關偉建 v. 房屋局

HCAL 1100/2026

[2026] HKCFI 4086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1100 OF 2026

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JUDGMENT

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I.  INTRODUCTION

1.  Before me is the notice of application for leave to apply for judicial review (the “Form 86”) filed by the Applicant on 16 June 2026, and the Applicant’s application made in the Form 86 for a stay of the execution of the Writ of Possession granted in relation to District Court proceedings on 12 March 2026 (the “Stay Application”) in relation to Flat 530 (the “Flat”), Man Hing House, Tai Hang Sai Estate (“THSE”), Kowloon. The Applicant acts in person, and the Form 86 itself is prepared in Chinese. The one-page cover sheet of the supporting affirmation referring to the attachments thereto is also prepared in Chinese. However, the substantive contents contained in the two attachments to the affirmation, namely, “Grounds for Judicial Review” (the “Grounds for JR”) and “Affirmation of Kwan Wai Kin” (“Kwan’s Affirmation”), and his written submissions, are all prepared in English without any interpretation clause. Therefore, I render the present Judgment in English.

2.  While the Form 86 could be disposed of on paper, by §53 of the Grounds for JR, the Applicant requested an urgent hearing of the Form 86 and the Stay Application. Therefore, I directed a hearing with opportunity for the Applicant to file written submissions.

3.  In the Form 86, in “Judgment, order, decision or other proceeding in respect of which relief is sought”, the Applicant does not specify any decision of the Putative Respondent for the intended review, but wrote “攞回合法居所. 屋是我爸爸買” (translation: To get back the lawful premises, and the house was purchased by my father). Nor does the Applicant name any relief he would like to seek.

4.  To understand what decision the Applicant applies for leave to review, it is important to know the background.

II.  BACKGROUND

5.  In the papers filed with the Court, the Applicant has set out some of the background of the case. Although he does not specifically mention any related previous proceedings, I take notice of the background set out in the following judgments in some previous proceedings in which the Applicant was directly or indirectly involved:-

(1)  DCCJ 5509/2023 commenced by The Hong Kong Settlers Housing Corporation Limited (the “Corporation”), in which the Applicant himself was the Defendant, tried together with DCCJ 5505, 5507, 5546 and 5582/2023 before HH Judge KC Chan, who handed down the judgment on 23 October 2025 ([2025] HKDC 1800) (the “DC Judgment”); and

(2)  HCAL 1600/2024 commenced by one Leung Ah Duen, a resident of another unit of THSE, against the Corporation, dismissed by Coleman J with his Reasons handed down on 22 August 2025 ([2025] HKCFI 3715) (the “HCAL 1600 Judgment”), in which the Applicant was involved indirectly in the sense that DCCJ 5509/2023 had been allowed to proceed on the basis that there might be public law defence available: see [2024] HKDC 1387.

6.  From the Judgments, the Grounds for JR and Kwan’s Affirmation, the relevant background can be summarised as follows.

A.  Relevant persons

7.  The relevant persons are the Applicant and his adoptive father Lee Chiu. The Applicant was born in 1960. After his biological parents passed away when he was young, Lee Chiu took him into his family.

8.  The other relevant persons are the Corporation and the Government. The Corporation was set up in around 1952 to build and provide affordable housing in certain area permitted by the Government in Shek Kip Mei. Albeit a non-profitable company, it is “a private company with its own constitution. Decisions are made by its board of directors, not the Government or pursuant to any statue”: see HCAL 1600 Judgment §§66(1) and 73(4). Although the Applicant asserts that the Government has control over the Corporation because it received Government’s funding and the Government was involved in its incorporation, these so-called reasons would not automatically constitute conferment of power on the Government to control the Corporation. The Applicant’s assertion is a mere assertion. On the contrary, as pointed out by Coleman J in HCAL 1600 Judgment §§17(1) and 73(10), the Government has “no authority to establish a mechanism to monitor” the Corporation’s operations.

