XCHRX LAM MEI YING v. HONG KONG HOUSING AUTHORITY AND ANOTHER

HCMP 3214/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3214 OF 2001

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J U D G M E N T

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1. The Applicant was the tenant of a flat owned by the Housing Authority ("the Authority"). She was served with a notice to quit. She appealed against the service of the notice to quit to the Appeal Tribunal appointed under the Housing Ordinance (Cap. 283) but her appeal was dismissed. She then applied for judicial review of (a) the decision of the Authority to serve the notice to quit and (b) the decision of the Appeal Tribunal to dismiss her appeal. Her application for judicial review was heard by Yeung J. He was critical of the decisions challenged, but he declined to grant the Applicant relief because he thought that (a) when she had applied ex parte for leave to apply for judicial review, she had failed to disclose the fact that she and her family had moved out of the flat following the dismissal of her appeal to the Appeal Tribunal, and (b) granting relief would result in the displacement of whoever by then had been allocated the Applicant's flat.

2. The Applicant wanted to appeal to the Court of Appeal against the refusal of Yeung J to grant her relief. Yeung J's order was sealed on 8 February, and her time for serving her notice of appeal therefore expired on 8 March. She did not serve her notice of appeal by then and she now seeks an extension of time to do so (although her summons actually asks for leave to appeal out of time). The only reason why she did not serve her notice of appeal in time was because she needed legal aid to fund her appeal. She had applied for legal aid on 24 February, which admittedly was over four weeks after Yeung J had handed down his judgment on 23 January but was still a couple of weeks before the time for serving the notice of appeal had expired. A few additional weeks were lost when the Applicant misplaced the form of offer which had been sent to her by the Director of Legal Aid on 4 April. She was eventually notified on 4 May that her application for legal aid had been granted, and further notified on 28 May of the name of counsel who had been assigned on her behalf. Her application for an extension of time to serve the notice of appeal was filed on 8 June, exactly three months after her time for serving the notice of appeal had expired.

3. It is not suggested that either of the Respondents will be disadvantaged by the appeal going ahead a few months later than it otherwise would have done. Moreover, although the time which has elapsed since the notice of appeal should have been served is substantial, and although the time would have been shorter but for the delay in applying for legal aid in the first place and for the loss of the additional few weeks while the form of offer had been mislaid, I can understand why the Applicant's solicitors would have wanted to wait for the grant of legal aid before serving the notice of appeal. In these circumstances, I have concluded that an extension of time should be granted, but only if there is real merit in the appeal.

4. Having seen why it is said that (a) there was in fact no failure on the part of the Applicant to disclose the fact that she and her family had moved out of the flat, and (b) such non-disclosure as there may have been was hardly material, I have concluded that there is real merit in the argument that Yeung J should not have declined to grant relief on the basis of non-disclosure. Moreover, Mr Erik Shum for the Applicant has told me that his instructions are that at the hearing before Yeung J, counsel for the Authority told Yeung J that if the Applicant succeeded on her application for judicial review, the Authority would provide her and her family with alternative accommodation. Thus, the granting of judicial review would, on his instructions as to what was said by counsel for the Authority, not result in the displacement of whoever had by then been allocated the Applicant's flat. The Authority has not disputed that that was said, even though it was referred to in para. 4 of the draft Notice of Appeal exhibited to an affirmation filed (and presumably served on the Authority) over two weeks ago. I have concluded that there is real merit in the argument that Yeung J should not have declined to grant relief on the basis that to do so would have involved displacing the new tenant of the flat, and in the circumstances I propose to extend the Applicant's time for serving the notice of appeal to 4.00 p.m. on 29 June 2001.