Chan Shui Wah v. Appeal Panel (Housing)

[English Translation – 英譯本]

CACV 586/2018

[2019] HKCA 925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 586 OF 2018

(ON APPEAL FROM HCAL NO. 271 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.On 4 December 2018, Au J (as he then was) refused to grant leave to the applicant to apply for judicial review of the decision of the putative respondent (“the Appeal Panel”) to confirm the Notice to Quit issued by the putative interested party (“the Housing Authority”).

2.Dissatisfied with Au J’s decision, the applicant appealed to this Court.

The applicant’s intended application for judicial review

3.The background of the applicant’s intended application for judicial review has been set out by Au J briefly in paras 2-5 of the Form CALL-1, [2018] HKCFI 2656. We quote as follows:

“2.     At the material time, the applicant lived alone in a 34.4m² public housing flat. Under the relevant policies and measures governing “under-occupation households”, the applicant’s case fell within the meaning of “prioritised under-occupation households”. Therefore, under the said measures, she had to move to a public housing flat of suitable size so as to facilitate the recovery of the larger flat for reallocation to tenants with larger family size such as public rental housing applicants and overcrowded families. Under the said policies, in the course of the transfer exercise, “prioritised under-occupation households” without elderly or disabled members will be given a maximum of four allocation offers of a flat either in the residing estate or other estates in the same District Council constituency and granted a domestic removal allowance. However, if a “prioritised under-occupation household” refuses the four offers without acceptable grounds, it will be issued with a “Notice to Quit” for termination of the tenancy.

3.     In the present case, since 27 September 2011, the Estate Office had on a number of occasions issued a letter to the applicant asking her to complete and submit the “Transfer Application Form” and “Transfer Declaration Form” for going through the transfer formalities. As she failed to complete the necessary formalities before the deadline, her case was directly passed to the Lettings Unit for allocating her a public housing flat suitable for allocation to one person in the same estate. However, she declined all of the four allocation offers of a public housing flat.

4.     The applicant refused to transfer at the material time for the following respective reasons:

(1)     request of no transfer by reason of health;

(2)     failure to go through the formalities for signing the tenancy as scheduled;

(3)     health reason that she was unfit for moving objects due to serious cervical spondylosis;

(4)     health reason that she was receiving traditional Chinese medicine treatment and physiotherapy.  

5.     The Housing Department did not consider her purported reasons to be supported by sufficient medical evidence and thus declined to accept them as reasonable grounds for refusal of transfer. In the result, a “Notice to Quit” was issued to her on 29 July 2016 and her tenancy was terminated on 31 August of the same year.” 

4.The applicant pointed out in the Form 86 that her four refusals of allocation offers made by the Housing Authority were all supported by reasonable grounds. The applicant claimed that she declined the first, third and fourth offers by reason of health and provided medical proof from a Chinese medicine practitioner in support of her claim; as regards the second offer, which was made in response to an application for “internal transfer”, the applicant claimed that she had never made the relevant request, so she did not go through the transfer formalities.

5.The applicant subsequently appealed to the Appeal Panel in respect of the “Notice to Quit” mentioned above. After a hearing and after hearing the applicant’s representations and testimony, the Appeal Tribunal[1] dismissed her appeal and confirmed the “Notice to Quit” on 6 April 2017.

6.The applicant was of the view that she had advanced sufficient evidence to prove and support that she reasonably refused to transfer by reason of health, and thus applied to the court for judicial review.

7.As Au J pointed out, an application for judicial review is not an application to appeal. The court will not reopen the merits of the relevant decision. The court will only look at whether the relevant decision contains errors on grounds recognized under the public law, namely, errors of law, procedural errors or whether the decision was Wednesbury unreasonable, namely, no reasonable person would have made the same decision as the one being challenged in the light of the grounds and evidence advanced. Therefore, the court generally would not reassess evidence and make a decision afresh in respect of the findings of fact in the decision being challenged.  

8.The decision of the Appeal Tribunal is a decision on questions of fact, and the court will not reassess evidence and make a fresh decision in respect of the findings of fact in the decision being challenged. Having gone through the notes of proceedings of the Appeal Tribunal, Au J formed the view that the Tribunal had conducted a thorough, comprehensive and in-depth study and assessment of evidence and made the findings of fact sensibly and that the applicant had failed to put forward reasonable evidence to support the reasons for her four refusals of transfer. Au J was of the view that the Appeal Panel’s decision was not erroneous on any of the grounds recognized under the public law, and thus the applicant’s intended application for judicial review was not one that was reasonably arguable with a realistic prospect of success. The court therefore refused to grant the applicant leave to judicial review.

