CHOI WAI LUP v. HOUSING APPEAL TRIBUNAL AND ANOTHER

HCAL 1023/2024

[2024] HKCFI 2384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1023 OF 2024

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J U D G M E N T

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A.  Introduction

1.  By his Form 86 dated 2 July 2024 filed together with a supporting affirmation dated 28 June 2024, the Applicant seeks leave to apply for judicial review so as to challenge and overturn the decision made by the Appeal Panel (Housing) (“Appeal Panel”) dated 28 March 2024 (“Decision”).

2.  By the Decision, the Appeal Panel confirmed the Notice to Quit dated 30 January 2024 (“NTQ”) issued by Hong Kong Housing Authority (“HA”) to the Applicant in relation to a public rental housing unit in Long Tin House, Pak Tin Estate (“Unit”), of which the Applicant is tenant.

3.  The Appeal Panel is an independent statutory appeal panel.  As is typical in a situation where the appeal hearing has been completed and the decision made, the Appeal Panel has taken a neutral stance towards this application.  Hence, the real contest is between the Applicant and the HA.

4.  By an ex parte Summons dated 9 August 2024 filed together with his second affirmation, the Applicant made an urgent application to this Court for an interim injunction (“Interim Application”) to prohibit the HA’s planned repossession of the Unit on 13 August 2024 to enforce the NTQ. Against the relevant timing, I was not satisfied that it was apt to deal with the Interim Application without any notice being given to the HA.  I gave directions on 9 August 2024 that the Interim Application be heard on 12 August 2024 ‘on notice’ or an inter partes basis.

5.  After hearing submissions at that hearing, I ordered that (1) a rolled-up hearing be fixed for 11 September 2024; (2) the HA should file and serve its Initial Response on 26 August 2024; (3) the Applicant should file and serve his Reply (if any) on 2 September 2024; (4) an interim injunction against eviction would be granted until the rolled-up hearing on 11 September 2024 or further order; and (5) all questions of costs would be reserved.

6.  The affirmation of Mr Koon Sing-kim, Housing Manager/Kowloon West & Sai Kung 8 of the Housing Department (for the HA), was filed on 26 August 2024.  The Applicant’s 3^rd affirmation in reply was filed on 2 September 2024.

7.  At the rolled-up hearing, the Applicant was represented by Ms Jenny Lok of Counsel, and the HA was represented by Ms Eva Leung of Counsel.

8.  I note that the Applicant originally sought to address submissions as though challenging both the HA’s decision to issue the NTQ and the later Decision by the Appeal Panel.  But it seemed to me that, as a result of the Applicant exercising his right to appeal the NTQ, and because the matter was considered afresh by the Appeal Panel, the focus of the present challenge could only be on the Decision.  At the hearing, both Ms Lok and Ms Leung confirmed their agreement that the focus should be only on the Decision.

9.  At the conclusion of the hearing, I reserved my decision to be handed down later.  This is my Judgment.

B.  Factual Background

10.  The background as can be drawn from the materials from both sides is broadly as follows.

11.  The Applicant, who is 66 years old and works in a Mahjong parlour, is the tenant of the Unit, by virtue of the tenancy agreement entered into between himself and the HA on 29 December 2021 (“Tenancy Agreement”).  On 12 January 2022, the tenancy period began and vacant possession was delivered to the Applicant.

12.  There were provisions of the Tenancy Agreement requiring the tenant (1) to take up residence in the Unit within one month, and (2) to maintain regular and continuous residence in the Unit.

13.  The Applicant’s wife (“Wife”) and son (“Son”) are the authorised family members of the Unit as stated in the Tenancy Agreement. They each obtained one-way permits in 2016, but stayed in the Mainland and (it is said) planned to join the Applicant after the renovation works of the Unit were completed.  The Son is now 18 years old.

14.  In August 2022, the Son was diagnosed with cancer and received surgical treatment.  In view of the lockdown during the Covid-19 pandemic, the Son received surgery and medical treatments in the Mainland.  The Wife stayed in the Mainland to take care of the Son.

15.  In or by August 2024, the health condition of the Son had improved, but follow-up is still required. In that month, it is said, the Wife came to stay with the Applicant in the Unit and began to work in Hong Kong.

