鄭惠芬 v. 香港房屋委員會 (房委會)

HCAL 1166/2023

[2024] HKCFI 1059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1166 OF 2023

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D E C I S I O N

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A.  Introduction

1.  By her Form 86 dated 12 July 2023, the Applicant seeks leave to apply for judicial review so as to challenge a decision of the Hong Kong Housing Authority (“HKHA”)  to reject the Applicant’s request for setting aside the Letter of Offer and the property transfer in respect of a public housing unit in Shatin (“Unit”)  and restoration of the Unit to its original status as a public rental housing unit.

2.  By my various directions given in October and November 2023, I gave leave to the HKHA to file an Initial Response to the application by 9 November 2023 (extended to 30 November 2023), and leave to the Applicant to file a Reply to that initial response by 7 December 2023 (extended to 28 December 2023 and further extended to 19 January 2024). My directions also indicated that I would then decide whether to deal with the application for leave to apply for judicial review on paper, and if so that I would proceed to do so without further notice to the parties.

3.  The Initial Response dated 30 November 2023 was served by Woo Kwan Lee & Lo, solicitors for the Putative Respondent. In short, the HKHA’s position is that leave to apply for judicial review should be refused on various bases (which I shall traverse below).

4.  The Applicant filed a bilingual Reply, in both Chinese and English, to the Initial Response on 16 January 2024, which has one hundred and thirty one paragraphs in total.  In the Reply, she firstly set out her understanding of the background of the HKHA’s Tenants Purchase Scheme (“TPS”)  from paragraphs 1 to 13.  As the Reply’s paragraphs 14 to 15 and also the last section titled “The TPS is not a housing policy that benefits the people” are mainly the Applicant’s criticism on the TPS (see background of this scheme below)  which do not actually concern the subject of this application, I make no comment on it.

5.  Having considered the materials, I am satisfied that I can appropriately deal with the application on the papers.

6.  This is my Decision.

B.  Background

7.  The background has been helpfully summarised in the Initial Response, and can be restated broadly as follows.

8.  The lease of the Unit by the HKHA to the father of the Applicant, Mr Cheng Wan, dates back to the 1990s.  The Applicant’s mother, Ms Wong Yuk Ying (“Ms Wong”)  and her four children (including the Applicant)  were the authorised household members to reside in the Unit (“Authorised Occupants”).

9.  The TPS was introduced by the HKHA in around 1998.  Under the TPS, tenants and/or authorised occupants of certain public rental housing estates were allowed to purchase their rented units.  Those tenants and/or authorised occupants who were interested in applying for the TPS were required to submit a completed “Letter of Offer” in duplicate, and “Part III – Declaration by the Authorised Occupants”, requiring each household member of 18 years old or above or who is income earning to sign a declaration.

10.  A Letter of Offer in duplicate dated 27 December 2000 (“Letter of Offer”)  – bearing signatures of the parents of the Applicant as purchasers and their four children (including the Applicant)  as Authorised Occupants – was submitted by the parents of the Applicant to the HKHA to apply for the purchase of the Unit under the TPS (“TPS Application”).

11.  The HKHA accepted the TPS Application and subsequently transferred the ownership of the Unit to the parents of the Applicant on 23 February 2001 (“Sale and Purchase”).  The Unit was held by the parents of the Applicant as joint tenants.  After the death of the father of the Applicant, Ms Wong, as the surviving joint tenant, became the sole owner of the Unit.

12.  In around September 2014, the HKHA was informed by the Applicant for the first time that she found that her family member(s)  had forged her signature in the Letter of Offer (“Alleged Forged Signature Incident”), and had reported it to the Police.  In December 2015, the Police informed the HKHA that it had arrested one person for alleged forgery.  However, after seeking legal advice from the Department of Justice, the Police exercised the discretion not to prosecute and released the arrested person unconditionally, and indicated that there was no evidence suggesting that the rights of the Applicant had been prejudiced or were prone to be prejudiced in any substantial way by the Sale and Purchase.

13.  In around November 2014, the HKHA received the Applicant’s report that her family had suddenly moved out of the Unit in September 2014 and since then her family had occasionally returned to the Unit to cause disturbances, and that in mid-October 2014, her family broke into the Unit and refused her entry to the Unit.  The Applicant hence made a request to the HKHA for documentary proof of her status as an Authorised Occupant of the Unit.  A letter dated 23 December 2014 was issued by the HKHA to the Applicant as the proof.

