THE HONG KONG SETTLERS HOUSING CORPORATION LTD v. WONG KWAI WING

DCCJ 5614/2023

[2025] HKDC 262

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5614 OF 2023

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REASONS FOR DECISION

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I.  INTRODUCTION

1.  At the end of the hearing on 14 February 2025, I dismissed:-

(1)  the Summons filed by the defendant’s brother, namely, Mr Wong Kwai Keung (“Wong Kwai Keung”) on 4 July 2024 applying for an order to be joined as the 2^nd defendant to the present action (the “Joinder Summons”); and

(2)  Wong Kwai Keung’s Summons filed on 5 February 2025 applying for leave to file supplemental affirmation (namely, the 2^nd Affirmation of Wong Kwai Keung dated 4 February 2025) in support of the Joinder Summons and refixing the present hearing (the “Additional Evidence Summons”).

2.  I also heard arguments on costs after my decision, and I will make a costs order here after giving my reasons for the decisions.

3.  I should add that Ms Yvonne Leung, counsel for Wong Kwai Keung, submitted that the refixing of hearing in the Additional Evidence Summons would be necessitated by my leave (if I would grant it) for the 2^nd Affirmation of Wong Kwai Keung. However, Mr Michael Lok (leading Mr Paul Law), counsel for the plaintiff, was prepared to make submissions on the Joinder Summons, even with the 2^nd Affirmation of Wong Kwai Keung.

4.  In the circumstances, the application to refix was academic. Further, given Mr Lok’s position, I considered the 2^nd Affirmation of Wong Kwai Keung on a de bene esse basis. Having considered the 2^nd Affirmation of Wong Kwai Keung on a de bene esse basis, I still dismissed the Joinder Summons. Thus, I also dismissed the Additional Evidence Summons without the need to consider any other such factors as reasons for the delay.

5.  I shall now focus on my reasons for dismissing the Joinder Summons.

II.  BACKGROUND

6.  The background has been set out in §§2 – 6 of my decision ([2024] HKDC 2110) (the “CMC Decision”) delivered at the Case Management Conference (the “CMC”) on 16 December 2024, and I shall not repeat the same here.

7.  In respect of the procedural history specific to the present action:-

(1)  The writ of summons was issued on 14 December 2023, claiming possession of the property (the “Premises”) known as Flat No 218, 2/F, Man Tai House, Tai Hang Sai Estate (“THSE”). The writ was endorsed with a statement of claim. The plaintiff’s claim is on the ground of termination of tenancy between the plaintiff as landlord and the defendant as tenant. Specifically, the plaintiff claims that the subject tenancy agreement (the “Tenancy Agreement”) dated 10 March 2021 had expired on 28 February 2023 and continued on a monthly basis thereafter, or alternatively on a month-to-month tenancy at will. On 31 August 2023, a notice of termination was served on the defendant requiring the defendant to quit and deliver vacant possession by 30 September 2023, but the defendant has refused;

(2)  On 19 February 2024, the defendant filed and served defence and counterclaim;

(3)  On 21 March 2024, the plaintiff filed and served reply and defence to counterclaim;

(4)  On 4 July 2024, Wong Kwai Keung filed the Joinder Summons supported by his 1^st affirmation;

(5)  On 30 December 2024, the plaintiff, pursuant to my order made at the CMC, filed and served the 2^nd affirmation of Hau Kim Keung in opposition;

(6)  On 13 January 2025, Wong Kwai Keung did not file and serve any affirmation in reply pursuant to my order made at the CMC; and

(7)  On 5 February 2025, Wong Kwai Keung filed the Additional Evidence Summons.

III.  LEGAL PRINCIPLES IN RELATION TO JOINDER

8.  The general legal principles in relation to a joinder application are set out in Elysium Ltd v Sum Ka Kuen Dominic [2023] 5 HKC 508 at §§20-24. In particular:-

(1)  The jurisdiction is discretionary;

(2)  “The rule requires some interest by the would-be intervener which is directly related to the subject matter of the action. A mere commercial interest in the outcome of the action divorced from its subject matter is not sufficient. The interest of the intervener must raise an existing pleaded issue not merely a contingent one…” (§22);

(3)  “The mere fact that relief may affect someone who is not a party in respect of his rights or obligations is not enough to give rise to jurisdiction under Order 15 rule 6(2)(b)…” (§23); and

(4)  “Whilst the Court will not at the joinder stage engage itself in a scrutiny of merits or an adjudication of facts, it does not mean that the Court would take an intervener’s assertion of sufficiency of interest at face value and ignore any obvious legal impediments to its claim. The Court will not exercise its discretion in favour of joinder if it is plain and obvious that the joinder of the proposed intervener would be pointless and futile…” (emphasis added) (§24).

