潘定家 v. 上訴委員會(房屋)

HCAL 330/2025

[2025] HKCFI 2413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 330 OF 2025

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DECISION

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A.  Introduction

1.  By his Form 86 filed together with a supporting affirmation (“1^st Affirmation”), both dated 5 February 2025, the Applicant seeks leave to apply for judicial review so as to challenge and overturn a decision dated 5 December 2024 (“Decision”) made by the Appeal Panel (Housing) (“Appeal Panel”).

2.  By the Decision, the Appeal Panel confirmed the Notice to Quit dated 30 August 2024 (“NTQ”) issued by Hong Kong Housing Authority (“HA”) to the Applicant in relation to a public rental housing unit in Tsui Chung House, Tsui Ping (South) Estate (“Unit”), of which the Applicant is the tenant.

3.  In his Form 86, the Applicant has named the Director of Immigration, who is obviously not involved in these proceedings, as the Putative Interested Party. In the heading above, I have changed this to the HA, on the basis that I directed it to be joined as Putative Interested Party.

4.  By my directions dated 25 February 2025 and 13 March 2025, I gave the Appeal Panel and HA the leave to file and serve an initial response in English (with Chinese translation) and the Applicant shall have leave to file and serve a reply (if any) to that initial response.

5.  The Appeal Panel 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. Hence, the real contest is between the Applicant and the HA.

6.  The HA filed its Initial Response on 7 April 2024. The Applicant filed his Reply (in Chinese) on 23 April 2024.

7.  Having considered the materials, I have formed the view that this application can appropriately be dealt with on paper. This is my decision.

B.  Factual Background

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

9.  The Applicant is the tenant of the Unit, by virtue of the tenancy agreement entered into between himself and the HA on 17 February 1994 (“Tenancy Agreement”). Ms Choi Ching Na (“Choi”), Ms Poon Chin Man (“Daughter”) and Mr Poon Chin Ho (“Son”), i.e. the Applicant’s wife/ex-wife, daughter and son respectively, were listed as the household members (“Listed Household Member(s)”). Choi was stated to be the wife of the Applicant, in the Tenancy Agreement.

10.  By letter dated 30 August 2024, the HA issued the NTQ to terminate the Tenancy Agreement because it was found that the Applicant (including his Listed Household Members) had made false declarations in the following three “Well-off Tenants Policy” Declaration Forms, in failing to disclose truthfully:

(1)  Choi’s ownership in a private residential property in Tseung Kwan O (“TKO Property”) in the 2018 (April) Declaration Form (“2018 Declaration Form”);

(2)  the Daughter’s ownership in the TKO Property in the 2020 (April) Declaration Form (“2020 Declaration Form”); and

(3)  the Daughter’s ownership in the TKO Property in the 2022 (April) Declaration Form (“2022 Declaration Form”).

11.  After the 2018 Declaration, Choi assigned her interest in the TKO Property to the Daughter.

12.  The Applicant filed an appeal to the Appeal Panel against the NTQ. The appeal hearing was conducted on 28 November 2024. There is a transcript of that appeal hearing.

13.  By letter dated 5 December 2024, the Appeal Panel informed the Applicant of its decision to uphold the NTQ. The English translation of the Decision given by the Appeal Panel to confirm the NTQ sets out the following reasons:[1]

The deliberation and determination of the Appeal Tribunal (“The Tribunal”) [i.e. the Appeal Panel]

30. After careful consideration of the written information submitted by the Housing Department and the Appellant [i.e. the Applicant], as well as their responses and statements during the hearing, the Tribunal reached the following conclusions.

(1) Members of the Tribunal were satisfied with the Housing Department’s investigation findings. The Appellant’s family (including family members Ms. Choi and the daughter, Miss Poon, listed on the tenancy agreement) made false statements by failing to declare their domestic property ownership in Hong Kong when completing the 2018 (April), 2020 (April), and 2022 (April) WTP Declaration Forms (HD1119C). Thus, the HA’s issuance of the NTQ to this household was justified.

(2) When signing the application/declaration forms, the Applicant should fully understand that if any person makes any false statement or furnishes any false information in order to maintain residence in the abovementioned PRH Flat, the HA might terminate their tenancy agreement and recover the Flat by virtue of its power conferred by the Housing Ordinance, irrespective of whether or not they shall be prosecuted or convicted of the offence.

(3) Based on the Appellant’s explanation, he divorced his former wife, Ms. CHOI Ching-na, about 10 years ago and was not on good terms with her, and was on bad terms with his daughter, Miss POON Chin-man. Since both had moved out long ago and seldom returned to the abovementioned Flat, the Appellant had no knowledge of their property ownership. The Tribunal has doubts over his explanation, noting he had never declared his divorce and was unable to provide a divorce certificate with Ms. Choi to support his explanation. In addition, he could not adequately explain why he did so for his daughter. Therefore, the Tribunal was not satisfied with his explanation.

