丁愿 v. 丁雪松

HCAL 1412/2023

[2023] HKCFI 2206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1412 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant acts in person.  On 14 August 2023, he filed a Form 86 and identified as the subject of intended challenge the Lands Tribunal’s decision in LDPD 659/2023.  In his supporting affirmation, he further identified the decision by reference to the date of hearing and date of decision both as 7 August 2023.

2.  A copy of the decision the subject of challenge was not provided to the Court.  But with the information provided by the Applicant, I was able to identify the relevant decision and to obtain a copy from the judiciary’s website.  The citation of the decision is [2023] HKLdT 54 (“Leave Decision”), in which the Tribunal refused to grant leave to appeal to the Court of Appeal (“CA”)  from its own earlier decision made in the same case on 7 July 2023.

3.  The “applicant” and “putative respondent” identified in the Form 86 were the parties in the underlying dispute before the Lands Tribunal.  Having considered the materials before me, it is clear that the Applicant really intended the Lands Tribunal (rather than his opposing party in the underlying dispute)  to be the putative respondent.

4.  This application can be dealt with on paper. This is my Decision.

B.  Background & Proposed Grounds of Review

5.  I cannot find the written decision made earlier on 7 July 2023, but the dispute giving rise to that decision is sufficiently summarized in the Leave Decision.

6.  LDPD 659/2023 started as a landlord-and-tenant dispute, albeit (as will be seen below)  the Applicant disputed such a characterisation.  The Applicant and the putative respondent as identified in the Form 86 were the tenant and the landlord respectively.  In LDPD 659/2023, the landlord sought to take vacant possession from his tenant upon termination of the lease.  The Tribunal found in favour of the landlord on 7 July 2023.

7.  The tenant then sought leave to appeal to the CA under section 11(2)  and section 11AA of the Lands Tribunal Ordinance Cap 17 (“LTO”).  By a decision dated 7 August 2023 – i.e. the Leave Decision the subject of challenge – the Tribunal refused leave.

8.  In the Applicant’s supporting affirmation filed in his intended judicial review application, he raised the following grounds:

(1)  Ground 1: At the hearing on 7 July 2023, it was supposed to be a mention hearing and he did not prepare any “defence documents”.  The hearing only lasted for 10 minutes.  He was not represented by a lawyer, but the other side was legally represented.  The Tribunal did not guide him to state the facts.

(2)  Ground 2: For the Leave Decision dated 7 August 2023, he said if the first instance judge had to rule on whether he himself had made any mistake, he asked rhetorically how it is possible to expect him to find himself mistaken?

(3)  Ground 3: The Applicant said he was not in any ordinary landlord/tenant relationship with the named putative respondent. He said the parties were in a “partnership”.  He attached to his supporting affirmation two contracts.  The first contract was made on 16 July 2010 which, amongst other things, provides that the landlord cannot sell the property unless the tenant has ceased to rent it.  The second contract was said to become effective on 26 September 2009, which provides that the landlord should entrust the tenant to sell the property, and any portion of the price higher than HK$1.48 million was to be kept by the tenant.

9.  Apparently the “defence documents” which the Applicant said he did not prepare for the 7 July 2023 were or included the two contracts which he has now exhibited to his supporting affirmation in these judicial review proceedings.

10.  However, both contracts were later submitted by him to the Tribunal during the hearing for his application for leave to appeal to the CA heard on 7 August 2023.  The Tribunal refused to consider those contracts (and another piece of evidence)  which were only submitted for the first time on 7 August 2023, based on the Ladd v Marshall principle.  The Tribunal also ruled that in any event those contracts would not alter its view that the parties were in a landlord-tenant relationship.  See §§14-16 of the Leave Decision.

C.  Amenability to judicial review

11.  The LRO has expressly mapped out a statutory appeal mechanism by which a decision from the Tribunal might be appealed to the CA on points of law.  I have doubt judicial review should be available as a remedy in the circumstances.

12.  Section 11(2)  provides that the party may appeal to the CA against the judgment, order or decision of the Lands Tribunal on the grounds that such judgment, order or decision is erroneous in point of law.

