MA MEI MEI v. THE HONG KONG SETTLERS HOUSING CORPORATION LTD AND ANOTHER

HCAL 1722/2025

[2025] HKCFI 5772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1722 OF 2025

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REASONS FOR DECISION

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A.  Introduction

1.  The Applicant chose to seek leave to apply for judicial review so as to challenge ‘decisions’ of the two Putative Respondents (respectively “HKSHC” and “TPB”). The intended challenge to the TPB is utterly hopeless, and the intended challenge to the HKSHC is probably even worse.

2.  At the oral hearing of the application for leave – held at the request of the Applicant – the Applicant was represented by Ms Myranda Lai of Counsel, the HKSHC was represented by Mr Michael Lok and Mr Paul Law of Counsel, and the TPB was represented by Mr Edward Chik Senior Government Counsel and Ms Amy Hung Government Counsel.

3.  I would point out that Ms Lai had been ‘parachuted’ in at very short notice before the hearing. She was not responsible for the very poor materials produced by, or the prior procedural conduct of, the Applicant. Instead, Ms Lai is to be given credit for her short (albeit late) written skeleton submissions, and for her well-judged and realistic short oral submissions. It can be noted that neither in her written skeleton submissions nor in her oral submissions did Ms Lai seek to address or elaborate at all on the intended grounds of review raised by the Applicant.

4.  At the hearing, I dismissed the application, and I ordered the costs of the HKSHC and the TPB to be paid by the Applicant, to be summarily assessed. I said I would give reasons for my decision a few days later.

5.  These are my Reasons for Decision.

B.  Background

6.  In Leung Ah Duen v The Hong Kong Settlers Housing Corporation Limited [2025] HKCFI 3715, I set out a fuller ‘big picture’ background, but the following suffices for present purposes.

7.  The Tai Hang Sai Estate (“THSE”) is the only privately owned subsidised housing estate in Hong Kong. It is owned, operated, and managed by the HKSHC, a private company limited by guarantee.

8.  The THSE had been built for well over 50 years. There were calls in the 2010s (not least from its own residents) to redevelop the THSE. From 2010 to 2015, the HKSHC developed concrete plans to demolish the THSE and build 5,000 flats.

9.  In March 2016, the HKSHC submitted an application for planning permission to the Metro Planning Committee of the TPB for the purpose of redeveloping the THSE (“2016 TPB Application”).

10.  On 24 June 2016, the TPB gave conditional approval to the 2016 TPB Application (“2016 TPB Approval”). However, the TPB included two advisory clauses as part of its approval, strongly advising the HKSHC to “provide subsidised rental flats within the redevelopment proposal to meet the needs of the affected existing tenants” of the THSE, and to note the Metro Planning Committee’s request that the Government should “not execute the lease modification for the redevelopment proposal before the rehousing arrangement had been satisfactorily resolved”.

11.  Even though it was approved, the HKSHC did not proceed with the 2016 TPB Application.

12.  In October 2021, the HKSHC and the Urban Renewal Authority (“URA”) submitted a fresh application to the TPB for the purpose of redeveloping the THSE (“2021 TPB Application”).

13.  On 10 December 2021, the TPB approved the 2021 TPB Application (“2021 TPB Approval”). However, the TPB included an advisory clause that the HKSHC should communicate better with the affected residents in conducting consultation on the rehousing arrangement and where appropriate, improve the rehousing arrangement, to address their concerns.

14.  On 2 June 2023, the HKSHC made a press release regarding the rehousing arrangements for the THSE (“Rehousing Plan”). On the same day, the HKSHC wrote to tenants, identifying that, consistently with the Press Release:

(1)  The existing tenants had two options.

(2)  Option 1 was to receive a one-off subsidy together with a moving subsidy, with the tenant and family members to make their own residential arrangements during the anticipated five year redevelopment period. The tenant would be entitled to return to the THSE after redevelopment under this option.

(3)  Option 2 was to receive one-off compensation in a different (slightly higher) amount, and a moving subsidy. But, under this option, the tenant would forgo the right to return to the THSE after redevelopment.

15.  The tenant would then have to sign a surrender agreement approximately 4 weeks after accepting one of the proposed arrangements, would have to surrender the Flat to the HKSHC 6 months after signing the surrender agreement.

16.  The Applicant is one of the residents that had to be rehoused for the redevelopment of the THSE. On 4 September 2023, the Applicant signed a reply slip addressed to the HKSHC, indicating that she and her family agreed to take the offered Option 1 of arranging a residence for themselves with the allowances provided, and to vacate her flat (“Flat”) in the THSE within the required 6 month period.