(4) In light of points (1) to (3) above, as well as thorough and careful consideration of the statements, grounds, existing evidence and all the circumstances of this appeal case (including the age, health, and financial situation of the Appellant and his family) presented by the HA’s representatives and the Appellant, Members of the Tribunal agreed unanimously that there were no reasonable grounds to exercise discretion in this case. Otherwise, it will be extremely unfair to PRH tenants who declare their information truthfully and will undermine the HA’s ability to enforce relevant housing policies in the future.

31. Based on the above considerations, Members of the Tribunal decided unanimously to confirm the NTQ issued by the HA on 30 August 2024.

C.  The Intended Grounds of Review

14.  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.

15.  In the part of the Form 86 where the Applicant is required to identify the relief sought, he simply stated that “I want my unit back” (in English translation).

16.  In the 1^st Affirmation, the Applicant’s “dissatisfactions” about the Decision are set out, and can be summarised as follows (in English translation):

(1)  The Applicant divorced Choi in 2010, and their Daughter followed her mother. Choi and the Daughter had moved out of the Unit two years before the divorce. At that time, he took a form at the estate office to delete the household registration of Choi and the Daughter. However, the staff there asked him whether they were living there. He said no, and then the staff said that they had not returned to live in the Unit, and it did not matter whether they were removed from the household registration or not.

(2)  It was only after the Applicant’s application for Home Ownership Scheme flat was rejected that he learned that the Daughter had a property and was not eligible. At that time, he was informed that the Daughter’s household registration must be cancelled.

(3)  He is over 65 years old and has long-time illness, limited working ability and low income. He cannot afford to rent a flat in the market. His situation requires this accommodation very much.

17.  The Applicant further elaborated his “dissatisfactions” in his further affirmation dated 7 February 2025 (“2^nd Affirmation”) and attached a copy of a Court Order dated 21 October 2010 (“Copy Divorce Order”) as proof of his divorce from Choi in 2010 (in English translation):

(1)  The Applicant could not find his divorce certificate to give it to the Appeal Panel at that time. Later, a staff of the Housing Department told him that if he had provided the divorce certificate, the result might have been different.

(2)  After the divorce, the Daughter lives with her mother, and the Son lives with him.

(3)  Because of the bad relationship with Choi, they no longer have any contact and are two completely independent families. As for not cancelling Choi’s household registration, it was a historical issue. When he went to the estate office to handle it, because he did not have the signatures of Choi and the Daughter, the staff there told him that it did not matter whether he cancelled it or not, as he was living in the same unit anyway. He left at that time and the matter was never resolved.

(4)  It is very unfair that the HA is accusing him of concealing the fact that the Daughter owns a property and cancelling his eligibility to live there. He has been separated from Choi and the Daughter, who are another family, for 17 years. He has no idea about their situation and has never concealed this issue.

(5)  He has been a law-abiding person for decades. He went to work and raised his Son though he had a chronic illness. He was eligible for Comprehensive Social Security Assistance, but he did not apply for it. He is now over 65 years old, and can barely make ends meet by doing odd jobs and living in a public housing estate. The HA has said it will take back the Unit. He is now very confused and helpless, depressed every day, and he resents himself for not cancelling the household registration at the time due to the words of the housing staff. His fault was only listening to the staff and not cancelling the household registration.

(6)  The policies of the current government and HA favour the elderly. But does this no longer apply to him, a senior citizen who has been law-abiding and hardworking for decades? He has a limited level of education and does not know how to write many things, and his handwriting is not good. The divorce certificate is attached.

18.  As can be seen above, most of the points raised by the Applicant in his 1^st and 2^nd Affirmations do not give any clear identification of alleged public law errors on the part of the Appeal Panel.

19.  At best, it seems that the Applicant might be seeking to advance the following grounds (as identified in the Initial Response in a way with which I agree):

(1)  Ground 1: The staff at the estate office represented that it did not matter whether Choi and the Daughter were removed from the household registration or not (“Alleged Representation”).

(2)  Ground 2: It was only after the Applicant’s application for Home Ownership Scheme flat was rejected that he learned that the Daughter had a property and was not eligible.

20.  In the Reply, the Applicant raised two further grounds, namely, “procedural injustice” (Ground 3) and “Wednesbury unreasonableness” (Ground 4), which will be dealt with together below.

