楊天偉 v. HONG KONG HOUSING AUTHORITY AND ANOTHER

[English Translation - 英譯本]

CACV 392/2020

[2022] HKCA 535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 392 OF 2020

(ON APPEAL FROM HCAL 1910 /2018)

__________________

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JUDGMENT

Hon Chu JA giving the Judgment of the Court:

A.  Introduction

1.  The applicant appeals against the decision of Chow J (“the judge”) made on 12 August 2020, who refused to grant leave to apply for judicial review.

2.  This appeal was originally fixed to be heard on 10 December 2021. For the reasons mentioned below (see paragraphs 21 and 22), on 25 November 2021 this court directed that this appeal be dealt with and decided on paper without an oral hearing.

B.  Facts of the case

3.  The facts relevant to this appeal can be summarized below.

4.  The applicant was allocated a public housing flat at Room 222 Hoi Lai House, Yau Oi Estate, Tuen Mun (“the Flat”) through the Public Housing Waiting List. On 16 April 2004, the applicant and the Hong Kong Housing Authority (“HA”) signed a Public Rental Housing Tenancy Agreement for the Flat (“the Tenancy Agreement”), which commenced on 30 April 2004. Apart from the applicant, his son, Mr Yeung Fut (transliteration) (his “son”), was also a registered family member of the Flat and was permitted to reside therein.

5.  In the Tenancy Agreement, Clause II(20) provided that within one month after the commencement of the tenancy, the applicant had to move in and retain regular and continuous residence therein. Clause IV(2) provided that the landlord would be entitled to recover possession of the flat at any time if the applicant failed to observe or perform any of the terms of the tenancy agreement, in which case the tenancy agreement would be terminated.

6.  Between 26 August 2017 and 31 January 2018, by paying surprise visits to the Flat and examining its water and power consumption, the HA uncovered that, in breach of Clause II(20) of the Tenancy Agreement, the applicant and his son had failed to retain regular and continuous residence in the Flat.

7.  Accordingly, the HA issued a notice to quit to the applicant on 28 February 2018 under section 19(1)(b) of the Housing Ordinance, Cap 283, Laws of Hong Kong and terminated the Tenancy Agreement on 31 March 2018 on the ground that the applicant had breached Clause II(20) of the Tenancy Agreement (“the HA Decision”).

8.  The applicant appealed to the Appeal Panel (Housing) (“AP”) against the HA Decision. He explained that during the relevant period, he worked at a construction site in Sha Tau Kok, New Territories, and it would have been exhausting commuting from the Flat to Sha Tau Kok and back every day. Moreover, his wife with diabetes lived in Shenzhen and required his care and attention; thus, he rarely resided in the Flat. He said that later his wife’s condition had improved and he had returned to reside in the Flat. At the appeal hearing, he also contended that he was not aware of any policy that required a tenant to retain regular and continuous residence in a public housing unit.

9.  After the hearing, the AP issued a notice of decision of the appeal (“the AP Decision”) on 12 June 2018, dismissing the applicant’s appeal and affirming the notice to quit issued by the HA.

10.  The AP Decision was mainly based on the following: (1) there was sufficient objective information to show that the applicant had failed to retain regular and continuous residence in the Flat; (2) the applicant’s contention of not being aware of the policy that required a tenant to retain regular and continuous residence in a public housing unit was not a reasonable ground of appeal; and (3) whether the applicant would still have a genuine need for residing in the Flat in future was one of the main considerations in the present case. According to the applicant’s statement, his son lived in Shenzhen and would not return to reside in Hong Kong. On the other hand, the applicant failed to provide any substantial objective ground to show that he would definitely return to reside in the Flat. Some crucial factors were uncertain, including, among others, the result of the application for the right of abode in Hong Kong made by his present wife, who was not a Hong Kong resident and had a job in Shenzhen, and the undetermined date of commencement of her residence in Hong Kong. Moreover, the applicant did not work for any employer on a permanent basis. All along, he chose project-based jobs according to his preference for location and other personal considerations. Therefore, it was uncertain if Hong Kong would be his place of work in future.