B.  Historical background

9.  When in 1952, the Corporation was set up to build and provide affordable housing in certain area permitted by the Government in Shek Kip Mei, the Government provided an undertaking (the “1952 Undertaking”) in respect of the housing in the area. The 1952 Undertaking was recorded in a letter issued by the Government to the Corporation dated 4 October 1952 in the following terms:-

“no house built by the Corporation on an approved site for rent or hire purchase will be disturbed by Government before the expiry of 10 years from the date of its erection unless the land is required for a public purpose. In that event the house will be re-provisioned elsewhere at the expense of Government.” (emphasis added)

10.  As a result, the Corporation built some cottages in the area. In the cottages was one Tung Tau Village, in which Lee Chiu was housed under a hire-purchase agreement dated 2 June 1956 (the “Hire-Purchase Agreement”). The preamble of the Hire-Purchase Agreement recited:-

“WHEREAS the Corporation has applied to Government for sites in settlement areas as well as outside resettlement areas on which to build cottages or houses for rent or hire- purchase;

AND WHEREAS Government has granted the Corporation such sites and has further undertaken that no house built by the Corporation on an approved site for rent or hire-purchase would be disturbed by Government before the expiry of ten years from the date of its erection unless the land was required for a public purpose in which event the house would be re-provisioned elsewhere at the expense of Government…” (emphasis added)

11.  The ten-year period therefore expired in about 1966. Before 1966, some parts of the land on the approved sites were subsequently resumed for public purpose. As a result, correspondence ensued between the Corporation and the Government as to how to implement the 1952 Undertaking. Relevant are the Government’s letter dated 27 November 1958 (the “Government’s Letter of 27.11.1958”) together with the “points of agreement” (the “Points of Agreement”) annexed thereto, and the Corporation letter dated 24 January 1959 where it expressed its agreement (the “1959 Agreement”) to which the Points of Agreement. The Government’s Letter of 27.11.1958 read:-

“I refer to your letter of 14th October, 1958, on the subject of points of agreement between the Corporation and Government concerning the reprovisioning of your cottages.

…

Regarding the final paragraph of your letter I refer to the [Government]’s letter of 4th October, 1952, in which an undertaking was given by Government to re-provision houses built by the Corporation and disturbed before the expiry of ten years from date of erection. This undertaking is honoured by paragraph 4 of the points of agreement read in conjunction with paragraph 1…” (emphasis added)

12.  The Points of Agreement annexed to it contained eight paragraphs. The relevant paragraphs are set out below:-

“(1) The Corporation proposes to re-house in multi-storied buildings those of its tenants whose cottages are on sites required for permanent development and does not wish Government to undertake permanent re-provision.

(2) Government agrees to allocate to the Corporation suitable sites which are to be adequate to re-house the tenants referred to in paragraph (1) above…

(3) The Corporation agrees to assist Government in the immediate clearance of cottages at Tai Hang Sai to permit the construction of a road…

(4) Until permanent alternative accommodation is made available by the Corporation Government undertakes to house the dispossessed tenants temporarily in resettlement estate subject to conditions set out in paragraph (5).

(5) In all cases tenants of the Corporation, accommodated by Government in resettlement estates in accordance with paragraph (4), will pay the standard rents for such accommodation from tenth anniversary of the date on which they first entered into agreement with the Corporation. Those who have not completed payments due to the Corporation will pay to Government the standard rents for the accommodation provided for the same length of time as they agreed to make payments to the Corporation. At the end of these periods they will not be required to pay rents to Government until the expiry of the ten-years period mentioned above. Similarly, those who have already completed all payments due to the Corporation, prior to being temporarily re-housed in Government accommodation, will not be required to pay rents until the expiry of the ten-years period mentioned above…” (emphasis added)