D.  Fresh Evidence – the Copy Divorce Order

21.  Before dealing with the Grounds put forward by the Applicant, the preliminary issue of admissibility of the Copy Divorce Order (i.e. the fresh evidence) has to be determined.

22.  The HA submits that the Copy Divorce Order should not be held admissible for the following reasons:

(1)  Three conditions for admission of fresh evidence have to satisfied: (a) the evidence could not have been obtained with reasonable diligence for use at the hearing; (b) the evidence was such that it would probably have an important influence on the result of the case; and (c) the evidence had to be apparently credible (Leung Suk Mei v Hong Kong Housing Authority [2024] HKCA 596 at §16).

(2)  As regards the first condition, the Applicant has failed to prove that the Copy Divorce Order could not have been obtained with reasonable diligence for use at the Appeal Panel hearing, and just briefly said he could not find it but there was no evidence to prove what steps were taken by him to try to find it.

(a)  Though the Applicant was divorced in 2010, all along during the last 15 years, he had chosen to provide untruthful information to the HA that Choi remained his wife. The HA was only informed by him of his divorce during the appeal to the Appeal Panel.

(b)  The Applicant untruthfully and continuously declared Choi as his wife since 2012 in six declaration forms dated 23 May 2012, 2 April 2014, 31 May 2016, 2 May 2018, 26 June 2020 and 26 May 2022.

(c)  Pursuant to Clause II(21) of the Tenancy Agreement, the Applicant as tenant shall notify the HA as landlord immediately of any alteration in his family caused by births deaths or otherwise. What the Applicant should have done 15 years ago in 2010 was to truthfully report and update his marital status to HA by providing the Copy Divorce Order. He has never explained why this was not done and why the Copy Divorce Order was only provided to the HA after the Appeal Panel hearing but not earlier.

(3)  As to the second condition, the Copy Divorce Order would not have an important influence on the result of this case, and to recap, the basis for termination of the Tenancy Agreement was because of false declarations made by the Applicant in failing to disclose truthfully the residential property ownership of his Listed Household Members in three declaration forms:

(a)  Regardless of whether the Applicant was divorced or not, once he elected to list Choi as a Listed Household Member, he has to declare any residential property held by Choi. It does not matter whether Choi was or was not the wife of the Applicant.

(b)  Only one of the three false declarations (i.e. the 2018 Declaration Form) relates to property held by Choi. The remaining two (i.e. the 2020 and 2022 Declaration Forms) relate to property held by the Daughter but not Choi. Whether or not Choi was the Applicant’s wife has no relevance to the 2020 and 2022 Declaration Forms.

(c)  Regardless of whether Choi was or was not the Applicant’s wife, by not declaring the residential property held by Choi and the Daughter, the Applicant made false declarations in the 2018, 2020 and 2022 Declaration Forms.

(4)  Regarding the third condition, the TKO Property was acquired by Choi in 2009 even before the Applicant and Choi’s divorce (as noted by the Appeal Panel, which apparently was prepared to treat the Applicant as divorced even in the absence of divorce certificate):

(a)  The Appeal Panel questioned whether the Applicant really had no knowledge of the TKO Property, and was apparently not satisfied with the answer provided by the Applicant (as shown in the transcript of the Appeal Panel hearing).

(b)  In the Decision, the Appeal Panel also cited the Applicant’s inconsistent conduct as another reason for being sceptical as to his lack of knowledge explanation (i.e. the Applicant did not at the same time apply to delete the household registration of Choi when he applied to delete that of the Daughter).

(5)  Though the Appeal Panel mentioned the absence of divorce certificate in the Decision, it is obvious that whether the Applicant was divorced or not would not affect the outcome of the appeal.

23.  I accept the HA’s submissions.

24.  First, 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 (which is a high threshold).

25.  Second, as can be seen in the Decision – §30(3) of the Notes of Proceedings – and relevant parts of the transcript of the Appeal Panel hearing (in English translation), the issue of the Applicant’s marital status or divorce was already taken into consideration by the Appeal Panel in the decision-making process and was reflected in its reasons for the Decision. In the present case, there was no evidential basis to suggest that there exists any procedural impropriety in the Appeal Panel hearing or irrationality in the Decision. The Court will not ordinarily interfere in the weighing exercise performed by the decision-maker (in the present case, the Appeal Panel’s conclusions on the credibility of the submissions and replies made by the Applicant in the appeal).

26.  Third, the Copy Divorce Order (which was issued in 2010) is not admissible or helpful now as it was plainly available before the time of the Appeal Panel hearing, and in any event adds little to the evidence and submissions made by the Applicant at that hearing.

