SZETO WING LEONG v. HONG KONG HOUSING AUTHORITY

HCAL 2388/2025

[2026] HKCFI 2033

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2388 OF 2025

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J U D G M E N T

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A. Introduction

1.  Not everyone who lives in close proximity to others lives in harmony, and disputes between neighbours have provided a rich seam of work for the courts.  Though with a public law overlay, this case has also arisen out of what may aptly be summarised as a series of escalating tensions between neighbours in public housing, one being the Applicant.  It is the public law overlay that gives rise to these judicial review proceedings.

2.  In summary, the Applicant challenges the policy of the Hong Kong Housing Authority (“HA”) concerning the implementation of the Marking Scheme for Estate Management Enforcement in Public Housing Estates (“Marking Scheme”) in public rental housing (“PRH”), namely:

(1) the apparent actual practice (“Actual Practice”) of implementing the Marking Scheme by:

 (a) requiring a “misdeed” to be caught red-handed and/or personally eye-witnessed by a Housing Officer (or a security guard outside office hours) in order for it to be established for allotment of “penalty points”; and/or

 (b) not receiving, considering and/or relying on video recording evidence provided by PRH tenants in deciding whether penalty points should be allotted;

(2) the Marking Scheme and specific paragraphs of its Operation Manual (versions 2022 and 2025) (individually “OM 2022” and “OM 2025”, and collectively the “OMs”).

3.  By way of relief, the Applicant seeks:

(1) a declaration that the Actual Practice did exist and was inconsistent with a true and rational interpretation of the policy under the Marking Scheme and the OMs;

(2) a declaration that the HA, and the Housing Department (“HD”) in carrying out its PRH management function, shall receive and consider, and may rely on, video recording evidence provided by PRH tenants in deciding whether penalty points should be allotted under the Marking Scheme;

(3) an order of certiorari/declaration that the “Noise Nuisance Evidence Requirement” under paragraph 5.16 of OM 2022 and paragraph 5.24 of OM 2025 are irrational and inconsistent with the policy guidance under the Marking Scheme and other paragraphs of the OMs, such that the Noise Nuisance Evidence Requirement is liable to be quashed and struck down; and

(4) an order of mandamus that the video recording evidence be resupplied to HA/HD to be reviewed in considering whether penalty points shall be allotted to the Neighbour.

4.  It is perhaps worth stating at this point that the Applicant has emphasised that the purpose of these proceedings is not to compel penalty points to be issued in this instance, nor is the Applicant asking the Court to substitute its own view for that so far taken by the HA/HD.

5.  By Form 86 dated 24 October 2025, the Applicant has raised three Grounds of review.  Grounds 1 and 2 are concerned with the Actual Practice and, though they were addressed together in submission, I shall look at them individually.  Separately, Ground 3 concerns the Noise Nuisance Evidence Requirement.  The Grounds are as follows:

(1) By adopting the Actual Practice, persons acting for HA/HD failed to take into account relevant considerations and properly acquaint themselves with relevant information in making decisions (“Actual Practice Ground”).

(2) The Actual Practice, if it existed but was in fact consistent with the underlying policies, was irrational in the public law sense (“Wednesbury Ground”).

(3) The high threshold for “noise nuisance” under the OMs is irrational and inconsistent with the policy guidance under the Marking Scheme and OMs (“Noise Nuisance Evidence Requirement Ground”).

6.  It can usefully be noted here that the HA’s response includes that:

(1) The alleged Actual Practice is factually non-existent, and is not supported by the contemporaneous correspondence.

(2) There is a distinction between officially installed and tenant-installed CCTV, but that does not imply exclusion of tenant-provided evidence.

(3) The Court’s supervisory role is not to micro-manage administrative decisions.

(4) The Court cannot rewrite the operational manuals provided as internal guidance.

(5) There is no basis for granting the declaratory or other relief in the present case.

(6) The separate Noise Nuisance Evidence Requirement Ground has no proper arguable basis.

(7) In any event, there has been delay in the making of the application which should preclude it being considered.

7.  I gave directions to bring the application to a ‘rolled-up’ hearing, which was eventually heard on 23 March 2026.  At the hearing, the Applicant was represented by Mr Lewis Law of Counsel.  The HA was represented by Ms Teresa Wu and Ms Jacqueline Law of Counsel.  At the end of the hearing, I reserved my decision to be handed down later.

8.  This is my Judgment.

B. Background

9.  At all material times, the Applicant was the tenant of a PRH unit (“Room 808”), at a Kowloon PRH estate (“Estate”).

10.  Since September 2022, the Applicant and his wife have complained of harassment by their neighbour (“Neighbour”), who is the sole tenant of Room 807 at the Estate.

11.  The Neighbour’s alleged acts of harassment included, amongst other things, disposing of domestic refuse in the corridor of the 8^th Floor outside Room 808, making loud noises, intimidating/threatening the Applicant and his wife, banging on the door of Room 808 and other behaviour constituting nuisance or interference with their private lives.

12.  At some point, the Applicant installed two CCTV cameras to capture what happened outside Room 808. The perpetrator was identified as the Neighbour.

13.  In late October 2022, the Applicant lodged a complaint to Good Excel Property Consultants Limited (“Good Excel”), the company employed by HD to provide property management and maintenance services at the Estate.  This was in effect seeking a response from the first tier of management on site.  When making the complaint, the Applicant had requested enforcement action against the Neighbour’s misdeeds by allotment of penalty points under the Marking Scheme.

14.  Mr Man of Good Excel later told the Applicant that Good Excel arranged security guards to pay attention to the relevant situation during daily patrols.  However, the security guards were unable to catch the Neighbour red-handed for the complaints of harassment/misdeeds, and thus no action under the Marking Scheme was taken.

15.  In discussion with Mr Man, the Applicant was informed that in normal circumstances video evidence would not be accepted by the HD, and the relevant misdeed “must be caught red-handed” by Good Excel’s staff for any points to be allotted.  I think it fair to say that Mr Man was not entirely unequivocal during the discussion, in that he was expressly not saying that videos cannot be accepted.  However, usually, any videos would be arranged by the on-site management, though he could ask the HD about deducting points if the tenant provided videos.

16.  On 21 December 2022, the Applicant complained to the Office of the Ombudsman (“Ombudsman”). Subsequently, Mr Man again informed the Applicant that HD would not accept video evidence and a misdeed “must be caught red-handed by Good Excel’s staff to invoke the Marking Scheme”. Mr Man agreed further to confirm with the HD whether video evidence might be accepted on this occasion.

17.  Also in December 2022, the Applicant reported the matter to a TV programme.  But I do not think it necessary to delve into the details of that.

18.  However these two matters seem to have led to the intervention of Mr So Yat Kong, a Housing Manager of HD, who was in contact with the Applicant on the dispute between the Applicant and the Neighbour.  I can come in a moment to the discussions between them.  But first I can refer to some correspondence internal to the HD.

