FUNG KING YAN v. JUDICIARY

HCAL 2504/2024

[2025] HKCFI 513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2504 OF 2024

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D E C I S I O N

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A.  Introduction

1.  The Applicant is the registered and beneficial owner of Flat D, 4^th Floor, Tower 7, Bauhinia Garden, No.11 Tong Chun Street, Tseung Kwan O, Sai Kung, New Territories, Hong Kong (“Property”).

2. The Applicant filed a statement of application for judicial review (“Statement of Application”) together with her Form 86 and a supporting affirmation (“Affirmation”), all dated 17 December 2024 and apparently prepared by Fongs Solicitors, the solicitors previously engaged by her in these proceedings. Nevertheless, she did not clearly set out sufficient material facts pertinent to her application for leave to apply for judicial review.

3.  The following exhibits (“Exhibit(s)”) are annexed to the Applicant’s Affirmation:

(1)  a copy of the summons dated 30 April 2024 (Case No. KTMP 435/2024; Writ No. KT 4069/2024) issued by the Kwun Tong Magistrates’ Courts (“KTMC”) to the Applicant (“Summons”);

(2)  a copy of the statement of findings dated 14 October 2024 in respect of the Case No. KTMP 435/2024 (“Statement of Findings”) in Chinese signed by Mr Wong Ching-yu Edward (“Magistrate”);

(3)  a copy of the transcript of the hearings on 21 August 2024 and 17 September 2024 (“Transcript”; 63 pages in total) in Chinese for the Case No. KTMP 435/2024;

(4)  a bilingual copy of sections 26 and 26B of the Housing Ordinance Cap 283 (“HO”);

(5)  a bilingual copy of section 113 of the Magistrates Ordinance Cap 227 (“MO”); and

(6)  a copy of the Land Registry record and the Assignment of the Property.

4.  The following background is discernible from the papers and the Exhibits filed by the Applicant.

5.  The Applicant purchased the Property on 12 April 2021 under the Home Ownership Secondary Market Scheme (“HOS”) at the consideration of HK$6,600,000. She is a person nominated by the Hong Kong Housing Authority (“HKHA”) to buy the Property.

6.  It was later alleged that the Applicant’s father, Mr Fung Kwok Keung (“Mr Fung”), who is a retired civil servant, had made a false or misleading statement for the purpose of being eligible under the ‘Green Form’ HOS, so that his daughter (i.e. the Applicant) could purchase the Property.

7.  On 18 December 2023, KTMC held that Mr Fung is liable for the offence contrary to section 26(2) of the HO (“Offence”), in respect of the Applicant’s purchase of the Property.

8.  On 30 April 2024, pursuant to section 26B(1) of the HO, and upon the application by the HKHA, KTMC summoned the purchaser of the Property, i.e. the Applicant, to appear in court to show cause why an order under section 26B(3) should not be made.

9.  The hearing was conducted before the Magistrate on 21 August 2024. The Applicant attended the hearing to show cause, and gave evidence in court upon the summons (KTMP 435/2024) issued pursuant to section 26B of the HO.

10.  According to the Statement of Findings, the Magistrate held that (in English translation):

4. After due enquiry, on 17 September 2024, pursuant to section 26B(3)(a) and (b) respectively, I am convinced that the Respondent [i.e. the Applicant] knew that the statement, being the subject of the offence, had been made by the convicted person, i.e. Fung Kwok Keung, to the HKHA; and knew that the statement was false or misleading or, with reasonable diligence, could have ascertained that it was false or misleading.

5. On the same date, upon the application by the HKHA and no objection from the Respondent [i.e. the Applicant], the case [i.e. KTMP 435/2024] was adjourned to 14 February 2025 awaiting my decision on whether, pursuant to section 26B(3)(i), an order shall be made that the land purchased by the Respondent [i.e. the Applicant] be transferred to the HKHA or to such person as the HKHA may nominate; or that, pursuant to section 26B(3)(ii), the purchaser forfeit to the HKHA a sum equivalent to the difference between the purchase price of the land including any amount paid to the HKHA under paragraph 1(b) of the Schedule, and its market value, with vacant possession and without any restriction as to alienation, conveyance or parting with possession, as at the date of the order.