16.  The Housing Department (“HD”) is the executive arm of the HA.

17.  Investigations conducted by the Public Housing Resources Management Sub-section of the HD in the period from 2 August 2023 to 14 November 2023 (“Investigation Period”) – including from unannounced visits – revealed that the Applicant, the Wife and the Son had failed to maintain regular and continuous residence in the Unit.

18.  In response to the HD’s letter dated 13 November 2023 for an appointed visit, the Applicant contacted the office of the HD by phone on 14 November 2023 at 9:05am to request for re-scheduling the appointed visit due to work commitments.  An appointed visit was then arranged for 10am on 14 November 2023 (“Appointed Visit”).

19.  During the Appointed Visit, the following reasons were provided by the Applicant to the Investigation Officer for his non-occupation during the Investigation Period:

(1)  The Applicant worked at a Majong parlour in Kowloon City with opening hours from 12 noon to 12 midnight.  He was not found during HA’s unannounced home visits because he would leave the Unit before 10:30am and returned to the Unit around 12:30am.

(2)  The Son and the Wife were living in Zhongshan city, Guangdong province.  The Son had to stay in the Mainland for treatment of cancer diagnosed around 2 years before.  The Wife had to stay in the Mainland to take care of the Son.  The Covid-19 pandemic further delayed their return to Hong Kong.

(3)  Since July 2023, renovation works were being carried out in the premises of the Applicant’s employer where the Applicant worked.  He was required by his employer to stay in the premises overnight to safeguard valuables as a large amount of cash was stored in the premises.  It was expected that the renovation works would be completed by the end of the year.  He seldom returned and slept at the Unit since then, and would only return to the Unit occasionally.

(4)  Due to his work, the Applicant seldom cooked at home but he would do cleaning at the Unit.

(5)  The Applicant would go to the Mainland to visit his Wife and Son during holidays.  The Son was studying in Zhongshan city.

20.  The explanations provided by the Applicant for non-occupation of the Unit were not accepted by the HA, which issued the NTQ to the Applicant on 30 January 2024.

21.  On 1 February 2024, the Applicant filed an appeal to the Appeal Panel against the NTQ.  The appeal hearing was conducted on 20 March 2024.  There is a transcript of that appeal hearing.

22.  The HA’s case was that the Applicant had failed to retain regular and continuous residence in the Unit during the Investigation Period, which was in breach of the Tenancy Agreement, and therefore the NTQ should be upheld.  The HA supported its allegation by reference to (1) the low water and electricity consumption of the Unit, (2) 16 unannounced visits by HD staff when no one was present in the Unit, and (3) the travel records of the Applicant, the Wife and the Son.  The Wife had not travelled to Hong Kong since 22 October 2021, and the Son had not travelled to Hong Kong since 27 April 2019.  In other words, neither the Wife or Son had been in Hong Kong at any time after the making of the Tenancy Agreement.  That continued to be the position as at the date of the appeal.

23.  At the appeal hearing, the HA also submitted inter alia that:

(1)  The Wife (and the Son) had apparently rented a 3-bedroom apartment from the Wife’s relative in Zhongshan city, Guangdong province.

(2)  The Son has been staying at school accommodation since the commencement of his junior high school.

(3)  The Applicant was unable to confirm whether the Son would plan to come back to Hong Kong after graduation.

(4)  The Applicant confirmed that the health condition of the Son had become stable (as at the date of the appeal hearing), but at the same time the Wife still chose to and was living and working in the Mainland (at that time).

(5)  The Applicant admitted that he rented the attic in his employer’s premises from a colleague, Mr Heung Chiu Chin.

24.  The Applicant did not deny that there was non-occupation of the Unit during the Investigation Period, and contended that it was due to the following factors beyond his control:

(1)  Renovation delay: There was delay in the renovation works because of the Covid-19 pandemic and the unavailability of contractors during that time.  Further delay was due to the fact that he lost contact with the original contractor, and had to find a new one.

(2)  Work obligations: He was required by his employer to stay in his employer’s premises overnight – see details above.

(3)  The son’s health: see details above.

(4)  Unannounced visits: The staff of the HD could not find him at the Unit as his working hours are long (from 10:30 am to after 1:00 am) and/or he had to stay at his place of employment, and he would often go to the Mainland to see his Son while on holidays.