19.  By email dated 13 January 2023, Mr So wrote to Ms Clara Lo of the HD stating that he understood that points under the Marking Scheme should only be allotted for a case that has been adequately substantiated.  But he asked, if the video record given by the complainant showed that the allegation really happened and the image and process were clearly identified, could such evidence be regarded as adequately substantiated, or if the offender admitted the relevant misdeed during investigation, could that precede the allotment of points under the Marking Scheme.  It might be said that if Mr So felt the need to ask that question, it was not clearly common ground that such video evidence was of itself capable of amounting to adequate substantiation.

20.  The reply dated 16 January 2023 came from a Chan Yuet Shan, copied to Ms Clara Lo (amongst others) and, whilst making clear that the advice was only on policy aspect and not by way of handling individual cases, stated:

Points/Warnings under the Marking Scheme (MS) should only be allotted/served for cases that have been adequately substantiated.  If the misdeed is committed in public areas, the offender should better be caught red-handed, eye-witnessed and identified by an officer of MS before the case can be established for allotment of points.  Reliance of video record/image captured by the complainant only to serve as evidence may not be clearly ascertained since we do not know if the image have been manipulated or not. Nevertheless, prompt investigation should be initiated with follow up actions based on the information provided by the complainant.

21.  On its face, this seemed to have suggested that video evidence produced by a complainant could trigger an investigation, but would likely never be the foundation for the allotment of penalty points.

22.  In a subsequent meeting between the Applicant and Mr So in February 2023, Mr So referred to a principle that the Marking Scheme could only be enforced when the evidence against the Neighbour was “without any defect” and “irrebuttable”.  Mr So suggested that, “whether you call it an offence or some kind of improper conduct, it really has to be 100%, no room for dispute before we can proceed”. He stated that the HD does not want to do something when there is “room for argument”.  Later, Mr So stated that even if there is video footage, the HD still could not accept it as 100% conclusive evidence for use in court, that is it could not by itself fully satisfy all the elements needed for a conviction of the offence.  Again, the thrust of the advice given by Mr So was that the complainant’s video might trigger an investigation, but that allotment of points would require the misconduct to have been witnessed by an officer.  He reiterated the need for matters to be “100% confirmed”, that there should be “no room for argument”, that the deduction of points should be “on the basis of solid and unequivocal evidence”, and that matters needed to be “flawless” before penalty points might be imposed.

23.  I confess to having some sympathy with the Applicant’s response that if the Neighbour had to be caught “100%”, then it would be practically impossible to catch her.  Indeed, whilst I understand the desire to ensure appropriate evidential support underpinning the allocation of penalty points, to talk of 100% confirmation, or leaving no room for argument, seems to me to be a far higher burden than is either necessary or what is described by “adequate substantiation”.

24.  On 6 February 2023, the Applicant received a letter from HA in response to his complaint lodged to the Ombudsman.  It was said that the misdeed has to be personally witnessed by the staff/officers executing the relevant duties in order for penalty points to be allotted (“如不當行爲發生在公衆地方，違規者應有執行相關職務的人員當場發現、目擊以及認出，個案才能成立並予以扣分”).  It was further stated that no penalty points could be allotted since the material incident was not caught “red-handed or eye-witnessed” by a staff member of Good Excel.  On 7 February 2023, the HA provided a similar letter to the Ombudsman.

25.  On 11 April 2023, the Ombudsman wrote to the Applicant to provide a conclusion of its investigation.  The Ombudsman stated the HD had adequately followed up on the Applicant’s complaint.  The Ombudsman also accepted the HA’s explanation of the evidential requirements for enforcing the Marking Scheme and its reason for not accepting the video recordings provided by the Applicant.  The letter seems to indicate that the Ombudsman thought that video evidence provided by complainant could not be used for the allotment of points, and what was needed was for the misdeed to be eye-witnessed by staff of the HD.  The relevant paragraphs are as follows:

5. In its letter of reply, the Housing Department elaborated on the principles of enforcing the Marking Scheme and reported on the process of following up on your complaint.  A brief summary is as follows:

(1) The primary principle of enforcing the Marking Scheme is that there should be sufficient evidence to substantiate the misdeed committed by tenant.  If the misdeeds happen in public areas, the offender must be caught red-handed, eye-witnessed and identified by the officer executing the relevant duties before the case can be established for allotment of points.

…

6. Additionally, the Housing Department informed our Office that, based on the principles of enforcing the Marking Scheme as stated in paragraph 5(1) above, the Department could not accept the video recordings provided by you (which is not evidence eye-witnessed by officers of the Department) as the basis for enforcing the Marking Scheme.  Since there were no telephone message function in the telephone system of the Office and the Security Guards Room, please call at a later time when the staff were unavailable to pick up calls.

…

11. The Department has clarified the evidential requirements for enforcing the Marking Scheme and has explained the reason for not accepting the video recordings provided by you for allotting penalty points to the relevant resident (paragraphs 5(1) and 6 above).  Our Office is of the view that such explanation was not unreasonable…Our Office understand that, if the resident who unlawfully disposed of rubbish intentionally evaded enforcement by the Housing Department staff of the Department may not be able to eyewitness the relevant unlawful behavior and subsequently takes enforcement actions or allot penalty points…

26.  It can be briefly mentioned that the Police were called on two occasions in May 2023 in relation to further incidents involving the Neighbour.

27.  The Applicant and his wife temporarily moved away from Room 808 to live in an outside residence.

28.  On 1 December 2023, the Applicant applied for legal aid.

29.  On 19 December 2023, the HA wrote to the Legal Aid Department and confirmed that indiscriminate disposal of domestic refuse was a “misdeed” under the Marking Scheme.  The HA also reiterated that “penalty points under the Marking Scheme should only be allotted/served for cases that have been adequately substantiated.  If the misdeed is committed in public areas, the offender should better be caught red-handed, eye-witnessed and identified by an enforcement officer of the Marking Scheme before the case can be established for allotment of points”.  This was repeated in a second letter dated 29 August 2024.

30.  Legal aid was granted to the Applicant on 10 June 2025, with Counsel assigned on 4 July 2025.

31.  On 31 July 2025, the solicitors for the Applicant issued a pre-action letter to the Director of Housing seeking to confirm whetherHA/HD’s personal on-site inspection and observation of a misdeed is not mandatory for a case to be substantiated for allotment of penalty points.

