黃桂林 v. HONG KONG HOUSING AUTHORITY AND ANOTHER

HCAL 159/2018

[2020] HKCFI 357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 159 OF 2018

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J U D G M E N T

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INTRODUCTION

1.  This is an application for judicial review of:

(1)     the decision (“the HA’s Decision”) of the Hong Kong Housing Authority (“the HA”) on 29 September 2017 to issue a Notice to Quit (“the NTQ”) to the Applicant requiring him to vacate from his public rental housing unit at Flat 328, Hung Cheong House, Hung Fuk Estate, Hung Shui Kui, Yuen Long, Hong Kong (“the Unit”) pursuant to Section 19(1)(b) of the Housing Ordinance, Cap 283 (“the Ordinance”); and

(2)     the decision (“the Tribunal’s Decision”) of the Appeal Tribunal (Housing) (“the Tribunal”) on 11 December 2017 to confirm the NTQ (collectively “the Decisions”).

BACKGROUND FACTS

(i)     The PRH Application System

2.  The HA maintains an application system for different categories of applicants for public rental housing (“PRH”) units in 4 districts, namely, Urban, Extended Urban, New Territories, and Islands, as follows:

(1)     General Applicants -

(a)     Ordinary Families;

(b)     Single Elderly Persons Priority Scheme;

(c)     Elderly Persons Priority Scheme;

(d)     Harmonious Families Priority Scheme, and

(2)     Non-elderly One-person Applicants.

3.  Different eligibility criteria apply to General Applicants (with specific conditions applicable to the priority schemes) and Non-elderly One-person Applicants, the details of which it is not necessary to set out in this judgment.

4.  In so far as allocation of PRH units is concerned, the HA’s policy is to accord priority to General Applicants over Non-elderly One-person Applicants.

(1)     Applications by Ordinary Families are processed according to the order of the registration date, family size and choice of district.

(2)     On the other hand, applications by Non-elderly One-person Applicants form a separate queue for allocation of PRH units based on a Quota and Points System (“QPS”).  Under the QPS, the priority of an application is determined by the total points calculated by reference to the age and waiting time of the applicant and whether he/she is already living in a PRH unit.  The more points an applicant scores, the earlier he/she will be offered a PRH unit.  When a Non-elderly One-person Applicant reaches the age of 60, he/she will be automatically switched to the Single Elderly Persons Priority Scheme.

5.  It is also the HA’s policy, to ensure parity of treatment for all applicants in accordance with the eligibility criteria for each category of PRH application, that a PRH applicant in an existing category must switch to another category if there are changes in his/her family circumstances which make him/her eligible to apply for PRH under another category.

6.  There are generally 4 procedural stages in a PRH application:

(1)     Application Stage - a PRH applicant has to complete an application form, which requires him/her to declare, inter alia, his/her personal information, marital status, income, assets, as well as details of his/her family members.  Upon receipt of an application form together with documentary proof of eligibility, the HA will conduct a preliminary vetting.  An application which passes the preliminary vetting will be registered.

(2)     Detailed Vetting Stage - once an application is due for detailed vetting, an interview for eligibility will be arranged for the applicant, who has to provide all requisite documents during the interview for the HA’s vetting and verification.

(3)     Allocation Stage - for equitable distribution of PRH resources, a PRH unit is allocated by random computer batching in accordance with the relative priority of the application, the applicant’s family size, PRH allocation standards and choice of district.  A written offer will be made to the applicant who has been allocated a PRH unit.  If the applicant accepts the offer, he is required to sign a letter of acceptance and other related documents.

(4)     Flat Intake Stage - at this final stage, the HA will arrange for a prospective tenant to undergo the flat intake procedure and sign a tenancy agreement.  Various forms / declarations are required to be signed by the tenant which I shall further describe later in this judgment.  In some PRH estates, the HA would hire the services of the management companies to conduct the flat intake exercises.  Generally, the HA would do a briefing session for all the staff of the management office of a particular estate.  During the briefing session, the HA would emphasise that the role of the management office is to facilitate the flat intake procedure by clearly explaining to each applicant the details of the declarations to be made, and that any items in the declarations must be true or else the applicant would be legally liable for any false declaration.  The HA would also emphasise during the briefing session that the management office does not have any decision-making power, and must immediately report to the HA should any special circumstances arise during the flat intake procedure.  The management staff would also be told that under no circumstances should they teach or coach a tenant how to fill in the relevant forms / declarations.

(ii)     The Applicant’s case

7.  The Applicant first applied to the HA for PRH on 31 May 2010.  At that time, he was unmarried and therefore applied as an “Non-Elderly One-Person Applicant”.  On 30 July 2010, his application passed the preliminary vetting by the HA and was registered under the QPS for Non-Elderly One-Person Applicants.

8.  On 15 March 2011, the Applicant married Ms Li Wei Ying (“Ms Li”), who was at that time a Mainland resident and had no right of abode in Hong Kong.

9.  On 22 August 2013, the HA invited the Applicant to attend a detailed vetting interview, which the Applicant did on 5 September 2013.  On that occasion, the Applicant was required to fill in and sign various documents, including Forms HD 307D, 523C and 524D, giving details of his personal and family circumstances, declaring to the truth of the information provided, and stating his agreement and understanding that should there be any changes in his family circumstances, he would immediately inform the HA of the same failing which his PRH application might be cancelled, and that any false declaration might result in the cancellation of his PRH application and termination of any relevant tenancy by the HA regardless of any criminal prosecution or conviction for such false declaration.  In the documents signed by the Applicant, he provided the name of his wife, but named himself as the only family member.  The name of his wife as a member of his family was expressly crossed out, presumably because she was at that time still residing in the Mainland.