9.  With respect to Order 15 rule 6 of the Rules of District Court, a liberal application should be adopted to ensure that “all matters in dispute between the parties are completely and finally determined, and all multiplicity of legal proceedings with respect to any of those matters is avoided”: see Hong Kong Civil Procedure 2025 Vol 1 at §15/6/1.

10.  With respect to the Court’s power to join a person under Order 15 rule 10 of the Rules of District Court:-

“any person in actual possession of land who is not made a party to an action for possession of that land by a plaintiff against a defendant is entitled to be added under O. 15 r. 10 as a defendant before or after judgment, provided he has a bona fide independent claim to be in possession. However…, if the applicant has no independent claim because his rights are wholly dependent upon those of the defendant in the action, out he must go”: (emphasis added) see Yu Wing Kan v Lau Shuk Lan [1990] 2 HKLR 583 at 590.

11.  Ms Leung (counsel for Wong Kwai Keung) repeatedly emphasises that for determining a joinder application, the Court should refrain from examining the merits of the claim or defence of the intended party. However, this is not what the legal principles are. As mentioned in §8(4) above, “if it is plain and obvious that the joinder of the proposed intervener would be pointless and futile”, or as mentioned in §10 above, if the claim is not “bona fide”, that is, a claim that has not even a prima facie case and thus would deliberately or not just obscure any real issues, the joinder application should not be allowed. In my view, this means that the Court should still examine the merits to ensure that the claim or defence is not plainly and obviously pointless, futile, or without bona fide, and such approach makes eminent sense. If it were otherwise, this would mean the Court would have to let any plainly and obviously pointless, futile, less-than-a-prima-facie case proceed with the other parties, and this would waste the parties’ time and costs and the judicial resources. One may argue that any party after the joinder could apply to strike out if the case is plainly and obviously pointless, futile, less-than-a-prima-facie case. Such an approach would again unnecessarily waste the parties’ time and costs and judicial resources. The right course to take at the joinder application is that the Court should ensure that the intended party’s claim or defence should have a serious issue to be tried, and the burden to prove that of course lies upon the applicant for the joinder.

12.  Ms Leung further submits, in reliance on Re LB Holdings Intermediate 2 Ltd (In Administration) [2018] EWHC 2017 (Ch) and AerCap Ireland Ltd v AIG Europe SA and another [2023] 1 WLR 2448, that if the joinder may bring some additional and distinct perspectives to the determination of the matter between the plaintiff and the defendant, the joinder should be allowed. This may well be the case; however, if it is plain and obvious that bringing the additional and distinct perspectives is pointless and futile for any determination of real issues between the plaintiff and the intended joinder or the plaintiff and the defendant, the right course to take is still to disallow the joinder.

IV.  GROUNDS IN SUPPORT OF JOINDER SUMMONS

13.  The grounds raised in support of the Joinder Summons are, broadly:-

(1)  Wong Kwai Keung has a bona fide independent claim to be in possession;

(a)  He has been an approved occupier listed in the Schedule (the “Schedule”) to the Tenancy Agreement (as well as in the past tenancy agreements) and the plaintiff separately and individually considered Wong Kwai Keung’s application for resettlement. The plaintiff also demanded him to sign separately from the defendant a confirmation that he had received allowances. As such, the plaintiff envisage a situation where the defendant as tenant would not be eligible for resettlement while Wong Kwai Keung as an occupant would be;

(b)  Wong Kwai Keung is “an indigenous resident (a.k.a settlers approved by the Government as referred to in Article 3(a) of the [plaintiff]’s Memorandum of Association”: see Wong Kwai Keung’s skeleton submissions §15. I should also add that Wong Kwai Keung may also say that he is in a broader category of “approved occupier”, which is comprised of “approved settler” and “other residents” as defined by Article 3(a); and

(c)  Wong Kwai Keung has right and interest in the Premises based on promissory estoppel or proprietary estoppel;

(2)  Wong Kwai Keung has a defence of the Judicial Review mentioned in §1 of my CMC Decision, citing my decision in The Hong Kong Settlers Housing Corporation Ltd v Tam Wai Lan [2025] HKDC 97;

(3)  Wong Kwai Keung has a defence based on articles 29, 36 and 145 of the Basic Law as well as article 14 in section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). Wong Kwai Keung’s submission is that the rights enshrined in these provisions have been arbitrarily interfered by the plaintiff acting on behalf of the Government.;

(4)  The hardship caused by the redevelopment to Wong Kwai Keung and his personal circumstances are different from that caused to the defendant and his personal circumstances, and thus Wong Kwai Keung should be allowed to join the proceedings to raise matters based on his personal circumstances; and

(5)  There would not be any multiplicity of litigation as a result of the joinder.