14.  Since then, the Applicant has been seeking assistance from and/or making complaints to different government departments and authorities as follows:

(1)  Since around the end of 2014, she sought the Legal Aid Department (“LAD”)’s assistance twice in respect of her alleged loss of right to reside in the Unit.

(2)  She continued to file complaints to the HKHA regarding the HKHA’s failure to pursue the Alleged Forged Signature Incident.

(3)  She also filed complaints to the Legislative Council Secretariat and the Office of The Ombudsman regarding the alleged HKHA’s inactions.

15.  On 28 February 2023, the Applicant wrote to the HKHA.  She referred to the Judgment of the civil action DCCJ 6404/2019 handled down by the District Court on 7 February 2023 (“DCCJ 6404/2019 Judgment”), which was commenced by the Applicant against Ms Wong.  In particular, she pointed out that as stated in the Judgment of DCCJ 6404/2019, Ms Wong admitted forging the signature of the Applicant in the Letter of Offer and that the Applicant did not agree to the TPS Application.  She alleged that such acts were clearly in breach of the terms of the Letter of Offer and §26(2)  of the Housing Ordinance Cap 283 (“HO”).  She once again requested the HKHA to declare the Letter of Offer as invalid, and restore the Unit to its original status as a public rental housing unit and restore her original status and protection enjoyed by an authorised occupant of a public rental housing unit.

16.  As shown in the DCCJ 6404/2019 Judgment, the claims made by the Applicant (as the Plaintiff)  against Ms Wong (as the Defendant)  were dismissed, including claims to (1) the loss of her status as an Authorised Occupant and her right to reside in the Unit as a result of her mother’s forgery of her signature in the Letter of Offer, and (2) the loss arising from her inability to return to the Unit to retrieve her personal belongings after she was evicted from the Unit by her family on 14 October 2014. The Court ruled against the Applicant and ordered her to pay for Ms Wong’s costs of the action.  According to another Judgment dated 14 June 2023 in the same action, the Applicant’s application for leave to appeal was also dismissed.

17.  After receipt of the request from the Applicant on 28 February 2023, the HKHA followed up with the Police on the status of the Alleged Forged Signature Incident in March 2023.  The HKHA informed the Police of Ms Wong’s admission of her forgery of the signature of the Applicant in the Letter of Offer in the 2019 Civil Action, and requested the Police to review the case and advise if any action shall be taken in view of such development.  On 24 March 2023, the Police informed the HKHA that the investigation had been concluded in 2015 and no prosecution had been made.

18.  On 14 April 2023, the HKHA replied to the Applicant in relation to the decision that she intends to challenge in the present proceedings.  The HKHA rejected the request of the Applicant for setting aside the Letter of Offer and the property transfer in respect of the Unit (“HKHA’s Decision”).

C.  Proposed Grounds of Review

19.  As stated in her Form 86, the Applicant alleged that the HKHA’s Decision is unlawful, unreasonable and procedurally improper.  Reading her Form 86, her affirmation dated 12 July 2023 and her Reply to the Initial Response, the Applicant’s proposed Grounds could be summarised as follows:

(1)  Ground 1:  Contravention of the Basic Law, double unconstitutionality.

(2)  Ground 2:  Ultra vires, accepting an invalid Letter of Offer.

(3)  Ground 3:  Harbouring unlawful persons, providing information to the Applicant and other government authorities in bad faith.

(4)  Ground 4:  Excessive delay in performing legal duties.

(5)  Ground 5:  Wednesbury unreasonableness.

(6)  Ground 6:  Breach of natural justice, failure to protect reasonable expectations, causing prejudice to the Applicant.

20.  To succeed on the leave application, the Applicant has to persuade this Court that any of the above Grounds is reasonably arguable with a realistic prospect of success.

21.  I will deal with the proposed Grounds of review (Grounds 1 to 4 and 6)  first and then Ground 5 – Wednesbury unreasonableness, which is the logical order in which to do so.