32.  On 5 September 2025, the HA replied, stating for “misdeeds committed in public areas, enforcement staff are required to catch the offender red-handed, eye-witness the act, and be able to identify the person concerned, before points can be allotted under the Marking Scheme”.  It stated that operational requirement reflected the need to ensure fairness and accuracy in enforcement decisions and reduce potential disputes, particularly given the serious consequence of tenancy termination.  Nevertheless, the letter went on to seek to clarify the reference to “adequately substantiated”, and that the HD “does not generally base its enforcement actions solely on video footage provided by tenants unless such evidence can be reliably corroborated, such as by direct observations made by enforcement personnel”.  The HA concluded by saying the “HD did indeed review, consider but ultimately found [the Applicant’s] evidence not to be sufficiently reliable so as to adequately substantiate a misdeed being committed by [the Neighbour]”.  The letter went on to state that the alleged Actual Practice was without factual basis, and that it was categorically denied that the Actual Practice had been adopted.

33.  As I understand it, no penalty points have been allotted by the HA/HD to the Neighbour.

C.  The Marking Scheme

34.  The HA is established under section 3 of the Housing Ordinance Cap 283 (“HO”).

35.  Under section 10 of the HO, the HA may delegate any of its powers and functions.

36.  Under section 19(1)(b) of the HO, the HA may give notice to quit (“NTQ”) to a PRH tenant to terminate a lease. 

37.  Since 1 August 2003, HD has implemented the Marking Scheme (then called the “Marking Scheme for Tenancy Enforcement in Public Rental and Interim Housing Estates”). Its stated purpose was “to ensure environmental hygiene and effective management of public housing estates, thus ensuring a sustained healthy and pleasant living environment for all the residents”, and to “promote among the residents a sense of civic responsibility as well as care and concern towards their neighbours and the living environment”.  The initial focus of the Marking Scheme was on environmental cleanliness and hygiene related misdeeds.  It was renamed in 2006 to reflect its wider role in estate management.

38.  The Marking Scheme currently covers 30 misdeeds, each of which carries 3, 5, 7 or 15 penalty points according to the degree of seriousness involved.  When a PRH household has accrued 16 points within two years, the subject tenancy will be liable to termination by the service of a NTQ pursuant to the HO.

39.  A complaint lodged by a tenant on the allotment of points will first be handled by the concerned Housing Manager.  If the complainant is not satisfied with the Housing Manager’s decision, the case will then be handled by the concerned Senior Housing Manager.  If the complaint still cannot be settled, the case will be escalated to the Regional Chief Manager whose decision on the case is final.

40.  Under the Marking Scheme, “estate common area” means any place within the estate boundary to which the public have access, and includes common areas of domestic buildings, estate rest gardens, pleasure grounds, pedestrian walkways, estate roads, etc: see Note 2 of the Marking Scheme.

41.  Apart from related enforcement action under the Marking Scheme, the Noise Control Ordinance also provides legislative control over noise at any time, and a tenant in breach of the relevant provisions will be allotted points upon conviction.  In that case, the Warning System will not be applicable: see Note 4 of the Marking Scheme.

42.  The OM provides need-to-know information for operational purposes and is an internal document for HA/HD staff involved in the implementation of the Marking Scheme.

43.  Material paragraphs of the 2022 OM include the following:

4.1 Any sitting tenant or authorised person (AP) committing a misdeed covered by the Marking Scheme in his/her estate of abode will be liable to the following actions –

(a) any statutory penalty applicable (e.g. the issue of F1A or FPN); or/and

(b) any tenancy enforcement actions applicable (e.g. warning/Notice-to-Quit (NTQ)); and

(c) points-allotment without prejudice to the actions stated above.

4.3 To address the various concerns of the public, a greater weight on education has been added to the Marking Scheme by incorporating a Warning System for some misdeeds.  Before 1.1.2005, the Warning System comprised 3 warnings (1 verbal and 2 written).  From 1.1.2005 to 31.12.2006, the Warning System changed to comprise 2 warnings (1 verbal and 1 written).  With effect from 1.1.2007, it comprises 1 written warning only.

4.10     Points/Warnings under the Marking Scheme should only be allotted/served for cases that have been adequately substantiated.  If the misdeed is committed in public areas, the offender should better be caught red-handed, eye-witnessed and identified before the case can be established for allotment of points.  For misdeeds committed inside the premises, there is no need to identify the responsible person as the whole household will be held accountable.  Points will be allotted when the misdeed is discovered, evidenced and, where applicable, adequately warned.

44.  Paragraph 4.10 may perhaps be named as the Adequate Substantiation Policy.

45.  Similarly, paragraphs 4a.4 and 4b.12 of OM 2025 repeats paragraph 4.10 of OM 2022, namely the requirement that points/warnings under the Marking Scheme should only be allotted/served for cases that have been “adequately substantiated”, and the offender “should better be caught red-handed, eye-witnessed and identified before the case can be established for allotment of points”.  A new addition in paragraph 4a.4 provides that “evidences captured by the video recording officially arranged by the HD/outsourced companies or mixed tenure estate are all acceptable”.

46.  Reading the words “should better be” in the overall context of points/warnings only being allotted/served for cases that have been “adequately substantiated”, I think it would be more appropriate to treat it as a discretionary recommendation instead of a mandatory requirement.  It would then follow that other evidence which may “adequately substantiate” the case may also be considered.

47.  Read together, it seems to me that these paragraphs in the OMs should be interpreted to mean that (1) it is preferable that the subject of the complaint should be “caught red-handed, eye-witnessed and identified” by HA officers or estate staff, but (2) other forms of evidence showing the misdeed being committed may nevertheless be considered in determining whether the case is “adequately substantiated”.

48.  The relevant misdeeds as found in the OM 2022 are as follows:

Disposing of refuse indiscriminately

5.8 B1 Littering

Self explanatory.

· Offences covered by F1A/FPN.

· With effect from 1.1.2006, littering from height became either a C1 misdeed ‘Throwing objects from height that jeopardize environmental hygiene’ or D1 misdeed ‘Throwing objects from height that may cause danger or personal injury’.

5.9 B2 Disposing of domestic refuse indiscriminately, such as improper disposal in lift lobbies or inside bins without cover (effect from 1.8.2003)

Domestic refuse and food remains being improperly or indiscriminately left in the common areas within domestic blocks.

· HMs should clearly and prominently promulgate the refuse collection mode and time for tenants’ information.

5.16     B11 Causing noise nuisance (effect from 1.1.2007)

‘noise nuisance’ refers to noise that is beyond a reasonable man’s forbearance.

· HD exercises a ‘reasonable man approach’ for misdeed B11. Substantiation of noise nuisance by ‘2 management staff plus 2 households’ is required.

· Warning System is applicable, except for cases convicted under the Noise Control Ordinance (Cap 400) as advice/warning has been issued by the Police.

· As the common causes of noise nuisance mainly come from mahjong playing, hi-fi/ television, karaoke/ musical instrument playing, and hammering, we intend to focus our actions on these noise-making acts between the hours of 11pm and 7am.