14.  For convenience, I shall refer to these grounds as “Ground (1)(a)”, “Ground (1)(b)”, “Ground (1)(c)”, “Ground (2)” and so on.

V.  GROUND (1)(a)

15.  For the following reasons, I disagree that Wong Kwai Keung has any bona fide independent claim based on the matters in Ground (1)(a):-

(1)  Insofar as the Schedule to the Tenancy Agreement and the past tenancy agreements, where Wong Kwai Keung was listed therein as “Family of Tenant”, this Schedule is attached in relation to the provision in the Tenancy Agreement and the past tenancy agreements that the tenant (currently the defendant and the defendant’s father in the past) agree “not to use [the Premises] except as a private residence for the Tenant himself and members of the Tenant’s family set out in the Schedule hereto”. This provision limits the tenant’s right as to whom the tenant can license to stay in the Premises, and does not confer any enforceable rights or benefits on the members listed in the Schedule. Put another way, if the tenant does not allow a certain member listed out in the Schedule to live in the Premises, that member cannot commence an action against the plaintiff to say that he has a right to live in the Premises. As regards whether he has any right enforceable against the defendant, it is a matter between him and the defendant, which does not concern the plaintiff at all; and

(2)  While Wong Kwai Keung was considered separately for compensation or resettlement, this does not confer any right or interest on him in the Premises: see 香港平民屋宇有限公司 對 黃錫添 [2025] HKDC 143 at §5(6).

16.  Therefore, Ground (1)(a) fails.

VI.  GROUND (1)(b)

17.  For the following reasons, I disagree that the matters in Ground (1)(b) would give rise to any bona fide independent claim:-

(1)  I do not see any evidence that Wong Kwai Keung has been an “approved settler” or “approved occupier”; and

(2)  In any event, the plaintiff’s memorandum of association is a contract (a) between the plaintiff and each of its members; and (b) among the members: see Company Law in Hong Kong - Practice and Procedure, 2023, §8.065. So, even if Wong Kwai Keung is an approved settler or an approved occupier, it does not follow that he would somehow acquire an independent right or interest in the Premises. It may well be just that an approved settler or an approved occupier has to be a family member of the tenant, and the Schedule in the Tenancy Agreement mentioned in my discussion on Ground (1)(a) is effective to provide for that.

18.  So, Ground (1)(b) fails.

VII.  GROUND (1)(c)

19.  For Ground (1)(c), I must say that I was taken aback during the hearing by Ms Leung’s submissions that she also relied on promissory estoppel and proprietary estoppel. I was taken aback because in her written submissions, the only reference to promissory estoppel and proprietary estoppel is at §15 of her written submissions:-

“[Wong Kwai Keung] has provided grounds for making a reliance on his own possessory right (1) originating from legitimate expectation being frustrated (and/or based on the principles of promissory estoppel and/or proprietary estoppel).”

20.  Then, in none of the other parts of her written submissions is promissory estoppel or proprietary estoppel mentioned. No cases were cited. No analysis is made as to how there is such estoppel. Nowhere is any detrimental reliance, a requisite element for promissory estoppel or proprietary estoppel, is mentioned. Any representation referred to in her written submissions which one would think can be related to promissory estoppel or proprietary estoppel is the representation relied upon in the ground of legitimate expectation in the Judicial Review, but if this is the same as the legitimate expectation, then I will deal with it in Ground (2) below. Therefore, the impression I had from reading her written submissions was that she did not really intend to run any of the estoppels. When I asked Ms Leung how estoppels would be established in favour of Wong Kwai Keung, she only referred me to one or two paragraphs in the defence filed by the defendant.

21.  To be fair to Wong Kwai Keung, I do notice that in the 1^st affirmation of Wong Kwai Keung prepared by himself without any legal representation, he did make a brief mention about the history of Tai Hang Sai Estate, by which he seems to echo the defence of promissory estoppel and/or proprietary estoppel mounted by the defendant in his filed defence. Thus, I am still prepared to consider the same to see whether it is plainly and obviously pointless and futile for Wong Kwai Keung to rely on the estoppels.

