蔣言勵 v. 上訴委員會 (房屋) AND ANOTHER

HCAL 31/2024

[2024] HKCFI 959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 31 OF 2024

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D E C I S I O N

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A.  Introduction

1.  By her Form 86 dated 3 January 2024, the Applicant seeks leave to apply for judicial review so as to challenge and overturn the decision dated 29 December 2023 (“Decision”) made by the Appeal Panel (Housing) (“Appeal Panel”).

2.  The Appeal Panel, which has been named as the 1^st putative respondent, is an independent statutory appeal panel. As is typical in a situation where the appeal hearing has been completed and the decision made, the Appeal Panel has taken a neutral stance towards this application. However, it has produced relevant documentation for the consideration of the Court.

3.  The Applicant has named the Housing Department, and the Kowloon West and Sai Kung District Tenancy Management Office (“TMO”) of the Housing Department, as the 2^nd putative respondent and 2^nd putative interested party respectively. The Housing Department is the executive arm of the Hong Kong Housing Authority (“HA”), and the TMO is one of the District tenancy management offices under the Housing Department.

4.  The Applicant has named her elder brother Cheung Kun Yu (“Mr Cheung”) as the 1^st interested party. The reasons for that will become apparent below.

5.  I gave directions for the putative respondents and interested parties to file an Initial Response, and for the Applicant to file a Reply.

6.  Having considered the materials, I think this application can appropriately be dealt with on paper. This is my decision.

B.  Factual Background

7.  The Applicant resides or resided at premises in Un Shing House, Un Chau Estate (“Unit”). The Unit is a one-bedroom public housing unit.

8.  Previously, the Applicant and her parents had been allocated a different unit, but were allocated to move to the Unit on 1 November 1999 through transfer following redevelopment. The application for transfer on redevelopment was signed and submitted by the Applicant’s father (“Father”), and the proposed household members applying for transfer included only the Father, the Applicant’s mother (“Mother”) and the Applicant herself (under her previous name), who was of full age. The authorisation letter regarding personal particulars was signed by the Father, the Mother and the Applicant. The declaration form as to marital status and monthly salary of individual family members only contained information relating to the Father, the Mother and the Applicant. The tenancy agreement listed the tenant and his family members as being the Father, the Mother and the Applicant only.

9.  The Father died on 30 March 2004. The Mother was granted permission by the Housing Authority to replace the Father as the new tenant of the Unit. A new tenancy agreement was dated 29 November 2004, and the attached list of tenant and family members showed only the Mother and the Applicant were registered.

10.  However, in 2005 and 2006, declaration forms on occupancy status completed by the Mother declared that Mr Cheung was temporarily staying in the Unit, as a person not listed on the tenancy card/tenancy agreement. Reasons for his temporary stay were provided. A Housing Officer conducting a home visit noted that the Mother understood that Mr Cheung could not reside in the Unit and would move out, and she expressed that he was only staying several days.

11.  The Mother died intestate on 24 December 2022, and the number of household members of the Unit remained at two until termination on 31 October 2023 (see below).

12.  In February 2023, the relevant Estate Office learnt that the Mother had passed away.

13.  According to the prevailing policy, upon the death of a tenant, if the other authorised members residing in the public housing unit other than a surviving spouse want to apply for grant of a new tenancy, they have to undergo comprehensive means testing, covering both income and assets and meeting the no-domestic-property requirement to determine eligibility for grant of a new tenancy and the level of rent payable.

14.  On 18 April 2023, the HA sent to the Applicant – as the only family member in the household registration of the Unit – a letter reminding her duly to complete an application for change of household head and to submit it with the relevant supporting documents, if she wished to continue renting the Unit. By email dated 27 April 2023, the Applicant enquired of the Estate Office about adding Mr Cheung to the household registration. On 2 May 2023, by telephone, explanation was given to the Applicant that Mr Cheung was not under any of the eight categories of person eligible for addition to the household registration. The Applicant was reminded to apply for grant of a new tenancy for herself as soon as possible.

15.  Between May and June 2023, the Applicant made several enquiries about changing the household head. On 27 June 2023, the Applicant submitted an application for change of household head, naming Mr Cheung to be the new head. It was explained to the Applicant that Mr Cheung was not eligible to be the new household head, but the Applicant said that Mr Cheung had been residing in the Unit all along, and should have been included in the household registration, and the fact that he was not was probably due to the negligence of the HA.

16.  There followed numerous correspondence in which (1) the HA reminded the Applicant to submit an application for the tenancy in her name, or else the HA would assume she had no such intention and would terminate the tenancy, whilst (2) the Applicant insisted on having the household registration of Mr Cheung “restored”, maintaining that the absence of household registration on record was a mistake by the Housing Department. In effect, there was a stalemate for several months, where the HA made clear that it could not and would not grant a new tenancy to Mr Cheung, and the Applicant refused to make an application for grant of a new tenancy to herself.