13.  Lee Chiu was among those affected by the resumption. He was re-housed in Wong Tai Sin Resettlement Estate.

14.  In or about 1964, upon the completion of the construction of THSE, the Corporation as landlord allocated the Flat to Lee Chiu as tenant. The Applicant moved to the Flat together with Lee Chiu, and the Applicant subsequently became the tenant of the Flat upon Lee Chiu’s death. The Applicant does not dispute the validity of the tenancy, as recorded in §§24-25 of the DC Judgment. In fact, the Applicant had and has no way to dispute the validity of the tenancy because Lee Chiu, to whom he succeeded, never disputed the same, and the Applicant himself had occupied the Flat also on the basis of tenancy.

C.  The Corporation’s redevelopment proposal

15.  “From 2010 to 2015, the HKSHC developed concrete plans to demolish the THSE and build 5,000 flats for two reasons: (1) the THSE had become dilapidated and in need of repair. In particular, the majority of the residents were elderly persons, and there were no lifts for them to access their flats in the building blocks, most of which were 8 to 10 storeys high; (2) it would be in the general public interest to supply further houses.”  During this period, the Government on various occasions stressed that the Corporation was not part of the Government machinery: see HCAL 1600 Judgment §§18 and 19.

16.  On 18 March 2016, the Corporation submitted an application to the Town Planning Board (the “TPB”) for redeveloping the THSE. After deliberation, the TPB gave conditional approval to the application, with two advisory clauses as pat of its approval, advising the Corporation to “provide subsidised rental flats within the redevelopment proposal to meet the needs of the affected existing tenants” of the THSE”, and to note the TPB’s request that the Government should “not execute the lease modification for the redevelopment proposal before rehousing arrangement had been satisfactorily resolved”: see HCAL 1600 Judgment §25.

17.  Subsequently, the Corporation and the Urban Renewal Authority joined together for the redevelopment. In October 2021, the Corporation put forward a compensation package for the occupants of the THSE. Around the same time, in her 2021 Policy Address, the Chief Executive made it clear that the Executive Council’s approval for the joint venture between the Corporation and the Urban Renewal Authority was given “on condition that the [Corporation] will provide proper rehousing arrangements for existing tenants”: see HCAL 1600 Judgment §36. I shall refer to this condition as the “EC Condition” and this approval as the “EC Approval”.

18.  Also in October 2021, the Corporation made a fresh application to the TPB for redevelopment. In December 2021, the TPB approved the application with an advisory clause that the Corporation should communicate better with the affected occupants about the rehousing arrangement and their concern: see HCAL 1600 Judgment §§40-41.

19.  In June 2023, the Corporation made a press release for the rehousing plan (the “Corporation’s Rehousing Plan”), and in July 2023, the Corporation published a notice on “Arrangements on Allowance Payment and Execution of Legal Documents” (the “Corporation’s Allowance Plan”).

D.  Corporation’s legal action against the Applicant in DCCJ 5509/2023

20.  On 24 July 2023, as recorded in its letter of even date issued to the Applicant, the Corporation made a determination (the “Corporation’s 2023 Determination”) that the Applicant was ineligible for rehousing arrangement on the ground that the Flat was not the Applicant’s sole residential premises but that the Applicant would be entitled to an ex-gratia allowance of HK$100,000. Although at the hearing, the Applicant denied the categorisation that the Flat was not his sole residential premises, and explained that he had lived in the Flat since his childhood, he also said that he had to take care of a friend, apparently suggesting that he had to live somewhere else. In any event, there is no evidence showing that he disputed the categorisation since the Corporation’s 2023 Determination, and there is also no basis for disputing such categorisation. On the evidence, I find that the Flat was not his sole residential premises.

21.  The Corporation commenced DCCJ 5509/2023 against the Applicant for vacant possession of the Flat. After trial, in the DC Judgment , HH Judge KC Chan ordered delivery of vacant possession of the Flat.