22.  To consider the estoppels, I have to set out the following paragraphs of the defendant’s defence at length:-

“2… According to Article 3 of the Memorandum of Association for the Plaintiff in 1952, the objects for which the Company (the Plaintiff) is established are:-

‘(a) To apply to the Hong Kong Government for sites on such terms and conditions as may be agreed between the Government and the Company for the building of huts and houses for the occupation by settlers approved by the Government and by other residents whose total incomes do not exceed an amount from time to time decided by the Company (such settlers and such residents being thereafter referred to as ‘approved settlers’)…

3. The Defendant further avers as follows:

(1) Tai Hang Sai Estate is located at Government Lease NKIL 4479, Kowloon, Hong Kong where in the 1950s it was known as Kwong Man Village… (“the Village”)

…

(3) In the early 1950s, the Plaintiff applied the land site at the Village as a resettlement area for the building of houses for the occupation by the Settlers under Hire-purchase Agreements. Like the other similar settlers arranged to reside in the Village, Mr Wong Hoi, the father of the Defendant (“the Father”) was allowed House 85… (“the House”) after his hut in the area was damaged in a fire. The Father and his family including the Mother of the Defendant resided in the House then where the Defendant was later born in the House as well. The Father also ran his business… at the House…

…

(5) Clauses 14 and 15 of the Hire-purchase Agreements stipulated as follows:

‘14. During the continuance of this letting the Occupier shall have the option of purchasing from [the Plaintiff] the premises comprised in this letting… the option shall be exercised by Occupier paying the purchaser price… On payment of such purchase price the letting shall come to an end and the said premises shall become the property of the Occupier…

15. If the Occupier shall duly perform and observe all the stipulations and conditions in this Agreement… and shall in manner aforesaid pay to [the Plaintiff] monthly sums by way of rent amounting to the aggregate to the sum of…$2,940.00… and shall also pay to [the Plaintiff] all other sums of money which may become payable to [the Plaintiff] by the Occupier under this Agreement the letting shall come to an end the said house shall become the property of the Occupier…

(6) Upon paying the HK$2,940… the Occupier would be confirmed of his ownership of the house by the Plaintiff entering the following wordings in the Hire-purchase Agreement:

‘[The Plaintiff] here by acknowledge that the above mentioned sum of… $2,940.00… has been duly received, that all other sums payable… have been paid, and that the above mentioned house is now the property of the Occupier subject to the terms and conditions of the permit issued by the Government, but freed from all claims by [the Plaintiff].’

(7) In the auditor’s report of the Plaintiff for the period 10^th May 1952 to 31^st March 1953… it contained a note as follows:

‘The Hong Kong Government gave an undertaking that no house built by the Corporation on an approved site for rent or hire-purchase will be disturbed by the Government before the expiry of 10 years from the date of its erection unless the land is required for a public purpose, in which case, the house will be re-provisioned elsewhere at the expense of Government.’

(8) The Defendant’s Father was allotted the House in 1953 in the capacity as a settler approved by the Government. Like the other Occupiers of the Village at that material time, that is, settlers approved by the Government, the Father of the Defendant had become the owner of the House after settling the required sum of money to the Plaintiff. The Defendant’s Father and his family occupied and resided there in the House and also ran his business… there in the House…

(9) In or around 1961 the Father of the Defendant like the other residents of the Village were arranged for temporary resettlement to Tung Tau Estate… The then Colonial Hong Kong Government had honoured the promise contained in the premium of the Hire-purchase Agreements with the Settlers of Kwong Man Village that the residents including the Father of the Defendant and his family members were temporarily resettled to Tung Tau Estate pending for the completion of the construction of the new Tai Hang Sai Estate…

…

(12) In or around July 1961, the Commissioner for Resettlement of the Hong Kong Government issued letters captioned as ‘Tai Hang Sai Resettlement Area Clearance’ to residents of the Village relating to the arrangement of the temporary resettlement of the residents to Tung Tau Estate as follows:

‘…

(a) You should go to Tai Hang Sai Area Office… to register the names of your family…

(b) You should go to the same office… to collect a Letter of Authority to occupy accommodation in the Tung Tau Estate.

…

(d) You should demolish your cottage before 25^th August.’

…

(3) [The plaintiff] have agreed that those families wishing to return to the new housing estate at Tai Hang Sai may do so, but point out that they will be subject to such conditions of tenancy as apply to other members of the public. A list of all authorised families in the area to be cleared will be forwarded to [the plaintiff] prior to the clearance.

(4) You will be eligible for a period of rent free accommodation in the Tung Tau Estate, this will be the balance of a ten year period calculated from the date that your cottage was first occupied. Rent free notices will be issued in due course.