10.  On 14 April 2015, the HA offered the Unit to the Applicant.  On 21 April 2015, the Applicant accepted the offer of the Unit.  In his letter of acceptance and in a separate declaration both dated 21 April 2015, the Applicant stated that he understood that (i) his existing application for PRH was for one person or family member only, (ii) should there be any change in the number of family members, the Unit might not be leased to him because there were different queues for different sizes of PRH units, and he undertook to inform the HA immediately should there be any changes in the particulars of his application such as a change in the number of family members, marital status, correspondence address, etc.

11.  On 28 July 2015, Ms Li obtained a One-Way Permit, on 15 August 2015, she came to settle in Hong Kong, and on 18 August 2015, she obtained a (non-permanent) Hong Kong Identity Card.  In accordance with the HA’s general policy:

(1)     On the date that Ms Li obtained her One-Way Permit, the Applicant was no longer eligible to apply for PRH as a Non-Elderly One-Person Applicant.

(2)     The Applicant ought to have immediately informed the HA of the fact that his wife had obtained a One-Way Permit, which he had agreed or undertook to do.

(3)     Should the HA determine that Ms Li was eligible to be allocated a PRH unit together with the Applicant, they would be treated as General Applicants and placed in the “Ordinary Families” queue (for a 2-person household).

12.  On 25 August 2015, the Applicant attended the Management Services Office (“the Management Office”) of Hung Fuk Estate to undergo the flat in-take procedure.  He was met by one Ms Chung Siu Ying (“Ms Chung”), a temporary estate officer of Shui On Properties Management Limited (“Shui On”), the management company contracted by the HA to conduct the flat intake exercise for Hung Fuk Estate since its completion in 2015.  On that occasion, the Applicant filled in and signed, inter alia, 2 documents, namely:

(1)     入住公共房屋聲明 (Form HD 88C); and

(2)     聲明書 (Form HD 1020C) (collectively “the Declaration”).

13.  According to the Applicant:

(1)     He brought along his wife to the flat intake interview together with all relevant documents including her One-Way Permit and her temporary identity card because he wanted to include his wife’s name in the tenancy.

(2)     He was asked to fill in the Forms HD 88C and HD 1020C.  He asked Ms Chung how he should fill in his wife’s particulars in those forms, but Ms Chung told him that it was unnecessary to do so since his wife had not yet obtained a Hong Kong Identity Card and did not have any work, assets or income.

(3)     He showed Ms Chung his wife’s One-Way Permit and temporary identity card.  However, Ms Chung told him again that since his wife had not yet obtained a Hong Kong Identity Card, it was not possible for him to add his wife’s name to the tenancy, and that he should come back to the Management Office to complete the relevant procedures after his wife had obtained a Hong Kong Identity Card.  Nevertheless, Ms Chung told him that she would take a photocopy of the said documents.

(4)     He became confused by what Ms Chung had said. He originally thought that once his wife had obtained a One-Way Permit, she would be considered to be settled in Hong Kong, but Ms Chung’s indication of the importance of a Hong Kong Identity Card suggested otherwise.

(5)     Although what Ms Chung said was contrary to his original understanding, he trusted Ms Chung and believed in what she said, since Ms Chung was the representative of the HA working at the Management Office and, to him, was authoritative.

(6)     Upon being “misled” by Ms Chung, he completed the Forms HD 88C and HD 1020C in a very confused state of mind, and signed them with Ms Chung as witness.

14.  In the Form HD 88C, the Applicant stated that he was married, but named himself as the only family member.

15.  In the Form HD 1020C, the Applicant stated that (i) his spouse, Li Wei Ying, was a Mainland resident, (ii) she was currently residing in the Mainland, (iii) she had not yet obtained a One-Way Permit or Hong Kong Identity Card to come to live in Hong Kong, and (iv) he understood that once she obtained a Hong Kong Identity Card, he should immediately inform the HA to add her name to the tenancy.  The following Chinese words, it is not disputed, were written by the Applicant himself:

“本人黃桂林已婚，配偶李偉英為內地居民，現居於內地，至今未獲取單程證或香港身份證來港定居。本人明白李英偉取得香港身份證後，需立即通知房屋署辦理加名手續。”

16.  In both the Forms HD88C and 1020C, the Applicant declared that the information contained therein was all true and correct, and stated that he understood, inter alia, that any false declaration might result in the cancellation of his PRH application and termination of any relevant tenancy by the HA regardless of any criminal prosecution or conviction for such false declaration.

17.  On the same date, ie, 25 August 2015, the HA granted a tenancy of the Unit to the Applicant.

18.  On 10 November 2016, the HA became aware of the fact that Ms Li had obtained a One-Way Permit on 28 July 2015 when the Applicant tried to add her name to the tenancy of the Unit.  Following the HA’s investigation of the matter, on 26 April 2017, the Applicant was charged for the offence of knowingly made a false statement under Section 26(1)(c) of the Ordinance.  On 24 August 2017, the criminal proceedings against the Applicant came to an end because the prosecution decided to offer no evidence against him.

19.  On 29 September 2017, the HA issued the NTQ to the Applicant, requiring him to vacate from the Unit on or before 31 October 2017, pursuant to Section 19(1)(b) of the Ordinance.  According to the Affirmation of Or Wai Tak, Assistant Housing Manager of Yuen Long 1 District Tenancy Management Office of the HA, filed on 11 January 2019, the HA decided to issue the NTQ to the Applicant for following essential reasons:

(1)     Under the HA’s relevant policy guidelines on how to deal with false declaration cases (the details of which I shall further describe below), once the fact of false declaration has been established, the overriding objective is to revert the tenancy condition of the party concerned to the situation should he/she have acted honestly at the time of making the statement.  This means that if the party in question would not have been eligible for PRH, then the HA has the authority to terminate the tenancy by a notice to quit[1].

(2)     In the present case, there was unequivocal evidence that the Applicant had knowingly made a false declaration[2].

