms CHEUNG Ka-yan has domestic property ownership in Hong Kong. However, Ms Cheung did not truthfully declare her domestic property ownership in Hong Kong in the “WTP” declaration forms in 2020. 2022 and 2024. Had she declared truthfully that she owned the Property, the Appellant and Ms Cheung would not have been eligible to rent the above Flat [i.e. the Unit] at the time. Therefore, the Tribunal was satisfied that the Department had sufficient justifications for the issuance of the NTQ to the Appellant.

(5) In view of the relevant information submitted by the Appellant, the Tribunal did not see any special reasons to exercise discretion in this case.

C.  Intended Grounds of Review

24.  In her Form 86, affirmations and 96-page written submissions, the Applicant relied on the following grounds to challenge the NTQ and the AP Decision, being:

(1)  Ground 1: Fettering of discretion in adopting and adhering to a fixed rule of policy in issuing the NTQ (HA only).

(2)  Ground 2: Frustration of the Applicant’s legitimate expectation by failing to properly consider representations in accordance with the review mechanism (HA only).

(3)  Ground 3: Error of law and fact in deciding the Daughter did not hold the property on trust for the Husband (AP only).

(4)  Ground 4: Procedural impropriety (HA and AP).

(5)  Ground 5: Error in deciding the Daughter has ownership of domestic property in Hong Kong (HA and AP).

(6)  Ground 6: Error in deciding that the Daughter had knowingly made a false declaration (HA and AP).

(7)  Ground 7: Failing to consider the Applicant’s lack of knowledge (HA and AP).

(8)  Ground 8: Wednesbury unreasonableness in face of “overwhelming evidence against eviction” (HA and AP)

(9)  Ground 9: Failure to take into account the Applicant’s right to home under Basic Law Article 29 (“BL 29”) and Bill of Rights Article 14 (“BOR 14”) (HA and AP).

(10)  Ground 10: disproportionate interference with that right to home (HA and AP).

25.  As noted above, Grounds 1 and 2 are directed against the HA’s NTQ only, and some of the other grounds are directed at both the HA and the AP. But the HA’s issuance of the NTQ is not now amenable to judicial review, for the reasons I shall set out below. As a result, I will address the grounds only in so far as they seek to challenge the AP Decision.

26.  All of the Grounds were elaborated at length in the Applicant’s written submissions (drafted, as I have said, by the Daughter). But it is also fair to point out that, though most of the Grounds have been put forward separately, they clearly rely significantly on similar submissions and are at least overlapping. For that reason, I think it logical to deal with some of them together in the analysis below.

27.  The submissions of Ms Cheung in response might perhaps be summarised as follows:

(1)  It is well-settled that the question of what is and what is not a relevant consideration is for the decision-maker, not the Court, to decide, subject to stark Wednesbury irrationality; and that where the decision-maker does decide to take into account any particular factor as relevant to his decision, the weight that should be given to that factor is likewise a matter for the decision-maker, not for the Court.

(2)  As shown in the AP Decision (at §46), the AP had considered the Applicant’s evidence, and that after assessment of the written information provided by the HD and the Applicant, and the statements and responses made by the parties, the AP considered the Daughter’s ownership of the Flat fell within the definition of domestic property ownership in Hong Kong, and found the Applicant’s case and evidence to be inadequate, noting in particular the lack of any objective evidence (such as legal documents) substantiating her claims of trusteeship.

(3)  The transcript of the appeal hearing shows that the AP was aware of and considered the Applicant’s assertion that she had no knowledge of her Daughter’s domestic property ownership, which is indeed the Applicant’s complaint that the AP did not place much weight on this factor in its Decision.

(4)  As regards the alleged breach of natural justice, the Applicant (through the Daughter) has had ample opportunity during the appeal hearing to explain her case and grievances to the AP, including submissions of additional documents and authorization given to her Daughter to attend the appeal hearing in her stead to put forward her case as well as to cross-examine the HA.

(5)  The AP Decision was not unreasonable because it is reasonably capable of being supported by the evidence as a whole, in particular that (a) the Daughter has confirmed that she was aware that the Flat was under her name and (b) the AP was correct to conclude that the Applicant’s evidence was subjective and insufficient.

28.  I can turn to the analysis now.

D.  Challenge to NTQ

29.  The Applicant originally sought to address submissions as though challenging both the HA’s decision to issue the NTQ and the later AP Decision. But it seems to me that, as a result of the Applicant exercising her right to appeal the NTQ, and because that was an available alternative remedy and the matter was considered afresh by the AP, the focus of the present challenge can only be on the AP Decision. The right of appeal having been exercised, and the full argument having been rehearsed before the AP, the prior decision of the HA is simply no longer amenable to review.