· Committing a noise nuisance in the residing domestic flat by a tenant can be a breach of tenancy condition.  Clause 12 of the Tenancy Agreement is applicable to any nuisance caused at any time, Clause 13 specifies the requirement of a quiet and peaceful environment inside the premises between 11:00 p.m.  to 7:00 a.m. Estate staff should consider invoking the appropriate clause of tenancy agreement for termination of tenancy if the case is serious or frequently relapsed despite repeated warnings.

· Tenant who is convicted under the Noise Control Ordinance (Cap 400) within the leased premises will be allotted points.

· Similarly, when a complaint on noise nuisance created in common areas is received, management staff (including Security Guards) should take necessary actions to stop the nuisance on-site immediately.  For persistent and uncooperative cases, management staff should report to the Police for their enforcement action.

· To effect misdeed B11 on convicted cases, management staff should liaise closely with the Police for known cases.

49.  “Littering” has been updated from a B1 misdeed to a C13 misdeed.  Similarly, “disposing of refuse indiscriminately” was updated from a B2 misdeed to a C14 misdeed.  As a result, the penalty points were increased from five to seven.

50.  The Warning System is applicable to 12 misdeed items including B11, i.e. “causing noise nuisance”.

6.2 The person committing those misdeeds will be required to take rectification actions within a designated time frame, which varies with different misdeeds.  A NR will be served on the spot to be followed by a WW or NL, as appropriate.  For no-compliance cases or relapse cases (i.e. WW has already been issued to the household against such misdeed before), points will be allotted without further warnings.

51.  By paragraph 6.2, the person who is the subject of the complaint will be required to take rectification action within a designated time frame.  For non-compliance cases or relapse cases where a written warning has already been issued to the household against such misdeed before, points will be allotted without further warning.  Where the warning system is not applicable, points will be allotted without prior warning once the misdeeds are firmly established.

52.  Paragraph 5.24 adds a number of points in dealing with “noise nuisance”.  First, “noise nuisance” was updated from a B11 misdeed to a C17 misdeed, and the points have again been increased to seven. The definition of “noise nuisance” is still given as “noise that is beyond a reasonable man’s forbearance”.  However, the “reasonable man approach” is now stated as follows:

To be consistent with the Police and Environmental Protection Department’s approach, the HA adopts a “reasonable man approach”. Estate staff should go in pairs to the scene upon receiving a complaint to ascertain whether the noise is unacceptable and beyond a reasonable man’s forbearance.  In addition, the substantiation of noise nuisance should be confirmed by at least two households.

53.  I note here that this is only the theoretical policy propounded in the OMs and the Marking Scheme.  The actual practice deployed by the HA/HD is precisely what the parties in this case dispute.

D. Whether the Actual Practice Existed

D.1    Introduction

54.  Before Grounds 1 and 2 can be addressed, the preliminary question arises as to whether the Actual Practice in fact existed.

55.  The Applicant submits the Actual Practice of the Marking Scheme’s implementation consists of two limbs:

(1) requiring a “misdeed” to be caught red-handed and/or personally eye-witnessed by HA/HD officers (or a security guard outside office hours); and/or

(2) not receiving, considering and/or relying on video recording evidence provided by PRH tenants in deciding whether penalty points should be allotted.

56.  Naturally, the two limbs should be considered holistically because in reality they may affect one another, but for the sake of clarity I will first examine each of these limbs separately.

D.2    Limb 1: “Caught Red-Handed and/or Personally Eye-Witnessed”

57.  The relevant wording used in the Adequate Substantiation Policy is repeated, as follows (bold in original):

Points/Warnings under the Marking Scheme should only be allotted/served for cases that have been adequately substantiated.  If the misdeed is committed in public areas, the offender should better be caught red-handed, eye-witnessed and identified before the case can be established for allotment of points.

58.  The dispute between the parties is to the interpretation and practical application of the Adequate Substantiation Policy.

59.  As to its interpretation, the Adequate Substantiation Policy may perhaps be described – as the evidence reveals and as will be further considered below – as follows:

(1) Penalty points are only allotted for cases that have been adequately substantiated.

(2) Hence, there should be sufficient evidence adequately to substantiate the misdeed committed by the alleged offender.

(3) If the misdeed occurs in public areas, it is preferable that the offender be caught red-handed, eye-witnessed and identified by the officer executing the relevant duties before the case can be established for allotment of points.

(4) A complainant may call the office of the PRH estate and/or the security guards room of the PRH estate for assistance when a misdeed occurs, which may lead to the offender being caught red-handed, eye-witnessed and identified by said officers.

(5) Other evidence, including video recording evidence, is not excluded from consideration.

(6) However, higher weight is accorded to video recording evidence officially arranged by the HA/HD, outsourced companies or mixed tenure estates.

60.  Giving the proper interpretation to the relevant internal policy does not require the Court to rewrite it.  But the central area of dispute is really as to its application:

(1) On one hand, the Applicant argues that, contrary to the literal wording of the OMs, it is as a matter of practice mandatory for the offender to be “caught red-handed and/or personally eye-witnessed” for the case to be adequately substantiated.

(2) On the other hand, the HA contends the phrase “should better be caught red-handed, eye-witnessed and identified” simply indicates that such circumstances would strengthen the evidential basis of a complaint, and the OMs when properly construed do not in fact impose a mandatory “caught red-handed” requirement.

61.  By the time of the hearing, it had become common ground that video clips from PRH tenants are potentially relevant, and should not be automatically ignored, and there should be no blanket approach to exclude such evidence.  However, what was previously understood and applied in the practical context may well be different.

62.  Indeed, in the context of this case, I do not think that the apparent common ground at the hearing in any way rendered these proceedings academic.  As Mr Law submitted, it is at least helpful for the correct position to be made clear, and there could be no harm or prejudice in granting the appropriate relief accordingly.

63.  I have already canvassed above – and commented upon – some of what was said in the discussions between the Applicant and others, including Mr Man and Mr So.

64.  Internally, in the email dated 16 January 2023, Ms Chan, replying to Mr So’s queries about the OM, reiterated that points/warnings under the Marking Scheme should only be allotted/served for cases that have been adequately substantiated, and the offender “should better be caught red-handed, eye-witnessed and identified by an enforcement officer…before the case can be established for allotment of points”.

65.  In the letter dated 19 December 2023 from the HA to the Legal Aid Department, the HA again emphasised that penalty points under the Marking Scheme “should only be allotted/served for cases that have been adequately substantiated”, and “if the misdeed is committed in public areas, the offender should better be caught red-handed, eye-witnessed and identified by an enforcement officer of the Marking Scheme before the case can be established for allotment of points”.  It was the HA’s position that, since the relevant misdeed activity committed by the Neighbour was not caught “red-handed, eye-witnessed and identified by an enforcement officer of Good Excel”, there were insufficient grounds or inadequate evidence for HD to allot penalty points against the Neighbour under the Marking Scheme.