The Appeal

9.In the Notice of Appeal filed on 17 December 2018, the applicant raised the following grounds of appeal:

“The outcome of the Appeal Panel’s decision involved errors recognized under the public law

Errors of law: the present case was heard under unfair and unjust circumstances, and the decision thereof was based on information that was a misrepresentation

Procedural errors: the outcome of the decision dated 10 March 2017 is such that the decision was a decision without any reasons

The outcome of the decision was Wednesbury unreasonable: its supplemental reason for “decision” was a conclusion reached as a result of false information.

10.This court conducted an oral hearing of the present appeal on 26 July 2019.

11.On 17 January 2019, the Appeal Panel wrote to the court indicating that they would take a neutral stance in the present appeal.

12.Mr Benjamin Lam, counsel for the Housing Authority, attended the hearing, opposed the applicant’s appeal and asked that the costs of the Housing Authority in respect of this appeal be paid by the applicant.

Legal principles

13.Before dealing with the matter of whether the grounds of appeal advanced by the applicant were established or not, this Court must first reiterate the legal principles adopted by the court in dealing with appeals, see Wong Shek Hung and Fan Yam Hoi (transliteration) [2018] HKCA 168 at paragraph 4; Kwan Wun Mei (transliteration) [2018] HKCA 205 at paragraph 9. They are summarised as follows:

(1)     An appeal is not to allow the litigant to state to the court for another round the facts of the case or to raise new issues. In an appeal, the Court of Appeal primarily considers whether the trial judge has erred in his/her decision;

(2)     On consideration of the issues of appeal, the Court of Appeal generally examines the trial judge’s judgment only on the basis of the evidence before him/her and the documents submitted;

(3)     Therefore, the Court of Appeal considers whether the trial judge has erred in his/her judgment based on the documentary evidence already filed by the appellant;

(4)     The submissions in an appeal are not an opportunity for the litigant to adduce another round of evidence. Paragraphs 64 and 65 of Practice Direction 4.1 require that in the case that the appellant’s grounds of appeal concern points of law, the skeleton argument should state the point and cite the principle or authority in support; in the case that the grounds of appeal concern findings of fact, the skeleton argument should state briefly the basis on which it is contended the Court can interfere with the finding of fact concerned. A mere repetition of the facts or statements cannot assist the Court in the examination of whether the trial judge has erred in his/her decision.

14.This Court also stated clearly, at paragraph 16 of Kwok Lo Ping (transliteration) and Electoral Registration Officer CACV31/2017, 17^th May 2017, the function of judicial review as follows:

“This Court has repeatedly stated the proper norms for judicial review in the past cases. Judicial review is not an ordinary civil action, and the court would not take over the function of the public authority for no reason. The function of the court in judicial review is to consider whether the decision of the public authority or body on a matter of public administration contravenes the principles of public law or not.”

See also paragraph 10 of Kwan Wun Mei (above).

15.Au J’s analysis of the applicant’s application, as mentioned at paragraph 7 above, did examine the applicant’s application correctly on the basis of such legal principles. The Court of Appeal has established, in other judicial review cases, the principles adopted by Au J, see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246; Re Masoom Parvez [2018] HKCA 163.

16.Whether leave to apply for judicial review should be granted is a decision of the trial judge in the exercise of his/her discretion. The long established legal principle is that unless the trial judge made errors of law, misunderstood the material facts on the matter of fact, took into account matters that should not be taken into consideration, did not take into account matters that should be taken account of, or made a decision that was plainly wrong, one that must be due to an incorrect assessment made in considering the weight of all the necessary factors, the Court of Appeal may not disturb the exercise of discretion by the trial judge, see Chin Kam Chiu v Kenneth Chan Ping Chau, A Magistrate sitting in the Eastern Magistracy [2018] HKCA 448 at paragraph 32; Ng Shek Wai v ICAC [2019] HKCA 343 at paragraph 21.