17.  The HA is the decision-making body within the relevant hierarchy, and it was the HA which served a Notice-to-Quit (“NTQ”) on the Applicant on 29 September 2023. The NTQ and the Notice of Termination of Tenancy pointed out that the tenant of the Unit was confirmed to be deceased, and the decision to terminate the tenancy by a NTQ was taken as provided under section 19(1)(b) of the Housing Ordinance Cap 283 (“Ordinance”).

18.  The Applicant lodged an appeal against the NTQ on 12 October 2023.

19.  The Appeal Panel sent a notification of hearing dated 22 November 2023 to the Applicant, to inform her that a hearing had been scheduled on 20 December 2023. The Applicant appeared at that hearing. The Applicant and the HA’s representative put forward the respective cases, subject to questions from the Appeal Panel.

20.  At the conclusion of the hearing, the Appeal Panel decided to confirm the NTQ, and informed the parties of its decision by letter dated 29 December 2023 (i.e. the Decision).

21.  The Applicant was subsequently required to pay mesne profits equivalent to double net rent plus rates or market rent (whichever is higher) from 1 November 2023. Following the Decision, the Applicant could apply for an occupation licence for temporary stay for a maximum of 12 months. On 9 January 2024, the Applicant applied to the HA for the licence, which was granted on 26 January 2024, permitting her to stay in the Unit temporarily until 31 October 2024.

C.  The Intended Challenge

22.  As already stated, the subject-matter of the intended application for judicial review is the Decision of the Appeal Panel.

23.  By way of relief, the Applicant seeks: (1) an order of mandamus to restore the household registration of Mr Cheung; (2) an order of certiorari to overturn the eviction order made by the Decision; (3) a “prohibition order” to prohibit the eviction action as being contrary to the principles of natural justice; (4) damages for inability to enjoy the right of occupancy, emotionally and mentally; and (5) interim relief.

24.  In her supporting affirmation, the Applicant suggested that the Housing Department has abused a policy/policies to compel her to change the name of the household and has issued a notice of termination of tenancy and an eviction order to cover up the fact that the household registration of her elder brother Mr Cheung is lost.

25.  The suggested grounds of the application for judicial review, as set out in the affirmation, can be summarised as follows:

(1)  Section 19(1)(b) of the Ordinance has been misused, so as indirectly and directly to deprive the Applicant and Mr Cheung of the right of occupancy. Staff members of the Housing Department have not tried to solve the matter of restoring the household registration of Mr Cheung, after which the Applicant would submit an application. Therefore, the Applicant has not failed to declare income or change householder, and on the contrary it is staff members of the Housing Department who have been uncooperative and made things difficult for them to have the right of occupancy.

(2)  Where computer records have been inputted manually, there is no guarantee that omissions and mistakes will not occur.

(3)  A household member deleted from the tenancy must not live in the Unit, but Mr Cheung was always home during multiple home visits. It is not known whether (a) he had a household registration at the time, or (b) the Housing Department did not enforce the law.

(4)  The Housing Department only mentioned the redevelopment project completed in May 1998, without mentioning the household registration went missing.

(5)  The NTQ was not delivered on the date of 29 September 2023 it bears, but on 4 October 2023, meaning five days for lodging the appeal was lost. It is conceivable and unsurprising that a household registration record could be deleted mistakenly.

(6)  There was a breach of procedural fairness when the Appeal Panel refused to let the Applicant put questions for the paper record of the former Estate, to be used as important evidence of Mr Cheung’s household registration. There is no guarantee that omissions or mistakes would not occur during manual entry of the previous household registration records onto computer.

(7)  There was negligence or breach of duty, in that Mr Cheung was always at home during the home visits by staff members of the Housing Department over the years.

(8)  The home visit records were not confirmed with signatures of the householder and affected persons.

(9)  The Mother may also have experienced the same problems in being hindered from pressing for the household registration of her son. In order to continue renting the Unit, she had no alternative but to compromise and become the householder following the death of the Father in March 2004.

(10)  There is all the more reason to speculate that when the Father applied for rehousing following the redevelopment project in 1998, Mr Cheung’s household registration might have already gone missing, and the Father received the same treatment that the Applicant now has.

(11)  It is an abuse of policy to charge mesne profits starting from 1 November 2023.

26.  As can be seen, most of those points are not public law grounds of review as to the Decision itself. They are, instead, points rehearsing matters relating to the merits of the decision to terminate the tenancy and give the NTQ. Even so, many of them are clearly matters of speculation only. Whilst I take into account (as she asked me to) the Applicant’s difficulties in acting in person, I shall give to these various points the weight that seems to me to be appropriate to the circumstances.