D.  Ground 1: Contravention of the Basic Law, double unconstitutionality

22.  It is trite that in an application for leave to apply for judicial review, the applicant needs properly to identify a specific and proper ground of review, namely by the identification of an alleged public law wrong.  This is a mandatory requirement of RHC Order 53 rule 3(2)(a).  As has been stated on many previous occasions, it is not for the Court to seek to identify or devise potential grounds of review.

23.  In the Form 86, the Applicant’s argument on the “double unconstitutionality” was advanced as follows (in English translation, underlining in original):

(1)  According to Articles 31 and 36 of Chapter 3 of the Basic Law, Hong Kong residents shall have the freedom of movement within the Hong Kong Special Administrative Region, and their welfare benefits shall be protected by law.

(2)  The Applicant is entitled to the autonomy, freedom and welfare benefits guaranteed by the Constitution.  The Applicant has the freedom to choose not to join the TPS and to choose to continue to live in the public rental housing unit and enjoy the protection and benefits that an authorised occupant of the public rental housing unit is entitled to, including but not limited to the right to live in the unit.

(3)  In case the Housing Department failed to discharge its duties and enforce the law accordingly while knowing that someone is in breach of the declaration in the Letter of Offer, this is a blatant contravention of the Constitution and deprivation of the rights that authorised occupants are entitled to under the Constitution.

(4)  The HA could have reasonably foreseen the possibility of someone purchasing the public rental housing unit concerned by providing false information may very likely constitute the potential source of actual danger that has an impact on the person or property of an authorised occupant.  Nevertheless, the incident of 14 October 2014 has already proved that there is actual damage to the person or property of the authorised occupant.

(5)  Under the Common Law, the HA has the obligation to verify the truthfulness and accuracy of the information in the application form.  In case the HA allows the declaration made by the Purchaser in the Letter of Offer to override such obligation, then it must enforce the law accordingly upon finding someone in breach of the declaration.  The HA must fulfil its constitutional obligation and ensure that only law-abiding persons are entitled to welfare benefits.

(6)  In case the HA fails to enforce the law, this is in double contravention of the Constitution.

24.  In the Applicant’s Reply, she sought to explain further, inter alia, how the HKHA’s Decision contravened the Basic Law, which could be summarised as follows:

(1)  If the HKHA does not restore the Unit to a public rental housing unit, there is a “double violation” of Article 36 of the Basic Law, as Ms Wong obtained the eligibility for purchase of the Unit through “illegal means” while “law-abiding” applicants are entitled to continue to enjoy protection and rights of authorised occupants in public rental housing unit in accordance with the law, including but not limited to “residential sovereignty” of the Unit.

(2)  Article 31 of the Basic Law – the freedom of movement of Hong Kong residents within the HKSAR – is contravened because, if the HKHA does not restore the Unit to a public rental housing unit, it will be equivalent to forcing the Applicant to participate in the TPS, causing the Applicant to permanently lose her “residential sovereignty” in the Unit and be forced to move.

(3)  The housing regulations/ordinance override the Basic Law as it sets a time limit on Articles 31 and 36 of the Basic Law.

(4)  The HKHA failed to fulfil its “civil responsibilities” to verify the information provided in the Letter of Offer and require Ms Wong to restore the Unit to a public housing rental unit by selling it back to the HKHA at its original selling price.

(5)  She loses the freedom (autonomy)  and right to enjoy social welfare in accordance with the law as provided under the Basic Law.

25.  I note the following submissions of the HKHA as set out in its Initial Response are that:

(1)  Clause 9(7)  of the Letter of Offer clearly states that the purchaser shall only use the Unit for private residential purposes, and shall ensure that the Unit is used by the Authorised Occupants (including the Applicant).

(2)  The Applicant’s status as an Authorised Occupant of the Unit remains unchanged, both before and after the Unit became Ms Wong’s private property.  The Sale and Purchase did not deprive the Applicant of her rights as an Authorised Occupant of the Unit.  The Applicant’s right to enjoy social welfare under the Basic Law has all along been fully protected.

(3)  From 2014 onwards, the HKHA has confirmed to the Applicant on multiple occasions her status as an Authorised Occupants.  At the request of the Applicant, the HKHA issued a letter dated 23 December 2014 to her as proof of her status as an Authorised Occupant after the dispute between the Applicant and her family members regarding her entry to the Unit in October 2014.