22.  The Applicant has lodged an appeal, and his application for stay pending appeal has been refused: see [2026] HKDC 29. On 12 March 2026, the Corporation obtained a Writ of Possession, which the bailiff posted on 16 April 2026. The bailiff further posted a final notice on 12 May 2026.

E.  Filing of the Form 86

23.  On 16 June 2026, the Applicant filed the Form 86. In the Grounds for JR, he alleges:-

“1. This is an application for leave to apply for judicial review challenging the Respondent’s failure to properly identify, assess and discharge obligations arising from the historical resettlement arrangements relating to Tai Hang Sai Estate, including the Government’s undertaking made in or around 1952 and subsequently formalised and developed into a structured framework in 1959 under the 1959 Agreement entered into between the Government and [the Corporation], and further challenging the Respondent’s failure to consider and ensure compliance with the condition imposed by the Executive Council in approving the present redevelopment of Tai Hang Sai Estate, namely that proper rehousing be provided for existing tenants…

…

3. The application is brought urgently in circumstances where the Applicant faces immediate loss of his home in the context of the present redevelopment of Tai Hang Sai Estate, and where the issues have crystallised upon the commencement of enforcement action.

4. The present application does not seek to re-litigate the possession proceedings. While the Applicant continues to challenge the possession order by way of appeal, the present application raises a distinct public law issue as to whether the Respondent has properly considered and discharged its responsibilities arising from the Government’s undertaking made in or around 1952 and the framework subsequently developed under the 1959 Agreement.

…

27. The present redevelopment of the Estate was approved by the Executive Council on the express condition that the Corporation would provide proper rehousing arrangements for existing tenants as a matter within the Respondent’s policy oversight.

28. The Applicant has been assessed by the Corporation as not meeting the applicable criteria for rehousing in the present redevelopment and has thereby been excluded from such arrangements. The Applicant’s case is that the criteria applied to affected residents fail to distinguish between different categories of persons, including those whose occupation arises from the framework established by the 1952 Undertaking and the 1959 Agreement and those whose occupation does not…

29. In circumstances where the present redevelopment proceeds on the footing of proper rehousing of existing tenants, the exclusion of persons failing within the framework, including the Applicant’s household, gives rise to a material inconsistency requiring consideration by the Respondent.

30. In particular, it is arguable that the application of a uniform screening mechanism to all occupants of the Estate, without regard to whether they fall within the class of persons for whose benefit the framework, including the provision of permanent alternative accommodation, was established, is inconsistent with that framework and fails to take into account a relevant consideration.

31. The Applicant’s case is that, in those circumstances, the Respondent has failed to consider whether the rehousing arrangements and criteria applied in the present redevelopment are consistent within the framework arising from the 1952 Undertaking and the 1959 Agreement.

32. Further, it is arguable that the Respondent has failed to consider whether such arrangements satisfy the condition upon which the redevelopment was approved, namely the provision of proper rehousing for existing tenants.” (emphasis added)

III.  TIME WHEN DECISIONS / FAILURES TO BE REVIEWED WERE MADE / COMMITTED

24.  Against the background set out above, it is clear that the subject complaint of the Applicant is the Corporation’s refusal to provide for rehousing in the Corporation’s 2023 Determination. The Putative Respondent’s alleged failures were failures to ensure that re-housing would be provided to the Applicant. The Putative Respondent’s alleged failures would arguably go further back to June 2023 when the Corporation’s Rehousing Plan made and/or July 2023 when the Corporation’s Allowance Plan was made, because the Corporation’s 2023 Determination was the implantation of the two Plans. The Applicant seems to say that the alleged failures crystalised in the final notice in relation to the Writ of Possession posted in May 2026 mentioned in §23 above. With respect, I disagree. DCCJ 5509/2023 was commenced, and the Writ of Possession was issued, as a consequence of the Applicant’s refusal to deliver vacant possession of the Flat upon the Corporation’s 2023 Determination, and so the Corporation’s 2023 Determination must be the relevant decision, or if there were any failures, the failures arose when the decision which was allegedly made with the failures was made, that is, the Corporation’s 2023 Determination. In any event, the commencement of DCCJ 5509/2023 cleared any doubt that the Corporation’s 2023 Determination was not a final decision, if there was any such doubt. Thus, put highest for the Applicant, if the alleged failures were not committed on 24 July 2023 when the Corporation’s 2023 Determination was made, they were committed still in 2023 when DCCJ 5509/2023 was commenced.