(3)     The fact that the Applicant had allegedly been misled by Ms Chung was not a material consideration to the HA.  Regardless of what Ms Chung had or had not said to the Applicant, it was clear that he wrote and signed the Declaration himself, he chose to write what he did on his own accord, and the Declaration was false in a number of aspects.  These were more than sufficient grounds to evict the Applicant[3].

(4)     The HA had taken into consideration the personal circumstances of the Applicant (such as his health condition, his age, his inability to work, his concern of ending up homeless should the HA evict him, etc) when arriving at the HA’s Decision.  The HA did not consider that the Applicant would suffer undue hardship, or that his circumstances were exceptionally dire or particularly vulnerable, should he be required to vacate from the Unit[4].

(5)     The HA also considered that there were policy reasons against allowing the Applicant to continue to reside in the Unit despite having made a false declaration, namely, (i) regardless of whether the Applicant had made the Declaration deliberately in order to obtain a benefit, the fact remained that he did obtain what many PRH applicants might see as quite a substantial benefit as a result of falsely declaring that his wife was not residing in Hong Kong, which enabled him to “jump the queue” and be allocated a PRH unit much earlier (in terms of years), resulting in unfairness to other applicants waiting to be allocated a PRH unit, and (ii) the Applicant’s conduct had effectively undermined the precise and professed aim of the HA’s PRH Application Policy and abused the delicate system designed to allocate finite housing resources in an orderly, rational and equitable manner[5].

20.  On the same date, ie, 29 September 2017, the Applicant lodged an appeal to the Tribunal against the HA’s Decision pursuant to Section 20(1) of the Ordinance.

21.  The Applicant’s appeal was heard on 5 December 2017.  At the hearing of the appeal, the Applicant made submissions, and answered questions put to him by the representative of the HA and the Tribunal.  On 11 December 2017, the Tribunal confirmed, by a majority of 2 to 1, the NTQ under Section 20(3)(b) of the Ordinance.  As can be seen from the Tribunal’s reasons for decision contained in its letter dated 25 January 2018:

(1)     The majority took the view that the Applicant could not possibly have forgotten about the physical circumstances of his wife at the time when he made the Declaration on 25 August 2015 in view of the fact that she only got her One-Way Permit about a week previously[6].  They considered that had the management staff (ie Ms Chung) known that the Applicant’s wife had obtained approval to reside in Hong Kong, which would constitute a major change of circumstances, she would not have entered into a tenancy agreement with the Applicant.  They also agreed that the HA should recover the Unit in order to prevent unfairness.

(2)     The dissenting member considered that there was a possibility that the Applicant did not deliberately conceal the fact that his wife had obtained a One-Way Permit at the time when he made the Declaration (as shown by the fact that the Applicant produced to the management staff his wife’s One-Way Permit or temporary ID card), and did not fully understand the contents of the Declaration.  Accordingly, as a matter of discretion, the NTQ should not be confirmed.

APPLICATION FOR JUDICIAL REVIEW

22.  In the Amended Form 86 dated 25 April 2019, the Applicant advances 4 grounds of judicial review, namely:

(1)     Illegality;

(2)     procedural impropriety;

(3)     proportionality; and

(4)     irrationality.

23.  Leave to apply for judicial review was granted by this court on 12 April 2019 after an inter partes oral hearing.

DISCUSSION

(i)     The Applicant knowingly made a false declaration

24.  There is no dispute that the contents of the Declaration were false.  In particular, at the time when the Applicant made the Declaration, his wife had already obtained a One-Way Permit and a temporary Hong Kong Identity Card, and she had come to settle in Hong Kong, contrary to what was stated in the Declaration.

25.  The Applicant says, however, that he made the Declaration in a confused state of the mind, having been “misled” by Ms Chung. It is, important, however, to see what it was that he was allegedly misled by Ms Chung.  According to the Applicant, he was told by Ms Chung that it was not necessary to fill in the particulars of his wife in the Forms HD 88C/HD 1020C because she had not yet obtained a Hong Kong Identity Card and did not have any work, assets or income, and it was not possible for him to add his wife’s name to the tenancy since she had not yet obtained a Hong Kong Identity Card. Assuming, in the Applicant’s favour, that Ms Chung did tell him those things, if the Applicant had acted according to what Ms Chung told him, he would have simply omitted the particulars of his wife as a member of his family.  He was not misled, and it cannot sensibly be suggested that he was misled, about whether his wife had obtained a One-Way Permit or a Hong Kong Identity Card, or whether she was at that time residing in the Mainland or in Hong Kong.

26.  Furthermore:

(1)     In a cautioned interview of the Applicant by the HA on 10 February 2017, the Applicant accepted that he made a false statement despite knowing well that it was false:

我同黃桂林先生展示一份日期為2015年8月25日嘅聲明書，下稱「聲明書」

…

問 (24)     點解你响洪福邨辦事處做呢個聲明

答 (24)     個職員話要做呢個聲明，但睇番聲明內容，我都唔知點解要咁樣寫，話我老婆未獲取單程證來港，我明知我老婆响2015年8月18號已响入境處登記身份證

