Infinger, Nick v. The Hong Kong Housing Authority

HCAL 2647/2018

[2019] HKCFI 557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2647 OF 2018

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D E C I S I O N

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1.The Applicant, a male, entered into a same-sex marriage with another male person (“X”) in January 2018 in Richmond, Canada. Both the Applicant and X reside in Hong Kong, and are Hong Kong permanent residents.

2.By a letter dated 9 March 2018, the Applicant through his solicitors (Vidler & Co) applied to the Hong Kong Housing Authority (“HKHA”) for public rental housing, enclosing therewith, inter alia, a copy of the marriage certificate of the Applicant and X.  According to the Applicant, he satisfied all the general eligibility criteria for public rental housing.

3.On 24 August 2018, HKHA wrote to the Applicant stating that his application for public rental housing would be rejected, on the ground that:

“In accordance with paragraph 2.3.3 of the Hong Kong Housing Authority’s ‘Application Guide for Public Rental Housing’ (revised in February 2015) (the ‘Application Guide’), the relationship between the Applicant and family members must be either husband and wife, parent and child, grandparent and grandchild. As under the Shorter Oxford Dictionary, ‘husband’ means ‘a married man especially in relation to his wife’ and ‘wife’ means ‘a married woman especially in relation to her husband’, the relationship between the Applicant and [X] falls outside the meaning of husband and wife in the said paragraph 2.2.3 of the Application Guide.”

4.By a letter dated 7 September 2018, HKHA formally rejected the Applicant’s application for public rental housing.

5.On 22 November 2018, the Applicant applied for leave to apply for judicial review of HKHA’s decision to reject his application for public rental housing, as well as HKHA’s policy to exclude same-sex couples form eligibility to make an application as an “Ordinary Family for Public Rental Housing”, on the grounds that the decision and the policy infringed his right to equality, non-discrimination, and privacy, family and home under BL 25 and HKBOR 1(1), 14 and 22, and are Wednesbury unreasonable.

6.On 23 November 2018, the court granted the Applicant leave to apply for judicial review on consideration of papers alone. The court further directed the Applicant, after completion of the filing of evidence, to fix a 30-minute directions hearing for consideration of the further conduct of this application, including possible stay of proceedings pending the outcome of other applications for judicial review raising the same or related issues, or consolidation of the present application with those other applications.  As further explained by the court in a letter dated 27 November 2018 to the Applicant’s solicitors:

“In the Form 86, the Applicant refers to the judgment of the Court of Appeal in Leung Chun Kwong v Secretary for the Civil Service [2018] 3 HKLRD 84, which is currently the leading authority in Hong Kong on the issue of differential treatment in relation to the provision of benefits (in that case civil service benefits) on the ground of sexual orientation. That judgment is [currently] under appeal to the Court of Final Appeal, and it is likely that the judgment of the Court of Final Appeal will have a substantial impact on the outcome of the current application… The court considers that the further conduct of this application should be reviewed after completion of the filing of evidence in this application.”

7.I am told that on 3 January 2019, notice of hearing of the appeal in the Court of Final Appeal in the Leung Chun Kwong case was given.  That appeal will be heard by the Court of Final Appeal on 7 May 2019.

8.As earlier mentioned, the court’s direction was that further consideration of the conduct of the application for judicial review should be reviewed after completion of the filing of evidence by the parties hereto.  The deadline for HKHA to file evidence fell on 24 January 2019.  HKHA did not file any evidence, but waited until the last day (ie 24 January 2019) to issue the present summons seeking a stay of these proceedings pending the determination of (a) the final appeal in Leung Chun Kwong by the Court of Final Appeal, and (b) the application for judicial review in MK v Government of HKSAR (HCAL 1077/2018) by the Court of First Instance.

9.Leung Chun Kwong raises, inter alia, the issue of the right of same-sex couples lawfully married outside Hong Kong to enjoy civil service benefits, while MK raises the issue of the right of same-sex couples to be lawfully married in Hong Kong or accorded legal recognition of same-sex partnership (such as civil union or registered partnership).  That application for judicial review has now been fixed to be heard by this court on 28 and 29 May 2019.