25.  This means that 3 years have passed since the failures sought to be reviewed. In considering whether to grant leave for judicial review out of time, I have to consider the following:-

(1)  Length of delay;

(2)  Explanation for the delay;

(3)  Prejudice;

(4)  Question of public importance; and

(5)  Merits of the substantive application.

See AW v Director of Immigration and Another [2016] 2 HKC 393 at §27 per Lam VP, Kwan and Poon JJA (as they then were).

26.  The length of delay of 3 years is substantial.

27.  There is no good explanation for the delay. Insofar as the Applicant would like to say that he is not legally represented, this is not a good explanation, and in any event, in DCCJ 5509/2023, he was at a point legally represented. Insofar as the Applicant would like to say that he thought that the time should only run from the Corporation obtaining the Writ of Possession (apparently he is saying so in §3 of the Grounds for JR quoted above), I do not accept this explanation based on my view in §24 above.

28.  There is no prejudice to the Applicant. The Flat was not the only residential premises he had. In any event, even following his Form 86, he seems to say that the Government should provide or secure rehousing for him, rather than asserting any right that he should be able to stay in the premises. Insofar as there is any prejudice in the sense that his application would be dismissed without substantive consideration, I would consider the substantive merits in determining whether to grant time extension.

29.  In considering prejudice, I should also consider prejudice to third parties: see Lo Siu Lan and Another v Hong Kong Housing Authority, CACV 378/2004, 17 December 2004 at §34 per Ma CJHC (as he then was), with whom Stock and Le Pichon JJA (as they then were) agreed. As recorded in §81 of HCAL 1600 Judgment, as at the time of the Judgment, more than 95% of the THSE residents had accepted available options under the Rehousing Plan and thus vacated their respective flats. The present Form 86 may well cause further delay to the redevelopment because without obtaining the vacant possession of the Flat, the building in which the Flat situates cannot be demolished and no redevelopment as planned could take place. As stated in §94 of the HCAL 1600 Judgment, any delay would prejudice the tenants and the redevelopment as a whole.

30.  There is no question of public importance. The application concerns the redevelopment of the THSE only. As at the date of the HCAL 1600 Judgment in April 2026, more than 95% of the THSE had already accepted the Rehousing Plan and thus vacated their respective flats, and from the DC Judgment, it can be seen that some more tenants had by settlement dropped their defence to the Corporation’s claims for vacant possession of their respective flats. Further, the present application arises from the Applicant’s own specific situation where the Flat was not his sole residential premises.

31.  The above seems to be overwhelmingly against any grant of leave out of time, and may well be sufficient for me to dismiss the Form 86 without considering the merits: see Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006 at §13 per Hartmann J. I am, however, prepared to consider the substantive merits of the application itself.

IV.  MERITS

32.  The Grounds for JR specifies 5 Grounds (“Ground 1”, “Ground 2” and so on) for the proposed judicial review. These Grounds can all be subsumed under §§27-32 of the Grounds for JR quoted above. All the Grounds are built on two building blocks: the first is the 1952 Undertaking and the 1959 Agreement; and the second is the EC Condition and the EC Approval. Therefore, I find it convenient to discuss these two building blocks first before analysing each Ground individually.