問 (25)     你嘅老婆 (即係李偉英) 响幾時獲批香港入境權

答 (25)     應該响2015年8月18號之前已獲香港入境權

問 (30)     根據資料顯示，你與李偉英於2011年3月15日已成為合法夫婦，你同唔同意

答 (30)   同意

問 (31)   當時簽署呢份聲明書嗰陣，你知唔知你所申報嘅資料均要全部屬實同正確無訛，並要為你所申報資料負上法律責任

答 (31)   我知道我唔可以報假資料，但我真係唔知自己會咁樣寫話我老婆未獲單程證來港

問 (36)   根據資料顯示，你太太李偉英於2015年8月18日經已簽發咗香港身份證，你同唔同意

答 (36)   同意

問 (37)   响填報呢份聲明嗰陣 (即係2015年8月25日) 你的太太李偉英已獲香港入境權，必須申報你太太的資料於公屋申請表內，你同唔同意

答 (37)   應該要申報

問 (38)   响份聲明書 (即係2015年8月25日) 入面，你必須聲明你太太李偉英已獲香港入境權同埋已獲發香港身份證，你同唔同意

答 (38)   同意

問 (39)   對房屋署懷疑你作出虛假陳述一事 (即係隱瞞你嘅配偶已獲香港入境權的事宜) ，有乜嘢回應

答 (39)   我真係唔明白點解我會做個份聲明書，都不合乎事實，希望房屋署酌情處理

(2)     The Applicant repeated the same when answering questions put to him by the Tribunal at the hearing of the appeal on 5 December 2017, and accepted that he was not taught by Ms Chung as to what he should write in the Form HD 1020C:

主　席：這句話是你自己寫的是嗎？

上訴人：是。

主　席：那你怎麼解釋「至今未獲取單程證」？

上訴人：他說…我當然知道當時…

主　席：兩句，「現居於內地」第一句，第二句就是「至今未獲取單程證」兩樣，為何這樣寫？

上訴人：我問過他，他說不用填，我說怎麼寫好呢？如果要我拿了身份證才去，我最後一句「等我太太拿了身份證才到房屋署加名」。難道真的拿到身份證才能正式來香港定居？我想來想去，想了很久怎麼寫法。唯有是寫她未來香港定居，等拿了身份證才去加名，就是怎麼寫。

主　席：這句是你自己想的？

上訴人：這句真的是我寫的，不是職員叫我寫的。

主　席：不是他教你寫的？

上訴人：他說你自己寫，總言之你拿身份證…

主　席：但這句明明是不對的。

上訴人：明明是不對的，我也覺得奇怪。

主　席：等等，你剛才說這句話是你自己諗寫下去的…

上訴人：是。

主　席：沒人教你寫的。如果你的講法成立，為何你不寫「我太太未拿到香港身份證」，引用你剛才的概念，你就不應該寫「現居於內地」。第一這個不正確，第二「至今未獲取單程證」又不對。依你的講法，她未拿到身份證，所以就…為何要前面那兩句呢？

上訴人：我當時姓吳的女士叫錄口供的時候，我也覺得怎麼會這樣寫法。

主　席：你自己寫的嘛。

上訴人：是，當時怎麼會這樣。職員叫我不用填太太的名，不知怎麼寫，所以就寫下這幾句話。

主　席：但你寫這兩句，聲明書的嚴重後果也在下面寫得很清楚，責任在你那裏。

上訴人：就是，事實上是我太太把文件帶來，佢又叫我不用填，我怎麼寫好，就說她還未正式來到香港定居，要攞身份證先，我怎樣想就怎樣寫。我真是這樣寫。如果不是他叫我不用填，要我一定要填，我就一定把我太太的身份證和名字填下。我一定填落去，因為我真的什麼都不知道，他叫我這樣，我就自己想，就寫下去，就是如此。

…

委　員：我有個問題，上訴人你說2015年8月25日去辦理入伙手續。你太太在不在場？

上訴人：在場。

委　員：那時她來了香港多久？

上訴人：一個禮拜。

委　員：但你當時寫了聲明，說「現居於內地」。她在你身邊，你為何寫「現居於內地」呢？

上訴人：她未拿到正式…(身份證)

委　員：我不明解你如何寫得出這個…(聲明)

上訴人：就是這個問題…我為何會寫這個聲明…我不知怎麼寫法。他叫我不用寫名字，不用寫資料下去。

委　員：但這個就是我的問題。管理公司那邊看到你寫「現居於內地」，但太太又坐在旁邊。他為何會讓你寫這句話？

上訴人：我也覺得我為何會怎麼寫。我根據他的講法…

主　席：你剛才說這句話是你自己想出來的。

上訴人：是啊，我其實知道是不准寫的，他也在猶豫怎麼寫。

委　員：是他叫你這樣寫，還是你自己…

上訴人：他叫我不用填我太太的名。

主　席：但你可以不寫這句話。你可以不寫的。

上訴人：我都不知寫什麼好。

主　席：你寫的東西正正不是事實。

上訴人：是喔，事實我自己都自打嘴巴…怎麼會這樣…他叫我寫…

主　席：這個不是正確的。

27.  On the basis of the Applicant’s own case and evidence, it is an inevitable conclusion that he knowingly made a false declaration, regardless of whether he was “misled” by Ms Chung as alleged.

28.  Further, the Applicant ought to have been aware that a change in the number of members of his family could have an impact on his PRH application and the allocation of the Unit to him, and he was required to report to the HA as soon as a change of his family situation occurred (see §§9, 10 and 16 above).  In such circumstances, I consider it also to be an inevitable conclusion that the Applicant should be regarded as having acted dishonestly when he knowingly made the false Declaration.

(ii)     The Applicant obtained an unfair, substantial and real benefit as a result of the false Declaration

29.  It is the HA’s position, which is not disputed by the Applicant, that had it been aware of the fact that the Applicant was no longer eligible to be considered as a Non-Elderly One-Person Applicant as from 28 July 2015, the Applicant would not have been allocated the Unit in August 2015.  Instead, his application would have been switched to an ordinary, 2-peron, family application and treated as having been registered in February 2014 (after crediting half of his waiting time as a non-elderly one-person applicant up to a maximum of 18 months) (referred to as the “G-number equivalent date” by the HA).  As at August 2015, the PRH applications with the highest priority for detailed-vetting for 2-person families in the New Territories were those registered in November 2011 or with G-number equivalent date in the same month.  Since the Applicant’s G-number equivalent date was February 2014, his application would not even have reached the detailed- vetting stage in August 2015.  It follows that the Applicant would not have been offered the Unit on 25 August 2015.  Hence, the HA considered that the Applicant had “jumped the queue”, and obtained a substantial benefit as a result of making the false Declaration.

