Chow Oi Tong Amy v. Hong Kong Housing Authority and Another

HCAL 2480/2019

[2020] HKCFI 1163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2480 OF 2019

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J U D G M E N T

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INTRODUCTION

1.The applicant was the tenant of a public housing unit in Shui Chuen O Estate (“the Flat”) and the Hong Kong Housing Authority (“HA”), the First Respondent, was her landlord.  On 31 October 2018, she was given a Notice to Quit[1] (“the NTQ”) by the HA and was asked to vacate the Flat in a month’s time.  This was on the ground that she had failed to “retain regular and continuous residence” in the Flat (“沒有經常持續在上址公屋單位居住”) and therefore was in breach of the Tenant Agreement[2]. 

2.The applicant appealed against the NTQ to the Second Respondent (“the Tribunal”), which was appointed by the Appeal Panel (Housing)[3]. After two hearings[4], the applicant was informed by way of a Notice of Decision dated 28 May 2019 that the NTQ was confirmed[5] by the Tribunal.  

APPLICATION FOR JUDICIAL REVIEW

3.According to the amended Form 86[6] dated 7 May 2020, the applicant now challenge the decision of the Tribunal confirming the NTQ (“the Decision”)[7] by means of judicial review.  This is on the grounds that:

(1)  the Tribunal failed to give any or any adequate reasons for the Decision; and

(2)  the Decision is unreasonable in the public law sense. 

4.The reliefs sought by the Applicant include, among other things: a stay of execution of the NTQ; an order of certiorari to quash the Decision; remission of her appeal to a differently constituted tribunal for a fresh hearing; and costs.

5.The HA opposes the judicial review, whilst the Tribunal takes a neutral stand and is granted leave to be excused from the hearing.

FACTUAL BACKGROUND

6.The following factual background is largely not in dispute. 

The investigation

7.The Housing Department is the executive arm of the HA.  Under the department there is a division called the Public Housing Resources Management Sub-section (“PHRM”) which is tasked to combat public housing abuses.  It is a function of PHRM is to conduct random and arranged flat visits on public rental housing flats. 

8.The applicant signed the Tenant Agreement dated 5 May 2015 as the tenant and she has lived there alone all along[8].  According to the applicant, she has been a taxi driver. 

9.On 21 March 2018, the applicant’s case was referred to PHRM for tenancy control checks.  Mr Tsang, an officer of PHRM, conducted random visits of the Flat on various occasions between 28 March and 18 September 2018 (“the Investigation Period”) but he was unable to find the applicant there.  Eventually, Mr Tsang managed to make an appointment with the applicant for an arranged visit on 19th September 2018. On that day, the applicant arrived with a suitcase at 12:43pm which was just two minutes before the appointed time.

10.Subsequently, PHRM submitted a report of their findings and conclusions[9] in which the following points were highlighted[10]:

(1)  During the Investigation Period, which covered a period of 176 days, there were a total of 24 random visits to the Flat during the morning, afternoon and evening.  Not once did the officer manage to meet the Applicant.

(2)  During Investigation Period, the water metre reading of the Flat had only mildly increased two times and that included the day of the arranged visit on 19th September 2018 when Mr Tsang of PHRM turned on the taps for testing, thereby increasing the water metre reading by 0.0012 m³ (ie, 12 litres).  During the same period, the daily average water consumption of the Flat was a mere 0.0043 m³ (ie, 4.3 litres).  That was to contrast with the average daily water consumption of 0.06 m³ (ie, 60 litres) of a one-person household. Furthermore, there were a total of 157 days with zero water consumption[11].  The average daily electricity consumption rate was also a bit lower that the minimum of a one-person household.

(3)  The low water consumption rate did not just occur during the Investigation Period.  Between 5 May 2015 (the date of the Tenancy Agreement) and 19 September 2018 (the last day of the Investigation Period), which covered a period of 1,234 days, the applicant had only consumed a total of 4.7094 m³ of water, equating to a daily consumption rate of just 0.0038 m³ (3.8 litres).

(4)  What the applicant told Mr Tsang (ie, she would take rest in the Flat one to two days a week and that she would wash clothes there once a week) did not tally with her water consumption rate.