C.  Applicant’s application for judicial review

11.  On 11 September 2018, the applicant filed Form 86 with the Court of First Instance, applying for leave to apply for judicial review against the HA Decision and the AP Decision.

12.  The main grounds of the applicant’s application were as follows:

(1)  There was no express provision for “retaining regular and continuous residence for three months” in Clause II(20) of the Tenancy Agreement. The applicant did not know that failure to retain regular and continuous residence would constitute a breach of contract. Moreover, the definition of “regular and continuous residence” was unclear (ground (1)).

(2)  The AP hearing did not comply with proper procedures. The AP’s notice of hearing was unclear and incomplete, rendering the applicant not being able to make adequate preparation. The questions asked by the AP were improper and discriminative. The AP also disregarded the applicant’s suggestion of submitting supplemental documentary proof (ground (2)).

(3)  The applicant’s personal circumstances were not considered in the HA Decision or the AP Decision (ground (3)).

(4)  The HA arrived at its decision improperly. The Tenancy Agreement was terminated without any prior warning, home visit or interview. The AP Decision was different from and inconsistent with the decisions in previous similar cases. Furthermore, the success rate of appeals against decisions made by the HA was very low. The applicant’s case involved public interest and it was worth a judicial review (ground (4)).

D.  The judge’s Decision

13.  After the hearing, the judge handed down his decision on 12 August 2020 (“the judge’s Decision”), dismissing the applicant’s application for leave to apply for judicial review, with no order as to costs.

14.  In respect of ground (1), the judge pointed out[1] that the applicant misunderstood that the HA terminated the Tenancy Agreement based on a policy which came into effect in 1994 and amended in 2008 (“the Policy”), but in fact it did not do so based on the same. Under the Policy, if a tenant “failed to retain regular and continuous residence in the flat for over three months”, the HA will be entitled to issue a notice to quit without any warning. However, the Policy only applies to the tenancy agreements approved by the HA before 2002, in which Clause II(20) expressly provided that a tenant should “constantly reside inside the flat”. Since 2002, Clause II(20) of the tenancy agreements adopted by the HA has been revised and a tenant shall “retain regular and continuous residence in the flat”. The Tenancy Agreement was approved in 2004, and Clause II(20) required the applicant to retain regular and continuous residence in the Flat rented by him; therefore, the Policy was not applicable. It was based on the applicant’s breach of the express provision under Clause II (20), rather than the Policy, that the HA decided to terminate the Tenancy Agreement.

15.  In respect of ground (2), the judge found[2] that the AP’s notice of hearing was not unclear or incomplete. The judge considered the transcript of the appeal hearing and took the view that the AP’s questions contained nothing improper or discriminative. As shown in the reasons for the decision set out by the AP in the minutes of the hearing, the AP had accepted that the applicant, as he represented, had worked at Liantang Control Point, Sha Tau Kok, New Territories, and therefore the AP did not ask for any supplementary written evidence. The judge also pointed out that the transcript of the hearing showed that the applicant was able to effectively communicate with the members of the Panel through the interpreter.

16.  In respect of ground (3), the judge pointed out[3] that according to paragraph 22 of the affirmation filed by the HA[4], before making the decision to issue the notice to quit, the HA had considered the applicant’s personal circumstances and the possible impact on him. The judge also accepted the HA’s stance that the notice to quit would not bring extraordinary or excessive hardship to the applicant or make him homeless. The judge found, as apparent from the transcript of the hearing, that the AP had inquired and considered the applicant’s personal circumstances in detail at the hearing.

17.  As to ground (4), the judge found[5] that the applicant’s allegation of procedural impropriety against the HA in its decision-making process was inconsistent with the fact and the applicant also disregarded his own admission of his failure to retain regular and continuous residence in the Flat during the relevant period. The AP took into account the circumstances of each case in making its decision. As the fact of each case is different, it is natural that the outcome of the present case may possibly be different from the decisions of the precedents.