30.  The Applicant has put forward some evidence to suggest that queuing in the Non-elderly One-person Applicants queue “will not necessary result in a quicker allocation of PRH flat as compared to queuing under the ordinary families queue”[7]. Whether this is correct is wholly beside the point.  The issue is not whether the Applicant obtained an earlier allocation of a PRH unit by impermissibly joining the Non-elderly One-person Applicants queue at the time when he first applied for PRH (in May 2010), but whether his application ought to have been switched to an Ordinary Family application (for a 2-person household) as from 28 July 2015 upon his wife obtaining a One-Way Permit to come to settle in Hong Kong.  The fact that the Applicant obtained the Unit earlier (in terms of “years”) as a result of the false Declaration is clearly a substantial and real benefit to him, bearing in mind the well-known scarce PRH resources Hong Kong. Such benefit to the Applicant is also unfair to other PRH applicants, in particular the one next on the Ordinary Families queue (for a 2-person household) who would otherwise have been allocated the Unit instead of the Applicant.

(iii)    The HA’s policy in relation to false declaration cases

31.  The HA’s policy in relation to false declaration cases is set out in a document titled “Estate Management Division Instruction No.M17/2011 - Guidelines on Handling Suspected False Statement” dated 23 August 2011 (“the Guidelines”).  The following provisions in that document are relevant for the present purposes:

“BACKGROUND

[2] Under various housing management policies, tenants/licensees/APs are required to declare on specified forms that the information furnished therein is true and correct. Should they knowingly make any false statement, they commit an offence under Section 26(1) of the Housing Ordinance (Cap.283) and are liable to fines and to imprisonment upon conviction. Separately, the HA may take appropriate tenancy actions against the subject household, including termination of tenancy, independent of whether the tenant/licensee/AP has been prosecuted.

Elements of False Statement Cases

[7] For false statement cases, there are two main elements that are required to be proved. One element is the falsity of the information provided. The other is the ‘knowingly’ element.

Cases Involving No Real or Potential Gain of Benefit

First Time Offender Cases

[8] Given the difficulties in proving the ‘knowingly’ element of false statement cases and in view of the huge resources required to deal with the heavy caseload, it is considered not in the public interest to pursue ‘no-gain and first time offender’ cases…

Principles and Consideration of Tenancy Actions

[25] In considering the tenancy actions (apart from or in addition to the prosecution actions), the general principle is to revert the tenancy conditions of the party concerned to the situation should he/she act honestly at the time of making the statement. Estate officer/DTMO should take the appropriate management action promptly without having regard to the progress or await for the conclusion of the prosecution action (if any). Under the circumstances, tenancy actions as appropriate should be taken as follows -

……

Termination of Tenancy

[27] Basing on the rationale that the HA should terminate a tenancy which would otherwise have been terminated if the tenant had acted honestly at the time of making statement, consideration has to be given to whether a tenancy should be terminated where –

(a) a tenant/licensee or any AP is convicted of making a false statement knowingly at the time of his/her declaration under various housing management policies, in contravention of s.26(1); or

(b) there is unequivocal evidence that a tenant/licensee or any AP has made a false statement but he/she cannot be prosecuted/convicted mainly due to action being time-barred or failure to prove the knowingly element of the case.

[30] If the fact of false statement has been established (whether by prosecution/conviction or no information can be laid) and the HA considers that the tenant/licensee should not have been eligible for allocation of additional housing resources or continuation of receiving public housing subsidy, it is open for the HA to terminate the tenancy by NTQ pursuant to s.19(1)(b) of the Housing Ordinance …

Monitoring of Tenancy Actions

[37]   Every suspected case of false statement with real or potential gain of benefit should be examined and considered for the appropriate tenancy action to be taken, independent of whether the offender has been prosecuted …”

32.  For the purpose of the Guidelines, “real gain of benefit” means “acquired benefit, e.g. public housing tenancy, additional or larger flat, flat of better locality has been obtained, family member has been added or rent has been undercharged, by making false statement knowingly during application of public housing, intake, transfer or addition, application or biennial review under various housing management policies …”.

33.  The HA’s aforesaid policy is also stated in its management instruction manual, Paper No. A6 titled “Appeal against Termination of Tenancy” on the subject of “Tenancy Enforcement” (“the Manual”).  The following provisions of the Manual are relevant:

“Tenancy actions for dealing with suspected offences of false declaration

[14.9] In considering the tenancy actions (apart from and in addition to prosecution actions) to be taken against a person who has made false declaration on standard forms under various housing management policies, the general principle is to revert the tenancy condition of the party concerned to the situation should he/she act honestly at the time of making the declaration.

[14.10] Consideration has to be given to whether a tenancy should be terminated where -

(i) the tenant or any authorised member is convicted of having made a false statement knowingly at the time of his/her declaration under various housing management policies, in contravention of Section 26(1);

(ii) there is unequivocal evidence that a tenant or any authorized member had made a false declaration but he/she could not be prosecuted/convicted due mainly to action being time-barred or failure to prove the knowingly element of the case.

[14.16] For action of tenancy termination mentioned above, it is not necessary for a tenant or any authorised person to be prosecuted/convicted before the HA can terminate the tenancy.  If the fact of false declaration has been established (whether by prosecution/conviction or otherwise) and the HA considers that the tenant should not have been eligible for allocation of additional housing resources or continuation of receiving public housing subsidy, it is open for the HA to terminate the tenancy by NTQ pursuant to Section 19(1)(b) of the Housing Ordinance …”

34.  Two points are of note arising out of the aforesaid provisions of the Guidelines and Manual.  First, “prosecution action” and “tenancy action” are two distinct types of action which the HA may take in a false statement/declaration case.  In particular, the HA may take a tenancy action regardless of whether it has taken a prosecution action against the offender, and whether the prosecution is successful.