6. Further, pursuant to section 26B(4)(a), I may, for special reason relating to the circumstances of the offence, which it shall record, dispense with making an order mentioned in section (3); and pursuant to section 26B(4)(b), I shall not make an order mentioned in subsection (3)(i) where it prejudice another person who has, in good faith and for valuable consideration, acquired an interest in the land.

11.  By her Form 86 dated 17 December 2024, the Applicant seeks leave to apply for judicial review so as to challenge the Magistrate’s decision based on section 26B of the HO. It is apparent that the intended challenge is to the Magistrate’s factual findings as set out at §4 of the Statement of Findings as quoted above (“Decision”). The Applicant ultimately seeks as relief that the Decision should be quashed.

12.  Having considered the papers, I am satisfied that it is appropriate to deal with this application on paper. This is my decision.

B.  The Statutory Provisions Engaged

13.  Before turning to deal with the intended Grounds of review, it is appropriate to set out the relevant statutory provisions engaged by the present application.

14.  Sections 26(2) and 26B of the HO materially provide that:

26.	False statements
	(2)	Any person who makes any statement to the Authority—
		(a)	in respect of any matter relating to the purchase of land in an estate or of land in respect of which the Authority is authorized to nominate purchasers; or
		(b)	in providing any information to the Authority in respect of such matter,
		which he knows to be false or misleading as to a material particular shall be guilty of an offence and shall be liable on conviction to a fine of $500,000 and to imprisonment for 1 year.
26B.	Court orders on conviction of other person under section 26(2)
	(1)	Where a court convicts a person of an offence under section 26(2) committed in relation to the purchase of land by another person, the court shall, on the application of the Authority, summon the purchaser to appear before it to show cause why an order should not be made under subsection (3).
	(2)	The summons mentioned in subsection (1) shall be served on the purchaser personally or by leaving it with some person at the purchaser’s residence.
	(3)	If the purchaser fails to appear to answer to the summons or if the court, after due inquiry, is satisfied that the purchaser—
		(a)	knew that the statement which was the subject of the offence had been made by the convicted person to the Authority; and
		(b)	knew that the statement was false or misleading or, with reasonable diligence, could have ascertained that it was false or misleading,
		the court shall order, either—
		(i)	that the land purchased by the purchaser be transferred to the Authority or to such person as the Authority may nominate; or
		(ii)	that the purchaser forfeit to the Authority a sum equivalent to the difference between the purchase price of the land including any amount paid to the Authority under paragraph 1(b) of the Schedule, and its market value, with vacant possession and without any restriction as to alienation, conveyance or parting with possession, at the date of the order.
	(4)	(a)	The court may, for special reason relating to the circumstances of the offence, which it shall record, dispense with making an order mentioned in subsection (3).
		(b)	The court shall not make an order mentioned in subsection (3)(i) where it would prejudice another person who has, in good faith and for valuable consideration, acquired an interest in the land.
	(5)	Following an order made under subsection (3)(i), the court shall appoint a person to transfer the land and to execute all proper conveyances for this purpose, against payment to the purchaser of the purchase price including any amount paid to the Authority under paragraph 1(b) of the Schedule, paid by him, less—
		(a)	the amount due under any registered mortgage, which shall be paid to the mortgagee; and
		(b)	any other amount that would have been deductible if the purchaser had assigned the land to the Authority or its nominee under the agreement for sale and purchase or the deed of assignment to him.
	(6)	For the purposes of subsection (3), the state of the purchaser’s knowledge shall be judged at any time before the land was conveyed to him.
	(7)	For the purposes of conducting the procedure in the inquiry mentioned in subsection (3), the court shall have all the powers possessed by it when conducting any other hearing within its jurisdiction.