17.  However, the Applicant did not vacate the Flat, and the HKSHC commenced eviction proceedings against her in the District Court, DCCJ 5446/2023. The trial of those proceedings (and other similar proceedings) occurred in September 2025 before HHJ KC Chan. By his Judgment dated 23 October 2025 [2025] HKDC 1800 (“DC Judgment”), the Judge rejected the defences advanced and found in favour of the HKSHC in respect of the Applicant and all other defendants. He ordered the Applicant and other defendants to surrender vacant possession of their relevant premises to the HKSHC. He formally dismissed the Applicant’s counterclaim (which she had abandoned at trial).

C.  The Intended Challenges

C.1  The Chronology of the Challenge

18.  It is relevant first to note the procedural chronology by reference to other events.

19.  On 25 April 2025, I dismissed the application for leave to apply for judicial review made in the Leung Ah Duen case.

20.  On 1 August 2025, the Applicant issued the Form 86 in these proceedings.

21.  On 22 August 2025, I handed down my Reasons for Decision in the Leung Ah Duen case. Amongst the reasons for dismissing the application in that case was my holding that decisions of the HKSHC are not amenable to judicial review.

22.  On 23 September 2025, HHJ KC Chan handed down the DC Judgment.

23.  On 31 October 2025, the Applicant amended her Form 86 (“AF 86”), with leave.

24.  The requested oral hearing of the Applicant’s application for leave to apply for judicial review had to be re-fixed on several occasions, mainly because of difficulties of the Counsel instructed on behalf of the Applicant. As late as 19 November 2025 – just 3 clear days before the latest re-fixed date – the Applicant sought to vacate the hearing to permit her to instruct different Counsel.

25.  I refused that request. That explains the very late instructions to Ms Lai (apparently only on 21 November 2025 – just one clear day before the hearing), and the hearing went ahead on 25 November 2025.

C.2  The Drafting of the Challenge

26.  Both the original Form 86 and the AF 86 are prolix documents, which are internally inconsistent, confused and confusing. The apparent ‘targets’ of the intended challenge do not match the relief sought, which relief itself appears in three different places in the document in three different forms. Much of the content of the document is ultimately irrelevant to the challenge now actually pursued.

27.  Applicants for judicial review should bring appropriate procedural rigour to judicial review cases, including in the drafting of the Form 86 – as was in this case even settled by Counsel (not Ms Lai) and filed by solicitors. Excessive prolixity and complexity, in what are supposed to be concise grounds for judicial review, as often as not serve to conceal rather than illuminate the essence of the case being advanced. Further, excessively long applications for leave to apply for judicial review make the task of the Court more difficult, rather than easier, and they are wasteful of costs as well as Court time.

28.  The document has the hallmarks of having been drafted originally so as to challenge the 2016 TPB Approval and qualification questions, subsequently changed at a late stage – but without any real thought to changing the body of the form to match – to challenge the 2021 TPB Approval, and the decision of the HKSHC to seek that approval.

C.3  The Challenge as Mounted

29.  As confirmed by Ms Lai, the Applicant seeks to challenge, as set out in the AF 86:

(1)  “the decision of the [HKSHC] of the Application for permission submitted to the [TPB] on 20 October 2021”; and

(2)  “the decision of the Metro Planning Committee of the [TPB] on 10 December 2021 of approving the 20 October 2021 application of the [HKHSC] that proper re-housing of the occupants of [THSE] was included as an advisory clause instead as a pre-condition for the re-development of ‘THSE’”.

30.  I shall refer to the subject-matters of the intended challenge as the “HKSHC Decision” and the “2021 TPB Approval” respectively.

D.  The Grounds of Review

31.  The AF 86 sets out five intended grounds of review, namely:

(1)  Ground 1: The HKSHC was acting ultra vires in disqualifying the approved occupants: see AF 86 §§70-74.

(2)  Ground 2: The HKSHC was acting in breach of public policy, its aim of establishment, governmental strategy in re-development of the urban areas and the directive of the Chief Executive: see AF 86 §75.

(3)  Ground 3: Wednesbury unreasonableness (in not taking consideration of its public functions of assisting the Hong Kong Government in public housing policy or the resettlement policy in the old days of the Colony, and in applying the screening process of disqualifying some of the tenants of THSE): see AF 86 §§76-80.

(4)  Ground 4: Breach of Substantive Legitimate Expectation (that tenants were residing at their flats on a perpetual tenancy unless the tenant was in breach of the tenancy agreements): see AF 86 §§81-84.

(5)  Ground 5: Procedural Impropriety (in the HKSHC’s disqualification of some of the residents’ right of rehousing back to the future newly re-developed THSE without giving the reasons why it is doing so, the source of their power and the reasons why the residents of the THSE are treated differently from other residents of public housing estates): see AF 86 §85.

