吳國基 AND ANOTHER v. 律政司司長代房屋署署長

HCAL 907/2024

[2024] HKCFI 1781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 907 OF 2024

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D E C I S I O N

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A.  Introduction

1.  By their Form 86 dated 6 June 2024, the Applicants – Mr Ng Kwok Kei (“NKK”) and Ms Cheung Yuk (“Mother”) – seek leave to apply for judicial review so as to challenge a decision of the Appeal Panel (Housing) (“Appeal Panel”) made at a hearing on 20 April 2024 (“Decision”). NKK is one son of the Mother.

2.  By the Decision, the Appeal Panel rejected the 2^nd Applicant’s appeal against the issuance to her of a Notice to Quit, terminating the lease of, and requiring her to vacate, her Hong Kong Housing Authority (“HKHA”) public rental housing unit at the Sheung Tak Estate (“Unit”). The conduct of the appeal and the making of the Decision can be found in a note of appeal hearing dated 27 May 2024 (“Appeal Hearing Note”).

3.  The Applicants have named the Secretary for Justice on behalf of the Director of Housing as the Putative Respondent. They have also named (1) the Mother, (2) another of her sons, Mr Ng Kwok Chu (“NKC”), (3) the Department of Housing, (4) the Housing Authority and (5) the Appeal Panel as Putative Interested Parties.

4.  NKK filed an application for legal aid on 7 June 2024. Insofar as it is necessary to do so, I lift the automatic 42-day stay triggered by the making of that application, so as to be able to deal with this matter. Having considered the materials, it seems to me to be appropriate to deal with this application on the papers.

5.  This is my decision.

B.  Background

6.  The background leading up to the Decision under challenge is broadly as follows.

7.  The Mother and her two sons, NKK (i.e. the 1^st Applicant) and NKC (i.e. the 2^nd Putative Interested Party), were residents at the Unit.

8.  By letter dated 29 February 2024, HKHA enclosed a formal Notice to Quit issued under section 19(1)(b) of the Housing Ordinance Cap 283 (“HO”), so as to terminate the tenancy of the Unit. The basis for termination identified was because of two false declarations dated 23 May 2020 and 18 May 2022, given under the Well-off Tenants Policies Year 2020 (April) Declaration Form (HD1119C) (3/2020) and Year 2022 (April) Declaration Form (HD1119C) (3/2022), that NKC had not owned any domestic premises in Hong Kong. Those declarations led to continuation of the Applicants’/residents’ eligibility to reside at the Unit. However, in fact a domestic property was held by NKC at the time, and up to the present.

9.  As stated in the Appeal Hearing Note, since 28 February 2020 (being the date on which NKC started to own a residential property in Hong Kong), and had the household made a truthful declaration, then the Applicants/residents would have been ineligible for living at a public rental housing unit according to the revised Well-off Tenants Policies (Document No. SHC 68/2016) as adopted by the Subsidised Housing Committee of HKHA in its meeting on 9 December 2016.

10.  On 15 March 2024, the Mother made an appeal against the Notice to Quit to the Appeal Panel, and the appeal was heard on 20 April 2024. The Mother attended the hearing and authorised her son, NKK (an authorised occupant of the Unit), to represent and speak for her at the hearing.

11.  From the Appeal Hearing Note, it seems that the Decision was made at the hearing, and reasoned on the following broad basis (in my summary of the adjudication and ruling):

(1)  The Appeal Panel fully considered and taken on board all documents and information and the representations made, including those made by the Applicants about the situation of their family, finance, assets and living conditions.

(2)  According to the materials obtained from the investigation by the Housing Department (“HD”), one of the sons, NKC, being a registered family member under the tenancy agreement, owns a private residential property in Wu Kwong Street, Kowloon.

(3)  All members of the Appeal Panel unanimously accepted:

(a)  the HD’s investigation findings that NKC is one of the authorised household occupants of the Unit and made a false declaration of not having any residential property in Hong Kong when he completed the Declaration Form (HD1119C); and

(b)  in the meantime, the Mother and all authorised household members also signed on Part 6 Declaration of the Declaration Form to confirm what was declared as complete and true.

(4)  Therefore, this household was allowed to continue to reside at a public rental housing unit due to the false declaration made by NKC.

(5)  Had NKC made a truthful declaration, then this household would have been ineligible for living at the Unit, regardless of their income level or amount of assets.

(6)  So it is reasonable for HKHA to issue the Notice to Quit to the Mother.

(7)  Based on the submissions and materials provided by the parties to the appeal proceedings, NKC made two false declarations in 2020 and 2022 respectively. He purchased the residential property on 28 February 2020 and declared on 23 May 2020 that he did not own any residential property in Hong Kong, and subsequently on 18 May 2022 still made the same declaration.

(8)  During that period, NKC was still an authorised household occupant of the Unit and had been residing there until he moved out in February 2024.

(9)  This is a case of serious abuse of public housing resources.