17.Lastly, unless under special circumstances, in an appeal, the appellant generally cannot put forward grounds not mentioned in the application for leave to apply for judicial review, otherwise the appellant would be able to disregard the statutory time limit for applying for judicial review, see Order 53 Rule 4 of the Rules of the High Court, Wong Ho Tong v Director of Lands [2018] HKCA 330.

Discussion

18.Given theaforesaid legal principles, this Court should not take over the function of the Appeal Tribunal or Au J, and should only consider whether Au J ’s decision to refuse to grant the applicant leave to apply for judicial review, having found that it was a reasonable and lawful finding on fact by the Appeal Tribunal that the applicant failed to adduce reasonable evidence in support of her four refusals to transfer involved any of the mistakes stated in paragraph 16 above.

19.The applicant did not put forward grounds stating how Au J’s judgment erred in law, or that he misunderstood the material facts on matters of fact, or that he took into account matters that should not be taken into consideration, or that he did not take into account matters that should be taken account of, or that he made a decision that was plainly wrong.

20.The applicant however advanced, in her submission of the present appeal, fresh argument claiming that the Appeal Tribunal had made procedural mistakes, and alleging that the Housing Department had provided false proof and concealed the fact.

21.When the applicant made her application for leave to apply for judicial review at the Court of First Instance, she did not make any complaint on the Appeal Tribunal’s hearing procedures. As pointed out in paragraph 17 above, the Court of Appeal generally would not hear the grounds not considered by the trial judge. In the present appeal, we do not see any reason to act exceptionally.

22.Further, upon hearing the applicant, we are of the view that the applicant’s complaint on the Appeal Tribunal was vague and generalised. We do not see in substance there was any unfairness to the applicant. The Appeal Tribunal, in respect of the effective conduct of the hearing, has the power to direct the applicant not to repeat her written statement. The applicant did not submit the audio or written record of the hearing. We do not accept her allegations which were not supported by concrete evidence.

23.In respect of the applicant’s allegations against the Housing Department for providing false proof and concealing the fact, we do not think these are arguable points. The hearing by the Appeal Tribunal was in the nature of an adversarial proceeding in which the applicant participated, during which if she considered that there was something wrong or missing in the Housing Authority’s documents, or that she had supplemental materials or documents in support of her case, she could point it out and submit them to the Appeal Tribunal. The authorities have established that, in an appeal under section 20 of the Housing Ordinance, the burden of proof is on the appellant, and there is no duty on the part of the Appeal Panel or Tribunal to collect evidence: Deng Suet Yan v Hong Kong Housing Authority [2017] 4 HKLRD 73, at paragraph 27.

24.In law, in an appeal under section 20 of the Housing Ordinance, the officers of the Housing Department have no duty to advise the applicant on how to collect evidence. In fact, the officers of the Housing Department have invited the applicant to give them a written authorisation which could allow them to ask the hospital for the applicant’s medical report. Despite giving verbal consent to it, the applicant did not sign the written authorisation, as a result it could not be done[2].

25.As regards the medical certificate and letters, including the documents from the bone-setter’s clinic, the applicant relied on, and what she stated about her physical condition, the Appeal Tribunal, as Au J said, duly understood and explored the evidence.

26.The fact that the Housing Department had suspended the arrangement for the allocation due to her condition of illness was also disclosed to the Appeal Panel[3], with no concealment whatsoever. However, the suspended arrangement for the allocation was a temporary decision serving as a buffer, and it should not be equivalent to the Housing Department’s acceptance of the applicant’s refusal to the allocation offers on sufficient grounds.

27.In accordance with the then “measures governing under-occupation households” of the Housing Department (“the said measures”), upon the request of the Housing Department for the under-occupation household to be transferred, the tenant may be given four allocation offers of a flat either in the residing estate or in the same district, and “if [the tenant] refuses all the four offers for no good reason, the tenancy will be terminated”.

28.The applicant, in her submission on 14 January 2019, stated her understanding of the said measures that as the said measures did not specify that the reason for the refusal was to be acceptable to the Housing Department, she only needed to provide documents of proof in support of the reasons for her refusal to the transfer, as such, she did not refuse “for no good reason”, and the Housing Department shall not terminate her tenancy in accordance with the said measures.

29.There is no doubt that the applicant’s understanding of the said measures was wrong.