(5)  The applicant said on one hand that she “frequently” (經常) slept overnight inside her taxi and therefore there was bedding in the taxi.  She said on the other hand that she was a substituted driver (替更的士司機) and she worked irregular shifts and did not have a fixed taxi to drive.  PHRM found the above difficult to understand.  As to the applicant’s assertion that she “frequently” (經常) stayed (留宿) at her brothers’ places in Tuen Mun and Kwai Chung respectively[12], PHRM considered that the above suggested that she had other places of residence.

Based on the above, PHRM considered that the applicant had failed to retain “regular and continuous residence” and therefore recommended to issue a notice to quit against the applicant. 

11.Consequently, the HA issued the NTQ (dated 31^st October 2018) to the Applicant, citing Clause II (20) of the Tenancy Agreement and s19(1)(b) of the Housing Ordinance[13].

The first hearing

12.The Applicant then appealed against the NTQ to the Tribunal.  

13.The first hearing before the Tribunal was held on 25 February 2019.  A transcript of that hearing is included in the hearing bundle[14]. For the present purpose, however, it is not necessary for me to discuss the contents of the transcript at length.  It suffices for me to say that the Tribunal noted the lack of supporting documents from the applicant to show her working hours during the Investigation Period[15], as well as the discrepancies between her oral evidence[16] and what was said in the letters written on her behalf by her lawyer[17] and a District Councillor[18].  The Tribunal adjourned the hearing specifically to allow the applicant time to obtain further documents in support of her case. 

14.By a follow-up letter dated 4 March 2019[19], the Tribunal reminded the applicant to submit for its consideration: (a) any records concerning her working days and time (任何有關你的工作日期及時間的記錄); and (b) any documents which she thought the Tribunal should consider (任何你認爲有需要上訴審裁小組考慮的文件).

The second hearing

15.On 21 May 2019, the applicant attended the second hearing before the tribunal.  That was a fresh hearing due to a change in the Tribunal’s chairman.  Again, I do not intend to go into the details of that hearing.  A transcript is included in the hearing bundle[20].  It is noteworthy, however, that at the outset of that hearing, the applicant asserted that she would stay in the Flat for two to three hours every day[21].  As to this assertion, the HA accepted that if it were in fact the case, then it would be viewed as “continuous and regular residence”[22].  However, the HA contended that what the applicant asserted was not borne out by objective evidence of her water consumption.  Shortly after that, a significant portion of the meeting was focused on the following evidential issues:

(1)  the different versions about the applicant’s working hours and shifts as a taxi driver in her oral evidence and the letters written on her behalf[23];

(2)  whether there were any documents to support what she said about her work hours during the Investigation Period[24]; and

(3)  whether there was any explanation as to her constantly low water consumption for a period of 3 years and 5 months and the non-existence of any water consumption  between 11 April 2018 and 7 September 2018 in particular[25].

16.On 28 May 2019, the Tribunal issued a Notice of Decision[26] to the applicant informing her of its decision.  The relevant part of the notice said that the Tribunal, after having a careful consideration, decided to confirm the NTQ pursuant to s20(3)(b) of the Housing Ordinance[27](“上訴審裁小組經審慎考慮後，決定引用房屋條例第20(3)(d) 條確認上址單位的遷出通知書。”). 

17.On 24 June 2019, a document called the Notes of the Second Hearing (“the Notes” [28]) was prepared by the Tribunal.  That is an 8-page document consisting of 41 paragraphs.  The first 40 paragraphs are a summary of the background of the case, the applicant’s grounds of appeal and the evidence filed and given by the parties.  Then, at paragraph 41, the Tribunal gave the reasons for its decision (“the 5 Points”) as follows:

“41. 審裁小組在考慮上訴人及署方呈交的書面資料，以及上訴各方在聆訊上的陳述、提問及回應後，一致決定確認房委會向上訴人發出的遷出通知書，理由如下：

（一） 署方調查的證據顯示，上訴人並非經常持續在上址單位居住，上訴人違返租約第II(20)條，房委會有充分理據向上訴人發出遷出通知書。

（二） 上訴人未能提供任何調查期內有關她工作時間的記錄，以證明她長時間工作。

（三） 即使上訴人須長時間工作，但在署方調查期間，上址單位的水錶讀數由2018年4月11日至9月7日連續近五個月完全沒有變動，客觀證據顯示上訴人並非以上址單位為居所。

（四） 若上訴人因署方收回上址單位而無家可歸，署方會考慮安排上訴人入住臨時收容中心。

（五） 審裁小組看不到有理由行使酌情權。”

18.It should be noted, however, that the applicant had not been provided with a copy of the Notes prior to her application for leave to judicial review[29].  That only occurred after she was granted leave to judicial review and legal aid.  