35.  Second, in a false statement/declaration case (which requires proof of both the “falsity” and “knowingly” elements), the general principle applied by the HA is to take a tenancy action to “revert the tenancy conditions of the party concerned to the situation should he/she act honestly at the time of making the statement/declaration”.  Nevertheless, as expressly stated in §39 of the Guidelines, the instruction set out in that document are only “general guidelines” which “will not be able to cover all circumstances that may arise at operational level”.

36.  There is no challenge to the lawfulness of the above policy of the HA, which I consider to be lawful and rational.

37.  On the facts of the present case, as analysed above, it is clear that the Declaration was false, and the Applicant made the false Declaration knowingly.  It follows that the HA was, prima facie, entitled to take a tenancy action, in particular to issue the NTQ to the Applicant, to revert his tenancy condition to the situation had he acted honestly at the time of making the Declaration.

(iv)    Ground (1) - illegality

38.  Under this ground, the Applicant complains that the HA and the Tribunal, in making the Decisions, fettered their discretion and failed to take into account all relevant considerations.  In particular, Ms Senia Ng (on behalf of the Applicant) argues that:

(1)     The HA fettered its discretion by strictly adhering to its policy that:

(a)     it is entitled to terminate a tenancy if there is a factually false statement; and

(b)     “Once the fact of false declaration has been established, the overriding objective is to revert the tenancy condition of the party concerned to the situation should he/she have acted honestly at the time of making the statement”[8].

(2)     The HA and the Tribunal failed to take into account the Applicant’s state of mind when making the Declaration, failed to make any finding of fact in relation to the veracity of the Applicant’s claim of being misled by Ms Chung, and also failed to take into account the result of the criminal prosecution against him[9].

39.  As mentioned in §17 of the decision granting leave to apply for judicial review in this case, this ground of judicial review should, I consider, more appropriately be regarded as a ground based on “irrationality” instead of “illegality”.  Leaving this matter aside:

(1)     In so far as it is complained that the HA considered that it was entitled to terminate a tenancy once “a factually false statement” was proved to have been made by the Applicant, the important point is not, I consider, whether the HA so considered, but whether it decided to terminate the Applicant’s tenancy merely because it was shown that he had made a factually false statement.  That was not how the HA came to decide to terminate the Applicant’s tenancy.  The HA did so because the Applicant knowingly made a false Declaration which resulted in him obtaining a real or substantial benefit, and because of the unfairness of allowing him to retain the Unit vis-à-vis other PRH applicants as well as the need to maintain an orderly, rational and equitable manner for the allocation of finite PRH resources, and after having taken into account the personal circumstances of the Applicant.

(2)     In so far as the “overriding objective” referred to in §38(1)(b) above is concerned, this policy of the HA is, I consider, lawful and rational.  The crux of Ms Ng’s complaint, as I see it, is that the HA and the Tribunal failed to take into account the Applicant’s state of mind when making the Declaration and further failed to make any finding of fact in relation to the veracity of the Applicant’s claim of being misled by Ms Chung (see §38(2) above).

40.  In support of her argument that that the HA and the Tribunal were required to determine the Applicant’s allegations against Ms Chung, as well as the Applicant’s state of mind when making the Declaration, Ms Ng relies upon the judgment of Deputy High Court Judge Andrew Cheung (as he then was) in Lo Yuet Hing v Hong Kong Housing Authority [2002] 4 HKC 391, at §§ 21 to 23 –

[21] In my judgment, the decision of the 1^st Respondent must be disturbed for two reasons. First, as was indeed accepted by counsel for the 1^st Respondent during the hearing, in a case of the present type, the knowledge or the lack of knowledge on the part of the tenant of the illegal activities that had been carried on in the premises is a relevant factor or consideration to take into account in the exercise of the 1^st Respondent’s statutory power and discretion under section 19(1) of the Ordinance. This is indeed commonsense - for, everything else being equal, one would legitimately expect the treatment to be meted out to a tenant who was totally ignorant of the criminal activities should be different from that to be meted out to a tenant who was aware of those activities being carried on in his premises.

[22] As I said, counsel for the 1^st Respondent does not dispute with this at least as a matter of theory, but he argues that in practice given the reasons set out above, the 1^st Respondent is in no, or no good position, to verify these claims of innocence or ignorance that were invariably made by the tenants and their family members in cases of the present type. So in effect, a practice or policy has grown up that the 1^st Respondent would not determine or come to any conclusion on whether these claims were well founded or not. Indeed, Mr Ng, in his submission, says that not even a presumption of innocence or for that matter, a presumption of guilt, is applied by the 1^st Respondent to deal with these usual claims of ignorance. The 1^st Respondent simply makes no determination and comes to no conclusion on the claims. That notwithstanding, according to counsel as well as the evidence filed, what, as a matter of practice or policy, happened and what happened in the present case, was that ‘due weight’ or ‘consideration’ was accorded to the claim in the deliberation process.

[23] In my judgment, this is wrong. Once it is accepted, quite inevitably, that knowledge or ignorance is a relevant consideration for the 1^st Respondent to take into account in the exercise of its discretion under section 19(1) of the Ordinance, it is incumbent upon the 1^st Respondent to make a determination or to come to a conclusion, based on whatever material or information that is available to or before it, on the veracity of the claim of innocence or ignorance on the part of the tenant or the other family members. Without making such a determination or reaching such a conclusion, there is really no way that the 1^st Respondent could accord ‘due weight’ or ‘consideration’ to the claim of innocence; and without making the determination or reaching the conclusion, a relevant factor or consideration must, by definition, have been left out from the consideration of the 1^st Respondent, and that must quite fatally taint any decision reached by the 1^st Respondent in the purported exercise of its discretion under section 19(1) of the Ordinance.

