CHAN KWAN MAN v. THE HONG KONG HOUSING AUTHORITY

HCAL 1727/2024

[2025] HKCFI 306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1727 OF 2024

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D E C I S I O N

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A.  Introduction

1.  By his Form 86 dated 2 October 2024, the Applicant seeks leave to apply for judicial review so as to challenge a review result (“Review Decision”) dated 24 November 2023, of the decision made on 14 April 2023 (“Original Decision”) to cancel the Applicant’s position on the Waiting List as an applicant for Public Rental Housing (“PRH”).

2.  The Applicant was an applicant for PRH under the Quota and Points System (“QPS”), introduced to rationalise the allocation of PRH flats to non-elderly one-person applicants.

3.  The basis of the cancellation in the Original Decision, upheld by the Review Decision, was that the Applicant exceeded the monthly income limit of HK$12,940 for a one-person household for 2022/23 (“Income Limit”).

4.  By way of relief, the Applicant seeks:

(1)  An order of mandamus, as he comes within the Income Limit, and can continue to be in the Waiting List for PRH, as of the declaration date of 21 December 2022.

(2)  Interim Relief, if this case has no final result near but before 13 April 2025, of prohibition to set aside the deadline for reinstating the PRH application.

5.  Though no grounds for relief are stated on the Form 86, the Applicant’s affirmation in support lists ‘grounds’ in 16 paragraphs, and in addition offers 21 points as to why it seems there was a delay of more than three months before the commencement of these proceedings.

6.  I gave directions, giving leave to the Putative Respondent, Hong Kong Housing Authority (“HA”) to file an Initial Response, and leave to the Applicant to file a Reply. I also indicated that depending on the contents of those documents I would decide whether to deal with the application for leave to apply for judicial review on paper and, if so, proceed to do so without further notice to the parties.

7.  On 4 November 2024, the HA duly filed an Initial Response, by its solicitors Fairbairn Catley Low & Kong. On 27 November 2024, the Applicant duly filed a Reply – but as the Applicant mentions in the introduction to the Reply, most of its content were mentioned, discussed and argued with the HA already.

8.  Having considered the materials, I am satisfied that it is appropriate to deal with this application on paper. There is no continuing legal aid stay, but in any event I would have lifted any such continuing stay in the circumstances of the case. This is my Decision.

B.  Background

9.  The HA is a statutory body, established under the Housing Ordinance Cap 283. The Housing Department (“HD”) is the executive arm of the HA.

10.  The HA develops and implements a public housing programme, which seeks to achieve the policy objective of meeting the housing needs of low-income families that cannot afford private accommodation. The policy aims are to safeguard the rational allocation of public housing resources, which are extremely scarce.

11.  In this context, income limits and asset limits are important eligibility criteria for PRH applicants on the Waiting List, so as to ensure that housing resources are allocated to people more in need. Therefore, income and asset vetting is a significant part of the assessment of eligibility.

12.  Regular checking on the eligibility of non-elderly one-person PRH applicants under the QPS is conducted by the HA/HD by two-stage process, as described in §2.7.5 of the ‘Application Guide for Public Rental Housing’ (“Application Guide”). The two stages are:

(1)  Stage 1: Issuing letters to all target applicants requesting them to declare their latest income and assets.

(2)  Stage 2: Selecting an appropriate percentage of target applicants by random computer batching and inviting them to declare and submit documentary proof (on their income and assets and so forth) for paper checking. If the information declared requires further verifications, the applicants will be invited to attend interviews for detailed checking.

13.  The HA/HD will cancel applications if applicants are found to be no longer eligible to apply for PRH, if the income and/or net asset value is found to exceed the prescribed income and/or net asset limits.

14.  In the Applicant’s case, he passed the Stage 1 checking on 12 July 2022, upon his declaration that his average monthly income and net asset value could meet the eligibility criteria. However, he was subsequently selected for Stage 2 checking on 28 October 2022.

15.  The conclusion of the HA’s vetting process was that the Applicant’s average monthly income at the material time was calculated to be HK$15,174, namely in excess of the Income Limit. Accordingly the Original Decision was issued to the Applicant on 14 April 2023 cancelling his PRH application.

16.  The Applicant then invoked the review procedure provided for in §3.1.6 of the Application Guide, but without providing any new income documents to support his request for a review. After its review of the Stage 2 checking, the HA maintained the Original Decision, for reasons which were explained in the letter dated 24 November 2023 (i.e. the Review Decision).

17.  The gist of the Applicant’s complaint arises from his disagreement with the HA as to the calculation of his average monthly income at the material time (and in particular in respect of his employment as a bus driver).

18.  Prior to the receipt of the Review Decision, the Applicant had also lodged a complaint with the Ombudsman on 9 September 2023, alleging maladministration in the making of the Original Decision. On 31 October 2023, the Ombudsman indicated that the complaint would not be followed up, and explained that the Applicant should await the HA’s reply.