A.  1952 Undertaking and 1959 Agreement

33.  The Applicant submits that permanent alternative accommodation should be provided under the 1952 Undertaking and the 1959 Agreement. With respect, I am unable to accept such submissions. The 1952 Undertaking clearly had a ten-year time limit. Under the 1952 Undertaking, the house would not be disturbed for ten years except for a public purpose. As explained in §11 above, the ten-year period expired in about 1966. Therefore, whether there was any Government’s resumption for a public purpose or not before 1966, after 1966, the Government may resume the land without providing or securing any rehousing. It was on this basis that Lee Chiu entered into the Hire-Purchase Agreement, as evidenced by the preamble of the Hire-Purchase Agreement quoted above, and thus, Lee Chiu knew what he was to purchase – a house where he would be able to live for ten years without disturbance by the Government except for a public purpose, and after the ten years, the Government may “disturb” the house in the usual manner, that is, not necessarily any provision of housing but the usual reasonable compensation only.

34.  Government’s disturbance did occur before 1966, and the Government, in honouring the 1952 Undertaking as elaborated in the 1959 Agreement, did provide re-housing for Lee Chiu and his family. However, nowhere did the 1952 Undertaking and the 1959 Agreement say that a permanent rehousing would be provided forever, let alone that the Government would provide any rehousing again after any further resumption of the land or any other kind of disturbance after Lee Chiu would be rehoused back to the THSE.

35.  A fortiori when the “disturbance”, in the present case, the redevelopment, occured after the expiry of the ten-year period.

36.  The Applicant seems to argue that because Lee Chiu purchased a flat in Tung Tau Village under the Hire-Purchase Agreement before the resumption, the rehousing provided by the Government would have to be permanent in the sense of forever or in the sense that Lee Chiu would have property ownership. With respect, I disagree because:-

(1)  the Government was entitled to resume private lands for a public purpose, and upon such resumption, what the landowner would be entitled to obtain was reasonable compensation;

(2)  the rehousing back to the THSE with Lee Chiu and subsequently the Applicant as a tenant has never been disputed, meaning that Lee Chiu and the Applicant have accepted that no permanent “forever” rehousing or property ownership would be provided; and

(3)  it was not surprising at all for Lee Chiu not to dispute this tenancy status – his property ownership in Tung Tau Village had already been compensated by the Government’s rehousing and the availability of the tenancy of a new flat (that is, the Flat) in the then newly developed THSE at affordable rental rate. It was a bargain Lee Chiu entered into, and Lee Chiu and the Applicant had and has never sought (and I see no ground) to disturb the bargain, from which they have benefited as occupants at affordable rental rate when Lee Chiu was the tenant, and subsequently when the Applicant himself was the tenant, also at affordable rental rate.

37.  Further, insofar as the Applicant relies on the word “permanent” in paragraph (1) of the Points of Agreement that “The Corporation proposes to re-house in multi-storied buildings those of its tenants whose cottages are on sites required for permanent development and does not wish Government to undertake permanent re-provision”, the Government’s Letter of 27.11.1958 expressly stated that paragraph (1) had to be read together with paragraph (4). Of paragraph (4) of the Points of Agreement that “until permanent alternative accommodation is made available by the Corporation”, the word “permanent” there was to be contrasted with “temporarily” in the same paragraph referring to the temporary rehousing provided by the Government after the resumption of land and pending the completion of the construction of the THSE. Properly understood in context, by no means can paragraphs (1) and (4)  be taken to mean that the Corporation or the Government would provide permanent rehousing (permanent in the sense of forever or ownership as the Applicant submits), and in any event, the Government on that occasion only provided rehousing expressly stated to be “temporary”. Also, by no means can the word “permanent” be taken to mean any obligation on the Corporation to provide forever housing or ownership to Lee Chiu, and clearly, Lee Chiu and the Applicant understood this given their undisputed status as a tenant.

