CHAN LONG NING, CHRISTINE v. THE RATING AND VALUATION DEPARTMENT

HCAL 1609/2024

[2025] HKCFI 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1609 OF 2024

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D E C I S I O N

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A.  Introduction

1.  When amendments are made to an ordinance to add 60 new sections, inserted between sections numbered 119Y and 120A and with the new sections numbered from 120AA to 120AAZZH, there is room for thinking that it may be time to revisit the numbering of the whole ordinance. But the form of numbering is not the issue sought to be raised in this case.

2.  Rather, by her Form 86 dated 16 September 2024, the Applicant seeks leave to apply for judicial review to challenge an ‘interpretation’ of certain legislative provisions, which interpretation is said to have been made by the Rating and Valuation Department (“RVD”) in an email dated 29 August 2024.

3.  The particular legislative provisions identified by the Applicant are in the Landlord and Tenant (Consolidation) Ordinance 2021, which materially added a new Part IVA – headed ‘Regulated Tenancies’ – to the Landlord and Tenant (Consolidation) Ordinance Cap 7 (“Ordinance”).

4.  The focus is on sections 120AAQ and 120AAR, and the question of interpretation sought to be raised by the Applicant is whether those provisions have retrospective effect on tenancies signed prior to 22 January 2022, the commencement date of Part IVA of the Ordinance. In her supporting affirmation, the Applicant says that the question arises in the following way:

(1)  On 22 August 2024, the Applicant wrote to the RVD seeking clarification on whether the provisions apply retrospectively to her own tenancy dispute (“Enquiry”).

(2)  The RVD replied by email dated 29 August 2024 (“Email Reply”) that the sections do not have retrospective effect.

(3)  Because she is a tenant in ongoing proceedings, she requires “certainty in the interpretation of these important provisions”.

(4)  Clarification of the issue through judicial review is in the public interest, to ensure consistent application of tenant protections.

5.  By way of relief, the Applicant seeks the determination of the question of retrospective effect. She also seeks an order to hold in abeyance the enforcement of a costs order made against her in DCCJ 925/2023, on the basis that interpretation of the provisions could impact the basis and fairness of the determination of costs awarded against her.

6.  Though my provisional view as to how to deal with this application might not have required it, it seemed to me that the RVD should be given the opportunity, if it wished, to serve an Initial Response to the application for leave to apply for judicial review, and if so for the Applicant to file a Reply. I gave directions to that effect, and also directed that depending on the content of any such documents, I would decide whether to deal with the application for leave to apply for judicial review on paper and, if so, to do so without further notice to the parties.

7.  An Initial Response was provided on behalf of the RVD by Ms Elsie Chu, Senior Government Counsel of the Department of Justice. The Applicant filed a Reply.

8.  On 5 November 2024, the Applicant also filed a supplementary affirmation, seeking from this Court an order that the costs order made in DCCJ 925/2023 be stayed pending the determination of these judicial review proceedings. I have made no such order, because (as will be seen below) it would not be appropriate.

9.  Having considered the materials filed by both parties, I am satisfied that it is appropriate to deal with this application on paper. This is my Decision.

B.  Further Background

10.  Any necessary further background information can be provided succinctly, as follows.

11.  In February 2024, the Applicant as plaintiff brought an action in the District Court in DCCJ 925/2024 claiming unlawful termination of a lease agreement (“Tenancy”) against Anji (Hong Kong) Company Limited as defendant. (In passing, I note that the Applicant in her supporting affirmation mis-typed the action number as DCCJ 925/2023.)

12.  From other available materials, it seems that that action was later dismissed, with costs ordered against the Applicant, to be summarily assessed. The Defendant filed a Skeleton Bill of Costs on 21 August 2024. The Applicant filed a Statement of Objections to that skeleton bill on 26 August 2024. The assessment was performed on 30 August 2024 (see below).