15.  Section 113 of the MO provides that:

Alternative procedure

113. Right of appeal from magistrate in any matter

(1) Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge.

(2) Any person who after pleading guilty or admitting the truth of the information or complaint is convicted of any offence by a magistrate may appeal to a judge against his sentence unless the sentence is one fixed by law.

(3) After the hearing and determination of any complaint or other proceeding which a magistrate has power to determine in a summary way other than a determination or proceeding relating to or in connection with an offence either party thereto may appeal from such order or determination of such magistrate to a judge.

C.  Grounds of Review

16.  In the Applicant’s Statement of Application annexed to her Form 86, the intended grounds of review are identified as follows:

Ground 1: the error of facts

9. The Magistrate stopped the Applicant’s counsel’s evidence in chief of the Applicant regarding the Applicant’s family’s arrangement in paying the price of the Property.

10. Magistrate erred and/or overlooked the importance and implication of the Applicant’s family discussion in the Applicant’s perception of her parents’ relationship at the material time. The Applicant’s perception of her parent’s relationship with key importance on whether she knew her father and mother were in divorce proceedings.

11. The Magistrate also interrupted the Applicant’s counsel’s evidence in chief of the Applicant regarding the Applicant’s family’s daily routine in household works.

12. The Magistrate erred and/or overlooked the importance and implication of the Applicant’s family’s daily routine in household works in the Applicant’s perception of her parents’ relationship at the material time. The Applicant did not notice any change in the family routine in household works sharing, there was no reason for her to aware any change in her parent’s relationship at the material times.

Ground 2: the irrelevant consideration

13. Magistrate erred in taking the Applicant’s father’s address for service of the petition for divorce, as the residence of her father and that the Applicant’s father must not have lived with the Applicant and her mother at the material time.

14. The Magistrate also overlooked the evidence that the petition for divorce was served to the Applicant’s father at the MTR station instead of the address for service.

15. Magistrate erred in taking the address for service must be the residential address of the Applicant’s father. Especially, in the Applicant’s evidence in court, she saw her father’s presence in their residence at the material times.

17.  It can be seen that the above two Grounds seek to raise what might be called traditional judicial review complaints, namely challenging the decision-making process. But the complaints really appear to be directed more at the merits of the Magistrate’s Decision, and the weight given by him to various matters in his consideration.

D.  Analysis

D.1  Alternative Remedy

18.  Applicants are routinely refused leave to apply for judicial review where some other form of legal proceedings or avenue of challenge is available and should be used. This is because judicial review is a remedy of last resort. Where, as in this case, there is a statutory appeal procedure, the Court exercising its judicial review jurisdiction would ordinarily regard that appeal procedure as the appropriate avenue to be pursued, save in exceptional circumstances.

19.  Though there is no exhaustive definition of “exceptional circumstances”, it has been recognised that an appeal which is adequate to deal with all of the alleged flaws in the original proceedings will weigh heavily against the grant of leave for judicial review.

20.  In her Statement of Application, the Applicant states that:

C. ALTERNATIVE REMEDY

7. The Applicant had filed an appeal against the Magistrate’s decision to High Court with case no. HCMA 416/2024.

8. Considering the section 113(3), Magistrates Ordinance, Cap. 227, the appeal to a judge may not be available. Judicial review will be the only way to reverse the Magistrate’s decision, without any alternative remedy.

21.  Hence, the Applicant pursued the alternative remedy by lodging an appeal with the Court of First Instance (“CFI”). With respect, the Applicant’s submission that judicial review is the only way to challenge the Decision is a misinterpretation of section 113 of the MO, and is therefore rejected.

22.  I note the view of the Magistrate as set out in his Statement of Findings, which reads as follows (in English translation of original in Chinese; underlined in the original):

7. On 30 September 2024, Fongs Solicitors, acting for the Respondent, filed an appeal, stating that the order made by me is “Order made under section 26B(3)(i) of Housing Ordinance, Cap. 283”, and the appeal is against “Order to be made under section 26B(5) of the Housing Ordinance, Cap. 283”.