32.  In my consideration of whether or not to grant leave to apply for judicial review, I kept in mind that the Applicant needed only to demonstrate that the intended grounds of review are reasonably arguable with a realistic prospect of success. The threshold is not particularly high, where the test is designed to screen out unmeritorious frivolous vexatious and purported challenges that are not reasonably arguable.

33.  But by reference to the description of the grounds advanced in the AF 86, it is absolutely plain that (1) none of the grounds makes any complaint of a public law error made by the TPB, and (2) most of the grounds contain no complaint of a public law error made by the HKSHC in relation to the impugned HKSHC Decision, i.e. its ‘decision’ to make the 2021 TPB Application.

34.  This may well be why Ms Lai thought it best not to say anything about the actual grounds.

35.  As I have indicated, this problem is perhaps the result of very sloppy drafting, and the complete mismatch of the matters of complaint as against the actually impugned decisions, and the variously phrased claims to relief, all buried under irrelevancies.

36.  For the Applicant, this might euphemistically be described as an unhappy start to seeking to meet the threshold for the grant of leave to apply for judicial review. But even leaving that unhappy start behind, the position does not improve.

E.  The Intended Challenge to the HKSHC Decision

37.  This intended challenge is utterly without merit, for myriad reasons.

38.  First, as already indicated, none of the five advanced grounds of review appear to be really directed at, or seek to raise a public law error, directly related to the HKSHC Decision. In any event, none of them have any reasonably arguable merit, nor any prospect of success:

(1)  Ground 1 on its face seeks to complain about a power relating to disqualification of tenants, which is factually irrelevant (see below) and in any event that is not the impugned decision. In so far as Ground 1 seeks to raise some general complaint about the power or jurisdiction of the HKSHC, it is a private company with its own constitution, and decisions are made by its board of directors. Plainly, a private company has power to make decisions of its own, and as a private landowner the HKSHC was entitled to decide whether it wishes to redevelop the THSE and, if so, on what terms and conditions. I have already held that the HKSHC had the relevant powers to require residents to sign the various documents in relation to the redevelopment, and the tenants’ rehousing.

(2)  Ground 2 appears to be a complaint about the breach of an alleged government policy that occupants should not be left without housing during redevelopment. If such a policy exists, though the basis of it is not explained in the AF 86, it has been fulfilled in fact.

(3)  Ground 3 asserts that the HKSHC failed to consider its public functions of assisting the Hong Kong Government in public housing policy or the resettlement policy in the old days of the Colony and/or its original aims of establishment. Again the factual criticism is as regards the screening process of disqualifying some of the tenants, but that is factually irrelevant to the Applicant (see below). Further it is abundantly clear – see the Leung Ah Duen case – that the Government’s own position is that it did not exercise any control over the HKSHC, recognising that the HKSHC was fully empowered to manage and let the flats and the Government had no authority to establish a monitoring mechanism.

(4)  Nowhere under Ground 4 is there set out any alleged substantive legitimate expectation, or any basis upon which there is an attempted identification of any clear, unambiguous representation or conduct by a public body that could objectively give rise to one.

(5)  Ground 5 is a one paragraph assertion without any particulars, though seems to be a complaint about the provision of reasons in the disqualification of some tenants, which is factually irrelevant to the Applicant. In any event, this complaint is unconnected to impugned HKSHC Decision, and to the various and wide-ranging declarations sought in the AF 86.

39.  Secondly, as I have already held in the Leung Ah Duen case, the HKSHC acts in its capacity as a private landlord. When seeking to redevelop its own property by making the 2021 TPB Application – and in the HKSHC Decision to make that application – the HKSHC was acting in a way which is not amenable to judicial review (for the reasons I gave in the Leung Ah Duen case).

40.  Thirdly, the HKSHC Decision was merely the decision to make, or the act of making, the 2021 TPB Application for planning permission. That was not a reviewable “decision”, but was only an intermediate or preparatory step without substantive legal consequences. Further, once the substantive event of the 2021 TPB Approval had occurred, there could be no purpose in the Court setting aside the decision to make the application which led to that event.

41.  Fourthly, the AF 86 seems to contain the Applicant’s main complaint concerning the Rehousing Plan, and the ability to be qualified for resettlement at the re-developed THSE. However, the Applicant is in fact qualified (together with 4 out of 5 members of her household), as the Applicant herself accepts.

42.  Fifthly, the application for leave to apply for judicial review has been made woefully out of time. The impugned ‘decision’ was made in October 2021, almost 4 years before the commencement of these proceedings in August 2025. To justify an extension, the Applicant must show good reason for extending the period. No good reason has been advanced. By reference to the usual non-exhaustive list of factors taken into account, the following can be said. The delay is extensive. There is nothing identified as having occurred in the intervening period which gives good explanation for that delay. The merits of the application are so weak as to be non-existent. There is significant prejudice as would arise in granting the extension of time, where the redevelopment of the THSE is well underway. There are no broad matters of public interest which arise on the application as might conceivably justify any grant of the extension of time.