13.  In the meantime, on 22 August 2024, the Applicant made the Enquiry.

14.  In response to the Enquiry, the Applicant was contacted by phone by a member of staff of the RVD. The Applicant informed that staff member that (1) she was the tenant of the Tenancy, (2) the term of the Tenancy was from 22 December 2020 to 31 December 2022, (3) the landlord had served a notice of non-renewal of the Tenancy on the Applicant in mid-December 2022, requesting her to move out of the premises within one month, and (4) the Applicant had moved out of the premises on 12 January 2023.

15.  The Applicant made further enquiries on the Enquiry, and a more senior staff member of the RVD contacted her by phone on the same date. The Applicant confirmed that the Tenancy commenced in mid-December 2020, and requested a written reply to the Enquiry.

16.  During both telephone conversations, the Applicant was informed that if the Tenancy was a fixed-term tenancy and commenced before the commencement date of Part IVA of the Ordinance, then that Part IVA would not apply to the Tenancy.

17.  The written reply to the Enquiry provided on 29 August 2024 (i.e. the Email Reply) repeated the same point. It also identified that (1) according to section 120AAE of the Ordinance, a person having an interest in any premises may apply to the Lands Tribunal to determine whether or not a tenancy for the premises is a regulated tenancy for the purposes of Part IVA of the Ordinance, and (2) should the Applicant wish to enquire about legal matters she might seek professional legal advice.

18.  It is fair to record at this point that the Email Reply did not inform the Applicant whether Part IVA of the Ordinance would or would not apply to her Tenancy.

19.  On 30 August 2024, Master Thomas Wong of the District Court made an order that the costs payable by the Applicant in DCCJ 925/2024, in respect of the costs of the action including the defendant’s summons dated 22 April 2024 and all reserved costs, were summarily assessed at HK$70,000 (“Costs Order”).

C.  Not Amenable to Judicial Review

20.  The Email Reply provided by the RVD in response to the Applicant’s Enquiry is not amenable to judicial review, because it is not a substantive decision of sufficient finality and with substantive legal consequences.

21.  As I have already noted above, whilst the RVD expressed the general view that Part IVA of the Ordinance does not apply retrospectively to fixed-term tenancies that began prior to the commencement date of Part IVA, nowhere in the Email Reply did the RVD make a determination on whether Part IVA applied to the Applicant’s own Tenancy. Nor has the RVD taken any action or exercised its powers in any way that would substantively have impacted the Applicant and/or her legal rights.

22.  This is sufficient to dispose of the application for leave to apply for judicial review, by way of dismissal.

D.  Abuse of Process

23.  The Applicant’s application for leave to apply for judicial review is also an abuse of process, in that it works to make what amounts to a collateral attack on decisions made in other proceedings.

24.  The starting point is that, as the Applicant was informed by the RVD, if the Applicant had a concern as to sections 120AAQ and 120AAR of the Ordinance, she should apply under section 120AAE of the Ordinance to the Lands Tribunal for any relevant interpretation of those sections, and any determination of whether or not the Tenancy was a regulated tenancy for the purposes of Part IVA of the Ordinance. It is an abuse of process to seek such or similar relief in this application for leave to apply for judicial review. The Applicant’s suggestion (made in her Reply) that the Lands Tribunal’s powers are limited to tenancy status determination, and that there could not be a review of administrative decisions or power over policy interpretation simply missed the point.

25.  I also note that the writ in the District Court specifically makes reference to the legislative provisions in sections 120AAQ and 120AAR of the Ordinance, which the defendant landlord is alleged to have breached. Obviously, that question was raised in, and fell to be dealt with in, DCCJ 925/2024. In her own Reply, the Applicant has described the issue arising in those proceedings as “Termination during Part IVA protection period”. On the basis that the costs of the entire action had been awarded against the Applicant as plaintiff in those proceedings, it must be assumed that that issue was dealt with and decided against her. To seek to revisit it in these proceedings is an abuse.

