徐中翬 v. 香港房屋協會

HCAL 889/2022

[2022] HKCFI 2902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 889 OF 2022

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D E C I S I O N

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1.  This is an application for leave to judicial review against the Hong Kong Housing Society (“HKHS”). The Applicant has acted in person. The Form 86 filed on 8 September 2022 and the supporting affirmation were handwritten in Chinese, but I have been provided with an official Court translation.

2.  The decision the subject of the intended judicial review is identified in the Form 86 as follows:

Apply for judicial review on account of all the mistakes and defects arising during the whole time of repossession starting from HKHS’ s Notice to quit (and earlier) to their writ, and after the writ until HKHS’s reply letter dated 28 July 2022.

由房協「遷出通知書」(及再之前)至其「令狀」及其再之後至2022年7月28日房協之回信之整個收樓程序，過程之過錯﹑及瑕疪，提出JR.

3.  The supporting affirmation reads:

The Housing Society issued the Notice to quit at 4 pm on 26 July.  However, as early as months before that, they had started making serious mistakes which kept cropping up during the whole process of repossession (especially between 9 am on 26 July and the writ dated 8 November). Besides, the whole time up until their headquarters’ reply letter (28 July) to my complaint, the Housing Society had been wantonly forcing their way through to repossession regardless.

房協在7月26日下午4時由總部開出「遷出書」，但早在此日期前數個月開始 (尤其是在7月26日上午9時開始，一直，至後令狀(11月8)之整個收樓過程，房協有嚴重過失，並至投訴至總部之回信(7月28日), 房協不理會之強行﹑粗暴收樓過程。

4.  On 9 September 2022, a second affirmation, also handwritten in Chinese, was filed into Court.  The deponent was a Mr Choi who said he was the son of the Applicant and wished to be added as a second applicant because (a) he was the “second defendant” (“第二被告人”) to the HKHS’s repossession action and (b) he could assist his mother in handling the hearing.  The purpose of the application is to stop the HKHS from repossessing the public housing unit which he has been living in (“共同JR之目的就是希望能阻止「房協」之收回，(而本人一直居住在此公屋單位之內)”).  He also said that the detail and evidence of the mistakes committed by the HKHS would be provided later. Subsequently, he has provided further documents and information.

5.  Doing the best I can on the materials, it seems that the Applicant’s case is that the she and her son used to be the tenants of a subsidized government housing unit managed by the HKHS.  However, the HKHS has repossessed – or, perhaps, is repossessing – their unit and the Applicant says the HKHS has made mistakes in the repossession process.  The reference to “writ” and “second defendant” suggest that the HKHS has most likely conducted the repossession by legal procedures.  The new materials provided show the writ is a writ of possession in action number DCCJ 5143/2021.

6.  But there is little to tell what the alleged mistakes or defects are in the HKHS’s repossession process, except that the son mentions that (a) a staff member of the HKHS told them they would be informed a few days in advance of the Notice to Quit being issued, but they were not, and (b) the Notice was driven by a social worker who lacked the necessary authority.

7.  Order 53 rule 3(2) of the Rules of High Court Cap 4A provides that an applicant for leave to judicial review has to set out his grounds of review in the Form 86.  Order 53 rule 6(1) provides that no grounds shall be relied upon at the hearing except the grounds set out in the Form 86.  If an applicant is unable clearly to set out his grounds of review in the Form 86, the Court it not duty bound to go through all his materials in an attempt to build a case for him.  Simply because the applicant acts in person does not mean that he should be excused from setting out his grounds on simple terms.  The fact that the second affirmation offers the provision of “detail and evidence” later on suggests that the applicant (and her son) was well aware that the original Form 86 is insufficient if not defective.  This alone is sufficient to dismiss the application.

8.  Needless to say, the Court is not obliged to wait until whatever time the applicant sees fit to provide the proposed grounds or the “detail and evidence” as referred to in the second affirmation.  Order 53(3) is meant to be followed when the Form 86 is filed.  As it happens, some more materials have now been provided, and I have touched on them above.

9.  In any event, the matter is unlikely to be amenable to judicial review.  The relief sought is to “stop the repossession process” initiated by the HKHS.  As said, it appears that the HKHS has achieved (or is attempting to achieve) repossession through a legal process involving a writ. Judicial review is not the proper application to stop such legal process.  Nor is judicial review the way to make complaints about the validity of the Notice to Quit, which can properly be dealt with in the DCCJ action.

10.  The application is dismissed with no order as to costs.  As such, there is no need for me to deal with the indication or attempt to add a second applicant to this action.