43.  I also acknowledge, but I do not think I need to address, the further complaints made by Mr Lok that the intended judicial review serves no useful purpose given that the relief cannot properly be granted, and that there has been material nondisclosure on the part of the Applicant in the making of the ex parte application for leave to apply for judicial review.

44.  I also take into account that a number of the underlying complaints made by the Applicant in the AF 86 were raised by her in DCCJ 5446/2023, and decided against her in the DC Judgment.

F.  The Intended Challenge to the TPB

45.  This intended challenge is also utterly without merit, for myriad reasons.

46.  First, though the AF 86 traverses some of the actions taken by the TPB over the years, none of the grounds of review advanced actually make any complaint of public law error on the part of the TPB at all. That is obviously fatal to the application.

47.  Secondly, there is no ground of review which concerns the making of the 2021 TPB Approval with its advisory clause. This is also obviously fatal to the application.

48.  Thirdly, it is well-settled that an advisory clause in an approval given by the TPB is not part of the decision, because the actual decision is the approval itself: see Re Wu Yuk Wah Ben (unreported, HCAL 114/2012, 5 September 2012) at §2.

49.  Fourthly, pursuant to section 16(5) of the Town Planning Ordinance Cap 131, the TPB can grant planning permission subject to such conditions as it thinks fit, so long as the conditions are for a planning purpose, fairly and reasonably related to the development for which the permission is granted. There is no statutory power for the TPB to have intervened in the rehousing arrangements organised by the HKSHC whilst the THSE is being redeveloped with the benefit of the 2021 TPB Approval.

50.  Fifthly, I also accept Mr Chik’s submission that the advisory clause itself is not reasonably arguable incorrect, and anyway has become water under the bridge, and questioning it serves no useful purpose.

51.  Sixthly, the problem of Applicant’s delay is equally applicable to the position of the TPB. I see no good reason for the exercise of my discretion to extend time for the making of any challenge to the 2021 TPB Approval.

G.  Result and Costs

52.  The Applicant has failed to identify any reasonably arguable ground of review with any realistic prospect of success against either of the HKSHC or the TPB. Therefore, for the above reasons, her application for leave to apply for judicial review was dismissed.

53.  I acknowledge that applications for leave to apply for judicial review are usually dealt with on an ex parte basis, and that the refusal of leave would be on the basis of a ‘no order’ as to costs. However, in the exercise of my broad discretion as to costs in this case, it seems to me manifest that the costs of both the HKSHC and the TPB should be paid by the Applicant:

(1)  The application is utterly devoid of merit.

(2)  Indeed, the impugned decisions bear almost no connection to the matters recited in the AF 86, and the various forms of the relief claimed in the AF 86.

(3)  The application was brought years out of time, without any good reason for the delay.

(4)  Further delay resulted or might have resulted from the Applicant’s attempts to vacate or adjourn fixed hearing dates.

(5)  There was repeated failure on the part of the Applicant and those acting for her to comply with the requirements of the relevant Practice Direction.

(6)  The application to an extent duplicated the issues raised by the applicant as her defence, as was rejected in the DC Judgment.

(7)  Within a short time after the issue of the Form 86, I had given my Reasons for Decision in the Leung Ah Duen case. By virtue of those reasons, and notwithstanding that the matters of complaint in these proceedings differ, it should have been clear to the Applicant and those advising her that this application was doomed to failure.

(8)  Nevertheless, not only was the application pursued, it was pursued with amendments by way of the AF 86.

(9)  Well before the hearing, the DC Judgment had been delivered, rejecting all arguments raised by the Applicant as her defence to those proceedings (some of which were duplicated in the AF 86).

(10)  In other words, there were numerous occasions when these proceedings could have been withdrawn, at least lessening the waste of costs and Court time, but the application was still pursued.

(11)  There is nothing in the case which might trigger some public interest immunity to costs.

(12)  The drafting of the Form 86 and the AF 86, on which the application for leave to apply for judicial review has been pursued, is so poor that it was bound to waste time and costs, on the part of the putative respondents and the Court.

(13)  There is no good reason why the HKSHC and the TPB should have to bear the amount of the costs they reasonably incurred.

54.  Therefore, I ordered the Applicant to pay the costs of the HKSHC and the TPB, to be summarily assessed in accordance with a timetable that I set for the provision of Statements of Costs and any Lists of Objections. The summary assessment will be made by me on paper.