(5) Only those persons whose name and photographs are on your Resettlement Permit are eligible for alternative resettlement accommodation…

(13) In or around 1964 the Defendant’s family were arranged to reside at [the Premises] on a Tenancy Agreement entered between the Defendant’s father and the Plaintiff after the buildings of the Estate were completed construction… Due to the passing away of the Father and Mother and moving out of some other family members, the Defendant, his wife, the Defendant’s son and the younger brother Wong Kwai Keung are still the registered members of the Tenancy Agreement residing in the flat.

…

7… The Defendant further avers that he and his family members’ right of residence in the Premises derives from the Defendant’s Father purchasing the House of Kwong Man Village relying on the promise of the Plaintiff and the Government, the House was thereafter demolished and his business… terminated with detrimental reliance on the promise of the Plaintiff and the Government that the Family would be re-settled back to the Tai Hang Sai Estate unconditionally that under the principle of promissory estoppel and/or alternatively proprietary estoppel of equity that the Defendant and his registered family members have the right to continue living in the Premises which is located in the same lot of land where the House was originally located. It will be unjust and inequitable to allow the Plaintiff to vacate the Defendant and his registered family members out from the Premises without proper arrangements of resettlement of them back to the future newly re-developed Tai Hang Sai Estate…” (emphases added)

23.  The legal principles in relation to the two estoppels are trite.

24.  In relation to proprietary estoppel, the Court of Final Appeal had this to say in Cheung Lai Mui v Cheung Wai Shing & Anors (2021) 24 HKCFAR 116 at §23:-

“Put shortly, the requirements of equity to recognise and give relief based on proprietary estoppel are (a) a representation or assurance made to the claimant (b) reliance thereon by the claimant and (c) detriment to the claimant in the consequence of that reliance.”

25.  In relation to promissory estoppel, the Court of Final Appeal had this to say in Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1 at §55:-

“A promissory estoppel may be said to arise where (i) the parties are in a relationship involving enforceable or exercisable rights, duties or powers; (ii) one party (‘the promisor’), by words or conduct, conveys or is reasonably understood to convey a clear and unequivocal promise or assurance to the other (‘the promisee’) that the promisor will not enforce or exercise some of those rights, duties or powers; and (iii) the promisee reasonably relies upon that promise and is induced to alter his or her position on the faith of it, so that it would be inequitable or unconscionable for the promisor to act inconsistently with the promise.”

26.  The representation or the promise relied upon by the defendant in his defence is one that upon the defendant’s father’s payment of HK$2,940, his father would become the owner of the House in the Village without disturbance by the Government before the expiry of the 10 years from the 1950s unless the land is required for a public purpose (it is not entirely clear from the defence when the defendant’s father made the payment, but it must be in the 1950s). The defendant’s defence goes on to say that the defendant’s father did make the payment, and in 1961, when the defendant’s father and his family were asked to leave the House for redevelopment of the new Tai Hang Sai Estate, the Hong Kong Government promised that he and his family would be able to resettle in the new Tai Hang Sai Estate in the same capacity as the owner as he was the owner of the House before the relocation; thus the defendant’s father, and subsequently the defendant being his successor of the status of his father (now being the tenant), should be able to live in the Premises as if he is the owner but not a tenant simpliciter.

27.  For the present purpose of examining whether such estoppels are plainly and obviously pointless and futile, I assume the facts pleaded in the defence to be true and that the representation made by the Government in 1961 could be regarded as being made by the plaintiff. On such assumptions:-

(1)  I fail to see how Wong Kwai Keung, being neither the defendant’s father nor a tenant, could benefit from such representation or promise even on the pleadings. (For the avoidance of doubt, it is not necessary for me to express any view on whether the defendant could benefit from such representation or promise.) Wong Kwai Keung, in my view, just lived in the House and subsequently in the Premises as a licencee under the tenant, as I explained in my analysis of Ground (1)(a) above; and

(2)  Further and in any event, even if the representation or the promise was intended to benefit Wong Kwai Keung as well, the period of disturbance-free was 10 years from the 1950s and the Premises in Tai Hang Sai Estate would be “subject to such conditions of tenancy as apply to other members of the public” rent-free for the balance of the 10 years from the time of the resettlement back, which took place in around 1964 according to the defence (see §3(12) of the defence as quoted above). Thus, if the defendant’s father’s ownership of the House would be relied upon, this ownership would expire in the 1960s. In any event, to reflect this ownership, the defendant’s father lived in the Premises rent-free for the remaining balance of the 10 years. For the present purpose, I assume with the utmost generosity to the defendant or Wong Kwai Keung that in 1964, there would still be 10 years remaining. This would then extend the period of 10 years to 1974. So, even on the defendant’s own case (upon which Wong Kwai Keung relies to establish his right and interest for him to join the proceedings), I fail to see why the defendant’s father, the defendant or Wong Kwai Keung would be able to live in the Premises without lawful disturbance (such as termination of tenancy) as if he or they were the owners of the Premises after 1974, while the representation or the promise relied upon by the defendant’s father included the element of “subject to such conditions of tenancy as apply to other members of the public”.