25.  By letter dated 28 March 2024, the Appeal Panel informed the Applicant of its decision to uphold the NTQ.  The English translation of the reasons given by the Appeal Panel to confirm the NTQ sets out the reasons as follows:

(a)  The Appellant said that he arranged for the renovation works after the commencement of the Tenancy Agreement of the Subject Unit (i.e. January 2022), but the work progress was affected by the pandemic.  Later in mid-2023, he arranged for another renovation worker to follow up on the works and the renovation of the Unit was finally completed in August 2023.  The Appellant said that he stayed overnight in his workplace between August 2023 and January 2024 due to operational needs, which was the reason why he failed to retain regular and continuous residence in the Subject Unit.  In addition, the Appellant said that his son studied in the Mainland and was diagnosed with cancer in August 2022. His son received treatment in hospital in the Mainland and his wife stayed there to take care of him.  Therefore, the two of them did not retain regular and continuous residence in the Subject Unit.  Members of the Tribunal are satisfied of the Housing Department’s statement that the Appellant and his family failed to retain regular and continuous residence in the Subject Unit, and are of the view that the Housing Authority’s service of a NTQ on them for breaching the Tenancy Agreement is reasonable and justifiable;

(b)  A Member is satisfied that the reasons of the Appellant’s failure to retain regular and continuous residence in the Subject Unit are that the decoration of the Unit had not yet completed and the Appellant had to stay overnight at the workplace owing to operational needs.  In view of the Appellant’s current residence in the Unit and the conditions of his son, the Member considers that discretion can be exercised to give the Appellant a chance;

(c)  Another two Members are not satisfied with the explanations of the Appellant.  The Tenancy Agreement signed between the Appellant and the Housing Authority requires the tenant and household members on the registry of the Unit to retain regular and continuous residence in the public rental housing unit.  Members noted that the Tenancy Agreement of the Subject Unit commenced in early 2022, the decoration of the Unit was, however, completed more than a year later (i.e. August 2023). The Appellant subsequently failed to retain regular and continuous residence in the Unit due to work commitments between August 2023 and January 2024, and during which he had another residence apart from the Subject Unit.  Hence, the two Members were not satisfied that the Appellant had a pressing need for the Unit.  The Appellant’s wife and son had been living in the Mainland.  In August 2022, while continuing his studies in the Mainland, his son was diagnosed with cancer and he stayed there for treatment. According to records, both of them had been away from Hong Kong before the commencement of the Tenancy Agreement, and had no record of entry into Hong Kong as of September 2023. In other words, they had not resided in the Subject Unit at all.  The Appellant also failed to provide any information on his wife and son’s plan to come to Hong Kong residents.  The two Members believed that they would still not be able to retain regular and continuous residence in the Unit in the future, and thus fail to comply with the requirements of the Tenancy Agreement.  These Members are of the view that the Appellant’s wife and son have a place to live while they are in the Mainland, they did not have a pressing need for the Subject Unit; and

(d)  Having considered the grounds of appeal that the statements made by the Appellant in various aspects such as the background, employment/study and health conditions of the family of three, as well as the occupancy position of the Subject Unit, the two Members are of the view that there are no sufficient grounds for exercising discretion in this case. The public housing resources are precious and should be allocated in a rational manner, and the PRH Unit recovered could be allocated to those in need.

26.  Hence, the gist of the reasons for the Decision (as helpfully summarised by Ms Leung) was that:

(1)  The Appeal Panel took into account the explanations provided by the Applicant for non-occupation of the Unit, namely: (a) renovation works were delayed by the Covid-19 pandemic; (b) he was requested by his employer to stay overnight in its premises; (c) the Son was studying in the Mainland and was diagnosed with cancer in August 2022; and (d) the Wife stayed in the Mainland to take care of the Son.

(2)  The Applicant, his Wife and Son did not have regular and continuous residence in the Unit and therefore it was reasonable and justifiable for the HA to issue the NTQ.

(3)  One member of the Appeal Panel was of the view that discretion could be exercised, while two other members found that the Applicant’s explanations were not satisfactory.

(4)  The renovation of the Unit was completed more than one year after the start of the Tenancy Agreement in January 2022 (i.e. in August 2023).  From August 2023 to January 2024, the Applicant had another place to live due to his work commitment during that period.

(5)  As the Wife and the Son had been away from Hong Kong before the commencement of the Tenancy Agreement and had no record of entry into Hong Kong as at September 2023, and the Applicant was unable to provide any information on the plan of the Wife and the Son to come to Hong Kong for residence, two members of the Appeal Panel were of the view that the Wife and the Son would not be able to retain regular residence in the Unit, and they did not have a pressing need for the Unit as they had a place to live in the Mainland.