19.Besides, the HA’s policy in respect of tenancy abuses was only fully revealed to the applicant for the first time after the leave was granted.  An affirmation[30] filed on behalf of the HA refers to (a) Paper No SHC 27/2008 entitled “Memorandum for Subsidised Housing Committee – Enforcement against Tenancy Abuses”[31] and (b) “Estate Management Division Instruction No M21/2008 entitled “Enforcement against Tenancy Abuses”)[32].  The said policy, insofar as it is relevant to the present case, is as follows:

(1)  Since 1994, NTQ should be served without warning in non-occupation cases, if the tenant is staying in proven alternative accommodation or non-residence is observed for a continuous period of up to three months.

(2)  Action should be taken to terminate a tenancy when the tenant is staying in proven alternative accommodation or not retaining regular and continuous residence for over three months.  

(3)  “Regular and continuous” should be construed in accordance with its ordinary meaning and reasonableness is the crucial yardstick in judgment the cases. 

(4)  Compassionate elements, if any, can be addressed as every tenant is given an opportunity to appeal against the NTQ.  The Housing Department will liaise with the Social Welfare Department for compassionate rehousing or other suitable assistance if necessary.

20.There is no challenge to the constitutionality of the aforesaid policy.

LEGAL PRINCIPLES

Amenability

21.Although s20(4) of the Housing Ordinance says, “The decision of the tribunal shall be final”, it does not oust the jurisdiction of the High Court, there being no authorities to support the contention that the High Court had no jurisdiction to judicially review a decision of an administrative tribunal just because the relevant provisions stipulated that the decision of the Tribunal be final: Kwan Shung King v Housing Appeal Tribunal^[33].

22.It is now well-established that in deciding to issue a notice to quit, the HA, and then the Tribunal, were exercising a public law function and their decisions were amenable to judicial review.  When issuing a notice to quit, the HA was exercising a statutory discretion under s19(1) of the Housing Ordinance, not a contractual right.  Further, the Tribunal was specifically created by the Ordinance and had a wide and unfettered discretion under s20 in determining appeals arising from the termination of tenancy by a notice to quit.  This was plainly a public law function: see Chan Chiu Wah v Housing Appeal Tribunal[34], followed in Wan Yung Sang v Hong Kong Housing Authority Appeal Tribunal (Housing)[35]. Furthermore, it is open to the Tribunal to amend, suspend or cancel the notice to quit even if breaches of the tenancy agreement are established: Kwan Shung King v Housing Appeal Tribunal, supra. 

Nature of judicial review

23.On the other hand, it is trite that the role of the court in a judicial review is not to provide a further avenue of appeal.  In the present case, the primary decision makers are HA and the Tribunal and evaluation of evidence and assessment of merits are primarily matters within their province.  As such, the court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision being challenged.

Duty to give reasons

24.Whilst I fully appreciate that there is no common law duty to give reasons in general and no explicit statutory requirement to do so in the present case, there are forceful reasons why it is desirable for the administrative decision makers to give reasons for their decisions.  As noted by the Court of Final Appeal in Oriental Daily Publisher v Commissioner of Television and Entertainment Licensing Authority[36]:

“First, it would impose desirable intellectual discipline and concentrate attention on the relevant issues. It would thus assist in ensuring that any decision is made on proper grounds and contribute to the effective disposal by the tribunal of its work. Secondly, reasons would assist in demonstrating to the parties that the tribunal has carried out its task properly and would enable them to decide on the appropriate course of action in the case at hand, including whether to appeal or apply for judicial review. It would also provide guidance in the future to the community and persons concerned in this area. Publishers as well as the law enforcement and prosecuting authorities would have a better understanding of the standards as applied by the tribunal and would be in a better position to make their own decisions accordingly. Thirdly, the reasons given by the tribunal will promote and enhance consistency in its decision making and assist the law enforcement and prosecuting authorities. I would observe that broad consistency in approach is important. Fourthly, the giving of reasons would demonstrate to the community that the tribunal is functioning properly and this would engender public confidence.”