10.In Rankothpedi Durayalage Kamalawathi v The Director of Immigration, HCAL 425/2017 (11 July 2018), the court set out what it considered to be the applicable principles for stay of proceedings pending the outcome of a pending appeal in another action raising the same or similar issues.  At paragraph 15 of that judgment, the court stated:

“a stay of proceedings in an action may be granted if the outcome of a pending appeal in another action has, or is likely to have, a critical impact on the action even if it cannot be shown that the outcome of that appeal would be decisive or determinative of the action. This having been said, the power to stay must be exercised cautiously. Ultimately, the court has to perform a balancing exercise to further the ends of justice as between the parties to the action, as well as the due administration of justice generally.”

11.I consider that the outcome of the final appeal in Leung Chun Kwong is likely to have a critical impact on the present application.  However, that appeal will soon be heard, in less than 3 months’ time.  As of today, HKHA has not even filed evidence in this case.  Having regard to the court’s diary, it is clear that, by the time of the hearing of the present application yet to be fixed, the Court of Final Appeal will already have heard the appeal in Leung Chun Kwong, and it quite likely that judgment will have been given in that appeal.

12.On the other hand, the issues raised in MK are sufficiently different from those in the present application and I do not consider the outcome of that case would likely have a critical impact on this application.  In any event, even if the decision in MK will have a critical impact on the present application, for the same reason as stated above, I consider that judgment in the MK case will likely have been given by the time that this application comes to be heard by the court.

13.I do not accept Mr Ma’s submission that the results or reasons in those cases should affect the scope or contents of the evidence (if any) which may be filed by HKHA in the present application.  HKHA is under a duty of candour and ought to put forward all relevant facts and matters pertaining to its decision and policy under challenge to enable the court to properly discharge its supervisory jurisdiction in this matter.  Mr Ma argues that the Applicant will suffer no prejudice should the court grant the stay of proceedings sought because HKHA is prepared to give an undertaking to the Applicant that “should he succeed in the present application and the Court hold that he is eligible to apply for [public rental housing] as an ordinary family with his same-sex partner, [HKHA] will restore his [public rental housing application] back to the date when it was first submitted, ie 9.3.2018, so that there will not be any loss of the waiting time because of any stay of the present proceedings as currently applied for”.  Even if, for the sake of argument, the Applicant will suffer no personal prejudice as a result of the stay, it cannot be disputed that the present application raises issues of some general or public importance which are likely to, or may, affect other same-sex couples in a similar situation.  Those issues will have to be determined in any event, and there is no good reason to delay their determination.

14.I also consider HKHA’s manoeuvre in waiting until the last moment to make the present stay application to be unacceptable. I can see no reasonable justification for HKHA delaying the making of this application until it was due to file its evidence on 24 January 2019.  HKHA has now had some 90 days since it first received the papers and the Applicant’s evidence, but has not yet put forward its evidence in this matter.  Generally speaking, a respondent in an application for judicial review is required to file its evidence as soon as practicable, as emphasized in paragraph 14 of Practice Direction SL-3.  I do not accept Mr Ma’s submission that the existence of other proceedings raising the same or similar issues which may lead to consideration of a possible stay application is an exceptional reason justifying an extension of time to file evidence by a respondent.

15.In all, I do not consider that there is any good reason to stay the present application pending the determination of (a) the final appeal in Leung Chun Kwong by the Court of Final Appeal, or (b) the application for judicial review in MK by the Court of First Instance.  I dismiss the stay application, and grant an extension of time to HKHA to file its evidence within 28 days from the date hereof, ie 27 March 2019.  No further evidence may be filed by any party without the court’s leave.  In the event that the Applicant wishes to file evidence in reply, the relevant application should be made within 14 days of the receipt of HKHA’s evidence.  It is no longer necessary for the Applicant to seek further directions from the court after completion of the filing of evidence.

16.Finally, the parties shall provide the court with their counsel’s diaries for a 2-day hearing for the period from July to December 2019 within 7 days if they wish the court to take into account the available dates of their counsel when fixing the dates for the substantive hearing of this application for judicial review.  While the court will take into account counsel’s diaries, the court will not be bound by the same when fixing the hearing dates.

17.I shall now hear the parties on the question of costs.

Mr Tim Parker, instructed by Messrs. Vidler & Co., for the Applicant

Mr Johnny Ma, instructed by Messrs. Woo, Kwan, Lee & Lo, for the Respondent