(6)  The Appeal Panel concluded (by 2 to 1 majority) that there were insufficient grounds for exercising discretion in the present case.

C.  The Intended Grounds for Review

27.  In the Form 86 and Ms Lok’s submissions, the Applicant relied on the following grounds to challenge the Decision, being:

(1)  The Appeal Panel failed to give sufficient weight/consideration to the explanations provided by the Applicant (“Insufficient Weight/Consideration Ground”).

(2)  The NTQ and the Appeal Panel’s Decision were grossly unreasonable (“Unreasonableness Ground”).

(3)  The HA fettered its discretion by failing to consider the reasons given by the Applicant (“Fettering of Discretion Ground”).

28.  The first two grounds were in the Form 86, but the third was not.  As will be seen below, it can be dispatched shortly.

29.  It is also fair to point out that, though the first two grounds have been put forward separately, they clearly rely significantly on similar submissions and are at least overlapping.  For that reason, I think it be convenient to set out the arguments on the ground separately, before considering the conclusion on them as though together.

30.  By way of overview at the rolled-up hearing, Ms Lok submitted the following five key points, which she said ought to be taken into consideration:

(1)  The Applicant is aged 66 and has a low education level at primary 6, and his evidence and submissions as were made before the Appeal Panel must be approached in that light.

(2)  The Applicant has spent the substantial part of his life savings on renovation of the Unit, showing he intended and made a genuine commitment to make the Unit a long-term home for his family, particularly a comfortable home for his Son.

(3)  The Applicant had provided the reasons for the delay in renovation of the Unit, in that during the Covid-19 pandemic lockdown and shortage of workers from the Mainland from 2022 to early 2023, renovation works could not be proceeded with.

(4)  The Applicant’s Son was diagnosed with cancer in 2022 at the age of 16, requiring immediate surgical treatment in the Mainland, which is the reason for the Son and the Wife to stay there.

(5)  The Applicant did not have alternative accommodation as alleged.  Instead his work obligation to stay in the employer’s premises from August 2023 to January 2024 overlapped with the Investigation Period from 2 August 2023 to 14 November 2023.

D.  Fettering of Discretion Ground

31.  It is convenient to deal with the Fettering of Discretion Ground first, which was a new ground, not set out in the Form 86, and only advanced by Ms Lok in her Skeleton Submissions.  Of itself, that is a reason for it to be dismissed.

32.  In any event, as her written submissions identified, the intended challenge on this Ground was essentially directed at the decision of the HA to issue the NTQ (rather than the Decision of the Appeal Panel).

33.  Further, I accept the submission by Ms Leung that the intended ground is not reasonable arguable.  There was no fettering of discretion in the HA taking into account, as part of the considerations, the water and electricity consumption records, immigration records and physical visits by the staff of the HD, when it formed the overall view that those materials show that the Applicant, the Wife and the Son did not retain regular and continuous residence in the Unit.

E.  The Insufficient Weight/Consideration Ground

34.  As to the complaint about insufficient weight given to or consideration of the reasons given by the Applicant, Ms Lok’s written submissions may be summarised as follows:

(1)  Regarding the relevant consideration of voluntariness of non-occupation, the following authorities are applicable: see Kam So Yin v Chairman of the Hong Kong Housing Authority (unreported, HCAL 834/2021, 29 October 2021) at §8, and Chan Yau Ling v Housing Appeal Tribunal (unreported, HCAL 427/2023, 4 May 2023) at §45, which state that when a NTQ is issued on the basis of continuous non-occupation, a relevant factor to consider is whether the non-occupation was voluntary or involuntary.

(2)  Like the HA, the Appeal Panel failed properly to take into account the relevant consideration of whether the Applicant, his Wife and Son’s non-occupation was voluntary or involuntary, and to understand that the Wife’s and the Son’s absence from Hong Kong was because the Son who was diagnosed with cancer in 2022 was forced to stay in the Mainland involuntarily for his treatment and the Wife had to stay in the Mainland to take care of the Son.

(3)  The finding of the Appeal Panel that the Applicant failed to provide any information on the plan of Wife and the Son to come to Hong Kong for residence is irrational.  They always wanted to come to live in Hong Kong, but the hindrance was the illness of the Son, preventing the relocation to Hong Kong.

