RE CHIM SUI PING

CACV 18/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 18 OF 2010

(ON APPEAL FROM HCAL NO. 139 OF 2009)

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JUDGMENT

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Hon Kwan JA (giving the Judgment of the Court):

1.  This is an appeal against the refusal of leave to apply for judicial review. On 6 January 2010, Poon J dismissed the ex parte application of the applicant, Madam Chim Sui Ping, following a consideration of documents only. The applicant was not legally represented at the time. Legal aid was granted after she lodged this appeal and her counsel, Mr Hectar Pun, has drafted an amended Form 86 which he seeks leave to file. The draft amended Form 86 contains grounds of judicial review not advanced before the judge.

2.  The decisions in respect of which relief is sought concerned the decision of the Housing Authority to give the applicant a notice to quit dated 31 July 2009 (“the NTQ”) in respect of a public housing unit under section 19(1)(b) of the Housing Ordinance, Cap. 283, and the decision of the Appeal Tribunal contained in a letter dated 22 September 2009 confirming the NTQ.

3.  The relevant matters giving rise to the application may be briefly stated as follows.

4.  The applicant is a single mother in her 50s with a 15-year old son.  She has been a recipient of Comprehensive Social Security Assistance since 2003.  In 2004, she registered for the Public Rental Housing Waiting List.  In 2006, the applicant and her son moved to a room in her parents’ flat in Mei Foo Sun Chuen, Kowloon, paying rent to her parents.  Her parents had migrated to Canada and divided their time between Canada and Hong Kong.

5.  In June 2008, the applicant was notified by the Housing Authority that she was allocated a flat in Choi Ying Estate, Kowloon.  She signed a tenancy agreement with the Housing Authority dated 9 July 2008.  The tenancy was to commence on 22 July 2008. She and her son were listed as the persons to reside in the flat.  Clause II(20) of the agreement provided that the tenant and all family members listed shall take up the tenancy of the flat within one month after the commencement of the tenancy, and thereafter retain regular and continuous residence therein.  Clause IV(2) provided that if any agreement on the tenant’s part contained in the agreement shall not be performed or observed, it shall be lawful for the Housing Authority at any time thereafter to re-enter upon the flat and the tenancy shall absolutely determine.

6.  Between July and October 2008, the applicant purchased some electric appliances and furniture for the flat and installed wall tiles and skirting.  She did not complete the refurbishment due to the lack of funds and continued to stay in her parents’ flat in Mei Foo with her son.

7.  In January 2009, the applicant’s parents came to Hong Kong.  It was only then that she managed to borrow $90,000 from her family members.  She did not proceed with the refurbishment of the flat, due to misfortunes in her family circumstances.  Her father suffered several strokes and her mother had to go to Guangzhou to sort out the financial problem of her brother who threatened to commit suicide.  So the applicant continued to stay in her parents’ flat in Mei Foo to look after her father.  Mei Foo was also more convenient for her son who was attending a school in Shek Kip Mei.

8.  Officers of the Housing Authority selected the applicant’s flat at random for investigation against possible tenancy abuse.  Between 10 March 2009 and 13 May 2009, they visited the flat on 18 occasions and nobody answered the door.  They looked for the applicant at the Mei Foo flat and interviewed her on 14 and 15 May 2009.  She explained to them the reasons why she had not moved into the flat and told them that as her parents were about to go back to Canada in June, she had planned to move in the summer.

9.  The applicant speeded up her renovation of the flat in the latter part of May.  Her father left Hong Kong for Canada on 18 June 2009.  The room in the Mei Foo flat where the applicant and her son had stayed was let to a tenant in June 2009 for one year.  They moved into the flat on or about 18 June and this has since been their home, as confirmed by the visits of the officers of the Housing Authority in June and July 2009. She wrote to the Housing Authority on 26 June 2009 explaining why she was not able to move in promptly due to her family circumstances and that she has been suffering from Ménière’s disease which led to dizziness. 

10.  On 27 May 2009, the investigation report of the Housing Authority was issued.  It was concluded that the applicant had not retained regular and continuous residence in the flat and that the applicant and her son had alternative accommodation.  It was recommended that a notice be issued to terminate the tenancy.  The NTQ was issued on 31 July 2009.  The applicant lodged an appeal to the Appeal Tribunal and after a hearing on 17 September 2009, the decision to issue the NTQ was upheld.

11.  Mr Pun sought leave to amend the Form 86 and to file an additional affirmation of the applicant to present the evidence in a systematic manner.  This court has power under Order 59 rule 10 and Order 53 rule 3(6) to allow an amendment and to admit fresh evidence in support of the amended application.  5 grounds for judicial review are set out in some detail in the amended application.

12.  The test for granting leave to apply for judicial review is whether the applicant has made out a reasonably arguable case for relief with realistic prospects of success (Po Fun Chan v. Winnie Cheung (2007) 10 HKCFAR 676 paras. 14 to 17).  It is not necessary to go into a detailed analysis of the grounds for judicial review at this stage.  It would suffice if some of the grounds raised are reasonably arguable.  We are satisfied the requirement is met for grounds 1 and 2 (that the Housing Authority and the Appeal Tribunal had failed to take into account the right to home of the applicant and her son in Article 29 of the Basic Law and Article 14 of the Hong Kong Bill of Rights and had failed to consider whether the interference of the right to home would be disproportionate in all the circumstances), and ground 3 (that the Housing Authority had fettered its discretion to issue the NTQ by adopting a rigid rule of policy).  Whether the applicant will ultimately succeed on those grounds remains to be seen, but she has passed the threshold test to apply for judicial review.

13.  We allow this appeal and set aside the order of Poon J on 6 January 2010.  We grant leave to apply for judicial review as per the draft amended Notice of application.  We order the applicant to file the amended Notice of application and her 3^rd affirmation in support within 14 days hereof.  Save that the applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations, we make no order as to the costs of this appeal.