38.  In this regard, I disagree with the Applicant’s submissions at §7 of his written submission that “the provision of permanent alternative accommodation by the Corporation constitutes the means of implementation, where the obligation of permanent re-provision remains with the Government”. Reading paragraphs (1) and (4) of the Points of Agreement together, it is clear that for those who did not wish the Government to undertake permanent re-provision, the Government would provide temporary housing until the permanent alternative accommodation would be made available by the Corporation. I fail to see how anything in the 1952 Undertaking and/or the 1959 Agreements points to any suggestion that the Government would have any obligation to provide or secure permanent housing forever as the Applicant submits.

39.  Further and in any event, Lee Chiu chose not to ask the Government for “permanent” re-provision under paragraph (1) of the Points of Agreement, but accepted the “permanent” re-housing provided by the Corporation under paragraph (4) of the Points of Agreement. In my view, upon Lee Chiu’s such choice, the Government’s any obligation was clearly limited to provision of temporary re-housing under paragraph (4) of the Points of Agreement. No longer was the Government under any obligation to provide any “permanent” re-housing, whatsoever “permanent” may be taken to mean.

40.  Insofar as the Applicant submits that the Government has an obligation to secure the Corporation’s provision of such permanent housing, I disagree. Legally, as mentioned above, the Corporation is a private company. The Government, including the Executive Council and the Putative Respondent, has never had any power to control what the Corporation should or should not do especially in relation to its own private property. In the circumstances, putting aside that there is no wording to such effect, the Government simply would not undertake to do something it had no power to do.

41.  Also, the “disturbance” in 1952 Undertaking and the 1959 Agreement was a disturbance by the Government. In the present application, the redevelopment proposal, being the “disturbance”, was a proposal made by the Corporation, not the Government: see HCAL 1600 Judgment §19(3).

42.  In the circumstances, the 1952 Undertaking and the 1959 Agreement were completely inapplicable and legally irrelevant to the redevelopment proposed and undertaken by the Corporation now, in any event well after the expiry of the ten-year period.

B.  EC Condition and EC Approval

43.  In relation to the EC Condition attached to the EC Approval of the joint venture between the Corporation and the Urban Renewal Authority for the redevelopment that “the [Corporation] will provide proper rehousing arrangements for existing tenants” (emphasis added), the EC Condition is, in my view, like the 2021 Policy Address that because the redevelopment had generated public attention, so the Policy Address had to speak on it: see HCAL 1600 Judgment §73(11), the Executive Council felt the political and moral obligation to speak on it by way of attaching the EC Condition. What the Chief Executive and the Executive Council said may create political and/or moral pressure on the Corporation and/or the Urban Renewal Authority, and both the Chief Executive and the Executive Council should be applauded for what they tried to do for the tenants of the THSE. However:-

(1)  Legally, as mentioned above, the Corporation is a private company. The Government, including the Executive Council and the Putative Respondent, has never had any power to control what the Corporation should or should not do especially in relation to its own private property. In the circumstances, the EC Condition has no legal force.

(2)  Equally fundamental is that in the first place, the EC Approval was not legally required. Under the Urban Renewal Authority Ordinance (Cap. 563), the only matter that would require any Executive Council’s approval, or more accurately the approval by the Chief Executive in Council was, by virtue of sections 29 and 30, in relation to land resumption and disposal of resumed lands. While section 5(f) empowers the Chief Executive to assign duties to the Urban Renewal Authority, and section 33 empowers the Chief Executive to give directions to the Urban Renewal Authority, such power was to be exercised by the Chief Executive alone, not by the Chief Executive in Council. Therefore, irrespective of whether any approval was given or not to the joint venture between the Corporation and the Urban Renewal Authority for the redevelopment, the proposed redevelopment could simply proceed. Thus, even assuming that the EC Condition was breached, there would be no point in asking the Putative Respondent and/or the Government to revoke the approval, if this would be something the Applicant would suggest for the Government or the Putative Respondent to have the EC Condition fulfilled or enforced (though, as mentioned at the outset, the Applicant has not named any relief he is seeking under the Form 86).

