CHU ON FONG WINTER v. THE APPEAL PANEL (HOUSING) AND ANOTHER

HCMP 982/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 982OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 79 OF 2017)

_______________

_______________

_______________

JUDGMENT

_______________

Hon Lam VP (giving the Judgment of the Court):

1.  In HCAL 79 of 2017 the Applicant sought leave to apply for judicial review against the decision of the Appeal Panel upholding the Notice to Quit issued by the Housing Authority.

2.  On 22 March 2017, Au J refused leave on papers.  In the CALL-1 Form, Au J refused leave for the following reasons:

“ (1) The proposed grounds of judicial review are without merits for the following reasons.

(2) The Housing Authority ("HA") terminated the tenancy and served the Notice to Quit ("NTQ") on the applicant on the basis that the applicant was in breach of clause II(20) of the tenancy agreement in failing to retain regular and continuous residence at the flat. The HA came to that conclusion by basing on the evidence that (a) there was a daily average of close to zero use of water in relation to the flat for 184 days (between 25 February and 26 August 2016), (b) the HA investigator was not able to meet anyone in the flat at any of the 20 visits the investigator had made to the flat at different times of the day, and (c) the flat appeared to be empty with no furniture when looked inside from the common corridor through the window.

(3) The above evidence clearly and reasonably supports the HA's conclusion that the applicant had failed to retain regular and continuous residence at the flat. Hence, the HA was entitled to issue the NTQ.

(4) None of the grounds raised in the intended judicial review suggests that the applicant challenged the evidence on appeal before the Appeal Panel (Housing) ("the Appeal Panel"):

(a) Grounds 1 and 2 raised are premised on saying that the Appeal Panel and the HA should be sympathetic to the applicant's case. However, given the unchallenged evidence, and hence the failure to maintain regular residence at the flat, and in light of the fact the public housing is scarce public resources with hundreds of thousands of people waiting for allocation, the confirmation of the NTQ by the Appeal Panel is clearly not one that no reasonable persons in their position would have made. In other words, it is not reasonably arguable that, by reasons of what are said under Grounds 1 and 2, the challenged decision is Wednesbury unreasonable. These grounds therefore have no merits.

(b) Ground 3 is entirely without merit. It must be open to the HA investigator to conduct reasonable investigations to see whether the applicant as tenant was in breach of the tenancy agreement in the use of public housing. There is no unreasonable or disproportionate intrusion of any privacy for the investigator to only look inside the flat from the outside common area through the windows, in particular in light of the fact that the applicant had failed to meet the investigation on various occasions.

(c) Ground 4 is also without merits. There are no procedural irregularities that had caused any serious prejudice on the applicant. The factual allegations made by the applicant in the Form 86 are effectively and in substance the same as she had made in opposing the NTQ on appeal before the Appeal Panel (see Annex V to [上訴委員會議事備忘錄] Ref No: AP 706/2016)

(5) Given that all the proposed grounds of judicial review are without merits, the court will not grant leave to the applicant to apply for judicial review. ”

3.  The Applicant had 14 days to appeal to this Court against that refusal. She did not do so.  Instead, she applied by a summons taken on 5 April (though dated 7 April) to Au J for extension of time to appeal “as long as possible”. That application was dismissed by Au J on 12 April 2017, after hearing her on 7 April 2017.

4.  The Applicant issued a summons on 27 April 2017 asking for extension of time to appeal from this Court.  Pursuant to Order 59 Rule 14A, this Court can determine an interlocutory matter on papers without any oral hearing. Directions were given to the Applicant to lodge submissions. 

5.  Notwithstanding the direction (acknowledged by the Applicant on 27 April) and reminder from the Court on 13 June 2017, the Applicant did not lodge further submissions in support of her application.

6.  We therefore treat the materials already lodged by the Applicant as her submissions and consider the application on the basis of such materials, including the affidavit of the Applicant of 27 April 2017.

7.  In his judgment of 12 April 2017, Au J correctly explained the need for the Applicant to demonstrate that the appeal has some merits.  In the context of the present application, where the judge found that the delay was not excusable, she has to show that the intended appeal has a good prospect of success.

8.  We would add that even if the delay is excusable, the court will not grant extension of time unless the intended appeal has a reasonable prospect of success.

9.  In the materials placed before us, the Applicant focused on explaining why Au J was incorrect in finding that delay was inexcusable.

10.  However, she did not put forward any draft grounds of appeal or other material to demonstrate the potential merit of her appeal.  In a document attached to her affidavit, her response to [12] and [13] of the judgment of Au J (where the judge commented on the lack of merits in her appeal) was as follows:

“ Points 12.1 & 12.2. Justice Au claims that I failed to show any merits of the intended appeal

Justice Au may be right in making such a claim, but as I explained above during the early stages I was a complete stranger to procedures and utterly unaware of legal jargon. I hope that the present document is more satisfying both in terms of cohesion and content.

Point 13. Justice Au claims that the intended appeal is in his view hopeless.

I have no intention to waste the court’s and the judge’s valuable time and I wouldn’t proceeded if I thought the case to be without hope.”

11.  Having considered the matter in light of the materials before us, we cannot see any prospect of success in the intended appeal.  Hence, even assuming that the Applicant’s delay was excusable, the court should not grant her any extension of time to pursue an appeal without merit.

12.  For these reasons, we dismiss the summons of 27 April 2017.