C.  Delay in Application

19.  It is trite that an application for leave to apply for judicial review must be made promptly, and in any event within three months from the date when the grounds for the application first arose, normally being the date of the impugned decision. Any application not made promptly or within time would require an extension of time, sought and obtained on grounds warranting such an extension.

20.  The Original Decision was made on 14 April 2023. The Review Decision was made on 23 November 2023. These proceedings were not commenced until 2 October 2024.

21.  The HA suggests that the delay was more than 14 months beyond the timeframe following the making of the Original Decision. However, the Application Guide specifically envisages a review process, and it seems to me that the Applicant’s ultimate challenge is to the result of that process. Nevertheless, there was still considerable delay following the Applicant’s receipt of the Review Decision. As the Applicant seems to have recognized even at the time (see below), the long stop three-month period expired on 22 February 2024, around 7½ months before these proceedings were commenced.

22.  Therefore, if the application is to continue, then the Applicant requires an extension of time within which to bring his application for leave to apply for judicial review.

23.  It is settled that when considering whether to grant the extension of time, the Court may take into account at least (1) the length of the delay, (2) the reasons for the delay, (3) the potential merits of the application for leave to apply for judicial review, and (4) any prejudice to the administration of government. Nevertheless, a significant delay may entitle the Court to refuse leave, however strong the underlying complaint might otherwise appear to be.

24.  It is also settled that when an applicant spends time on extra-judicial means seeking to resolve issues, there must be some prospect that the matter would thereby be resolved.

25.  As already indicated above, the Applicant appears to have recognised the timing difficulties because he sought to explain why it seemed there was a delay of more than three months. Though set out in 21 numbered points, I think the Applicant’s explanation can be summarised as follows:

(1)  He wanted to exhaust all other means first, before coming to Court.

(2)  He contacted media/newspaper during 2023, but received no response.

(3)  He contacted the HA – including its Chairman – by various means from after the Review Decision until well into 2024.

(4)  A few days before the expiry of the three-month period for bringing an application for leave to apply for judicial review, he decided he should go to the Ombudsman first.

(5)  He therefore sought (or resumed seeking) assistance from the Ombudsman in February 2024, with the final result on 19 August 2024.

(6)  He made contact with the Duty Lawyer Service and the Legal Aid Department, to seek assistance for a judicial review.

(7)  His first application for legal aid was dismissed for provision of only partial documents.

(8)  He took time preparing documents for the intended judicial review.

26.  The key point is, of course, that the Applicant says that he wished to exhaust all appeal procedures or alternative remedies. But, in fact, the Applicant had exhausted the actual review procedure available to him following the Original Decision, leading to the Review Decision. Thereafter, the steps that he took were either (a) unlikely to lead to the matter being resolved, and/or (b) involved contact which does not ordinarily excuse a failure to make an application to Court in good time. For example, contacting the media, or various persons within the HA (which had already made both the Original Decision and the Review Decision) were not likely to lead to the resolution sought by the Applicant. Nor, in light of the nature of the dispute about calculation of monthly income, was a complaint of maladministration to the Ombudsman likely to achieve that result. Further, the seeking and awaiting the result of an application for legal aid does not ordinarily excuse delay. Further still, bearing in mind the time taken by the Applicant, I do not accept that he proceeded with the various steps to seek remedies promptly.

27.  In this case, the delay is significant, and I do not accept that there is a good explanation put forward for it. Further, as will be seen below, I do not think the merits are so strong as would outweigh those matters (in fact the merits are weak), and when there is significant delay there seems to me to be clear potential prejudice in the good administration of the applications for PRH.

28.  For those reasons, I would refuse the necessary extension of time within which the Applicant could bring the application for leave to apply for judicial review. This is fatal to the application.

D.  Merits

29.  As stated above, the dispute between the parties is to the calculation of the Applicant’s average monthly income. However, what is not disputed is that the calculation method under the QPS is prescribed at §4.4.1(a) of the Application Guide – and as is also reflected in the information sheet to assist applicants to complete the income declaration form under the QPS.

30.  Average monthly income includes, amongst other things, basic salary, allowances and double pay. Further – as seems to me to be obvious – the purpose of seeking the declaration is to obtain the latest and up-to-date information as to an applicant’s employment and income positions as at the date of the declaration.

31.  The calculation of income from employment also varies depending on whether the basic salary is regular, or irregular. The applicable basis is set out on page 26 of the Application Guide, in part of a table headed ‘Notes on the Calculation Method’. Materially, it states as follows (bold and underlining in original, footnote omitted):

Average monthly income refers to the pre-tax net income after deducting contribution to Mandatory Provident Fund/Recognised Occupational Retirement Scheme from (1) regular/irregular basic salary …

1.  Persons who have a fixed employer

(i)  Regular/irregular basic salary

•   Persons with regular basic salary should take the basic salary of the whole calendar month before the date of signing the Application Form/declaration form(s) as income.