30.When the applicant first signed the Declaration on Refusal to the Allocation, the declaration specified in detail the relevant requirements of the supporting documents:

“The applicant has the supporting documents issued by the relevant authorities, e.g. the Hospital Authority, specifying the health reason for which the applicant cannot accept the flat allocated or the health reason for making special allocation requests, e.g. there is a member of family suffering from asthma or knee joints disease, so that he/she is not suitable to go up and down the stairs and must reside on a floor directly accessible by elevators; or there is a member of family who, relying on a wheelchair for mobility indoors on a non-temporary basis, must be allocated with a flat renovated to become suitable for his/her residence. Documents not specifying such reasons, e.g. follow-up consultation appointment slip, will not be accepted.”

31.Having examined the applicant’s relevant documents and the medical report she mentioned at page 5 of her submission dated 17 January 2019, we do not see that Au J has erred in any way in his judgment. We agree with Au J’s views that it was a reasonable and lawful finding on fact by the Appeal Tribunal that the applicant failed to advance reasonable grounds in support of her refusal to the allocation offers.

32.The applicant considered that given “transfer within the estate” was specified as the heading of the Notice to Transfer, she could refuse the relevant allocation offers. This point was not advanced by the applicant at the Court of First Instance, and it should not be considered in this appeal.

33.Further, we are of the view that the applicant’s complaint is not reasonably arguable. The Estate Office issued to the applicant on 27 September 2011 a letter of offer[4] which specified that if she dealt with the required formalities after the due date, her case would be passed directly to the Allocation Unit for arrangement of the allocation of a flat. Upon her refusal to complete and submit the application for transfer, the same information was also recorded in a letter issued by the Estate Office to the applicant[5] on 13 September 2012, and another letter to the District Councillor who assisted the applicant[6] on 3 July 2012.

34.Therefore, the Notice to Transfer issued by the Estate Office on 25 July 2013[7] in accordance with the arrangements of the Allocation Unit was not based on the applicant’s application for transfer, but it was a transfer made within the estate on the standard of “the most serious under-occupation households”. However, the applicant refused to transfer for the reason of health.

35.The remaining three other Notices to Transfer[8] were issued in the same system, not requiring the applicant to complete the application for transfer. Au J stated the same at paragraph 3 of the Form CALL-1.

36.The Appeal Tribunal listed in detail, in the Notes of Proceedings of 6 April 2017, the evidence taken into account by the Appeal Tribunal before the decision was made on 10 March 2017. When the issue is not complex and the relevant evidence is clear, the Appeal Panel is not required to elaborate on the assessment of the evidence like in a judgment by a court, unless there are special requirements in the legislation or the decision is plainly aberrant.

37.In respect of the issue of whether the applicant had advanced reasonable grounds in support of the reason for her refusal to transfer, it was not necessary for the Appeal Tribunal to conduct a complex analysis. There was in fact no dispute as to the contents of the documentary evidence submitted by the applicant.  The focus of the consideration was on whether those documents and the applicant’s statement of her personal circumstances were sufficient to prove that the applicant’s health problem had made her not suitable to be transferred to a flat of a smaller area. In this respect, the Appeal Tribunal made a value judgment, and its conclusion was not plainly aberrant.

38.Therefore, the applicant’s claim that the decision of 10 March 2017 lacked reasons cannot constitute a valid ground of judicial review.

39.One of the applicant’s grounds of opposition against the Housing Department’s decision was that out of the four allocation offers, the second one should not be counted, as it was issued upon someone’s application for “transfer within the estate” by impersonating her. In fact, this point came from her misunderstanding that the relevant Notice to Transfer was to be issued upon her application for transfer. We have explained at paragraphs 33 to 35 above that this was a misunderstanding. Therefore, this ground cannot be established.

40.For the above reasons, we are of the view that there is absolutely no chance of success in the applicant’s judicial review. Au J was absolutely correct in his decision to refuse to grant the applicant leave to apply for judicial review. Accordingly, we order that the applicant’s appeal be dismissed.

Costs

41.According to the usual rule in litigation, costs follow the event with the losing party paying the costs of the winning party. The Housing Department therefore is awarded costs of this appeal. Having considered the Housing Department’s statement of costs, we order that the costs be assessed at HK$60,000, and that between the applicant and the Appeal Panel, there be no order as to costs.

The applicant, unrepresented, appearing in person

Mr Benjamin Lam, instructed by Woo Kwan Lee & Lo, for the putative interested party

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.