41.  Lo Yuet Hing does not assist the Applicant.  In that case, the HA terminated the lease of a 71-year old disabled tenant following the conviction of her adopted son, who also resided in the PRH unit, of the offence of trafficking in dangerous drugs based on his possession of dangerous drugs found inside a drawer of an unused mahjong table in the adopted son’s room in the subject premises.  The tenant and her two other adult sons who resided in the PRH unit all maintained their innocence when interviewed by the management staff of the HA.  Nevertheless, the HA issued a notice of quit to the tenant without making any determination on the claims of innocence by the tenant and other members of the family.  As held by the learned judge, the knowledge or the lack of knowledge on the part of the tenant of the illegal activities that had been carried on in the premises by the adopted son was a relevant factor or consideration to be taken into account in the exercise of the HA’s statutory power and discretion whether to terminate the tenancy.  In the present case, even if one accepts the Applicant’s allegation that he was “misled” by Ms Chung, there can be no escape from the conclusion that he knowingly made a false declaration, which led to him being allocated the Unit in August 2015.

42.  The HA considered that the Applicant knowingly made a false declaration.  The majority of the Tribunal, while less explicit, considered that at the time of the making of the Declaration, the Applicant could not have forgotten the circumstances of his wife (in particular that she had already obtained a One-Way Permit and a Hong Kong Identity Card, and had come to settle in Hong Kong).  By necessary implication, the Tribunal must have found that the Applicant knowingly made a false declaration.  In the circumstances, I do not accept the Applicant’s complaint that the HA and the Tribunal failed to take into account the Applicant’s state of mind when making the Declaration.

43.  Whether the Applicant was “misled” by Ms Lo in the aspects as alleged by him is, I consider, irrelevant.  In Chan Chiu Wah v Housing Appeal Tribunal [2011] 3 HKLRD 259, Chan’s father was the tenant of two public housing flats, namely Flats 1407 and 1410.  The father and other family members occupied Flat 1407.  Chan and his own family occupied Flat 1410.  The father was convicted of the offence of dealing in cigarettes.  That offence took place in Flat 1407.  The HA served a notice to quit on the father, demanding him to deliver up vacant possession of both Flats 1407 and 1410.  Chan claimed to be ignorant of his father’s wrongdoing in the neighbouring Flat 1407.  The HA’s decision was confirmed by the Tribunal.  Chan applied for judicial review of the decisions of the HA and the Tribunal.  One of the issues which arose for determination was whether Chan’s claim of innocence was a relevant consideration which the HA and Tribunal ought to have taken into account when making their decisions.  Jeremy Poon J (as he then was) held that it was not.  At §29, the learned judge stated as follows:

“The question of relevance can be tested in another way. A matter is relevant if, had account been taken of it, it might have caused the decision-maker to reach a different conclusion. If a tenant committed a breach upon which the Authority terminated the tenancy, could the occupier’s innocence or ignorance have caused the Authority to decide otherwise? I think not. Otherwise the defaulting tenant could take advantage of the occupier’s position and remain as a tenant despite his breach. It would certainly and easily lead to abuse. I do not think the Authority might have reached a different conclusion simply because of the occupier’s innocence or ignorance. Thus tested, the occupier’s claim of innocence or ignorance is plainly irrelevant.”

44.  Similarly, in the present case, the Applicant’s allegations against Ms Chung, even if true, could not change the fact that he knowingly made a false declaration, and should not cause the HA and Tribunal to reach a different conclusion on whether to issue/confirm the NTQ.  Accordingly, I do not consider that the decisions of the HA and the Tribunal should be vitiated by a failure to make any express finding on the Applicant’s allegation that he was “misled” by Ms Chung.

45.  In passing, I should mention that Ms Prisca Cheung (for the HA) goes further and argues that the “knowingly” element in a false statement case is an irrelevant consideration where the HA takes a “tenancy action” against the tenant who made a false statement.  The state of mind of the tenant is relevant only, Ms Chung submits, where the HA takes a “prosecution action”[10]. I do not accept this submission.  It is clear, form §§2, 7 and 27 of the Guidelines and §14.10(i) of the Manual, that whether the tenant made a false statement/declaration knowingly and whether he acted honestly, are relevant matters which the HA ought to take into account when deciding whether to take a tenancy action against the tenant in question.

46.  Lastly, in so far as it is complained that the HA and the Tribunal failed to take into account the result of the criminal prosecution, it is clear that, under the HA’s applicable policy, it was entitled to take a tenancy action against the Applicant regardless of whether there was any prosecution against him for making a false declaration and regardless of the result of such prosecution (if any).  Further, the Applicant was not acquitted on the merits after trial.  All that happened was that the prosecution decided to offer no evidence against him.  In the circumstances, I do not see that the result of the criminal prosecution was relevant or material to the decisions of the HA and the Tribunal.

(v)     Ground (2) - procedural impropriety

47.  Under this ground, Ms Ng argues that the Decisions are tainted with procedural impropriety in that (i) the HA and the Tribunal failed to conduct sufficient inquiries, and/or (ii) failed to apply the proper standard of proof and/or pay regard to the need for cogent evidence[11].

48.  In respect of the argument that the HA and the Tribunal failed to conduct sufficient inquiries, Ms Ng complains that the HA and the Tribunal failed to inquire into what had in fact happened during the intake interview.  This complaint is, in substance, the same complaint that the HA and the Tribunal failed to make any express finding on the Applicant’s allegation of being “misled” by Ms Chung, which I have already dealt with above.

49.  Ms Ng argues that the Tribunal erred without taking any steps to call Ms Chung to give evidence at the appeal hearing, and fairness required that the Applicant be given an opportunity to cross-examine Ms Chung.  The evidence before the court shows that Ms Chung was a temporary estate officer of Shui On whose employment ended on 30 October 2015[12]. It would also appear that she could not be located to give evidence[13].  In any event, she made a witness statement dated 28 November 2016 stating that she could not recollect what happened during the flat intake exercise on 25 August 2015.  It is, in my view, unlikely that even if Ms Chung was available to give evidence at the appeal hearing, her evidence would add anything significant to the Applicant’s case in the overall context of this case.