18.  The judge also disagreed that the applicant’s application for judicial review involved any particular public interest. By referring to certain decided cases, the judge explained that in an application for judicial review, the court exercises its jurisdiction just to ensure that the decisions made by the tribunals and the bodies exercising public functions are lawful, in compliance with statutory procedures and not irrational. The court normally does not intervene in the finding of fact made by the administrative bodies except where they have erred in law by, for example, taking into account the matters that should not have been considered or failing to consider the matters that legally should have been taken into account, or where they have reached a decision with no evidence in support, or where the decision is so irrational that no reasonable administrative body could have made: see黎同志 v Postmaster General (unreported) CACV 134/2011, 6 January 2012, at paragraphs 16 to 17; and 胡小莉 v Hong Kong Housing Authority (unreported) CACV 104/2012, 15 October 2013, at paragraph 20.

19.  The judge found that the HA Decision and AP Decision were not illegal, ultra vires or irrational and that there was no procedural impropriety or breach of statutory procedures in the decision-making process[6]. Since the applicant’s intended application for judicial review was not reasonably arguable and had no realistic prospect of success, the judge refused to grant leave to apply for judicial review.

E.  This appeal

20.  On 18 August 2020, the applicant lodged this appeal, seeking to overturn the judge’s Decision. The AP has taken a neutral stance in this appeal and made no representation.

21.  This appeal was fixed to be heard on 10 December 2021. On 17 March 2021, the Registrar of Civil Appeals directed that the applicant should file his skeleton submission and serve the same on the 1^st and 2^nd Putative Respondents not less than 28 days before the appeal hearing. The applicant failed to comply with the directions, whereas the HA filed its written submission and list of authorities as directed on 24 November 2021.

22.  Subsequently, on 19 November 2021, the applicant applied to the court by a letter for refixing the appeal hearing on the ground that he had to accompany his mobility-impaired wife to attend medical examination on the original hearing date. Upon consideration, this court vacated the original hearing date and directed the applicant to file and serve his written submission in response to the written submission of the HA if he so wished on or before 10 December 2021. This court also directed that this appeal be dealt with and determined on paper without an oral hearing.

23.  On 8 December 2021, the applicant submitted to the court a statement dated 6 December 2021 in reply to the written submission of the HA (“the Statement of Reply”).

F.  Applicant’s grounds of appeal

24.  According to the directions given by the Registrar of Civil Appeals on 5 October 2020, this court will adopt (i) pages 2 to 5 of the document filed on 18 August 2020, and (ii) the amended grounds of appeal filed on 21 September 2020 by the applicant as the grounds of this appeal[7]; whereas Annex 1 and Annex 2 to the document filed on 21 September 2020 were not submitted in the previous hearing and therefore will not be considered by this court.

25.  The applicant’s grounds of appeal may be summarized as follows:

(1)  The policy that requires the applicant to retain continuous residence for three months was not expressly stated in the Tenancy Agreement and therefore he did not know that his failure to reside in the Flat for over three months would constitute a breach of the same. He contended that the HA issued the notice of quit to him on the basis of the new “three-month” definition. There was misunderstanding on the part of the judge in this regard (ground of appeal (1)).

(2)  The AP’s finding of fact was erroneous. It wrongly inferred that (i) it was not certain if the applicant worked in Hong Kong, whilst the applicant was able to provide documents from the Inland Revenue Department, Hong Kong to prove that he had been working in Hong Kong all along; and (ii) it was not certain if the applicant’s wife could immigrate to Hong Kong, whilst in fact she subsequently immigrated to Hong Kong with a one-way permit on 18 August 2020 and obtained her Hong Kong identity card on 14 September (ground of appeal (2)).

(3)  During the period from 26 October 2017 to 31 January 2018, the applicant could not reside in Hong Kong because he had to return to Shenzhen after work to take care of his ailing wife, which was a personal reason and “perfectly understandable”. Although the facts of the applicant’s case were similar to those in case number (5) of the appeal cases published by the AP in 2018, the AP did not exercise its discretion in his case (ground of appeal (3)).