13.  Section 11AA(1)  further provides that no appeal may be made unless leave to appeal has been granted either by the Tribunal or by the CA.  Under section 11AA(6), leave to appeal should not be granted unless the CA or the Tribunal is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.  Section 11AB provides that no appeal lies from a decision of the CA as to whether or not leave to appeal to it should be granted.  In other words, the CA’s refusal to grant leave to appeal is final.

14.  The legislature has expressly limited remedies against decisions of the Tribunal (a) by imposing the leave requirement, (b) by confining the grounds of appeal to points of law, and (c) by conferring finality on the CA’s decision to refuse leave.  It seems unlikely to me that one could simply challenge the decision by the judicial review route the inevitable consequence of which is that those limitations on the statutory appeal mechanism would be circumvented.

15.  That said, in any event, following the refusal by the Tribunal itself to grant leave to appeal, the natural next step envisaged in the legislative scheme is for the aggrieved party to renew his leave application before the CA.  The availability of an alternate remedy which the applicant has not yet exhausted would also render the present application not amenable to judicial review.

D.  No Merits in the Proposed Grounds

16.  In any event, even if I were to entertain the present application, none of the proposed grounds of review has crossed the threshold of reasonable arguability.

17.  The subject of challenge is the Leave Decision made by the Tribunal dated 7 August 2023.  The role of the Court, performing its function in judicial review, is to examine the process by which the Leave Decision was reached and to some extent its merits if irrationality is raised as a ground of challenge.  The judicial review court cannot substitute its own view for that of the Tribunal.

D.1  Ground 1

18.  The essence of Ground 1 is the suggestion that there was procedural irregularity in the 7 July 2023 hearing in that the Applicant was caught off guard when what was supposed to be ‘mention hearing’ turned into a substantive hearing, and thus deprived the Applicant of the opportunity to produce documents in support of his argument, nor was he “guided” by the Tribunal to state the facts (presumably referring to the existence of the contracts and what they would entail).

19.  The point in Ground 1 was already raised and answered by the Tribunal in the Leave Decision.  At §12 of the Leave Decision, the Tribunal, citing 永華電子實業有限公司訴陳樹雄經營三雄行, HCMP 1951/2012 (unreported, 16 November 2012), pointed out that it is permissible for the Tribunal to deal with a case substantively in the first hearing if the dispute and the evidence is not very complicated.

20.  The point is but a re-run of the argument which had already been raised and rejected by the Tribunal in the Leave Decision. There was no attempt by the Applicant to point out why the Tribunal was wrong in rejecting such argument, let alone why such error (if any)  is one that should be susceptible to judicial review.

D.2  Ground 2

21.  Ground 2 apparently seeks to challenge why the Tribunal (or the same member of the Tribunal)  should be allowed to be the judge in its own cause in deciding whether there is any legal error in its his own decision, justifying the granting of leave to appeal to the CA.

22.  First, it should be noted that the leave requirement is imposed by the legislature.

23.  Secondly, it is also not uncommon in our legal system that the first instance court is required to determine whether leave to appeal should be granted against its very own decision.  When doing so, the court is not required to find that it made a mistake in its previous decision. Instead, the court is simply required to decide whether the relevant test for the grant of leave to appeal is satisfied.  Ordinarily, the court will be looking to see whether it is reasonably arguable that an error had been made, and that the appellate court might accept that argument – or that there is some other reason why the matter should go to an appeal.

24.  Thirdly, and in any event, the LTO has also provided for the possibility to renew the leave application before the CA.

D.3  Ground 3

25.  Ground 3 raises the suggestion as to what was the truth or the correct factual basis of the underlying dispute, which the Applicant would presumably say could be evidenced by the two contracts.  As already said above, those contracts – including their admissibility at that stage and, if admitted, their effects on the result – were already considered by the Tribunal at §§14-16 of the Leave Decision.

26.  Ground 3 obviously concerns the merits of the underlying dispute between landlord and tenant.  This Court, exercising its judicial review function, will not evaluate the two contracts so as to form its own view on the nature of relationship between the parties or whether one of them was entitled to evict the other in the capacity as a landlord.

E.  Result

27.  None of the matters raised by the Applicant identified grounds for judicial review which are reasonably arguable with any reasonable prospect of success.

28.  For the reasons above, I dismiss the Applicant’s application for leave to apply for judicial review, with no order as to costs.