(4)  The HA’s description of the Wife and Son’s residence in Zhongshan city as a “comfortable” 3-bedroom apartment was unfair because the flat was rented for $800 per month.

(5)  The Appeal Panel also failed to take the following relevant considerations into account:

(a)  The old age of the Applicant.

(b)  A substantial sum of life savings had been spent by the Applicant on the renovation works of the Unit, showing that he has the intention of living with his Wife and Son there for a long time.

(c)  The Applicant had spent money long before the NTQ was issued, which is different from the situation that someone would spend money on renovation works to try to avoid eviction.

(d)  The HA’s reliance in argument on the Applicant having “rented” the attic in the employer’s premises is inapt, because the situation is not similar to a tenancy or licence.  The Applicant had no interest or control.  The attic was not the alternative accommodation of the Applicant.

(e)  Despite the fact that the Applicant had to stay overnight at the employer’s premises due to work commitment, his regular attendance at the Unit was illustrated by the fact that there were no letters in the letterbox of the Unit, and that he was able to respond to the appointment letter left by the staff of the HD at the gate and the letterbox of the Unit within 24 hours.

35.  Ms Lok also sought to adduce new evidence not before the Appeal Panel, being three sets of photos, including (1) some taken inside the Unit showing the renovation, (2) a photo said to show the Wife’s employment in August 2024, and (3) photos of the Son’s medical condition in August 2022.  Ms Lok accepted that they were not presented before the Appeal Panel, but submitted the first category is produced now because it was only at the appeal hearing that the members started to have discussion on matters prior to the investigation.

36.  However, I accept Ms Leung’s submission that the photos are not admissible or helpful now.  First, the photos of the Unit and of the Son’s medical condition were available before the time of the Appeal Panel hearing, and in any event add little to the evidence and submissions made as regards both points at that hearing.  This is perhaps particularly so, when the Applicant pointed out at the appeal hearing that the HA had visited his home and seen the renovations, and there was no issue as to the Son’s condition.  Secondly, the photo of the Wife in an apparent work uniform was taken only recently in August 2024, and in any event of itself could not prove her employment.

37.  Ms Leung’s submissions in response to the other points were in summary that:

(1)  The explanations provided by the Applicant for the medical condition of the Son and the stay of the Wife in the Mainland to take care of the Son had been considered by the HA in its decision to issue the NTQ.  The findings and analysis were then set out in the Investigation Report, which was considered by the Appeal Panel.

(2)  As to the ‘involuntariness’ argument advanced by the Applicant, the present case should be distinguished from the involuntary situation in Kam So Yin v Chairman of the Hong Kong Housing Authority, in which the tenant had no choice but was forced to remain overseas as a result of border closure during the Covid-19 pandemic: see §8(iii)-(iv).

(3)  In particular, the voluntariness of the Applicant and his family in the present case are shown by:

(a)  the 5-month delay in engagement of a first contractor to conduct renovation works of the Unit, despite that choices for renovation contractors had been provided by the HA to the Applicant in January 2022;

(b)  allowing the renovation works of the Unit to remain uncompleted by the end of 2022, which was already approximately 12 months since the delivery of vacant possession of the Unit by the HA to the Applicant;

(c)  another 3-month delay in engagement of another contractor to resume renovation works of the Unit, which was approximately 14 months since the delivery of vacant possession;

(d)  allowing the renovation works to be completed only in August 2023, which was 19 months since the delivery of vacant possession;

(e)  the Applicant’s agreement for staying overnight at the employer’s premises for approximately 6 months from July 2023 to January 2024, despite that he had agreed to retain regular and continuous residence in the Unit in accordance with the Tenancy Agreement;

(f)  the Applicant’s never providing any explanation for the Wife and the Son’s choice of staying in the Mainland for the latter’s cancer treatment (even after the Covid-19 anti-pandemic restrictions were removed), as if no equivalent medical treatment were available in Hong Kong.

(4)  The Son was born, raised and educated in the Mainland, planned to finish his studies there in 2 years (even as at the date of the appeal), and had no plan to come to Hong Kong, and there was no irrationality, when the Applicant did not provide any clear confirmation on the Son’s plan to come to Hong Kong.  In particular, the recent plan as alleged by the Applicant to seek the assistance of the Social Welfare Department to arrange school education for the Son in Hong Kong is merely an afterthought aimed at alleviating the breach of the Tenancy Agreement.