26.  Further, if the Applicant wants a stay of execution of any order made against in DCCJ 925/2024, she could and should apply for that in those proceedings. Similarly, if she is dissatisfied with any decision made in those proceedings, the Applicant should seek to exercise any rights of appeal. To seek the relief which the Applicant wishes to pursue in these proceedings amounts to a collateral attack on the orders and decisions of the District Court, and is an abuse of process.

27.  I reject the Applicant’s suggestion that the present proceedings should somehow be considered as of “test case nature”. Rather, that would suggest the point is really academic, and the Court exercising its judicial review jurisdiction does not give advisory opinions on academic questions.

28.  This is also fatal to, and dispositive of, the application.

E.  Other Matters Identifying No Merits

29.  It is trite that an application for leave to apply for judicial review should identify in the Form 86 proper grounds of review in the form of an alleged public law breach or failure on the part of the putative respondent. It is not the role of the Court to identify any grounds of review or to seek to devise potential grounds for an applicant.

30.  The Form 86 in this case does not meet the mandatory requirements in Rules of the High Court Order 53 rule 3(2), and this is also a reason for dismissing the application for leave to apply for judicial review.

31.  Only in the Reply to the Initial Response does the Applicant suggest that the nature of her intended challenge is based upon illegality and irrationality. But those matters, if asserted, must be included in the Form 86.

32.  Ms Chu also submits that the Applicant has failed to comply with the obligation of full and frank disclosure, when making an application ex parte. She points out that, in the original application and affirmation, the Applicant did not provide any particulars nor copy of the Tenancy, or more detail as to the progress of DCCJ 925/2024. That is correct, and it is perhaps as a result of those points made in the Initial Response that the Applicant provided much more information and documentation with (and only in) her Reply.

33.  Amongst those materials is a copy of the Tenancy agreement, which identifies that it was for a fixed term from 1 January 2021 to 31 December 2022 (with a 10-day rent-free period from 22 to 31 December 2020). Therefore, incidentally, the Tenancy appears to be a fixed-term tenancy commenced before the commencement date of Part IVA of the Ordinance, such that – according to section 120AAB of the Ordinance – Part IVA would not apply to the Tenancy. I note that the Applicant appears to suggest that the Tenancy became a periodic tenancy after 22 December 2022 (even though it was apparently terminated by notice given before that date), but in any event the point does not properly arise for determination in, or fall to be revisited in, these proceedings.

F.  Result

34.  The Applicant has failed to identify a decision amenable to judicial review, and her application is in any event an abuse of process. In so far as it is necessary to say so, the Applicant has also failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success.

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

36.  For the avoidance of any doubt, I have not granted any interim protection as has been pursued by the Applicant, and I would and do refuse to do so.

37.  As to costs, Ms Chu has submitted that the Applicant’s application is wholly misconceived and unmeritorious, which is a weighty factor justifying an adverse costs order even in circumstances of, as is usual, an ex parte application for leave to apply for judicial review. Ms Chu further submits that (1) the application would serve only the personal interests of the Applicant (and not a wider public interest), (2) there has been a failure of full and frank disclosure, and (3) the RVD has incurred time and costs in preparing the Initial Response to render assistance at the Court’s invitation.

38.  In her Reply, the Applicant submitted that there should be no order as to costs because of (1) the public interest nature, (2) the “important interpretation issue”, and (3) “systemic implications”.

39.  However, I think those points have no weight, and instead I accept that the points made by Ms Chu do in this case justify an adverse costs order. I place particular weight on the facts that the application is misconceived and also amounts to an abuse of process.

40.  Therefore, the RVD’s costs will be payable by the Applicant, to be summarily assessed by me. The Statement of Costs for summary assessment should be provided by the 8 January 2025, and the Applicant may provide any List of Objections by 10 February 2025. Thereafter, I shall proceed to the summary assessment on paper.