8. However, I have not yet made any order pursuant to section 26B(3)(i) or 26B(5). In fact, in respect of section 26B(5), the Respondent’s solicitors stated that my order is “to be” made, so they also knew that I have not yet made that order.

9. Section 113(1) of the Magistrates Ordinance Cap 227 provides:

“Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge.”

10. As I did not make that order as referred to by the Respondent’s solicitors, the Respondent could not lodge an appeal against that order as alleged by them.

23.  I agree with the analysis of the Magistrate.

24.  Indeed, in the present proceedings, the Applicant intended to challenge the Magistrate’s factual findings that the Applicant (1) knew that the statement, being the subject of the Offence, had been made by the convicted person, Mr Fung (i.e. her father), to the HKHA, and (2) knew that the statement was false or misleading or, with reasonable diligence, could have ascertained that it was false or misleading (see §4 of the Statement of Findings as quoted above).

25.  The Magistrate’s factual findings serve as the basis for a later decision yet to be made by him on whether an order should be made under section 26B(3)(i) of the HO – transfer of the Applicant’s Property to the HKHA (or its nominee) – or section 26B(3)(ii) of the HO – forfeiture of a sum by the Applicant to the HKHA being the difference between the purchase price of the Property and the market value.

26.  So far, an order which would affect the Property has not yet been made by the Magistrate pursuant to section 26B of the HO, according to the reasons given at §§7-9 of the Statement of Findings (see above) and as shown in the following part of the certified Transcript (pages 62-63) exhibited to the Applicant’s Affirmation (in English translation of original in Chinese):

Magistrate:		… In other words, the testimony of the Respondent [i.e. the Applicant in HCAL 2504/2024] was different from what her mother or her father said, and based on the Applicant [i.e. HKHA]’s evidence including the Respondent and the direct family relationship between her and her parents, they were living together on or before signing Exhibit No. 2 or No. 4, and the Respondent also filled in and signed on the said form, the Applicant has proved that the Respondent knew that the statement was false or misleading or, with reasonable diligence, could have ascertained that it was false or misleading.   Therefore, the Court should make an order pursuant to section 26B(3) of the Housing Ordinance.   Yes, the Applicant.
MR AH-WENG [fiat counsel acting for the HKHA]:		Yes, Sir, need to apply to Court for adjournment of the case for 4 months, the reason is that the Court’s decision today requires [the HKHA’s] internal consideration on whether the property should be taken back by the Housing Department, or the property should be left to the Respondent, because the two [options] have different ways of calculation, and this requires some time. Sorry, Sir, so [we] would like to adjourn the case for 4 months to January - - 14 February. Sir, at that time we will prepare the relevant order for Court to sign and issue, thank you, Sir.
Magistrate:		Yes.
MR CHENG [counsel, instructed by Fongs solicitors, for the Applicant]:		The Respondent is ok, …
Magistrate:		Respondent.
MR CHENG:		… ah, the Respondent – the Respondent is ok.
Magistrate:		So, the case is adjourned to 14 February [2025] 9:30 am [for] mention at court no. 5, yes?
MR AH-WENG:		Mention, Sir.
Magistrate:		Ah, mention. Exhibits kept at the court’s file record.   …

27.  It is apparent from the above excerpt of the Transcript for the hearing, which took place on 17 September 2024, that Mr Victor Cheng, instructed by Fongs solicitors (i.e. the solicitors previously engaged by the Respondent in these proceedings), acknowledged and had no objection that (1) the hearing for the proceedings in KTMP 435/2024 be adjourned for 4 months to 14 February 2025, and (2) an order is to be made by the Magistrate in respect of the Property pursuant to section 26B at the adjourned hearing (or any subsequent adjourned hearing, where the 14 February hearing is listed for mention).