(5)  As at the date of the appeal hearing, the Wife stayed in the Mainland and had no plan to come to Hong Kong.

(6)  The Applicant was able to find alternative accommodation, when he was not residing in the Unit.  This is shown by the fact that the Applicant rented the attic of the employer’s premises from his colleague, Mr Heung, by payment of certain sums for his stay (as admitted by the Applicant in the appeal hearing), and that the Applicant would stay in the employer’s premises before his late mother passed away on 24 October 2015 when the Wife and the Son visited him.

(7)  The Applicant’s assertion that he has no control over his stay in the employer’s premises has no merit, because he apparently rented the attic of the employer’s premises and paid rent and was able to rent another place to live, which shows that there is no genuine need for public housing.

(8)  In respect of the stay and residence of the Wife and the Son in the Mainland, it is correct for the Appeal Panel to conclude that they have alternative accommodation in the Mainland (as admitted by the Applicant in the appeal hearing).  In addition, there was no plan for the Son to relocate to Hong Kong to continue his education.

(9)  As regards the Applicant’s allegation that the Appeal Panel failed in taking into account relevant considerations, such considerations were either considered or irrelevant.  Particularly, collecting letters from the letterbox of the Unit by the Applicant is of no relevance to the issue whether the Applicant has retained regular and continuous residence in the Unit, which is not intended to serve as a letterbox.

F.  Unreasonableness Ground

38.  In the present case, Ms Lok submitted that it is irrational for the Appeal Panel to reach the conclusion that the Applicant, the Wife and the Son had alternative accommodation and failed to show a genuine need for the Unit, because:

(1)  The Appeal Panel failed to consider whether the Applicant’s non-occupation of the Unit was voluntary or involuntary.

(2)  The Appeal Panel erred in finding that the temporary job duty of the Applicant to stay in the employer’s premises overnight to safeguard the cash indicated that the Applicant had another place to live apart from the Unit.  The Applicant had no control of how long he should stay at the employer’s premises, as he was under the employer’s instruction to stay or to go, which is similar to the situation of a night-shift security guard at the lobby of a residential building.  The lobby is the work place of the security guard.  Hence, it is irrational to reach a conclusion that the lobby is the alternative residence of the security guard.

(3)  The Appeal Panel also erred in regarding the temporary stay of the Wife and the Son in the Mainland for the latter’s medical treatment as having alternative accommodation.  The family would be living in the Unit soonest after the completion of the renovation works, if the medical conditions of the Son were not critical.

39.  The gist of Ms Leung’s response to this Ground is that:

(1)  This Ground should also be rejected by relying upon the same reasons as set out in the response to Ground 1 above.

(2)  In particular, the analogy with the night-shift security guard as put forward by the Applicant is misplaced, because a security guard would not pay to stay overnight in his work place.  In the present case, the Applicant apparently had been staying in the employer’s premises outside his working hours, and also made payments to his colleague, Mr Heung, who seemed to grant the Applicant a licence to stay.  Though Ms Leung categorised this response under Ground 1 in her Skeleton Submissions, it is clear that this is a direct reply to Ms Lok’s contention of irrationality in respect of the Appeal Panel’s finding that the Applicant has alternative accommodation, i.e. Ground 2.

G.  Analysis of the Two Grounds

40.  The weight to be given to particular aspects of the evidence is ordinarily a matter for the decision maker, and complaints that insufficient weight has been given to one aspect or another does not usually provide fertile ground for a judicial review challenge.  It is also trite that an applicant who asserts Wednesbury unreasonableness or irrationality faces a high hurdle.  In this case, from the arguments set out above, it seems to me that Ms Lok’s submissions essentially assert that the Appeal Panel’s failure to give proper weight to certain aspects of the materials is of such a magnitude that it gives rise to the claimed irrationality.  That is why I think it apt to consider these two Grounds together.

41.  For that purpose, I do not think it necessary to engage in close analysis of previous decisions relating to whether non-occupation of a unit was voluntary or involuntary.  Each case will turn on its own particular facts and circumstances, and it is necessary to focus on those.

42.  The starting point in this case is that it is indisputable that the Applicant and his family members did not retain continuous and regular residence in the Unit from 12 January 2022 to 31 January 2024 – with the possible exception relating to the period in and after August 2023, when the Applicant was required to spend most nights at his place of employment, and depending on how ‘residence’ is considered.