66.  As pointed out above, Mr So further emphasised this point in his conversation with the Applicant in February 2023, using phrases like “it really has to be 100% no room for dispute before we can proceed.  We do not want to do something where there is room for argument.”  Further, it was implied action would only be taken if there was staff who witnessed the misdeed of “indiscriminately disposing of refuse”, and a photo taken by the Applicant was not enough for the purposes of “adequate substantiation”.  It is, however, noteworthy that Mr So did not raise directly with the Applicant concerns about the reliability of the videos, nor seek information which might confirm their reliability.  Specific reliability concern relating to the videos provided by the Applicant was raised only in rather late correspondence.

67.  From the above, it is apparent that physical witnessing of the misdeed by an enforcement officer is at least heavily emphasised as a crucial part of the Adequate Substantiation Policy.

68.  It was Mr Law’s contention that being caught “red-handed” was a condition precedent that can trigger an investigation by the enforcement officers, but ultimately could not be the basis for point allotment.  Mr Law referred to two letters responding to the Applicant from the HA and the HD dated 6 and 7 February 2023 respectively.

69.  In the 6 February letter, it was said by the HA that (emphasis added):

Where improper conduct occurs in public areas, it should be discovered, witnessed and identified on the spot by staff performing relevant duties for the case to be established and points deducted.  In this instance, since no misconduct of littering in the public area was discovered or witnessed on the spot by office staff, no points-deduction action could be taken…

70.  Despite the discretion of “should be”, the use of the word “since” seems to carry a causal implication, i.e. that no points deduction action could be taken because no misconduct was discovered or witnessed by staff on the spot.  This seems to go further than the original intentions of the Adequate Substantiation Policy.

71.  This requirement was endorsed by the Ombudsman in their letter dated 11 April 2023, from which I have quoted above.  The Ombudsman understood the policy as expressed by the HD to be that if the misdeeds happen in public areas, the offender must be caught red-handed, eye-witnessed and identified by the officer executing the relevant duties before the case can be established for allotment of points.

72.  But, I note the use of the difference between the wording of the Ombudsman’s letter and the OMs.  The OMs state the offender “should better be” caught red-handed, eye-witnessed and identified, whereas the Ombudsman uses “must”. That may mean that the Ombudsman interpreted the OMs as requiring or mandating the offender to be “caught red-handed”.

73.  From the evidence as a whole, it is at least credible that the first limb of the alleged Actual Practice by the HA/HD is established.

D.3    Limb 2: Refusal to Receive, Consider or Rely on Video Recording Evidence

74.  It is the HA’s case that video recordings are, in principle admissible and there is no blanket exclusion of tenant-provided footage.

75.  It is evident the HA at least received and/or considered video recording evidence provided by the Applicant – though Mr Law questioned whether all of the recorded material was genuinely properly reviewed.  In any event, in February 2023 Mr So forwarded the CCTV videos recorded by the Applicant to a group chat, this would support an implication that Mr So at the very least had considered the videos could be of some use.  There is some force in the criticism made by Ms Wu that the failure on the part of the Applicant to identify which video clips are said to have been reviewed, and which not, is to an extent unsatisfactory for judicial review.  I also think it is probably fair to think that the Applicant overburdened the HA/HD with video clips, probably in part as a result of his desire to obtain results, and his frustration at what he regarded as unacceptable inactivity.  On the other hand, what was or was not reviewed is a matter primarily within the knowledge of those conducting the reviews.

76.  I have also referred to the internal email dated 13 January 2023 from Mr So to a Ms Clara Lo, where Mr So raised the question of whether a video recording provided by the complainant could be regarded as “adequately substantiated” for the misdeed of “disposing of domestic refuse indiscriminately”.  In the reply, it was stated that misdeed in public areas “should better be caught red-handed, eye-witnessed and identified by an enforcement officer”, and left the impression that videos provided by a complainant might realistically only trigger an investigation.

77.  I understand this point to mean video recording evidence may be considered by the HA, but ultimately will likely not be relied upon as the sole evidence of the misdeed committed because of possible concerns as to the reliability or trustworthiness of the video, arising from doubt about whether the video might have been manipulated.  Separately, I agree with Mr Law’s submission that it was at least usual practice not to base a penalty point allotment solely upon video evidence provided by a complainant.

78.  During the conversation between the Applicant and Mr So on 12 February 2023, Mr So said the HA/HD review each video, because the main focus is the elements he mentioned earlier, and if he actually had photos or footage, the HA/HD would hold an internal meeting and discuss it and decide whether to proceed.  But, Mr So also went on to say there might be some concerns about using the Applicant’s footage for the purposes of enforcement action (such as allotting points), and the video is just for reference.  Mr So further stated: “generally speaking, we really don’t accept it”.  It is also implied by Mr So that video recorded evidence may however be considered and relied upon for tenancy management actions, i.e. issuing a notice to quit.

79.  It was further confirmed in the HA’s letter to the LAD dated 16 September 2024 that HD’s Regional Management Office for Wong Tai Sin, Tsing Yi and Tsuen Wan had not accepted CCTV videos from PRH tenants as evidence for enforcement of the Marking Scheme.  Hence, there seems to be at least a precedent of not receiving, considering and/or relying on video recording evidence provided by PRH tenants.

80.  Ms Wu’s explanation for this was that tenants are not allowed to install CCTV in PRH, and therefore no express reference is made in the OMs to the use of CCTV footage, hence Mr So informing the Applicant they generally do not accept CCTV video.

81.  But, to my understanding self-installation of CCTV is not forbidden in the manner in which the Applicant installed his CCTV cameras.  Under the Housing Affairs Committee Paper No. 23a/21 on “Handling of Self-Installation of Closed-Circuit Television (CCTV) by Residents of Public Housing Estates and Nuisance Issue”, the HD does not allow the installation of CCTV camera by residents of PRH in “public areas outside their front doors”. It is further provided that, if a PRH resident installs the cameras within their own unit, and it does not involve the unit’s structure or sanitary facilities, no prior application to the HD is required in principle.

82.  Albeit with some hesitation, I accept Ms Wu’s submission that the HA/HD had considered the video recording evidence provided by the Applicant, although the HA/HD ultimately came to the conclusion that it could not be relied upon due to fears of editing, manipulation and inaccuracy, and therefore could not be the basis for allotment of points.  Hence, I accept the HA at least would receive video recording evidence provided by PRH tenants in deciding whether penalty points should be allotted.

83.  However, I find the HA accepted video recording evidence not primarily for the purpose of “adequately substantiating” claims under the Marking Scheme, but rather for two other purposes, being (1) corroboration of a misdeed in support of a physical witnessing by HA staff and/or (2) triggering an investigation which might potentially lead to the allotment of penalty points under the Marking Scheme.

D.4    Holistic Consideration of the Actual Practice

84.  The Adequate Substantiation Policy comes together when the two limbs are combined, as they do not exist in a vacuum independent of one another.  Therefore, a holistic approach must be taken in determining whether the Actual Practice existed.