28.  It may be that the proper avenue to pursue the alternative remedy by the Applicant is to file an appeal after the Magistrate actually makes an order in respect of the Property on 14 February 2025, so as to challenge the Decision and that order.

29.  However, as traversed above, the Applicant has already filed an appeal to the CFI with case number HCMA 416/2024 on 30 September 2024. The Applicant also commenced the present application for leave to apply for judicial review on 17 December 2024.

30.  The power of the Court in hearing an appeal under section 113 of the MO is wider than the Court exercising its supervisory jurisdiction by way of judicial review. In judicial review, the Court is concerned broadly with the integrity of the decision-making process, whereas on the statutory appeal the CFI may confirm, reverse or vary the order appealed, and may exercise any power which the Magistrate may have exercised.

31.  I see no exceptional circumstances in this case why an application for leave to apply for judicial review should be entertained, when there was available to the Applicant the statutory appeal procedure (which she has in any event pursued).

32.  Hence, the application for leave to apply for judicial review stands to be dismissed on this basis alone.

D.2  No Merit

33.  In any event, there is no reasonably arguable intended ground of review identified, with any reasonable prospect of success.

34.  The two intended grounds of review suggest some procedural impropriety.

35.  Ground 1, phrased as error of fact, suggests that the Magistrate (1) stopped the Applicant’s counsel’s evidence in chief of the Applicant regarding her family’s arrangement in paying the price of the Property; and (2) interrupted the Applicant’s counsel’s evidence in chief of the Applicant regarding her family’s daily routine in household works.

36.  There is no merit in this ground. The Applicant merely exhibited the certified Transcript for the hearings on 21 August 2024 and 17 September 2024 to her Affirmation without providing any examples in her Form 86, Statement of Application and Affirmation, that might suggest the existence of any unfair ‘stopping’ or ‘interruption’ by the Magistrate during the evidence in chief. It is not for the judicial review Court to seek out any such examples from the 63-page Transcript. Instead, in her application for leave to apply for judicial review, the Applicant has the duty to provide both evidence and the identification of the parts of the evidence which she says substantiate the ground put forward by her. Obviously, the Applicant has failed to do so. It can also be pointed out that her complaints could be taken on the appeal in any event.

37.  Ground 1 is not reasonably arguable with any realistic prospect of success.

38.  Ground 2 suggests that the Magistrate committed the procedural impropriety of taking into account irrelevant considerations when making the Decision.

39.  As shown in the certified Transcript (page 62), the brief reasons given by the Magistrate at the hearing on 17 September 2024 for the Decision are as follows (in English translation of original in Chinese):

My brief reasons for decision are as follows. The Respondent [i.e. the Applicant in HCAL 2504/2024] was summoned to appear in Court to show cause why an order under section 26B(3) of the Housing Ordinance should not be made. The Applicant [i.e. the Hong Kong Housing Authority] and the Respondent submitted witness statements with admitted facts and documents related to the case, the documents related to the divorce of the parents of the Respondent, the interview record of her father and the documents related to his case in the Kwun Tong Magistrates’ Courts etc. the exhibits. They also submitted chronology. The Applicant did not call any witness. The Respondent testified but did not call any witness and has no previous conviction, therefore, I draw inference on giving credit relatively to what she [i.e. Respondent] said. Both parties agreed that the nature of this case is civil, and therefore the Applicant’s burden of proof is on balance of probabilities.