28.  Further, I fail to see any detrimental reliance or alteration of position. Wong Kwai Keung was only a licencee under the defendant’s father. As the defendant’s father would have, or chose, to leave, Wong Kwai Keung in my view simply did not have any choice but followed the defendant’s father. Any detriment or alteration of position did not result from any reliance on the representation or promise, but solely upon the status of his rights to stay in the House or the Premises being parasitic upon the defendant’s father’s and subsequently the defendant’s.

29.  In the premises, it is plainly and obviously pointless and futile to join Wong Kwai Keung for him to run promissory estoppel or proprietary estoppel.

30.  On the above analysis, Ground (1)(c) fails.

VIII.  GROUND (2)

31.  Madam Leung who commenced the Judicial Review was the tenant herself, and thus the issues in the Judicial Review are issues between the plaintiff and its tenants but not others. The “Eviction Decision” being the subject decision in the Judicial Review (see §18 of the DCCJ 5582/2023 Decision) is the plaintiff’s decision to terminate the tenancy and evict her. Here, as between the plaintiff and Wong Kwai Keung, there has never been any tenancy. In this regard, I note that there has been no judicial review commenced by a non-tenant at all. Insofar as a non-tenant would rely on the tenant’s right to stay, I would understand why the non-tenant has not commenced any judicial review. However, insofar as a non-tenant would rely on the Judicial Review to say that he himself has a right to stay independent of the tenant, it is plain and obvious to me that a non-tenant such as Wong Kwai Keung could not avail himself of the Judicial Review (concerning tenants only) to confer upon him some interest in the cause or matter to be joined to the plaintiff’s claim.

32.  I would like to stress that I am not being technical here to differentiate between tenants and non-tenants. Legally, it is only the tenant who would have the obligations (and as quid pro quo, rights), for example, the obligation to pay rents, the obligation to ensure the proper use of the Premises, and so on. If there is any breach of the tenancy agreement, it is the tenant who would have to take up the liability, but not the members listed in the Schedule.

33.  For the sake of completeness, insofar as there is any argument that there may be a situation where the defendant would be evicted but the Rehousing Arrangement Decision mentioned in the Judicial Review is unlawful as against Wong Kwai Keung, I repeat §§46-47 of my decision in DCCJ 39/2024 handed down earlier on today ([2025] HKDC 261).

34.  In the circumstances, Ground (2) fails.

IX.  GROUND (3)

35.  For Ground (3) concerning arbitrary interference with the rights enshrined in the Basic Law and the Bill of Rights Ordinance, while I have no jurisdiction to give relief in public law, for the present purpose, I am tasked to examine whether there are any merits in Ground (3) at all for Wong Kwai Keung to be joined as a defendant. Ms Leung, in reliance on Connors v United Kingdom (2005) 40 EHRR 189 §§81-83, Ćosić v Croatia (2011) 52 EHRR 39, and Manchester City Council v Pinnock (Nos. 1 and 2) [2011] 2 AC 104, submits that the plaintiff should have assessed the proportionality of the measures adopted in evicting Wong Kwai Keung, and without such assessment, the interference is arbitrary.

36.  The current legal position is that a Government’s decision on land use is an action in the Government’s private capacity and thus is generally not amenable to judicial review: see Tang Chi Fai v Director of Lands for and on behalf of Lands Department [2020] HKCA 339 at §§26, 32, 35-37. That said, given that the Court of Final Appeal’s grant of leave in Sime Darby Motor Services Limited v Director of Lands [2024] HKCFA 26 to revisit this position, I am prepared, for the present purpose, to assume that there is some arguable issue on the amenability of such a decision, and for that purpose, I am also prepared, for the present purpose, to assume that such a decision made by the plaintiff, not by the Government, is amenable to judicial review.

37.  However, even assuming, without ruling, that arbitrary interference with those rights could constitute a defence to a private law claim, Mr Lok’s submissions are that it is plain and obvious that Wong Kwai Keung cannot make good such defence. He relies on a few cases, which I shall consider in some detail below.