26.  The HKHA further submitted that, regardless of whether the Unit is still a public rental housing unit or has been converted into a private unit under the TPS, the Applicant’s status as an Authorised Occupant has remained unaffected, which was acknowledged by the District Court in the DCCJ 6404/2019 Judgment, ruling that the Applicant did not lose the status as an Authorise Occupant of the Unit due to the forged signature: see §56.  I agree.

27.  To better understand the Applicant’s argument, it is convenient to set out Articles 31 and 36 of the Basic Law (my emphasis):

Article 31

Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization.

Article 36

Hong Kong residents shall have the right to social welfare in accordance with law. The welfare benefits and retirement security of the labour force shall be protected by law.

28.  It seems to me that the Applicant intended to rely upon the first part of the first sentence of Article 31 of the Basic Law (i.e. “Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region …”)  as part of the bases for her so-called “double unconstitutionality” challenge to the HKHA’s Decision.

29.  Article 31 of the Basic Law, in my view, is plain in its language when it says that the right of Hong Kong residents to move freely within the HKSAR.  Without any ambiguity, Article 31 provides a constitutional guarantee for a person’s unrestricted movement between Hong Kong Island, Kowloon and the New Territories, save and except for entry into and exit from some restricted areas like secured reserved zones in the airport and border control points, which only allow access by a permit or valid travel document.

30.  On the facts of the present case as set out above, Article 31 of the Basic Law is of no relevance.  The HKHA’s Decision imposes no restriction on the freedom of movement of the Applicant within the HKSAR.  With respect, the Applicant’s submissions were advanced on a mistaken basis.

31.  Even leaving aside the Applicant’s contention on contravention of Article 31 of the Basic Law, her claim that the HKHA’s Decision is in breach of Article 36 of the Basic Law cannot be substantiated because, as traversed above, the Applicant has never lost the status as one of the Authorised Occupants of the Unit, which is confirmed by the HKHA’s letter dated 23 December 2014 in reply to her request on 8 December 2014 and the DCCJ 6404/2019 Judgment.

32.  Hence, whilst it may be that there has been identification of an alleged public law wrong under the heading of “double unconstitutionality”, the allegation is made on a basis which is not reasonably arguable.

E.  Ground 2: Ultra vires, accepting an invalid Letter of Offer

33.  Ground 2 alleges that (1) the HKHA can require Ms Wong, the current registered owner of the Unit, to transfer the Unit back to the HKHA according to Clause 9(8)  of the Letter of Offer without resorting to any public or private law actions and (2) the current decision of the HKHA of accepting an “unacceptable and invalid” Letter of Offer is ultra vires.

34.  In the Form 86, the Applicant stated that (in English translation, emphasis in original):

(1)  According to the HA’s reply letter dated 12 March 2019 to the Legal Aid Department (LAD)  [Document E], Pt. (3)  on P.1 said, “As stipulated in Part III Declaration by the Authorised Occupants of the Letter of Offer, all the family members who are aged 18 or over, or are income earning must sign the declaration.  Otherwise, the Letter of Offer cannot be accepted.”

(2)  According to the same letter, Pt. (11)  para. 3 on P.3 said, All the family members who are aged 18 or over, or are income earning must confirm the declaration made by authorised occupant(s)  Pt. 10(1)  in Part III on P.4 of the Letter of Offer.

(3)  The Applicant has never signed to confirm the Declaration by authorised occupant(s)  in Pt. 10(1)  in Part III of the Letter of Offer.  Therefore, the Letter of Offer shall not be accepted.

(4)  The Letter of Offer clearly states that [Pt. 9(8)  on P.3]:  Declaration by Purchaser: “I understand that in the event of my information in this Letter of Offer being found false or misleading, the Letter of Offer shall not be accepted.  In the event of any offer being accepted by the Housing Authority based on false or misleading information, the said offer shall be invalid …”

(5)  The Housing Department may, based on the declaration made by the Purchaser, request the Purchaser to transfer the unit back to the HA without the need to go through any public or private law action.

(6)  The HA is acting in excess of its power by making the current decision of accepting an invalid Letter of Offer.

35.  The gist of the arguments advanced by the HKHA for refuting the Applicant’s allegation of the HKHA’s Decision being ultra vires is that the understanding of the Applicant is mistaken.