E.  Ground 1

27.  The gist of the Applicant’s complaint is that the staff at the estate office made a representation to him that it did not matter whether Choi and the Daughter were removed from the household registration.

28.  On the facts of the present case as traversed above and in acceptance of the HA’s submissions in respect of the Copy Divorce Order issue above, I also agree with the HA’s submissions in response to the Alleged Representation argument below, which in summary is that:

(1)  The Alleged Representation does not advance the case of the Applicant:

(a)  Once the Applicant has chosen to keep Choi and the Daughter as his Listed Household Members, it would be the Applicant’s responsibility to ensure their truthful declarations in the 2018, 2020 and 2022 Declaration Forms. The Applicant failed to do so, and hence he made the false declarations.

(b)  The falsity of the declarations lies in the Applicant’s failure truthfully to disclose the residential property ownership held by his Listed Household Members. Whether or not Choi and the Daughter should be listed as his Listed Household Members in the first place is not relevant to the falsity of the declarations.

(2)  Had the divorce certificate been produced by the Applicant before the hearing, the HA would still have opposed the appeal and invited the Appeal Panel to confirm the NTQ, because in the 2018, 2020 and 2022 Declarations, “[h]ad they [i.e. the Applicant, Choi and the Daughter] declared the information truthfully, the Appellant and his family would have been ineligible for continuous renting of PRH” (the HA’s Memorandum to the Appeal Panel dated 13 November 2024 at §7(i)).

29.  In the present case, the Alleged Representation does not form any proper basis to undermine the Appeal Panel’s analysis and conclusion on the false declarations issue as set out in the Appeal Panel’s Reasons for the Decision at §§30(2)-(3).

30.  Ground 1 is not reasonably arguable with any realistic prospect of success.

F.  Ground 2

31.  The gist of the Applicant’s complaint under Ground 2 is that it was only after his application for Home Ownership Scheme flat was rejected that he learned that his Daughter had a property and was not eligible.

32.  I accept the HA’s submissions that (1) as shown in the relevant part of transcript of the Appeal Panel proceedings (in English translation), the Appeal Panel had duly noted the Applicant’s explanation about his lack of knowledge of the Daughter’s private property ownership and however was more interested in questioning the Applicant’s inconsistent conduct in not deleting Choi’s household registration; and (2) the Appeal Panel has already considered the Applicant’s lack of knowledge explanation.

33.  It is trite that the weight to be given to particular aspects of the evidence is ordinarily a matter for the decision-maker, and complaints that insufficient weight has been given to one aspect or another does not usually provide fertile ground for an intended judicial review challenge.

34.  Ground 2 does not identify a reasonably arguable ground with any realistic prospect of success.

G.  Ground 3

35.  The gist of the Applicant’s complaint is that (1) he is over 65 years old, has long-term illness, limited working ability, and low income; (2) he cannot rent a flat in the market at all; and (3) his situation requires this accommodation very much.

36.  Reading the transcript of the Appeal Panel proceedings (in English translation) in a way appropriate to the nature of the hearing, I agree with the HA’s submission that the Appeal Panel has already duly considered the Applicant’s reasons and his personal circumstances.

37.  As clearly set out in its Reasons for the Decision – at §30(4) – the Appeal Panel was of the view that the present case does not justify the exercise of discretion in not upholding the NTQ.

38.  In absence of irrationality and procedural impropriety, the Court will not interfere with the Appeal Panel’s refusal in exercise of discretion.

39.  Ground 3 is therefore also rejected.

H.  Grounds 4 and 5

40.  In the Reply, the Applicant set out the following further allegations which are in summary that:

(1)  Ground 4 – Procedural Injustice: the Decision was made without proper consideration of his submissions or allowing him to supplement key new evidence (i.e. the Copy Divorce Order), which deprived him of the fundamental procedural rights to defend and rectify.

(2)  Ground 5 – Wednesbury unreasonableness: over the years, he paid rent on time and did not breach the Tenancy Agreement nor receive any additional benefits. Termination of the Tenancy Agreement solely because of the misstatement in the Declaration Forms is disproportional and manifestly excessive.

41.  I think it apt to consider these two Grounds together.

42.  Having considered the materials, I do not find any reasonably arguable public law grounds. On the facts of the present case and for the reasons set out in the discussion above, there was no reasonably arguable procedural unfairness. I have dealt with the question of irrationality in the above context as well.

43.  Grounds 4 and 5 have no merit.

I.  Result

44.  None of the proposed Grounds of review is reasonably arguable with any realistic prospect of success.

45.  Therefore, the Applicant’s application for leave to apply for judicial review is dismissed.

46.  However, in the exercise of my discretion, I make no order as to costs.