(10)  According to the submissions made by the appealing party, the Mother stated that there might be oversight in filling out the declaration forms. But the Appeal Panel unanimously rejected the proposition that NKC did not truthfully declare his ownership of a residential property in Hong Kong due to oversight.

(11)  The Mother, as well as other authorised family members, in filling out the declaration form/declaration, have the duty to read the relevant terms carefully, and provide accurate information of them, and should be legally liable for the declaration form/declaration signed by them. Indeed, NKC made a false statement on more than one occasion.

(12)  According to the submissions and materials, the Mother is currently 65 years old, works as a part-time security guard and cannot depend on her children to take care of her. As regards the Mother’s representative (i.e. NKK), he is another authorised family member of the Unit and is debt-ridden due to losses in investment. Both the Mother and NKK deny having knowledge of NKC’s purchase of a property or ever obtaining any benefit from that. NKC moved out of the Unit as soon as he was found to have owned a residential property in Hong Kong. As the appeal proceedings are still on-going, application for deletion of the household registration of an authorised family member could not be made. Concerning the current financial situation of the appealing party, they have already provided the supporting documents at the hearing.

(13)  The members of the Appeal Panel were sympathetic about the circumstances of the Mother and NKK. However, it is an undeniable fact that another authorised family member of the Unit, namely NKC did on two occasions make a false statement when filling out the declaration forms. As a result of that, the tenancy of the subject household can continue for as long as 4 years even though they should not have been eligible for that.

(14)  The Appeal Panel was of the view that even though the situation may perhaps warrant the consideration of exercising discretion, it should at the same time also consider the current housing policy as well as the message conveyed by the Appeal Panel’s decision to the general public, in particular the public housing tenants. The view included that should the Appeal Panel exercise its discretion in the present case, a precedent may perhaps be set and people can use the situation of distant family relationship or ignorance of other authorised occupant’s ownership of a property as an exoneration. This may make it difficult for HD to differentiate and enforce its policy. Besides, this is extremely unfair to those households who have made truthful declarations.

(15)  The Appeal Panel has also considered the consequence that the Mother and NKK may be rendered homeless should HD recover the Unit. Depending on the actual circumstances, HD may consider arranging them to reside at temporary accommodation in transit centre in the New Territories.

(16)  To summarise, the Appeal Panel unanimously considered that the facts of the present case do not sufficiently justify for exercise of discretion to cancel or amend the Notice to Quit. On the contrary, in order to safeguard fair and rational allocation of public housing resources, the Appeal Panel was of the view that it is more reasonable to recover the public housing unit. On the other hand, the Appeal Panel hopes that the HD will proactively offer assistance to the Mother and NKK (an authorised occupant of the Unit). If they consent, the case will be referred to the Social Welfare Department (“SWD”) to follow up so that SWD could provide appropriate assistance and support to them.

12.  It can be said that the Appeal Panel did not address every point made in the hearing, as are recorded in the Appeal Hearing Note, but there is no reason to think the members of the Appeal Panel did not have well in mind those matters just canvassed before them. Nor do the reason for such a decision need to deal with every point raised.

13.  It seems that the Applicants would have known of the above reasoning because of their presence at the appeal hearing on 20 April 2024. In any event, they have produced the Appeal Hearing Note as an exhibit to their supporting affirmation dated 6 June 2024 (“Affirmation”).

14.  By letter dated 25 April 2024, the Appeal Panel wrote formally to the Mother informing her that it had decided to invoke section 20(3)(b) of the HO to confirm the Notice to Quit regarding the Unit.

15.  The Mother apparently wrote on 17 May 2024 to request for a copy of the Appeal Hearing Note. The Appeal Panel first sent a holding response on 23 May 2024. But, on 27 May 2024, the Mother was sent a copy of the Appeal Hearing Note, hence ability to exhibit it to the Affirmation.

16.  In the meantime, a notice to occupiers was issued to the Mother on 29 April 2024. Further, on 8 May 2024, the Mother was sent an Eviction Notice, requiring her to cease using and occupying the Unit on or before 29 May 2024, failing which HKHA would carry out an eviction operation to recover the Unit.

C.  Well-off Tenants Policies

17.  Before turning to the detail of the intended challenge to the Decision, it is helpful to touch briefly on the material Well-off Tenants Policies (Document No. SHC 68/2016). These were presented to and adopted by the Subsidised Housing Committee of the HKHA, as part of implementation options for consideration in the light of increasing demand for public rental housing (“PRH”) and, at the same time as examining ways to increase PRH supply, examining ways better to utilise PRH resources to ensure that efforts would be focused on allocating PRH resources to those with more pressing housing needs.

18.  In gist, under the Well-off Tenants Policies, after living in PRH for ten years, tenants are required to declare their income biennially. Those with household income equivalent to two to three times the PRH income limits are required to pay 1.5 times net rent plus rates. Those with household income exceeding three times of the limits are required to pay double net rent plus rates. Households exceeding the prescribed income and asset limits are required to vacate their PRH flats within 12 months, during which double net rent plus rates or market rent, whichever is the higher, is charged.