36.  In its Initial Response, the HKHA submitted that:

(1)  The HKHA did not accept an “unacceptable and invalid” Letter of Offer.  When the HKHA made the decision to accept the Letter of Offer in 2001, there was no evidence suggesting that the Letter of Offer was not in order or further verification of its contents was required.  It was not until 2014 that the Applicant’s report about the Alleged Forged Signature Incident was received by the HKHA for the first time.  The HKHA’s Decision challenged by the Applicant in her present application for leave to apply for judicial review is in fact dated 14 April 2023 as an intended challenge to the HKHA’s refusal to set aside the Sale and Purchase and restore the Unit as a public rental housing unit.  The Applicant is misleading in attempting to distort the decision as “the HKHA accepting an ‘unacceptable and invalid’ Letter of Offer”, which was made in 2001.

(2)  The usual way for the HKHA to handle an application (for purchase of a public rental housing unit under the TPS)  with report(s)  of suspicious situation received or objection(s)  raised is to put the application on hold and require the unit’s tenant to clarify.  Processing of the application will only be resumed after the tenant reaches a consensus with all the authorised occupants.  If, after investigation, it is found that false or misleading information is contained in a letter of offer, the HKHA is entitled to forfeit all payments made, and its acceptance shall have no effect.  When the HKHA received the Applicant’s report of the Alleged Forged Signature Incident and her objection to the Sale and Purchase in 2014, the Sale and Purchase had already been completed in 2001.  The limitation period for commencing prosecution under the Housing Ordinance had already expired, and prosecution could not be brought against Ms Wong.

(3)  Even if Ms Wong were prosecuted within the limitation period and found guilty of making false statements, the court might, but not necessarily would, order her to transfer the Unit back to the HKHA.

37.  Most illegality arguments that come before this Court are premised on the lack of specific empowering provisions for the impugned actions.  In that case, the authority would be expected to justify the legality of its actions by referring to some general powers in the statute which are said to be wide enough to cover the impugned actions.  However, the Applicant’s case is not that there is a lack of specific empowering provisions for the HKHA’s Decision.  Rather, her case is that the Letter of Offer, being “invalid and unacceptable” (as she alleged), was accepted by the HKHA for the Sale and Purchase of the Unit in 2001 under the TPS.

38.  I agree the HKHA’s suggestion that the public law error of ultra vires as put forward by the Applicant to challenge the HKHA’s Decision is misconceived.  It is trite that the doctrine of ultra vires ought to be reasonably understood and applied.

39.  On the facts of the present case and looking at the correspondence between the Applicant and the HKHA as a whole, there is no evidence suggesting that the HKHA has acted in excess of its statutory powers for accepting the Letter of Offer for the Sale and Purchase of the Unit which was completed in 2001.  In particular, the Applicant did not point out any specific statutory or common law duty which might mandate the HKHA to raise requisition to or further verify the Letter of Offer (submitted by the Applicant’s parents, Mr Cheng and Ms Wong, to the HKHA for application for purchase of the Unit under the TPS in December 2000), when no irregularity was found in the Letter of Offer and no complaint was received at that time.

40.  I see no reasonably arguable illegality in the HKHA’s Decision as suggested in Ground 2.

F.  Ground 3: Harbouring unlawful persons, providing information to the Applicant and other government authorities in bad faith

41.  As can be seen from the heading of Ground 3 as stated in the Form 86, it is not a public law ground of review as to the HKHA’s Decision itself.  Nonetheless, the details of this Ground as set out in the Applicant’s Form 86 are as follows (in English translation):

(1)  In its email letter dated 16 May 2017, the Police indicated that the HA had responded as follows: Under the circumstances of ‘Buy-or-Rent Option’ [i.e. TPS], the head of household is only required to make the application and complete the relevant formalities before directly purchasing the public rental housing unit.  The willingness of other occupants of the household has no bearing on HA’s decision in approving the application [Document I].  This is seriously misleading and can have an impact on the criminal prosecution.