85.  I can now turn to some of the video recordings provided by the Applicant, and what they appear to show in comparison with Mr So’s observations:

(1) “2022.11.17_00.27.52.mp4” shows a woman in a wheelchair (i.e. the Neighbour) placing a half-full plastic box of food on the floor of the corridor near the wall opposite Room 808, then taking off her mask and discarding it in the same area before leaving.  Mr So remarked “the footage only shows a person in a wheelchair placing a box and mask on the floor”.

(2) “2022.11.17_22.54.23.mp4” shows the Neighbour holding a drink can throwing a blue plastic broom at the floor of the corridor outside Room 808. The Neighbour is then seen throwing the drink can at the floor and picking the can up five times before leaving.  Mr So remarked “the footage depicts a wheelchair-bound person dropping a soft drink can onto the floor and then picking it up immediately”.

(3) “2022.12.16_12.39.13.mp4” shows the Neighbour leaving Room 807 and getting on her wheelchair.  The Neighbour then goes along the corridor carrying a red rubbish bin.  The Neighbour returns and drops a sheet of paper on the floor before returning to Room 807.  Mr So remarked “due to the camera angle, it cannot be confirmed whether the object was thrown by the wheelchair user”.

(4) “2022.12.16_13.19.45.mp4” shows the Neighbour going through the corridor in her wheelchair and dropping perhaps white tissue paper on the floor of the corridor outside Room 808.  The Neighbour then returns, but does not pick up the tissue paper.  Mr So remarked “the footage shows a wheelchair user passing along the corridor”.

86.  In my view, there is some contrast between what can clearly be seen in the video clips as opposed to Mr So’s observations regarding those video clips.  Without coming to any conclusion on the merits of the case, there seems to me to be at least some doubt as to whether Mr So – and by extension the HA/HD – truly considered or relied upon the videos when deciding whether to allot penalty points to the Neighbour.

87.  The practical effect of the OMs is that “adequate substantiation” indeed requires (at minimum) the offender to be “caught red-handed, physically witnessed and identified”.  As was seen from the Applicant’s case, his complaints were not “adequately substantiated” where the estate staff and/or the enforcement officers themselves failed to catch the Neighbour committing the misdeed.

88.  Despite its stance in its submissions, it seems to me that the HA has in reality construed the Adequate Substantiation Policy as a strict requirement, in practical terms mandating the “caught red-handed” factor.  Other evidence, such as video recording evidence, may perhaps be useful as a trigger for an investigation, or to corroborate what is seen by enforcement officers.  But, in the absence of physical witnessing by the enforcement officer, the video seemingly holds no real or significant evidential value, resulting in a conclusion by the HA that the case is not “adequately substantiated”.

89.  Again I note the multiple references to a “100% approach” with “no room for dispute”.  Ms Wu submitted the references to a “100% approach” is not a refusal to consider video recording evidence, but rather a lay explanation of the high standard required before imposing sanctions, namely that the footage must reliably show the misdeed and its perpetrator.  I disagree.  This seems to me to be the correct intention of the Adequate Substantiation Policy, but in reality this has not happened.

90.  As demonstrated by what Mr So said, that 100% approach is really only considered met where, for example, the relevant staff “comes up on patrol and actually sees her just throwing it there…because our staff would already have witnessed it”.  Any evidence short of a physical witnessing by officers, or admission by the offender, will not be used as a basis for allotment of points.  Indeed, Mr So precisely refutes the Applicant’s claim that there is footage of the Neighbour committing the misdeed because “we still can’t accept it as 100% conclusive evidence”, and “it cannot by itself fully satisfy all the elements needed to convict her of the offence”.  In light of those circumstances, the “100% approach” can really only be taken to mean “caught red-handed, physically witnessed and identified”.

91.  I also note the reference to video recording evidence in OM 2025, which states evidence captured by video recording officially arranged by the HD or outsourced companies or mixed tenure estates (e.g. TPS estates) are all acceptable.  This addition gives supports the view that video recording evidence not officially arranged by the HD would not be acceptable.

92.  I acknowledge that the deponents for the HA have gone to some length and in some detail about what is said to have occurred, including through production of a table commenting on various video clips.  However, it seems to me to be better to rely on what the contemporaneous materials seem to show, rather than after the event descriptions provided primarily for the purposes of these proceedings. Ultimately, I accept Mr Law’s submission that any concerns about the video clips provided by the Applicant did not appear to form the contemporaneous reasons for not substantiating a case for allotment of penalty points against the Neighbour.  Instead, the reasoning relied on the enforcement approach adopted through the Actual Practice.

93.  On consideration of the evidence as a whole, I find the Actual Practice as formulated by the Applicant existed at the time of his case against the Neighbour, namely that the HA/HD (1) did require the offender to be “caught red-handed, eye-witnessed and identified” before the case could be established for allotment of penalty points, and (2) did not or would not properly consider and/or rely on video recording evidence provided by PRH tenants in deciding whether penalty points should be allotted.

E. Ground 1: Actual Practice Ground

94.  Ground 1 asserts the illegality of the Actual Practice, namely that in applying the Actual Practice the HA fails to take into account relevant considerations and fails to satisfy the duty to inquire, therefore constituting a misapplication of the Adequate Substantiation Policy under the Marking Scheme and OMs.

95.  As was common ground between the parties on submission, the Marking Scheme does allow for evidence other than physical witnessing of the misdeed.

96.  The emphasis of the OMs is on “adequate substantiation”.  Indeed, it is common ground between the parties that this is the only requirement under paragraph 4.10 of OM 2022 and paragraph 4a.4 of OM 2025.  The core question is what constitutes “adequate substantiation” in actuality, and whether this standard can be met by evidence provided by a PRH tenant in the absence of the offender being “caught red-handed, eye-witnessed and identified”.

97.  I accept Mr Law’s contention that a true reading of the Marking Scheme and OMs means “adequate substantiation” should not be equated with “absolute substantiation”.  In my view, “adequate” simply means “sufficient”.  It is not the case that an absolute – “100% correct” or “without room for doubt” – finding must be reached upon consideration of the evidence.

98.  Mr Law submitted that, in practical circumstances, there may never be the possibility of corroboration by enforcement officers, and it does not follow that video recordings showing the misdeed are not accepted when they are the only reliable evidence upon which the HA/HD and/or the estate staff can act.  I agree.  It can be envisioned on some occasions that the only available evidence may be evidence provided by the complainant such as photos or video recordings.  It may very well be the case that enforcement officers do not arrive in time to catch the offender in the act.  I fail to see why video recording evidence which clearly identifies the offender committing the misdeed cannot “adequately substantiate” a case.

99.  The HA, by implementing the Actual Practice which in turn causes the HA to reject video recorded evidence in the absence of “physical witnessing”, has failed to take into account relevant considerations.