(3)  Insofar as there is any suggestion that the EC Condition could be enforced by way of lease modification necessary for the redevelopment, it is still good law in Hong Kong that the Government’s decisions on lease modification are not amenable to judicial review because it makes such decisions in its private capacity as the landlord: see Rank Profit Industries Ltd v Director of Lands [2009] 1 HKLRD 177 at §§28-38 per Tang VP (with whom Le Pichon JA and Sakhrani J agreed).

(4)  Further and in any event, more fundamentally, the EC Condition has to be understood in its proper context – the Corporation is a private non-profitable company with limited resources, and would have inevitably to prioritise. In my view, when the condition was attached, it must have been intended that the rehousing to be provided would not have strictly and textually to be in specie, but could be in cash, be it compensation or allowance, and that any rehousing, be it in specie or in cash, would have to be first provided for those who would need it the most, namely, their flats in THSE were their only residential premises, before those who would need it less, namely, their flats were not their only residential premises. Understanding the EC Condition in this practical perspective, I do not see any breach of the EC Condition because as mentioned above, in the Corporation’s 2023 Determination, the Corporation offered to pay HK$100,000 ex-gratia allowance to the Applicant although the Flat was not his only residential premises. Whether the Applicant chose to accept this offer was his own decision.

44.  Therefore, for the EC Condition, the most the Putative Respondent could do had already been done by the Executive Council and the Chief Executive – essentially, appealing to or requesting the Corporation to make proper rehousing arrangements for the existing tenants. If the Applicant is not satisfied that the EC Condition has been implemented upon the Executive Council and the Chief Executive’s appeal or request, there would be no difference at all when the appeal or request would be made by the Putative Respondent, someone being subordinate to the Executive Council and the Chief Executive in the government hierarchy. In my view, for the above reasons, for all practical purposes, the EC Condition and the EC Approval cannot constitute any legally relevant consideration for the Putative Respondent.

C.  Ground 1

45.  Ground 1 alleges failure to take into account relevant considerations. The alleged relevant considerations are the 1952 Undertaking, the 1959 Agreement, some alleged framework based on the 1952 Undertaking and the 1959 Agreement and the EC Condition. Based on my view that the 1952 Undertaking, the 1959 Agreement and the EC Condition are legally irrelevant, Ground 1 is bound to fail.

D.  Ground 2

46.  Ground 2 alleges failure to differentiate between those tenants falling within the class of the dispossessed tenants contemplated under the 1959 Agreement and those falling without and failure to consider the EC Condition. Based on my view that the 1952 Undertaking, the 1959 Agreement and the EC Condition are legally irrelevant, Ground 2 is bound to fail.

E.  Ground 3

47.  Ground 3 alleges inconsistency and failure to conduct proper assessment under the alleged framework arising from the 1952 Undertaking and the 1959 Agreement. Based on my view that the 1952 Undertaking and the 1959 Agreement are legally irrelevant, Ground 3 is bound to fail.

F.  Ground 4

48.  Ground 4 alleges failure to ensure compliance with the EC Condition. Based on my view that the EC Condition and the EC Approval are legally irrelevant, Ground 4 is bound to fail.

G.  Ground 5

49.  Ground 5 alleges failure to address departure from the framework arising from the 1952 Undertaking and the 1959 Agreement and the underlying purposes of the framework, failure to consider the consequence of such departure, and failure to consider the Corporation’s objectives. Based on my view that the 1952 Undertaking and the 1959 Agreement are legally irrelevant, and the absence of the Government’s power over the Corporation, Ground 5 is bound to fail.

H.  Conclusion on merits

50.  In the circumstances, none of the Grounds has any merits, and so none of them reaches anywhere near the threshold of “reasonably arguable” for leave.

V.  CONCLUSION

51.  In the premises, I refuse to grant leave out of time for judicial review, and dismiss the Form 86 and the Stay Application, with no order as to costs.