(2)  A TPS applicant can be the Tenant or other authorised occupants aged 18 years old or above or authorised occupants with income to confirm.  Units under the TPS are subsidised public housing units, the living, buying and selling, and mortgaging of which are subject to certain restrictions.  One of the restrictions is that the Purchaser and his/her authorised occupant(s)  must continue to live in the unit. [Documents A, J, N, O]

(3)  The Applicant did not enquire the HA about whether she is still an authorised occupant of the unit.  However, the HA took the initiative to indicate that the Applicant is still an authorised occupant of the unit, misleading the uninformed third party to think that the Applicant has suffered no loss. [P. 3-4 and P.10 of Document H]

(4)  The protection and benefits that the authorised occupant(s)  of sold public housing units entitled to are not comparable to those that the authorised occupant(s)  of public rental housing units are entitled to, including but not limited to the right of living in the unit and the right to apply for Green Form Subsidised Home Ownership Scheme [Document G].  It is because the authorised occupant(s)  of sold public rental housing units have lost all the protection and benefits.  Please see P.11-13 of Document H for detailed explanation.

(5)  The HA has all along neglected the ‘crime’ involved in this case, in which property agent(s), person [surnamed Lau] with triad background and indigenous resident of the New Territories [surnamed Tang] are involved [Document K].  In its document [P. 4 of Document H], the HA said “… legal litigation arising from family dispute …”, which misled uninformed third party to think that this is just an ordinary family dispute.

42.  The Applicant essentially repeated and elaborated further some of the above points in the Reply to the Initial Response.

43.  In the Initial Response, the HKHA firstly submitted that the Applicant’s allegations in Ground 3 are totally unfounded because the HKHA has provided information to the Applicant and the relevant government authorities in response to their requests for assistance in the investigation and processing of the Applicant’s application or reports.  The HKHA also submitted that the Applicant’s serious allegation of the HKHA being “misleading” is wholly unfounded as it is based solely on her dissatisfaction with the decisions made by the relevant government authorities after considering the information.

44.  I note from the Form 86, the Initial Response and the Applicant’s Reply that, since 2014, and in addition to the commencement of proceedings in the District Court, the Applicant did make complaints to different government departments and authorities (see above)  in respect of the discovery of the Alleged Forged Signature Incident and the alleged loss of the status as an Authorised Occupant of the Unit.

45.  It may be that the Applicant is dissatisfied with the responses from those departments or bodies and, unsurprisingly, the dismissal of all her claims against her mother, Ms Wong, in DCCJ 6404/2019. But, it does not seem to me to matter whether the Applicant’s accusation of the HKHA being “misleading” is solely based on her dissatisfaction.

46.  On the facts and looking at the correspondence between the HKHA and other government departments and authorities (for examples, the Police and the LAD)  as a whole, the HKHA has been liaising with them and has provided relevant information for investigation and responses to their letters/memos.  There is no evidence suggesting that the HKHA has intended to harbour any person who is alleged to have committed crimes, nor that the HKHA has provided information to the Applicant and other government departments and authorities in bad faith.

47.  Ground 3 is not reasonably arguable.

G.  Ground 4:Excessive delay in performing legal duties

48.  The Applicant alleged that there was excessive delay in the HKHA’s performance of its legal duties.  In the Form 86, the Applicant stated (in English translation)  that:

(1)  The Police has stated that the subscriber refused to provide specimen signature, obstructing the investigation as soon as it was initiated.  In early 2015, the applicant requested the Housing Authority to provide the original copy of the subscription application form for handwriting verification.  However, the Housing Authority refused to do so, citing privacy concerns for other individuals documented in the files.  As a result, the applicant was forced to use a duplicate for handwriting verification, significantly undermining the credibility of the report.  It was not until early 2019, when the Legal Aid Department intervened, that the Housing Authority provided the original document for handwriting verification (Document F)  to the applicant.

(2)  On February 28, 2023, the applicant requested the Housing Authority to declare the subscription application for the unit invalid and to restore the unit to a rental public housing unit, as evidence showed that the subscriber intentionally concealed the incident and provided misleading information. (Documents H, M, O p. 1-2)

(3)  On April 14, 2023 (Document H p. 3-4), the Housing Authority first raised the issue of “limitation period for prosecution” in response to the applicant’s email dated February 28.  That is, after about nine years and two handwriting verifications, the Housing Authority used the “limitation period for prosecution” as the reason for “inaction” for the first time.  (The applicant’s response is seen in Document H p. 5-9)

(4)  Since the buyer intentionally provided false information, the Housing Authority can apply to the court for exemption or postponement of the limitation period according to Part I of Chapter 347 of the “Limitation Ordinance”.  The Housing Authority did not mention this at all.