100.  It can also be said that the HA has fettered its discretion in the circumstances of this case by relying strictly on the “physical witnessing” threshold, without properly considering other available evidence when implementing the Marking Scheme.

101.  Ground 1 is reasonably arguable, and succeeds on substantive review.  As is effectively now common ground, the Actual Practice constitutes a misapplication of the Adequate Substantiation Policy and can lead, and in this case did lead, to a failure to take into account relevant considerations.

F. Ground 2: Wednesbury Ground

102.  The Applicant asserts under Ground 2 that the Actual Practice (if it existed and was inconsistent with the underlying policies) was irrational in the public law sense, i.e. it is irrational for the HA to have a policy of in practice disregarding video recording evidence from PRH tenants, which is available and plainly relevant, when implementing the Marking Scheme.  To require every misdeed to be caught red-handed and/or personally witnessed by housing officer or security guard would stifle the purpose of the Marking Scheme without any reasonable foundation.

103.  As Mr Law points out, in the different but related subject of reporting tenancy abuse, the HA has not only encouraged residents to report but has even implemented an award scheme for informants.

104.  It is trite that a decision is Wednesbury unreasonable or irrational in circumstances where the decision is such that no reasonable authority could ever have come to it.  It is also trite that establishing irrationality is a high hurdle to overcome.

105.  There is no doubt the limits of judicial review proceedings prohibit the Court from substituting the views of the HA with its own.  The Court is not allowed to examine the evidence with the purpose of forming its own view as to the substantial merits of the case.  However, the principles of an irrationality challenge inherently allow for consideration of the evidence in deciding whether the decision is rational or not.  In other words, the Court cannot decide whether the decision itself was right or wrong, but it can decide with reference to substantive evidence whether the decision-maker arrived at the decision in a manner which is unreasonable in the public law sense.

106.  One point emphasised by the HA was that, in relation to the alleged “disposal of refuse” misdeed, a reminder letter was issued to the Neighbour on 17 November 2022, and no further refuse disposing was noted by HA and Good Excel in subsequent patrols and checks.  The HA claims the objective of the Marking Scheme was achieved “without the need to allocate the penalty point”.  However, I do not find this entirely satisfactory.  Although the inapt refuse disposal stopped, there were apparently subsequent incidents involving the Neighbour engaging in other unsavoury behaviour, such as scolding, insulting and swearing at the Applicant and his wife, smacking a shoe on the door of Room 808, swiping a broom and a mop in the direction of Room 808, throwing a beer can in the corridor outside Room 808. Hence, it seems to me that it is difficult to say the objective of the Marking Scheme was achieved by the HA’s actions.  In fact, there is room for thinking it may have been a factor in the escalating tension between the Applicant and the Neighbour.

107.  Ms Wu submitted that the HA told the Applicant during his face-to-face meetings with Mr Man and Mr So that the CCTV videos provided by him could be considered.  Yet, the fact is that they were rejected for myriad reasons.  I accept some of those reasons are within the realm of a reasonable decision-maker’s purview, such as concerns about video length or quality.  However, other reasons taken at their best are questionable, and taken at their worst are almost implausible.  Nevertheless, the totality of the decision to refuse to rely on the video recorded evidence provided by the Applicant points again to the influence and practical application of the Actual Practice.

108.  While it may be true that “physical witnessing” may be preferable, the Adequate Substantiation Policy envisions a scheme whereby other evidence, including video recording evidence provided by PRH tenants, can be equally substantial in the HA’s consideration when deciding whether a misdeed is “adequately substantiated”. Yet, the practical effect of the Actual Practice (which I have found existed at the time of the Applicant’s case) implies such video recording evidence can never “adequately substantiate” a misdeed in the absence of “being caught red-handed, eye-witnessed and identified”.

109.  There is merit to Mr Law’s submission that the requirement for every misdeed to be caught red-handed and/or personally witnessed by a housing officer meant the burden for establishing an administrative sanction would be equivalent to, if not even higher than, the criminal standard of proof.  In the context of the Applicant’s case, I do not think a reasonable decision-maker faced with these circumstances would have imposed the impossibly high burden of “physical witnessing”, nor would a reasonable decision-maker have failed to consider and rely on the numerous video clips provided by the Applicant, especially for impulsive acts such as littering (even if they were repeated).

110.  Ground 2 is reasonably arguable, and succeeds on substantive review.  I conclude that the Actual Practice is irrational in the public law sense.

G. Ground 3: Noise Nuisance Evidence Requirement Ground

111.  Ground 3 can be dealt with separately as it specifically targets the “Noise Nuisance Evidence Requirement” rather than the Actual Practice or the Adequate Substantiation Policy as a whole.  The Applicant asserts that the Noise Nuisance Evidence Requirement is irrational and inconsistent with the policy guidance under the Marking Scheme and other provisions of the OMs.

112.  The OM 2022 at 5.16 provides that ‘noise nuisance’ refers to noise that is beyond a reasonable man’s forbearance.  The HD exercises the ‘reasonable man approach’, and substantiation of noise nuisance by ‘2 management staff plus 2 households’ is required.

113.  As already indicated above, the OM 2025 at 5.24 similarly defines ‘noise nuisance’ as ‘noise that is beyond a reasonable man’s forbearance’.  However, the OM 2025 provides the further detail as to the ‘reasonable man approach’, being that ‘estate staff should go in pairs to the scene upon receiving a complaint to ascertain whether the noise is unacceptable and beyond a reasonable man’s forbearance…in addition, the substantiation of noise nuisance should be confirmed by at least two households’.  The penalty points have also been increased from five to seven.

114.  From the outset, it is clear that noise nuisance in the context of the Marking Scheme refers to a level or type of noise for a sustained period of time which affects others negatively.  Thus, the Noise Nuisance Evidence Requirement can be described as follows:

(1) “noise nuisance” refers to noise that is beyond a reasonable man’s forbearance;

(2) the HA/HD utilises a twofold “reasonable man” approach;

(3) the noise nuisance must be substantiated by at least two households, i.e. the complainant’s household and “at least one other household in the neighbourhood”.

(4) two estate staff should also go “to the scene” to ascertain whether the noise is “unacceptable and beyond a reasonable man’s forbearance”.

115.  Ground 3 is premised on two points: (1) the Applicant’s case was not classified as a complaint of “noise nuisance”, and (2) the relevant provisions of the OM 2022 and OM 2025 require officers to disregard other forms of evidence such as recordings.

116.  Mr Law submitted that a noise nuisance complaint may still fail even where the complaint is supported by reliable evidence, simply because the noise was not personally heard by estate staff or other households at the time.  This approach, he submitted, lacks a reasonable foundation, and in particular would be incapable of addressing short but highly disturbing noise of the kind experienced by the Applicant and his wife.  Further, he submitted, the requirements failed to take into account the operational realities, including manpower constraints.  Hence, he submitted that a policy that disregards such direct and potentially reliable evidence merely because the noise was not personally heard or observed by estate or security officers is manifestly unreasonable.