25.Furthermore, as noted by Lisa Wong J in the recent case of The Trustees of the Church of England in the Diocese of Victoria, Hong Kong v Town Planning Board[37], citing with approval the judgment of the English Court of Appeal in R (Oakley) v South Cambridgeshire District Council[38], there is undoubtedly a judicial trend towards an insistence towards a greater openness in decision making and the common law is likely to apply its characteristic of pragmatism and robustness in this area. 

26.Therefore, I respectfully echo Lisa Wong J that the time may have come for the courts in Hong Kong to recognise that there is a general duty for an administrative body to give reason, unless there is a proper justification for not doing so.

Adequacy of reasons

27.As regards the principles applicable in deciding whether or not the reasons given by a decision-maker are sufficient or adequate in a public-law challenge, Lord Brown of Eaton-under-Heywood, whose speech in South Bucks DC v Porter (No 2)[39] the other law lords agreed, has the following to say:

“36      The reasons for a decision must be intelligible and they must be adequate.  They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved.  Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.  The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds.  But such adverse inference will not readily be drawn.  The reasons need refer only to the main issues in the dispute, not to every material consideration.  They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications.  Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced.  A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.” (Emphasis supplied)

28.Principles similar to the above quoted can also be distilled from local authorities which have been neatly summarised by Chow J in Rai Rajendra Kumar v Director of Immigration[40].  Although Kumar was an immigration case, I consider that the legal principles summarised by Chau J in that case is of general application:

“17. First, the sufficiency of the reasons depends on the legal framework within which the decision is given, the context of the decision, as well as the nature of the issue(s) to be determined by the decision-maker. Reasons can be brief and must be read with common sense. In Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, Stock JA stated that following:

“[97] Sound public administration requires that when reasons are required or are provided for an administrative decision, they should be clear as well as sufficient to the circumstances. The provision of adequate and clear reasons, where reasons are required by law, is a function of sound administration because transparency is more likely to promote confidence in public administration than is opacity, and also because the very requirement to provide clear reasons against the background of the particular issues raised itself encourages a disciplined approach to the issues at hand. But, most obviously, the requirement is based on fairness, so that the person or body adversely affected by a decision should have an adequate indication of the reasoning process, enabling him to know whether the decision-maker has addressed his grievance and whether there may be a basis for challenging the decision. So too clarity and sufficiency of reasons enable a supervisory court in judicial review better to assess the legality of a decision under challenge. See Fordham’s Judicial Review Handbook, 4^th ed., paras. 62.1.5 to 62.1.9.

[98]   What is sufficient will depend on the legal framework within which the body takes the decision and upon the case at hand.  Sometimes a brief statement of reasons will suffice, because in context no more needs to be said.  Sometimes, although the words employed in the reasons articulated might have been more clearly stated, a common sense approach in context of the reasons, or of the particular history, as a whole will readily reveal what was obviously intended and the courts should be loathe to permit scrutiny of reasons as if they constituted a statutory instrument.  Reasoning must be examined with reality and contextual common sense.  That said, where a real issue arises as to whether an allegedly material issue was or was not taken into account, or what was at the end of the day made of that issue by the decision-maker, the courts are entitled to expect the answer to be sufficiently clear from the evidence before it without having to resort to guesswork.  That, so it seems to me, is the problem – in my judgment, the sole problem – with which the respondent is faced in this appeal.”

18. Second, the court should consider a reasons challenge with practical reality in order to prevent an application for judicial review from being turned into a merits review, and avoid “over-judicialisation” of day-to-day administrative decision-making processes (see the general discussion by Sir Anthony Mason, NPJ in C v Director of Immigration (2013) 16 HKCFAR 280, at paragraph 81 to 82, on the limits of judicial review).

19. Third, a reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure of the decision-maker to provide an adequately reasoned decision (see Dembele Salifou v Director of Immigration, HCAL 44/2014 (22 April 2016), at paragraph 106(3) per Au J; Pagtama Victorina Alegre v Director of Immigration, HCAL 13/2014 (12 January 2016), at paragraph 227(3) per Au J).” (Emphasis supplied)

See also Wei Linghui v Hong Kong Federation of Insurers Insurance Agents Registration Board[41].