(5)  The Housing Authority did not explain the terms on the subscription application form to the residents when launching the third “Rent-to-Own Scheme”.  If the subscriber is a tenant, the Housing Authority will not even meet with the approved residents.  The subscription form does not mention the “limitation period for prosecution” at all.

(6)  On April 24, 2015 (Document C), the Housing Authority stated: “Under the current circumstances, the Housing Department will not take any action, including asking the buyer of the above unit to transfer the property back to the Housing Authority.”, which shows that the Housing Authority can, based on the buyer’s violation of the declaration on the subscription application form, ask the buyer to return the unit without any prosecution or lawsuit, so that the unit can be restored to a rental public housing unit.

(7)  It was not until 2023 that the Housing Authority raised the issue of exceeding the “limitation period for prosecution”, showing that the Housing Authority raised the issue of exceeding the “limitation period for prosecution”, showing that the Housing Authority deliberately delayed fulfilling its legal duties, which took nearly nine years, which was an excessive delay.

49.  The Applicant essentially repeated and elaborated further most of the above points in the Reply to the Initial Response.

50.  The gist of the HKHA’s counter-argument is that the Applicant’s allegation of the HKHA’s serious delay in discharging its duties defies logic and is a complete disregard of the context of time and circumstances.

51.  In the Initial Response, the HKHA gave a detailed account of the process of its handling of the Applicant’s requests and complaints, its follow-up with the Police about the investigation and its replies to the complaints lodged by the Applicant with other authorities (including the Legislative Council Secretariat and the Office of The Ombudsman)  about her dissatisfaction with the HKHA’s handling of the Alleged Forged Signature Incident.  The detailed account covered the period from September 2014 (since the Applicant’s first report of the Alleged Forged Signature Incident to the HKHA)  to around February 2023 (when the Applicant first cited the Judgment of DCCJ 6404/2019, stating Ms Wong’s admission of the forged signature, and the HKHA’s subsequent follow-up with the Police), which need not be repeated here.

52.  Undue delay on the part of an administrative body (if any)  is not a fact relevant to the determination of whether an applicant should be granted leave to apply for judicial review, unless such delay is relevant to illegality, procedural unfairness and/or irrationality of the administrative body’s decision.  That said, on the facts of the present application and looking at the correspondences between the Applicant, the HKHA and other authorities as a whole, there is no evidence suggesting that there was intentional serious delay of the HKHA in discharging its duties.

53.  Further, as pointed out by the HKHA in the Initial Response, the Applicant’s assertion that the HKHA may apply to the Court for exclusion or extension of the limitation period, pursuant to the Limitation Ordinance Cap 347 (“LO”), for criminal prosecution of the offence of making false statements under section 26(2)  of the HO is wrong, because the LO is not applicable to the alleged criminal offence.  The scope of application of the LO is clearly set out in its Part II, which is of no relevance to criminal prosecution.

54.  Ground 4 is not reasonably arguable.

H.  Ground 6: Breach of natural justice, failure to protect reasonable expectations, causing prejudice to the Applicant

55.  Ground 6 alleges that the HKHA’s Decision was in breach of the rules of natural justice and failed to protect the reasonable expectation of the Applicant.  In the Form 86, the Applicant submitted as follows (in English translation):

(1)  Natural justice: the authorities have a common law duty to act fairly, that is, to follow the principle of procedural fairness when making administrative decisions that affect rights, interests and reasonable expectations.  The reference to “rights or interests” … must be understood as concerning personal freedom, status, maintaining livelihood, preserving reputation, as well as property rights and interests.

(2)  The penalty on the subscription application form is the only basis for protecting the rights and interests of approved residents.  When the subscriber violates the declaration on the subscription form, anyone, especially the approved guest, would reasonably expect the Housing Authority to enforce the law according to the rules and protect their original rights and interests.

(3)  Citizens expect the Housing Authority to distribute public housing resources according to the law, but now the Housing Authority is covering up the illegal persons to obtain public housing resources, this abuse of power is out of improper purposes and motives.