•   Persons with irregular basic salary should add up the amount of irregular income received during the period of continuous employment before the date of signing the Application Form/declaration form(s) and derive the average figure by dividing the total amount of irregular income received in the past six months by six.

•   If the employment period is less than six calendar months before the date of signing the Application Form/declaration form(s), the average figure should be derived by dividing the total amount of income received by the corresponding employment period.

32.  The dispute between the Applicant and the HA is whether the applicable calculation method should in his case apply the second or third bullet point (or ‘round black dot’ as has been the phrase used in the papers).

33.  The Applicant signed the declaration form on 21 December 2022. At that time, he was in continuous employment as a bus driver with The Kowloon Motor Bus Company (1933) Ltd (“KMB”). That period of continuous employment commenced on 21 September 2022, i.e. two months before the declaration. None of these facts are in dispute.

34.  Hence, the HA has applied the third bullet point – because the Applicant’s employment period was less than six calendar months, and was for the two months, before the date of signing the Application Form/declaration form. This approach is also consistent with illustration examples shown in the information pack. When that income is added to the Applicant’s self-declared additional income from self-employment, the total is well in excess of the income limit for eligibility.

35.  Nevertheless, the Applicant has argued that the second bullet point should be applied.

36.  Simply as a matter of fact, I see no merit in that argument. The Applicant’s intended grounds of review based upon ignoring that matter of fact are bound to be without merit.

37.  As an example, Ground 1 is based upon the Applicant’s own calculation that his average realised income in the previous 6 or 12 calendar months was $3,948. The arithmetic may be correct, but that figure comes from a completely different calculation than the calculation required under the Application Guide. It does not reflect the latest employment and income position. The Applicant’s suggestion that the HA has not referred to the aim of PRH, to aid persons who cannot afford the rental purchase of private housing, is without basis. Indeed, if a person on the Waiting List ceases to be eligible for PRH – perhaps because he has recently taken up better paid employment, such that his new monthly income is higher than the limit – it seems to me to be precisely in accordance with the aim of PRH that that person is removed from the Waiting List.

38.  Further, under Ground 2, the Applicant suggests that the HA only cancelled his Waiting List position in PRH because he is over the limit on income, not other issues. But being over the limit is a circumstance which leads to that cancellation. Applying the policy in that way is not question of fettering.

39.  None of the other paragraphs of the Applicant’s intended grounds have any merit. Nor do the points raised in his Reply – many of which deal with mathematical definitions – change the position. In essence, they complain in a number of different ways about the result of the calculation performed in accordance with the policy set out in the Application Guide, the information pack and the illustrative examples, by reference to the particular facts of the Applicant’s latest employment and income positions.

40.  It is trite that it is not for the Court to set this kind of policy, and I do not think it arguable that the policy has been misinterpreted. In any event, as I have already touched on above, it seems to me to be obviously appropriate and reasonable for the HA, in making assessments of whether a person remains eligible for PRH, to look at the latest and updated employment and income positions. The fact that a person is on the Waiting List means that the person has not yet been given PRH, and so historical income levels may become less relevant over time. Whilst a person who has been unemployed, or in relatively low paid employment, who then obtains higher paid employment, may be able to demonstrate a lower average income over a longer historical period, the assessment of eligibility is by reference to the up-to-date position as at the date of the relevant declaration. For example, in the Applicant’s case, there is nothing inherently unreasonable about assuming that the Applicant has now found and will remain in the same (albeit recently commenced) continuous employment at a similar average monthly income.

41.  But, as has also been frequently pointed out to the Applicant, if the position were to change, there remains the ability to apply for reinstatement to the Waiting List. This is because, even if an applicant’s average monthly income still exceeds the prescribed limit in a reinstatement application, if his average monthly income subsequently falls within the prescribed limit again, he may make the next reinstatement application after six months from the date of rejection of the previous one, but before the deadline of two years from the date on which the application was cancelled. I see nothing inherently unreasonable in that reinstatement period, and there is certainly no basis for the Court to extend it as the Applicant requests.

42.  For the Applicant, the relevant reinstatement period runs from 14 October 2023 to 13 April 2025. Were the Applicant successfully to be reinstated, all the QPS points accumulated since his original application was registered would remain intact. Whether he is to be reinstated will turn upon the applicable facts, which is not an area ripe for judicial review.

E.  Result

43.  The application was made significantly out of time, and I do not think the discretion to extend the time should be exercised in favour of the Applicant in the circumstances of the case which I have outlined above.

44.  In any event, the Applicant has failed to raise any reasonably arguable intended public law grounds of review with any realistic prospect of success.

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

46.  Though I have been assisted by the materials provided in the Initial Response, the HA has not made any application for its costs, and in the exercise my discretion I make no order as to costs.