50.  Mr Ng also complains that the HA and the Tribunal did not take any steps to locate other persons present at the Management Office on 25 August 2015 to give evidence.  There is, however, nothing in the materials before the court to suggest that there were other persons present at the Management Office at the material time who could give relevant evidence.  This complaint is, it seems to me, made without any proper foundation.

51.  In respect of the argument that the HA and the Tribunal failed to apply the proper standard of proof and/or pay regard to the need for cogent evidence, Ms Ng contends that since the allegation that the Applicant knowingly made a false declaration is a very serious one, the evidence needed to prove it has to be compelling, relying the well-known statement of principle by Bokhary PJ in Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117, at §116.  In my view, this argument has no merit, when the Applicant’s own evidence shows that he knowingly made a false declaration.

52.  In relation to the appeal process before the Tribunal:

(1)     The Applicant first advanced his grounds of appeal in writing on 29 September 2017.

(2)     At the beginning of the appeal hearing on 5 December 2017, the Applicant was given a full opportunity to explain his grounds of appeal to the Tribunal, including what he alleged had happened on 25 August 2015.

(3)     He was also given a full opportunity to respond to the claims made by the HA, and explain why he had made the false Declaration.

(4)     At the end of the hearing, he was asked about his personal circumstances, as well as any plans that he might have should his appeal fail.

53.  Viewed in the round, I am not satisfied that the Applicant has suffered any real or substantial prejudice by reason of the various matters raised under this ground of judicial review, or that the decision-making processes of the HA and the Tribunal were procedurally unfair to the Applicant.

(vi)    Ground (3) - proportionality

54.  The complaint that the Decisions amount to a disproportionate interference with the Applicant’s right to “home” guaranteed by Article 29 of the Basic Law (“BL 29”) and Article 14 of the Hong Kong Bill of Rights (“BOR 14”)[14] can be disposed of shortly. The relevant right is, I consider, simply not engaged when the “home” was obtained by means of a false declaration in the first place.

55.  In any event, even if the right to home under BL 29 and/or BOR 14 is engaged in this case, or that “proportionality” as a stand-along ground of review is applicable in the context of public housing decisions (under what have been referred to as the Pinnock principles)[15], the proportionality test is satisfied in this case.

(1)     The tenancy action taken by the HA, and confirmed by the Tribunal, pursued the legitimate aim of fair, orderly and equitable allocation of PRH resources.

(2)     The Decisions were rationally connected to that aim.

(3)     The measure taken was a proportionate means of achieving that aim.  The applicable standard should be the “manifestly without reasonable foundation” standard (or at the lower end of the continuous spectrum of reasonableness) and the decision-maker should be given a wide margin of discretion, because this case concerns the prioritisation or allocation of scarce public resources or conferment of social benefits which are matters of socio-economic policy[16]. I do not see how it can be said that the decisions of the HA and Tribunal to terminate the Applicant’s tenancy are manifestly without reasonable foundation in the circumstances of this case.

(4)     A reasonable balance has been struck between the societal benefits arising from the Decisions and the interference with the Applicant’s right.  I do not consider that the Decisions have resulted in an unacceptably harsh burden on the Applicant, bearing in mind (i) the fact that the Applicant did not have any right or interest in or to the Unit in the first place, (ii) the fact that such right as he now has in relation to the Unit was obtained as a result of his false Declaration, and (iii) the housing needs of other PRH applicants.

(vii)   Ground (4) - irrationality

56.  Under this ground, the Applicant complains that since his right to home is involved, “something more rigorous than the Wednesbury test is required”, and the decisions are unreasonable because:

(1)     he made the false statement only upon being misled by Ms Chung;

(2)     he was very confused when filling in the Forms HD 88C and HD 1020C;

(3)     there is no evidence that he had the requisite mens rea in making the false statement;

(4)     he was not aware that a benefit would have been obtained from making the false statement;

(5)     there is no evidence that Ms Chung, an agent of the HA/Shui On, duly followed the general procedures when conducting the flat intake interview with him;

(6)     he never had an opportunity to cross-examine Ms Chung;

(7)     his version of events was set out repeatedly in a consistent manner on various occasions and they were not contradicted by direct evidence;

(8)     he is of an old age (62), with low education background, suffering from heart disease, and unable to take up employment; and

(9)     if he is evicted from the Unit, he will have no alternative accommodation[17].

57.  The discussion above is sufficient to deal with the matters raised in §56(1) to (7).  In so far as the Applicant’s personal circumstances mentioned in §56(8) and (9) are concerned, they were inquired into and taken into account when the HA and Tribunal made their respective decisions.  In particular, in respect of the suggestion that the Applicant will have no alternative accommodation should he be evicted from the Unit, the HA has confirmed that the Applicant could, if necessary, be accommodated in the HA’s Transit Centre for 3 months, after which they may be considered for the HA’s interim housing in the New Territories[18].

58.  In my view, the applicable standard of review remains the normal Wednesbury standard in the present case.  The court recognises that it is a hard decision to evict the Applicant from the Unit. Nevertheless, the court is not the decision-maker, and should not be drawn into a merits review.  In matters relating to the prioritisation and allocation of PRH resources, the HA and Tribunal are entitled to a wide margin of discretion. Overall, I do not consider that the Decisions were unreasonable in the Wednesbury sense.

59.  In conclusion, none of the grounds of judicial review raised by the Applicant is made out.

DISPOSITION

60.  The application for judicial review is dismissed, with costs to the 1^st Respondent, to be taxed if not agreed.

61.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.