D.  Any Merits in Application?

27.  In order to justify the grant of leave to apply for judicial review, the applicant must demonstrate reasonably arguable grounds of review which enjoy realistic prospects of success. It is for this reason that RHC Order 53 rule 3(2) mandates that the application by Form 86 must contain, amongst other things, a statement of the relief sought and the grounds on which it is sought. If an applicant fails clearly to set out grounds of review in the Form 86, the Court does not sift through the various materials provided by the applicant to seek to divine or draft potential grounds of review for him or her.

28.  It must also be borne in mind that the Court exercising its supervisory jurisdiction in judicial review does not sit as a further tier of appeal from decisions of the Appeal Panel. 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.

29.  As already mentioned above, most of the points raised by the Applicant in her affirmation do not give any clear identification of alleged public law errors on the part of the Appeal Panel. For example, whilst it is correct that the Applicant has mentioned a breach of principles of natural justice, she has not explained or specified what procedure was allegedly adopted in breach of those principles, and how it was a breach of those principles.

30.  At best, focusing on potential public law grounds, it seems that the Applicant might be seeking to allege: (1) section 19(1)(b) did not give lawful authority to the HA to issue the NTQ or terminate the tenancy; and (2) there was procedural impropriety at the appeal hearing, because the Applicant was not permitted to pursue paper records for the former Estate. Neither has any merit.

31.  Section 19 of the Ordinance empowers the HA to terminate a lease by giving a NTQ, and informing the tenant in question of the statutory right to appeal under section 20. It is not reasonably arguable that the section did not give lawful authority to the HA to issue the NTQ or terminate the tenancy of the Unit in this case. Further, the Applicant’s suggestion (made in her Reply) that section 19 was used to cover up mistakes pre-supposes that there were in fact mistakes, which the Applicant has been unable to demonstrate, and which is contrary to the materials before the Appeal Panel (see below). There is no basis for the suggestion that the Ordinance has been used contrary to the intent for which it was legislated.

32.  The Applicant exercised the statutory right to appeal, leading to a full appeal hearing. Whilst the Applicant has suggested that the audio recording of the appeal hearing can prove her suggested procedural impropriety or unfairness, the Notes of Proceedings before the Appeal Panel identify that the members specifically pointed out to her that retrieving the records of the former Estate were not within the terms of reference of the Appeal Panel. The Applicant was even advised that she might seek legal aid. In light of the subsequent materials, including declaration signed by the Applicant herself, I do not see any reasonably arguable procedural unfairness in the inability to obtain or ask about prior paper records relating to the former Estate.

33.  In their Initial Response, the Housing Department and the TMO have made reference to the record in the Notes of Proceedings of various Appeal Panel members asking the Applicant questions, and her responses. There is force in the suggestion that the exchanges identify that the Applicant was indifferent to the status of household registration for the Unit until rather recently. But, more importantly, the documentary evidence going back to at least 1999 is clear that the various declarations made by persons including the Applicant herself do not support her allegation that Mr Cheung at any time had a household registration. It is also the fact that Mr Cheung does not currently have a household registration for the Unit. The allegations of negligence, and suggestions of potential computer inputting error, are with respect simply matters of speculation.

34.  In any event, I also see no other unfairness in the Appeal Panel’s Decision, or the process by which it was made. It is evident that the Applicant was repeatedly notified that, if she wished to continue to reside at the Unit, it was necessary for her to submit the application for change of household head, together with all relevant supporting documents, or else the tenancy of the Unit would be terminated. She chose not to, as she preferred to insist that Mr Cheung be the replacement household head, when he is simply not eligible under the relevant policies. Whilst the Applicant has suggested that this matter might been resolved by the Housing Department taking a more reasonable path, the reason why this matter has not been resolved is because the Applicant refuses to accept that Mr Cheung is not eligible to take the tenancy, and her insistence that his ineligibility is the result of what she assumes and speculates to be negligence and error on the part of the Housing Department.

35.  Pointing, as the Applicant seeks to do (in her Reply), to other cases where there might have been a misfiling of computer and/or paper records to advance the argument on this application. Further, the Applicant’s statement that her objective was to “recover” Mr Cheung’s household registration and wait for him to become the householder, whereas the objective of the Housing Department was to cover up the serious blunders in his household registration in a hurry and press for her to become householder, simply reiterate the argument conducted with the Housing Department and rehearsed before the Appeal Panel. It does not identify any public law error on the part of the Appeal Panel. Nor, with respect, does the Applicant’s analogy between public housing and a train identify where the Appeal Panel made public law errors.

36.  I see no reasonably arguable illegality, procedural impropriety, or Wednesbury unreasonableness in the Appeal Panel having had regard to these various matters in reaching its Decision.

E.  Result

37.  The Applicant’s application for leave to apply for judicial review fails to identify any reasonably arguable grounds of review with any realistic prospect of success. The application is, therefore, dismissed. I make no order as to costs.