43.  But, as I read the reasoning, the two Members of the Appeal Panel forming the majority might have been prepared to overlook some of the earlier period (and so to exercise the discretion to set aside the NTQ), had they not formed the view that each of the Applicant, the Wife and the Son had alternative available accommodation and therefore no pressing need for the Unit.  This is where it seems to me that the two Members fell into error, of the sort to justify an intervention by the Court exercising its judicial review supervisory jurisdiction.

44.  First, as regards the Applicant himself, I accept that the evidence may not have been as clear as it might have been at the Appeal Panel.  But, reading the transcript in a way appropriate to the nature of the hearing, I think that the Applicant was trying to explain that whilst he had previously paid some fees for staying in the attic above his employer’s workplace, that ended when he was able to move into the Unit after renovation was completed in August 2023.  Indeed, he stated that he did move in.  However, at almost exactly the same point of time, renovations commenced at the place of employment, and the Applicant was required to spend most overnights there.  As that was an instance of employment, I do not think the Applicant was saying that he paid to stay there – hence the analogy with the security guard.  Even during that time, the Applicant said he would sometimes return to the Unit, including to clean it. Though not a point on its own, the fact that during the Investigation Period the HD officers found no accumulation of letters in the letterbox lends some support to that fact (and it is speculative to suggest that the absence of letters was because the Applicant was using a different correspondence address, which seems unlikely not least as regards utility bills and the like). Certainly, unless a pure coincidence, the Applicant was able to respond to the HD’s invitation for a fixed appointment within 24 hours.

45.  As to the position of the Wife and the Son, it is of course correct that they had alternative accommodation in the Mainland. But, if they were in effect “stuck” in the Mainland as a result of a combination of the travel restrictions during the pandemic and the Son’s medical condition / need for treatment, and the Wife’s understandable staying there for that purpose, that they found somewhere to live does not seem to me to be rationally connected with their not having a need for the Unit.

46.  Further, it is possible to consider the position of the Wife and the Son separately.  Even assuming the Son was intended to have continued education in the Mainland, that would not have ordinarily prevented the Wife from coming to Hong Kong.  I think the Applicant gave evidence and/or made submission to this effect during the appeal hearing.  Had the Wife not understandably stayed in the Mainland after the Son’s cancer diagnosis, it is likely that she would have been found in occupation of the Unit during some, if not all, of any unannounced visits – even if the Applicant’s working hours and obligations meant that he would not have been found present at the same time. There would also have been greater use of the utilities, such that an investigation as to the occupancy of the Unit might not even have been pursued.

47.  When those matters are properly taken into consideration, that may change the weight or balance to be given to the other features such as the impact of the pandemic on the renovation requirements, and the fact that the Applicant had spent the substantial part of his savings in order to pay for the renovations which were completed many months in advance of even the Investigation Period, let alone the decision to issue the NTQ.

48.  This does not seem to me to be a matter simply of sympathy or personal empathy, but the fair, proper and rational approach to the materials.

49.  I have also taken into account that one of the Members of the Appeal Panel has already taken the view that the overall circumstances justify the exercise of the discretion in favour of the Applicant.  Therefore, upon any reconsideration, it might only need one of the other two Members to change his mind as to the weighing and balancing exercise, for there to be a different decision.

H.  Result

50.  In the particular circumstances of this case, it seems to me that the arguments put forward on behalf of the Applicant justify the grant of leave to apply for judicial review, and ultimately just support the finding of the substantive review, and point to the grant of relief.

51.  Therefore, I quash the Decision, and remit the matter back to the Appeal Panel for reconsideration in the light of, and with the benefit of, this Judgment.

52.  I shall make a costs order nisi that the HA pay the costs of the Applicant, to be summarily assessed by me on paper. The order will become absolute, unless an application for variation is made within the next 14 days.

53.  In the circumstances, though I have been provided with an updated calculation of mesne profits to 20 September 2024, I make no order in that regard, as it may become otiose.  Of course, that will be impacted by the decision made upon the reconsideration, which is a decision for the Appeal Panel to make.

54.  Lastly, I would emphasise that nothing in this Judgment is intended to set any precedent for future cases.  In particular, I acknowledge the points which the HA has reiterated, namely that public rental housing and precious social resources should be used optimally and be rationally allocated to those with genuine need, and that there is an growing public sentiment and approval in the HA’s efforts to combat tenancy abuse.