G.  Reasons for decision of this court

G1.  Legal principles

26.  First, we shall summarise and reiterate the legal principles applicable to this appeal below:

(1)  Judicial review is not an avenue of appeal. In an application for judicial review, the role of the court is to scrutinise the decision maker to see if there is any error in its decision in the public law sense, ie whether there are errors of law, procedural impropriety or irrationality (Wednesbury unreasonableness) in the decision: Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

(2)  As the judge pointed out[8], in dealing with an application for judicial review, the court is not performing the duty or exercising the power in place of the decision maker, or assessing if the decision is good or bad. The court can intervene only when there are errors in the decision in the public law sense. The court will not deal with hypothetical questions, nor will it give any decision or remedy which is academic or lacks practical effect: 黎同志 v Postmaster General, at paragraphs 16 to 17; and 胡小莉 v Hong Kong Housing Authority, at paragraph 20.

(3)  The applicant must satisfy the court that the intended application for judicial review is reasonably arguable, which means that his application has a realistic prospect of success, and only under such circumstances will the court grant leave to apply for judicial review: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at paragraph 15.

(4)  In an application for judicial review, the applicant is not allowed to rely on the evidence which was not available to the decision maker at the time when the decision was made in order to prove that the decision was unreasonable: Khan Kamran v Director of Immigration (unreported) HCAL 48/2005, 31 July 2006, at paragraphs 20 to 22.

(5)  An appeal is not a re-hearing. An appellant should not regurgitate the arguments already advanced and rejected by the judge, but should indicate what errors of law and/or obvious mistakes in the finding of fact that the judge has made in his decision. It follows that an appellant’s ground of appeal which only repeats the arguments already rejected by the judge does not constitute a valid ground of appeal. The appellate court examines the decision of the first instance only within the scope of the valid grounds of appeal provided by the appellant: Chin Kam Chiu v HKSAR [2018] HKCA 167 at paragraph 8.

G2.  Ground of appeal (1)

27.  We shall deal with each of the applicant’s grounds of appeal.

28.  The rationale of ground of appeal (1) is mainly that the HA should not terminate the Tenancy Agreement based on the policy that requires a tenant to retain continuous residence for three months at the rented flat (ie the Policy mentioned in paragraph 14 above and named by the applicant as the “three-month-limitation” policy) and the related “new definition”. The applicant in fact only repeats his argument which was already advanced in his leave application. However, as analysed by the judge in paragraph 27 of his decision, the applicant’s argument was made pursuant to the misconceived basis on which the HA terminated his Tenancy Agreement.

29.  As correctly pointed out by the judge, the HA terminated the Tenancy Agreement on the basis that he had breached Clause II(20) of the agreement, under which a tenant must retain regular and continuous residence at the rented flat. The decision to terminate the Tenancy Agreement was not based on the Policy (or the “three-month-limitation” policy) or the “new definition” as alleged by the applicant. The Policy applied only to the tenancy agreements approved by the HA before 2002. The Tenancy Agreement was approved in 2004 and therefore the Policy did not apply. The Tenancy Agreement was not “revised” by the HA under “the new definition” as contended in his Statement of Reply[9]. Therefore, there was no question as to whether or not the applicant was aware of the Policy or “the new definition”[10].

30.  We note, as the transcript of the AP hearing shows, that the HA mentioned the “three-month-limitation” policy and its promotion when it responded to the questions raised by the chair of the AP. This might be the cause of the applicant’s misconception. Nevertheless, even though the HA did not specifically mention in the AP hearing that the Policy did not apply to the Tenancy Agreement, it did point out that the definition of “continuous residence” was to be “construed by common sense”. Moreover, as indicated by the HA in its affirmation opposing the leave application[11], the Policy was only applicable to the tenancy agreements approved before 2002. This point was also accepted by the judge. Furthermore, the AP dismissed the applicant’s appeal on the basis of the objective information in the case which proved his failure in retaining regular and continuous residence in the Flat, and thereby his breach of the Tenancy Agreement, rather than his contravention of the Policy.

31.  The applicant also cited sections 20(2A)(b)(i) and (ii) of the Housing Ordinance in his ground of appeals and contended in his Statement of Reply that the AP had not considered the provisions[12]. Sections 20(2A)(b)(i) and (ii) are about the time at which the tribunal should consider the policy of the HA if a tenant appeals against a decision of termination of tenancy. However, the provisions must be read together with section 20(2A)(a). Sections 20(2A)(a) and (b) are quoted in full below:

“(2A) (a) Paragraph (b) shall apply in relation to any policy of the Authority which is stated and specified as being such in a certificate in writing issued for the purposes of this subsection by the Authority’s secretary and as regards which the certificate also certifies that the policy was both considered and applied by the Authority when deciding to terminate the lease or, where appropriate, to issue the notice to quit to which the appeal relates.