117.  However, I think there is force in Ms Wu’s submission that the threshold can be met in practice if multiple households complain and estate staff attend promptly and corroborate that the noise exceeds a reasonable tolerance.  In principle, corroboration from multiple sources would indeed guard against possible complaints of a “retaliatory, vexatious or hypersensitive” nature.  Certainly, it would be the case that noticeable or perhaps prolonged periods of ‘noise nuisance’ caused by the examples given by the HA in the OMs, such as karaoke/musical instrument playing, would undoubtedly attract the attention and complaints of other households and consequently estate staff attention, particularly during the quieter hours of the night.

118.  The Noise Nuisance Evidence Requirement is not without flaws.  First, it may be the case that the offender stops the noise nuisance before the estate staff arrives.  Alternatively, it may be that only one household complains, and a second household for myriad reasons fails to confirm the claim.  Further, perhaps the estate staff does not arrive in time personally to hear/observe the noise nuisance, or it occurs only in the presence of one rather than two staff.

119.  However, noise nuisance – unlike some of the other misdeeds in the Marking Scheme – is perhaps of a more subjective character.  Noise nuisance comes in different shapes and forms.  What may be a nuisance to one household may not be heard at all in another.  The activities included as “common causes of noise nuisance” in the OMs, such as mahjong playing or karaoke/instrument playing, may not necessarily be noise nuisance depending on how it is played and who hears the playing.  In such circumstances, it would be reasonable to impose measures that introduce some level of objectivity when investigating the complaint.

120.  I accept community noise management is an area over which the HA is entitled to a wide margin of discretion, and I agree with Ms Wu’s submission that corroboration from multiple sources guards against retaliatory, vexatious and/or hypersensitive complaints which may trigger serious sanctions.  Establishing Wednesbury unreasonableness is undoubtedly a high threshold, and not one the Applicant has met for Ground 3.

121.  Whether or not Ground 3 is reasonably arguable, I conclude that the HA did not act irrationally by implementing the Noise Nuisance Evidence Requirement.

H. Delay

122.  It is trite that an application for leave to apply for judicial review must be made promptly and in any event within 3 months from the date when the grounds for the application first arose, usually by reference to the date of the impugned decision, unless the Court considers there is good reason for extending the period within which the application shall be made.

123.  The principles governing extension of time for judicial review are well-settled, as follows:

(1) Consideration of delay is essentially a balancing exercise between granting appropriate consideration to a litigant who has behaved sensibly and reasonably on one hand, and the risk to public administration and policy on the other.

(2) What may constitute a good reason for extending time cannot be defined.  In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.

(3) The following factors, which are not exhaustive, are likely to be of significance:

(a) Length of the delay: the longer the delay, the more cogent the reason has to be for extending time.

(b) Explanation for the delay: the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(c) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion.  Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.

(d) Prejudice: again, prejudice is more so a balancing exercise between the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(e) Questions of general public importance: whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

124.  There is no doubt the relevant events to this judicial review transpired between late 2022 to mid-2024, yet the Form 86 was filed nearly one year later on 24 October 2025.

125.  Mr Law submitted the delay arose in part because full versions of OM 2022 and OM 2025 were not made available to the Applicant until September 2025, hence the Noise Nuisance Evidence Requirement challenge did not arise until September 2025.  In the circumstances of this case, particularly where much of the substantive reasoning necessarily depends on an interpretation of the OMs, I take this into account in considering extension of time.

126.  Mr Law also submitted the Applicant did not “sit on his rights”, and has consistently pursued the matter through multiple avenues since 2022 (though it is perhaps fair to say that little substantive action was taken by the Applicant between December 2023 and June 2025, apart from applying/appealing to obtain legal aid).

127.  The mere fact that legal aid is not available is generally not regarded as a sufficient basis for an extension of time.  It is only one of the factors that the Court would consider when deciding whether there are good reasons to justify an extension of time notwithstanding the delay.  The Applicant lodged an application for legal aid in December 2023.  This was finally granted in June 2025 after two appeals.  The Form 86 was also filed promptly within 3 months of the granting of legal aid.

128.  As to the merits, I found that Ground 1 and Ground 2 were reasonably arguable, and succeeded on substantive review.  The issues dealt with in this judicial review are of some general public importance, given the vast population that is subject to the HA’s administration and policies.  On the other hand, I see no real prejudice to the HA in the circumstances.

129.  Thus, in the overall circumstances and exercise of my discretion, the necessary extension of time is granted.

I. Relief and Costs

130.  Given that the Applicant has succeeded on substantive review of Grounds 1 and 2, the question of relief arises.

131.  As to Relief 1, the Applicant seeks a declaration that the Actual Practice did exist and was inconsistent with a true and rational interpretation of the policy under the Marking scheme and the OMs.  That wording is in line with my findings above on the Actual Practice.  I find it is in the public interest to order a declaration to the effect stated in the Form 86, so as to better provide judicial clarification with respect to the policy concerned under the Marking Scheme and OMs.

132.  As to Relief 2, the Applicant seeks a declaration that the HA, and the HD in carrying out its PRH management function, shall receive and consider, and may rely on, video recorded evidence provided by PRH tenants in deciding whether penalty points should be allotted under the Marking Scheme.  Ms Wu submitted there was no need for declaratory relief in those terms insofar as there is in fact no such restriction for receipt, consideration and reliance of video recorded evidence when determining whether a case is “adequately substantiated”.  There is some force in that point but in any event to grant a declaration in the terms which the Applicant sought may lead to further confusion instead of clarity.  Therefore, I decline to grant it.  Having said that, I point out the common ground that the HA/HD agrees that it can receive and consider video recorded evidence provided by PRH tenants as part of the consideration whether to allot penalty points under the Marking Scheme.

133.  Given my findings on Ground 3, Relief 3 which relates entirely to the Noise Nuisance Evidence Requirement must fail.

134.  As to Relief 4, the Applicant seeks an order of mandamus that the video recording evidence be resupplied by the Applicant to the HA/HD to be reviewed again.  I expressed at the rolled-up hearing that I was not then minded to grant that relief.  Upon review, I sustain my position.  It is trite that the decision to grant an order of mandamus is discretionary, and such order may be refused where it appears to be unnecessary.  I leave it to the HA/HD to decide for itself whether it will reconsider the position, particularly when the relevant events now took place over three years ago.

135.  As to costs, I make a costs order nisi that the Applicant’s costs will be paid by the HA/HD, to be taxed if not agreed. That order will become absolute if neither party makes an application for variation within 14 days.  Any variation application will be dealt with on paper.  The Applicant’s own costs will in any event be taxed in accordance with the legal aid regulations.