After careful consideration of all witness statements of the witnesses, I accepted the contents, and the Respondent agreed that she knew the statement, being the subject of the offence, had been made by the convicted person, i.e. her father, to the [Hong Kong Housing] Authority. However, the Respondent said that she does not know that the statement was false or misleading and, with reasonable diligence, could not ascertain that it was false or misleading. After careful consideration of the Respondent’s testimony, I do not accept her testimony, except the part in line with the testimony of the Applicant, for the following reasons:

The Respondent testified and said that before 2021 and at the time of signing Exhibit Nos. 2 and 4, her father, she and her mother were living at the Fire Services Quarters, and they were living [together] as usual. Then three people [i.e. all of them] moved to live in the property related to this case, and until early 2023, her father moved out because the Respondent’s mother disclosed to the Respondent that they, the Respondent’s father and mother, had already divorced, and the Respondent’s mother does not want to live together with the Respondent’s father. However, according to Exhibit No. 12, i.e. the Divorce Petition dated 31 May 2019 of the Respondent’s mother, the Respondent’s mother and the Respondent’s father has been separated since 2014, and the address of the Respondent’s father was a warehouse, and was not the Fire Services Quarters where the Respondent and her mother were living. Therefore, the testimony of the Respondent and Exhibit No. 12 were not consistent.

Further, according to Exhibit No. 17, i.e. the answer no. 18 of the interview record of the Respondent’s father, the Respondent’s father said at the time when he and the Respondent’s mother formally divorced, i.e. 22 May 2020, the Respondent’s father were living at the warehouse for most of the time, and did not stay overnight at the Fire Services Quarters, and only occasionally returned to the Fire Services Quarters to take shower. Therefore, the testimony of the Respondent saying that her father was not living in the Fire Services Quarters only since early 2023 was not consistent with Exhibit No. 17.

In other words, the testimony of the Respondent was different from what her mother or her father said, and based on the Applicant’s evidence including the Respondent and the direct family relationship between her and her parents, they were living together on or before signing Exhibit No. 2 or No. 4, and the Respondent also filled in and signed on the said form, the Applicant has proved that the Respondent knew that the statement was false or misleading or, with reasonable diligence, could have ascertained that it was false or misleading.

Therefore, the Court should make an order pursuant to section 26B(3) of the Housing Ordinance.

40.  In her Affirmation, the Applicant has not sought to explain how irrelevant considerations were allegedly taken into account by the Magistrate in making Decision, with any specific reference to the certified Transcript.

41.  Indeed, the only assertion made by the Applicant in her Affirmation is as follows:

8. I did not know that the statement (the “Statement 2019”) made by father in the Application under the 2019/2020 Civil Service Public Housing Quota (CSPHQ) Exercise-Green Form Certificate (GFC), on or about 30 November 2019, was false or had never been known that the Statement 2019 was false or misleading or, with reasonable diligence, could have ascertained that it was false or misleading.

9. I did not know that that the statement (the “Statement 2020”) made by father in the Application for Certificate of Eligibility to Purchase (Green Form) under the HOS Secondary Market Scheme, on or about 1 June 2020, was false or had never been known that the Statement 2020 was false or misleading or, with reasonable diligence, could have ascertained that it was false or misleading.

42.  This does no more than state her position, against which the Magistrate made his findings. At bottom, the Applicant sets out a merits challenge – although where the Applicant has failed to provide any elaboration on her claim that she had never known that the Statement 2019 and the Statement 2020 made by her father were false or misleading, or that she could with reasonable diligence have ascertained that it was false or misleading. In any event, there is no attempt to make specific reference to the Exhibits to the Affirmation to offer any further particulars in support of Ground 2.

43.  Without identifying how it is said the Magistrate has taken into account irrelevant considerations, there is nothing warranting the Court’s intervention on public law grounds. There is no arguable error of law or procedural impropriety on Ground 2. But any such error is also able to be addressed on the available alternative remedy.

E.  Result

44.  The Applicant had an alternative remedy of an appeal, and she has pursued it (and might pursue an appeal again after the section 26B(3) or (4) decision is actually made, if the current appeal is thought premature). No exceptional circumstances have been demonstrated as to why leave should be granted for judicial review notwithstanding that available alternative remedy.

45.  Further, and in any event, the Applicant has failed to identify any reasonably arguable ground of review with any realistic prospect of success.

46.  For these reasons, individually or cumulatively, the Applicant’s application for leave to apply for judicial review stands to be dismissed. I so order.

47.  I make no order as to costs.