(b) In considering an appeal under subsection (1)—

(i) if the tribunal concerned is satisfied that at the time of making the decision to which a certificate mentioned in paragraph (a) relates, the appellant was aware of the policy or could reasonably be expected to have been so aware, the tribunal shall have regard to such policy; and

(ii) if such tribunal is not so satisfied, it may, where it considers it appropriate so to do, have regard to such policy.”

32.  Admittedly, pursuant to section 20(2A)(a) of the Housing Ordinance, if the HA issued a notice to quit on the ground of a breach of certain HA policy by a tenant, it must issue a certificate of policy to the tenant to spell out the relevant policy and set forth the fact that the breach of the policy is the reason for issuing the notice to quit. Under such circumstances, in accordance with section 20(2A)(b), the AP must confirm that the tenant was or should have been aware of such policy.

33.  Nevertheless, as submitted by Ms Cheung, acting for the HA, whether the applicant was aware of the relevant policy is irrelevant in the present case. This is because, as mentioned above, the Policy did not apply to the Tenancy Agreement. The breach of the Policy or any other policies is not the reason for the termination of the Tenancy Agreement by the HA and therefore sections 20(2A)(a) and (b) are not applicable. I agree with the judge’s finding that the HA is in a position to issue a notice to quit for a breach of a tenancy agreement without referring to any policy: Wan Yung Sang v Hong Kong Housing Authority (unreported) HCAL 135/2009, judgment dated 6 July 2011, at paragraph 42.

34.  Accordingly, in the present case, the HA was entitled to construe the phrase “retain regular and continuous residence” in the Tenancy Agreement according to its ordinary meaning and on a reasonable basis. As revealed by the objective information, the applicant did not retain regular and continuous residence in the Flat, which he has never denied in respect of the period in question; thus, the HA Decision and AP Decision are not unlawful or irrational.

35.  In the light of the above reasons, ground of appeal (1) fails.

G3.  Ground of appeal (2)

36.  Ground of appeal (2) is that the AP’s finding of fact was erroneous. This refers to the finding of fact in paragraph 20 of the minutes of the AP hearing (see paragraph 25 of the judge’s Decision) rather than the determination of the judge. Under the relevant legal principle mentioned above, unless the AP’s conclusion is erroneous in law or irrational in the public law sense, the court should not intervene in its finding of fact.

37.  In respect of ground of appeal (2)(i), the applicant contends that the inference made by the AP (that it was uncertain whether he was going to work in Hong Kong) is inconsistent with the fact. He relied on his tax documents from 2014 to 2020 to show that he had stable jobs in Hong Kong. In relation to the applicant’s employment in Hong Kong, the AP accepted that he worked at Liantang Control Point, Sha Tau Kok, New Territories. In paragraph 30 of his Decision, the judge also held that, for such reason, the AP did not require the applicant to supplement any documentary proof. The applicant in his Statement of Reply submitted that the judge was not completely correct on this point[13], but he did not point out anything erroneous or unsafe in the judge’s Decision. He just made a series of representations of fact[14], which repeated the content of the supplementary documents of his affirmation in support of the application for judicial review, but the judge had already ruled that he was not entitled to rely on any new reasons or matters that were not mentioned in his application[15]. Hence, we shall not consider these representations of fact.

38.  In any event, the AP’s finding of the applicant’s place of work cannot be said to be inconsistent with the fact. It can be seen from the transcript of the AP hearing that the AP thoroughly understood the circumstances and locations of the applicant’s jobs in the past. Based on the applicant’s representation, the AP found that he chose project-based jobs according to his personal preference for location and other personal considerations, and thereby found that it was uncertain whether he would work in Hong Kong in future. There was no lack of evidential basis in the AP’s finding of fact, nor was there any obvious error or impropriety for the court to intervene.