29.Besides, in a recent decision of Au J (as he then was) in Ng Shek Wai v Hong Kong Institute of Certified Public Accountants[42], his lordship says,

“42. In other words, in the applicant's present judicial review, which is an adequacy of reasons challenge, the essential question to be determined by the court is whether, when viewed objectively in the specific factual context of the present case and the information and materials that were objectively known to the applicant as at the material time, the reasons as provided in the Decision and the Replies were adequate to enable the applicant (and a reasonable person in his position) to understand why the respondent did not consider there was a prima facie case of professional conduct as complained by the applicant.

43. Hence, what the court needs to look at and focus on in determining this essential question at the substantive hearing of the judicial review is, and should be confined to, all the objective facts, materials and information that were known or objectively known to the applicant at the time of the Complaint and when he received the Decision and the Replies. It is against this context and objective background that the court is to assess whether the Decision and the Replies contained adequate (as contended by the respondent) or inadequate (as the applicant argues) reasons.”

30.Furthermore, where the reasons given are inadequate, the decision would be regarded as Wednesbury unreasonable: Ng Wing Hung v Commissioner of Registration[43].

CONSIDERATION

As to Ground (1): adequacy of reasons

31.I do not have any problem with the fact that the Decision was made known to the applicant with the reasons to be given to her within a reasonable time after that.  If the applicant were made a timely offer of provision of reasons on request, that might also be acceptable: cf R (savva) v Kensington and Chelsea Royal London Borough Council[44]. However, it is not the case.  The Notice to Decision given to the applicant was woefully silent as to provision of reasons, whether on request or otherwise. There is also no evidence to show that the applicant had been told that she could request for the Tribunal’s reasons and who she should contact for that purpose.  Moreover, since the Tribunal does not seek to be heard in the present proceedings, this court does not have the benefit of knowing from the Tribunal direct why it had not provided the reasons on its own initiative, even though the reasons had been available almost four months before the applicant’s leave application.   

32.There is affirmation evidence[45] from the HA intimating that (i) the Housing (Tenancy Appeals) Rules, Cap 238D (by which the Tribunal is governed) do not lay down any statutory duty to give reasons; (ii) the Tribunal does not usually include reasons of the decision in its Notice of Decision[46]; (iii) the Tribunal will provide a copy of the Notes, which includes the reasons of the Tribunal’s decision upon request; and (iv) in the present case, no such request had been made by the applicant. 

33.With respect, if what is said in the HA’s aforesaid affirmation indeed represented the practice of the Tribunal (which, I note, was a separate legal entity from the HA), then in my view such a practice would be wholly unsatisfactory in view of the current judicial trend as discussed above and it is difficult to see any justifications in the present context.  Firstly, I ask rhetorically, how could a tenant acting in person (like the applicant at the leave stage) even know that reasons would be given?  Moreover, it is probable that a lay person like the applicant would not appreciate the different roles played by the HA, the Housing Department and the Tribunal as “one authority”, so that he or she may not be able to make the request for reasons to the right entity.  Secondly, I am unable to see how the bureaucratic practice of not providing reasons except on request could promote transparency and thereby engendering public confidence that the Tribunal is functioning properly?  Thirdly, there is a risk that the practice would deprive the person affected of the opportunity to consider at an early stage whether the decision was lawfully reached.  Fourthly, there is also a risk that the practice would increase the risk of unnecessary legal challenges. 

34.Indeed, the Tribunal’s failure to provide to the applicant prior to the applicant’s leave application was a major factor contributing to this court granting her leave to judicial review.

35.That said, now that the Notes have been made available to the applicant, Mr Ng realistically accepts that the issue has become more about the adequacy or otherwise of the reasons rather than the failure to give reasons.  I consider this concession to be correctly made in view of the judgment of Stock JA (as he then was) in Capital Rich Development Ltd,applied in Smart Gain Investment Ltd v Town Planning Board[47], that the same public law requirements on the adequacy of reasons are applicable where (i) reasons are required, or (ii) they are in fact provided.  See also Robert Flickinger v Director of Immigration[48].