30.  At the hearing, I informed the Applicant of my view on the issue of amenability, as to which she had no submission to make. Ms Cheung also confirmed her agreement that the focus should be only on the AP Decision.

E.  Challenge to AP Decision

31.  It is appropriate and logical to deal with Grounds 3, 5, 6, 7 and 8 together, as they concern the inter-linked issues of the Alleged Trusteeship of the Flat, false declarations and the Applicant’s lack of knowledge.

32.  The gist of the Applicant’s complaints underpinning those Grounds is that:

(1)  The AP erred in deciding that there is insufficient evidence to show that the Daughter holds the Flat on trust for the Daughter’s husband (Ground 3).

(2)  The AP erred in deciding that the Daughter has ownership of domestic property in Hong Kong (Ground 5).

(3)  The AP erred in deciding that the Daughter had knowingly made a false declaration (Ground 6).

(4)  The AP failed to take into account the Applicant’s lack of knowledge of the alleged false statement (Ground 7).

(5)  The AP’s Decision to confirm the eviction despite the overwhelming evidence against eviction is Wednesbury unreasonable (Ground 8).

33.  These various Grounds all focus on the question of the ownership of domestic property, and the knowledge of falsity.

34.  As Ms Cheung submitted, despite the length of the Applicant’s written submissions, a clear mind will see that the facts of the case are relatively straightforward. So, it seems to me, is the necessary analysis.

35.  First, the Court exercising its supervisory jurisdiction in judicial review does not sit as a further tier of appeal from decisions of the AP. Rather, the Court is concerned with the integrity of the decision-making process, looking to see whether the challenged decision lacks lawful basis, is tainted with procedural impropriety or unfairness, or is Wednesbury unreasonable or irrational (which is a high threshold). However, much of the argument advanced for the Applicant is in reality a merits challenge.

36.  In a judicial review application, it is not open to an applicant simply to re-run the arguments which he previously ran and which were not accepted in the appeal hearing, if there are no public law grounds to impugn the decision. Many of the Applicant’s submissions really boil down to a complaint that her stance taken in her representations was ultimately not accepted by the AP, where she thinks her arguments were better or stronger than those advanced by the HA in response.

37.  It is not reasonably arguable that it was incorrect or irrational for the AP to conclude that the Daughter had failed to persuade it that the relevant declaration was true, not false.

(1)  The underlying purpose of the declaration is clear, namely to ensure continued eligibility to public housing resources which should be allocated on a rational and reasonable basis.

(2)  The declaration form identified the required disclosure of domestic property ownership, irrespective of the type of interest alleged and how that interest came to be.

(3)  The guidance on the form itself made that clear.

(4)  The Flat fell within the definition of domestic property ownership in Hong Kong.

(5)  There is no escape from the fact that the Daughter does have and knows she has an interest in the Flat, but did not declare it.

(6)  In so far as the Applicant (or Daughter) suggested that because the Flat was used for investment purposes, it was not a matrimonial asset, that is simply incorrect. The whole arrangement took place in the matrimonial context, which the AP knew.

(7)  It is also not unreasonable to think that the Daughter necessarily obtained some benefit from the Flat, where the Daughter’s own position was that the rental income generated was sometimes paid to her account (even if subsequently passed to the Husband) and she received an allowance (and other monetary benefits) from the Husband from the fungible funds available to them as a couple.

(8)  Indeed, the Daughter’s personal tax assessments referred to “income from properties – wholly owned”.

(9)  I would also personally reject the argument now advanced that the Applicant and the Daughter carefully analysed and parsed what they thought to be the proper interpretation of the declaration form and its notes before deciding that there could be a truthful declaration of no domestic property ownership in Hong Kong.

(10)  Indeed, at other times, the Applicant and Daughter have sought to stress that they in fact never read the form properly before they completed and signed it.

(11)  Further, there is an apparent inconsistency between (a) a declaration made for stamp duty purposes that the Daughter was acting on her own behalf, and the purchaser is not the beneficial owner of another residential property, and (b) a declaration made for public housing purposes that the Daughter is not the owner or co-owner of domestic property in Hong Kong and has no interest in such kind of property.

(12)  Lastly, as to the state of knowledge of the Applicant, the whole point of requiring all registered household members to sign the same declaration is to seek to ensure that they take the appropriate steps to be able to make, and so that they do make, truthful declarations.

38.  I would add that the Daughter's argument about the purchase of Flat 3 (as she calls it) being the new matrimonial home purchased in the name of her mother-in-law seems to detract from her own trustee argument in two respects:

(1)  If the Daughter is not the beneficial owner of the Flat, then on her own case Flat 3 could also have been put in her name (and did not need to be put in the name of the mother-in-law).

(2)  Where Flat 3 is the matrimonial home, it is not unlikely that the mother-in-law would be considered to be the trustee on behalf of the Daughter and the Husband jointly, just as the Daughter could hold the Flat as another matrimonial asset on behalf of herself and the Husband jointly.