39.  As to ground of appeal (2)(ii), the applicant submitted that the AP had wrongly inferred the uncertainty of his wife’s immigration to Hong Kong.

40.  However, the applicant did not mention this ground in his application for judicial review in either Form 86 or his affirmation in support of the application. There is a clear legal principle that an appellate court normally does not deal with any fresh argument which has not been raised before the trial judge, in particular where the new argument involves a question of fact.

41.  Indeed, it was only after the AP hearing that the applicant’s wife came to Hong Kong with a one-way permit and obtained a Hong Kong identity card. According to the above legal principle, in an application for judicial review, the applicant cannot rely on any evidence which was not available to the administrative body at the time when the decision in question was made to prove that the decision is erroneous or irrational.

42.  In any event, by the time of the AP hearing, the applicant’s wife had yet to obtain permission to come to Hong Kong or a Hong Kong identity card, and she had a job in Shenzhen[16]. The AP Decision in relation to the applicant’s wife that “the crucial factors were uncertain, including, among others, the result of the application for the right of abode in Hong Kong and the undetermined date of commencement of her residence in Hong Kong” is consistent with the facts available at the time when the decision was made.

43.  In view of the above, there is no basis or reason for the court to intervene in the AP’s finding of fact. Ground of appeal (2) fails.

G4.  Ground of appeal (3)

44.  Ground of appeal (3) is mainly that the AP should consider the applicant’s circumstances (that he had to return to Shenzhen to take care of his ailing wife while working in Hong Kong), pursuant to which it should exercise its discretion to allow his appeal. This, same as the applicant’s other grounds of appeal, is also a repetition of the one in support of his application for leave to apply for judicial review.

45.  As it can be seen from paragraphs 32 to 34 of his Decision, the judge had already referred to the evidence and documents in the present case, including paragraph 22 of Cheung Kang Ming’s affirmation, the transcript and the minutes of the AP hearing, and analysed the applicant’s grounds in detail before he held that the AP had considered the applicant’s personal circumstances when making its decision.

46.  We agree with the judge’s analysis and conclusion. Public housing is precious public resources; the HA has the duty to maintain fair and proper use of the resources in public housing and adopt measures to combat abusive use so that these limited resources can be allocated to those genuinely in need. In the present case, the applicant did fail to retain regular and continuous residence in the Flat. To enforce the Tenancy Agreement and discharge its duty, the HA terminated the applicant’s tenancy. Although the HA Decision may cause distress to the applicant, it is not irrational or one that no reasonable administrative body could have made. Similarly, the AP Decision, which affirmed the HA’s Decision, is not irrational in the public law sense.

47.  Finally, the applicant in paragraphs 14(a) to (r) of the Statement of Reply cited a number of precedents of judicial review, indicating that administrative bodies should comply with the public law and proper statutory procedures in their decision-making process. The applicant submitted that both the HA Decision and AP Decision failed to meet these standards. Firstly, these statements do not form part of the grounds of appeal and the applicant cannot in his written submission advance any argument that would go beyond his grounds of appeal. Secondly, the applicant has already put forward the same grounds in his leave application[17], which were nevertheless not accepted by the judge[18]. The applicant now merely repeats these rejected grounds without identifying any error in the judge’s Decision and reasons. This does not constitute any valid ground of appeal.

G5.  Conclusion

48.  In the light of the above analysis and reasons, none of the applicant’s grounds of appeal is substantiated. His intended application for judicial review is not reasonably arguable and has no realistic prospect of success. The judge has correctly refused to grant leave to apply for judicial review.

H.  Order

49.  The applicant’s appeal is dismissed.

50.  According to the usual practice, upon the dismissal of the applicant’s appeal, this court makes an order nisi that the applicant do bear the costs of the HA in the appeal, to be assessed summarily. The order nisi will become absolute after 14 days from the date on which this judgment was handed down unless an application is made to this court for variation. It is directed that the HA shall file and serve a statement of costs within 14 days from the date of handing down of this judgment, and the applicant shall be at liberty to file and serve the grounds of objection against the items and the amounts on the statement of costs in not more than two pages within 14 days thereafter. The assessment will be made on paper thereafter by this court.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.