38.  The first case is Chim Sui Ping v Hong Kong Housing Authority, HCAL139/2009, 17 September 2012. In that case, the applicant challenged the decisions to terminate the tenancy agreement of a public housing estate on the ground that “they were made without consideration of the applicant and her son’s right to home guaranteed by Article 29 of the Basic Law (“BL 29”) and Article 14 of the Hong Kong Bill of Rights Ordinance ( Cap 383 ) (“Art 14”)” (see §3(3)). Au J (as he then was) had the following to say at §47:-

“(1) The question to be asked under the issue of proportionality is whether the eviction is a proportionate means of achieving a legitimate aim.

(2) The burden to show that the eviction is proportional is on the authority.

(3) However, in situations where the occupant has no right under private law to remain in the property, it would be regarded as a strong case in support of proportionality. In these cases, the proportionality of the eviction decision is generally strongly supported by (a) the vindication of the authority’s unencumbered ownership rights, and (b) the fact that it would enable the authority to comply with its duties in distributing and managing public housing resources for a fair allocation of its housing for the needy people. This is particularly so as it is both the right and obligation of the authority, in discharge of its duties, to decide who should occupy its property.

(4) Further, in this regard, unless the contrary is shown, the authority is generally assumed to be acting in accordance with its duties in dealing with the property in making an eviction decision when the authority is entitled under private law to possession per se.

(5) Thus, in most cases, where the authority is entitled to possession as a matter of private law, there will be a very strong case that the eviction decision is proportionate, unless there are clear and strong factors showing otherwise. Such factors may include circumstances of a particularly vulnerable occupant (such as one who is suffering from mental or physical illness) where the eviction together without the arrangement of an alternative accommodation may cause exceptional hardship on the occupant. But each case must be assessed on its own facts.” (emphasis added)

39.  A similar sentiment was expressed by Lord Bingham in Mr Lok’s second case, Kay v Lambeth LBC [2006] 2 AC 465 at §36:-

“…[t]he public authority owner or landlord has, broadly speaking, a right to manage and control its property within bounds set by statute. The occupier acquires a right, but only a limited right, to occupy. On due determination of that interest, a claim for possession must ordinarily succeed, since any indulgence to the occupier necessarily derogates from the property right of the public authority, whose rights are also entitled to respect… It would, again, require highly exceptional circumstances before article 8 would avail the occupiers...” (emphasis added)

40.  The reasons for such sentiment have been well put by Etherton LJ delivering the unanimous judgment of the English Court of Appeal in Mr Lok’s third case, Thurrock BC v West [2013] HLR 5 at §25:-

“25… the reasons why the threshold is so high lie in the public policy and public benefit inherent in the functions of the housing authority in dealing with its housing stock, a precious and limited public resource. Local authorities, like other social landlords, hold their housing stock for the benefit of the whole community and they are best equipped, certainly better equipped than the courts, to make management decisions about the way such stock should be administered…” (emphasis added)

41.  Although Articles 36 and 145 of the Basic Law were apparently not engaged in Chim Sui Ping v Hong Kong Housing Authority, supra, these two articles concerning the right to social welfare in accordance with law, in my view, add nothing to the above in the context of the rights under BL 29 and Art 14 concerning the right to family and home.

42.  In my view, Wong Kwai Keung has an even higher hurdle set in Chim Sui Ping v Hong Kong Housing Authority, supra, because as I have found above, Wong Kwai Keung does not have any independent claim in the Premises at all.

43.  This brings me to again to Thurrock BC v West, supra. In that case, the defendant’s grandparents were the joint secure tenants of a house under the Housing Act 1985. The defendant lived there since 2007. The defendant’s grandparents passed away in 2008 and 2009 respectively. The defendant was not entitled to succeed, but he remained there and paid for his occupation. The authority issued a notice to quit in 2011, and the defendant raised the defence that to evict him would be a disproportionate interference with his right under article 8 of the European Convention on Human Rights, which is the equivalent of BL 29 and Art 14. Etherton LJ stated at §§31 and 36:-

“31…even where an art.8 defence is established, in a case where the defendant would otherwise have no legal right to remain in the property, it is difficult to imagine circumstances in which the defence could operate to give the defendant an unlimited and unconditional right to remain: comp. Pinnock at [52]. That might be the effect of a simple refusal of possession without any qualification. It is particularly difficult to imagine how that could possibly be appropriate in a case where the defendant has never been a tenant or licensee of the local authority. Otherwise, the effect of the art.8 defence would be that the court would have assumed the local authority’s function of allocating its housing stock, preferring the right of the defendant to remain, without any tenancy or contract, over all the other people entitled to rely on the local authority’s statutory housing duties and without the benefit of any knowledge of who those people are and their circumstances and of other relevant matters which would properly guide the local authority in housing management decisions.