(4)  The Housing Authority approved the application based on an incomplete subscription form with no legal effect, causing a significant impact, allowing illegal persons to enjoy social benefits, while law-abiding persons lose social security and benefits.  It’s extremely unfair that the law-abiding applicant gets no remedy.

(5)  The applicant has the constitutional rights autonomy, freedom, and the right to enjoy social welfare according to law.  These are fundamental rights.  The current decision of the Housing Authority is equivalent to forcing the applicant to participate in the Rent-to-Own Scheme, causing the applicant to permanently lose the right to apply for rental public housing, which is a violation of the applicant’s fundamental rights.

56.  The gist of the HKHA’s response to this Ground is that the Applicant’s status as an Authorised Occupant of the Unit is not affected by the Sale and Purchase, which did not deprive the Applicant of her rights as an Authorised Occupant; that she is still an Authorised Occupant which has been confirmed by the HKHA on multiple occasions; and that regardless of whether the Unit is still a public rental housing unit or has been converted into a privately owned unit under the TPS, the Applicant’s status as an Authorised Occupant has remained unaffected, which is acknowledged in the Judgment of DCCJ 6404/2019.

57.  On the facts of the present case as traversed above, there is no force in the suggestion that the challenged decision is tainted with procedural impropriety or unfairness.  With respect, the Applicant’s contention of the HKHA having failed in protection of the legitimate expectation of the Applicant is irrelevant.

58.  It seems to me that this Ground is more or less repackaging of the above other Grounds as put forward by the Applicant.  Ground 6 has no merit.

I.  Ground 5: Wednesbury unreasonableness

59.  The Applicant submitted that the HKHA’s Decision is Wednesbury unreasonable or irrational.  In the Form 86, she stated that (in English translation):

(1)  The principle of “Wednesbury unreasonableness” (Associated Provincial Picture Ltd v Wednesbury Corporation [1948] 1 KB 223).  If a decision is so illogical or violates accepted moral standards to an intolerable extent, then no reasonable person would make such a decision when thinking about the issue.

(2)  The Housing Authority relies solely on the declaration on the subscription application form and has never verified the accuracy of the information on any approved application form from the launch of the Rent-to-Own Scheme to the present. Even if it knows that someone has provided false information, it has not verified the subscription application form.

(3)  The subscriber intentionally provided misleading information, violating the declaration on the subscription application form; the applicant has not signed the declaration on the subscription application form to this day, and the subscription application form has not been completed from start to finish, so it has no legal effect.  The Housing Authority’s decision in effect treats the subscription application form as valid, surpasses the “limitation period for prosecution”, and legalises and protects the illegal and invalid subscription application form.  This decision is absurd and no reasonable person would actually make it.

60.  In the Initial Response, the HKHA submitted that this Ground is without merit because:

(1)  Firstly, the Applicant has confused the HKHA’s Decision (as challenged by her in the present application)  with the HKHA’s decision as to whether it shall take further steps to verify the contents of the Letter of Offer.  Secondly, when the HKHA accepted the Letter of Offer in 2001, there was no evidence suggesting that the Letter of Offer was not in order or that it required further verification by the HKHA to confirm its contents.  The HKHA has been handling the matter reasonably.

(2)  As regards the Applicant’s assertion that it was unreasonable that the HKHA could not make prosecution for the alleged offence of making false statement, it is due to the Applicant’s misunderstanding of the law.

61.  It seems to me that this intended Ground of review – Wednesbury unreasonableness or irrationality – is essentially relabelling of Ground 2 as set out in the Form 86 of the Applicant. I have dealt with the question of irrationality in that context as well.

62.  Ground 5 is not reasonably arguable.

J.  Conclusion

63.  As was noted at the start of the DCCJ 6404/2019 Judgment, the Applicant’s complaints essentially arise out of the family dispute between her and her mother.  Though I have not needed to bring it into account as part of the above reasoning, it might be thought that (1) this application is in part an indirect challenge to the findings made in that judgment, and/or (2) this application has been brought following the failure to obtain the desired primary outcome in the available alternative avenue of proceedings in the District Court.

64.  In any event, on the law and principles applicable, none of the proposed Grounds of review is reasonably arguable with any realistic prospect of success.

65.  Therefore, the Applicant’s application for leave to apply for judicial review is dismissed.

66.  However, in the exercise of my discretion, I make no order as to costs.