36.Mr Ng submits that when considering the adequacy of the Tribunal’s reasons, this court should simply look at the 5 Points listed at paragraph 41 of the Notes.  Moreover, he submits that this court should not conduct a “paper chase” through the rest of that document, the transcripts of the first or second hearings and extrinsic documents in order to “decipher” whether the Tribunal had made any findings which may support or supplement the 5 Points given.  Reference is made to R (on the application of Macrae) v County of Herefordshire District Council[49]. 

37.I note that R (on the application of Macrae) v County of Herefordshire District Council a planning case where the Council was under a statutory duty to give a summary of their reasons for granting planning permission.  The Council’s planning officers had repeatedly recommended that planning permission in question should be refused on the ground that it was contrary to various policies in the Herefordshire Unitary Development Plan.  However, members of the Council resolved that planning permission should be granted.  The Council’s summary reasons for granting planning permission were set out in an “Informative” at the end of the planning permission.  The summary began by saying that the decision to grant planning permission has been taken having regard to various applicable policies and proposals.  Then it continued as follows: 

“In reaching this decision the local planning authority was mindful of the particular circumstances of the case, namely the extent to which the development complied with policy and the way in which local issues of the housing needs of the applicant were addressed. This informative is only intended as a summary of the reasons for grant of planning permission. For further details on the decision: please see the application report …”

38.As to whether the failure to comply with the statutory requirement to give reasons could be ameliorated by extrinsic evidence, Sullivan LJ said[50],

“28. I there (sic) referred to extrinsic post hoc evidence.  The judge in the present case thought it was permissible to rely on contemporaneous evidence, that is to say the minutes, albeit that they were extrinsic to the summary reasons for granting planning permission.  If the summary reasons cross-refer to an officers’ report which has recommended the grant of planning permission, it is entirely consistent with the statutory purpose to look at that document as fleshing out the summary reasons given for the grant of permission.  However, looking at extraneous documents to which the summary reasons do not refer, and in effect conducting a “paper chase” through the local planning authority’s minutes, frustrates the statutory purpose of requiring summary reasons.  The minutes of the council’s debates were not referred to in the summary reasons, and they do not in any event enable an answer to be given to the question: did the members think that this was a decision that was in accordance with the development plan, and if so for what reasons since they were disagreeing with the officer’s view; or was this a decision that was contrary to the development plan but material considerations indicated that permission should be granted, and if so what were those material considerations which justified the departure from the development plan given that the officers had said that a departure was not justified?”  (Emphasis supplied)

39.In the present case, the transcripts of the first and the second hearings simply do not contain any reasons of the Decision.  As aforesaid, the first hearing was adjourned for the applicant to obtain further evidence.  At the end of second hearing, the parties were asked to leave so that the Tribunal could deliberate on the matter and the transcript thereof did not report the deliberation of the members.  As regards the Notes, there is no dispute that the first 40 paragraphs are just a neutral, “straight from the book” summary of the case background, the applicant’s grounds of appeal and the evidence adduced by the parties.  I note in passing that there is no dispute about the accuracy of the summary.  Therefore, it is not a situation in which this court or any reasonable reader is required to perform any “paper chase” in order to “decipher” the Tribunal reasons. 

40.Both Mr Ng and Ms Cheung agree that the Tribunal’s reasons are to be found at paragraph 41 which contains the 5 Points.  That said, it does not mean that the transcripts and the first 40 paragraphs of the Notes are irrelevant for the purpose of this judicial review. In my view, the transcripts and the first 40 paragraphs of the Notes serve to help one to understand what the main issues before the Tribunal were.  In this regard, both the English and local case authorities on reasons challenge cited above say with one voice that the adequacy or otherwise of the reasons given would very much depends on the nature of the issues calling for decision and that the reasons need refer only to the main issues in the dispute, not to every material consideration.