39.  Grounds 3, 5, 6, 7 and 8 are not reasonably arguable with any realistic prospect of success.

40.  Ground 4 suggests that the AP Decision was procedurally improper and infringed the principles of natural justice.

41.  However, as can be seen in the relevant parts of the AP Decision (including §46 and the part under the sub-heading “The [Applicant]’s Statements and Grounds of Appeal”) of the Notes of Proceedings and the transcripts of the hearing, the issues of the Alleged Trusteeship, false declarations and lack of knowledge were clearly understood and taken into consideration by the AP in the decision-making process and was reflected in its reasons for the AP Decision. The Applicant (through the Daughter) knew the crux of the issue leading to the NTQ and had ample opportunity during the hearing to explain her case to the AP, and to produce documents.

42.  For example, the Chairman summarised it as follows (as translated):

The owner of this property is you. You have no questions on this matter, do you? Just to be clear, once again, to confirm that you know about your position. You are aware that the property is in your name. However, when you submitted, as you did before, all the documents or the ones we photocopied today, you were trying to tell us that although it was in your name, you did not spend money on it and you have not even lived in it. Everything, including the monetary expenses, and even you bought the property without viewing it before. To put it simply, “I was just lending my name. The property is not even mine.” That is your position you are trying to say.

43.  On the facts of the present case and looking at the materials filed by the parties (including the Notes of Proceedings of the AP Decision) as a whole, there is no evidential basis giving rise to an arguable suggestion that there existed any procedural unfairness in the AP hearing or in the AP Decision. The further complaint that the AP failed to take into account submission and materials provided after the appeal hearing is misplaced.

44.  Ground 4 is not reasonably arguable with any realistic prospect of success.

45.  As to the remaining Grounds 9 and 10, in reliance of BL 29 and BOR 14, it is convenient to set out BL 29 and BOR 14:

BL 29

The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.

BOR 14

Protection of privacy, family, home, correspondence, honour and reputation

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.

46.  In my view, BL 29 and BOR 14 are plain in their language. They concern constitutional and legal guarantees for a person not be subjected to arbitrary or unlawful search of, intrusion into or interference with his home. But there is no constitutional right to public housing. BL 29 and BOR 14 are clearly not engaged and are of no relevance to the present case. The Applicant’s submissions were advanced on a mistaken basis.

47.  I accept Ms Cheung’s submission that the NTQ was lawfully made and confirmed, and that the Applicant was lawfully required to quit the Unit.

48.  Grounds 9 and 10 are not reasonably arguable with any realistic prospect of success.

F.  Discretion

49.  Although the point did not arise in this case as it developed, it seems to me that there would have been perhaps an even more straightforward reason for the issue of the NTQ.

50.  It must be obvious that part of the reason to require the biennial declarations as to income and assets of designated tenants/household members is to check, on a regular basis, the continued eligibility of those persons to receipt of the benefit of public housing. Therefore, whenever the Applicant and the Daughter made the declarations, they were implicitly, if not expressly, declaring that they remained eligible. However, as I have indicated above, it is absolutely clear that from 2009 the Daughter had moved out of the Unit, and plainly had no need or eligibility for public housing as she was residing with the Husband in their privately owned matrimonial homes. The same must be the position as regards the documents signed by the Applicant and the Daughter during the possible relocation in 2015, when the Daughter went so far as to incorrectly describe her marital status. These facts were known to both the Applicant and the Daughter.

51.  It does not seem to me to matter that the Applicant preferred for her own purposes to keep the Unit available for the Daughter, if that were ever needed. Nor does it seem to me to matter that the Daughter says she was simply unable to persuade the Applicant to remove her as a named household member. Indeed, the Daughter took active steps to continue the charade, for example by giving disclosure of her income and in joining the Applicant in potential relocation arrangements for them both, and in describing herself as unmarried.

52.  Against those circumstances, even had I found there to be any reasonably arguable ground of review, and even had it succeeded on substantive review, I would have exercised my discretion not to grant any relief.

G.  Costs

53.  The Applicant has failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success. Therefore, the application for leave to apply for judicial review is dismissed.

54.  As to costs, it is appropriate for the costs to follow the event and for the Applicant to bear the costs of the HA. The only argument advanced by the Applicant as to why she should not bear costs was that she could not afford it. In the circumstances of this case (including the points I have made in the Discretion section of this decision), that is not a good reason to avoid the costs consequences of having asked for an oral hearing and having provided large amounts of documentation which necessitated expenditure of costs (not to mention significant use of Court time and resources).

55.  The HA shall file a statement of costs for summary assessment, by 29 August 2025, and the Applicant shall file any list of objections by 12 September 2025. Thereafter, I shall perform the assessment of costs on the papers.