…

36. Sympathy for the predicament of the respondent and his family, which is entirely understandable, cannot obscure the remarkable effect of the district judge’s decision. That decision precludes the Council from recovering possession of the Property from persons who have never been granted by the Council any right to occupy it, and whose housing needs are less than the accommodation provided by the Property, and confers on those persons a right to remain without any limitation of time or other conditionality, in conflict with the lawful legislative policy limiting succession rights to secure tenancies. It deprives the Council of its public right and duty to make management decisions about the Property as part of its housing stock. In effect, the court has assumed for itself the power Parliament has conferred on the Council to select the most suitable property for the numerous and various persons who have a legal right to social housing. This has been done without any knowledge on the court’s part as to who are those other people who have an equal, or possibly better, claim to be housed and for whom the Property would be as suitable or possibly more suitable that the respondent and his family. On the basis that it would be wrong for the Council to permit the respondent to remain in the Property without payment of rent and other conditions, the effect of the order is to compel the Council to grant the respondent a new tenancy of the Property to which he has no legal right.” (emphasis added)

44.  I fully adopt the above as logical and full of common sense.

45.  In the present case, as I have found above, Wong Kwai Keung does not have any independent claim in the Premises. He has not been a tenant; he has not been a licencee vis-à-vis the plaintiff; his alleged status of “approved occupier” (if any) does not confer any right on him against the plaintiff. In such circumstances, there is at least a very strong case in support of proportionality, and for the present purpose, it is for Wong Kwai Keung at least to adduce some evidence to explain why it is otherwise.

46.  To convince me that there is some serious issue as to whether the plaintiff’s eviction was disproportionate, first, Ms Leung (for Wong Kwai Keung) complains that the plaintiff did not consider Wong Kwai Keung’s personal circumstances individually but considered the defendant’s whole family as a whole. Such complaint is completely contradicted by the plaintiff’s written assessment of eligibility for rehousing issued to the defendant on 31 July 2023, which stated the results of each member of the family individually based on the reason stated for each of the result. This is clear evidence in my view showing plainly and obviously that the plaintiff did carry assessment of each member individually.

47.  Second, Ms Leung complains that the plaintiff failed to consider the decades’ long period of Wong Kwai Keung’s residence in the Premises to be a relevant factor. While Ms Leung seems to argue that the longer he had resided there, the more reason there would be for more compensation or allowance to him, this would involve distribution of the resources for which the plaintiff was responsible in its margin of discretion. I do not see why the mere absence of such consideration, in the light of there being at least a very strong case of proportionality, would make even a prima facie case that the eviction was disproportionate.

48.  Insofar as Wong Kwai Keung would rely on the hardship in Ground (4) to say that the eviction would be disproportional, I have to look at the relevant evidence, set out in §39 of the 2^nd Affirmation of Wong Kwai Keung:-

“… as a person without any alternative accommodation or means to obtain alternative accommodation, especially as a single person, the arbitrary interference also brings me ultra hardship, including a longer waiting period for public housing application. There are substantially graver inroads made into my right than that occurred to [the defendant].”

49.  Though this may be hardship, I have to say that such hardship is commonplace and is not “exceptional” for the purpose of §47(5) of Chim Sui Ping v Hong Kong Housing Authority, supra, quoted above.

50.  Lastly, I should add that the reason stated in the plaintiff’s written assessment mentioned in §46 above for each of the family members to be ineligible was his or her failure to sign or supply information required for the assessment. Therefore, it lies ill in Wong Kwai Keung’s mouth to say that his personal circumstances were not assessed. In my view, he simply refused to subject himself to the assessment which the plaintiff was prepared to carry out individually for him.

51.  In the circumstances, it is my view that it is plain and obvious Wong Kwai Keung has not raised any case of disproportionality.

52.  So, Ground (3) fails.

X.  GROUNDS (4) AND (5)

53.  Given my view on Grounds (1) – (3) above, in other words, Wong Kwai Keung plainly and obviously having no claim on his own to the Premises, I do not see how Grounds (4) and (5) would take the Joinder Summons further.

XI.  CONCLUSION

54.  In the circumstances, I dismissed both the Joinder Summons and the Additional Evidence Summons.

55.  As said, I heard submissions on costs. Having considered the submissions, I now order that Wong Kwai Keung shall pay the plaintiff costs of both summonses, with certificate for one counsel, summarily assessed at HK145,000.