19.  The revised or refined principles adopted included that tenants with private domestic property ownership in Hong Kong have to vacate their PRH flats, irrespective of their levels of income or assets. The rationale is that PRH should be provided to low-income families who cannot afford private housing. Hence, it was determined that there should be the requirement for tenants with private domestic property ownership in Hong Kong to vacate their PRH flats, and that the policy should be applicable irrespective of whether the tenants have resided in PRH for ten years or not.

20.  Biennial declarations were part of the relevant administrative arrangements put in place, to assist in the process of ensuring that allocation of the precious public resources of PRH flats is conducted in a fair and reasonable manner to those with more pressing housing needs.

D.  The Intended Challenge

21.  As set out above, these proceedings were commenced on 6 June 2024.

22.  In the part of the Form 86 where the Applicants are required to identify the relief sought, they left it blank.

23.  In the Affirmation, the Applicants’ “dissatisfactions” about the Decision are set out, and can be summarized as follows:

(1)  They are the occupants of the Unit.

(2)  Since a family member (NKC) bought a private property in 2020, the Applicants received a notification from HKHA in January 2024 that the Applicants, being implicated in it, are facing eviction from the Unit and are deprived of the eligibility to make fresh application for PRH or the original PRH household within five years.

(3)  The Applicants are the victims, and unfortunately subjected to a broad-brush punishment without their knowledge, which is an unfair treatment to them.

(4)  Originally, they have the status of a lawful PRH tenant, but now they have to seek assistance from social welfare organisations to help them look for a short-term shelter due to an offence committed by the family member. They have become the scapegoat.

(5)  They seek judicial review against the Decision to see if it goes against logic or is untimely and deprives the PRH occupants of their original eligibility and rights.

24.  Hence, the thrust of the Applicants’ case is that the Appeal Panel failed to consider carefully their family’s practical circumstances and also that they are the “scapegoat” for the false declarations made by another authorised occupant, NKC, before dismissing the Mother’s appeal and confirming the Notice to Quit. Essentially, the Applicants complain that insufficient weight was given to their circumstances and ignorance of NKC’s wrongdoing, so that the decision reached is unfair.

25.  This kind of complaint is not usually 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 allegation of Wednesbury unreasonableness or irrationality (which is a high threshold), the Court will not ordinarily interfere in the weighing exercise performed by the decision-maker.

26.  In any event, having considered the materials, I do not find any reasonably arguable public law grounds. On the facts as explained in the Decision, there was no reasonably arguable unreasonableness or irrationality in the public law sense.

27.  The Applicants’ submissions in the appeal (which they have essentially repeated in these proceedings) were considered and directly addressed in the Decision. There is nothing to suggest that the Appeal Panel could not properly have reached the conclusions it did on the materials before it, and the representations made on those materials by the parties.

28.  I do not see any reasonably arguable, procedural impropriety or illegality, nor Wednesbury unreasonableness in the approach adopted:

(1)  The Appeal Panel was alive to and sympathetic to the circumstances of the Mother and NKK.

(2)  However, a false statement was made when filling out the declaration forms, resulting in the continuation of a tenancy some 4 years longer than was apt – and that grounded the right to end the tenancy.

(3)  The Appeal Panel recognized it nevertheless had a discretion, and weighed the matters relevant to that discretion.

(4)  As part of that exercise, the Appeal Panel noted the particular circumstances put forward by and about the Mother and NKK.

(5)  It was properly open to the Appeal Panel to take into account housing policy as well as the message which might be conveyed by the Appeal Panel’s decision to the general public, in particular to public housing tenants.

(6)  It was reasonable to express and weigh a concern about setting a precedent, which may make it difficult for the HD to differentiate and enforce its policy.

(7)  It was also reasonable to take into account the potential unfairness to those households who have made truthful declarations.

(8)  The decision was in line with the policy aims, including to safeguard the fair and rational allocation of public housing resources.

29.  I think it is possible to be sympathetic to the Applicants to some extent, as was the Appeal Panel, and still fairly reach the Decision. I would particularly endorse the Appeal Panel’s concern about setting a precedent, which might make it extremely difficult for the HD to differentiate between cases and to enforce its general policy. 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. It is those household members who are in the best position to find out and to declare the truth – and it does not seem to me to be unfair to place that burden upon them. On the contrary, it would ordinarily be difficult for and unfair to the HD – and the Appeal Panel – to have to discover or adjudicate a situation where any individual person making the declaration later claims ignorance about the falsity of the declaration made by any other household member. These are matters properly to be weighed, and that they are brought into account does not mean that there is an inappropriate “broad-brush” approach adopted.

E.  Result

30.  In the circumstances that the Applicants have 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.

31.  I make no order as to costs.