41.During oral submissions of counsel, a legal issue arose as to how far the court may take into account that the applicant was an “an informed reader” when assessing the adequacy of the reasons given.  Mr Ng submitted that as a general principle the court should not take that into consideration and he relies on R (the Midcounties Co-operative Ltd) v The Forest of Dean District Council[51] in which Collin J said:

“29 Whether or not I would have agreed with Sir Michael about the adequacy of the reasons in the Ling case is nothing to the point. I am entirely satisfied that the reasons given in the permissions in this case were inadequate. Mr Clarkson submits that the claimants were informed readers, were aware of the officer’s reports and so would know why the decision had been reached. That does not save inadequate reasons. Article 22(1) [of the Town and Country Planning (General Development Procedure) Order 1995] requires the reasons to be included in the notice and should not require the interested party (who may not have been aware of the application as an objector) to have to search the background material including officer’s reports to understand why permission was granted and in particular whether there were any issues raised against the application. No doubt if there were no objections, that can be stated and it will suffice in such circumstances to say no more than that the application accorded with the relevant policies.” (Emphasis supplied)

42.With respect, I do not agree that the above passage supports Mr Ng’s contention which I find to be inconsistent with South Buck DC v Potter (No 2), supra, which is of high authority standing for the proposition that a decision must be read in a straightforward manner, “recognising that they are addressed to parties well aware of the issues involved and the arguments advanced”.  

43.Moreover, what Collin J said in R (the Midcounties Co-operative Ltd) v The Forest of Dean District Council has to be read in context.  It was a planning case involving various interested parties.  In that context, Collin J said that whilst it was generally correct that requirement to give summary reasons for a grant of permission would principally be for the benefit of interested members of the public, it would also be of interest to an objector wishing to challenge the decision, and, to an applicant concerned to check that there was no apparent flaw in the grant of permission which might make it unwise for him to implement the permission immediately.  The obligation to give summary reasons was therefore based on the same considerations which applied to the obligation to give full reasons for refusal of permission.  In that case, the reasons given were found inadequate in that the interested parties should not be required to search background material, including officer’s reports, to understand why permission was granted and in particular whether there were any issues raised against the application.

44.However, the present case is totally different from the situation in R (the Midcounties Co-operative Ltd) v The Forest of Dean District Council.  Here, the only objecting party was the applicant.  As aforesaid, the key issue for the Tribunal to decide was whether she had, as asserted by the HA, failed to “retain regular and continuous residence”.  She knew that the objective evidence adduced by the HA was to her disfavour and the Tribunal was concerned about the lack of independent evidence to support her case to the otherwise.  In my judgement, this state of affairs is plainly relevant when one considers the adequacy or otherwise of the 5 Points.  As Stock JA said in Capital Rich Development Ltd, the requirement is based on fairness, “so that the person or body adversely affected by a decision should have an adequate indication of the reasoning process”.  And as Au J (as he then was) said in Ng Shek Wai’s case, in an adequacy of reasons challenge, the court would have to take into account what information and materials were objectively known to the climant as at the material time.

45.What then were the main issues before the Tribunal that it had to resolve?  Since the NTQ was issued on the sole basis that the applicant was allegedly in breach of Clause II (20) of the Tenancy Agreement, it would be obvious that the crux of the matter which the Tribunal had to decide was whether the applicant had in fact failed to “retain regular and continuous residence”.  Secondly, the applicant was asked by the Tribunal to obtain records of her working hours and the first hearing was adjourned specifically for that purpose.  The Tribunal’s request was followed up by a remainder letter.  As such, the applicant must have known that the Tribunal was concerned whether her assertions about her working hours could be independently supported by work records.  Thirdly, at the outset of the second hearing the applicant asserted that she would stay in the Flat for two to three hours every day.  The HA replied by saying that in which case the applicant’s residence there would be viewed as “continuous and regular”.  However, the HA argued that the applicant’s case was not borne out by objective evidence.  Shortly after that the applicant was asked at length by the Tribunal about the discrepancies among the various versions from her as to her working hours and shifts and the lack of the relevant records.  Bearing all these in mind as the backdrop, it must have been obvious to the applicant and any reasonable man that her credibility would be of pivotal importance in the Tribunal’s deliberation. With the above in mind, I now turn to consider the 5 Points. 

46.Point (1) is about the issue of the NTQ.  The Tribunal refers to the evidence from the investigation of the department (“署方調查的證據”). Therefore, in my view it is consistent with R (on the application of Macrae) v County of Herefordshire District Council that this court can refer to the HA’s investigation which are noted in the summary section of the Notes[52].  In view of the objective evidence of the water metre readings and the undisputed result of the random checks (that the applicant was not there on those 24 occasions) as stated in the Notes, I do not think that there can be any serious criticism of the Tribunal’s conclusion that the HA was justified in issuing the NTQ.  In any event, the assessment of evidence of a matter for the Tribunal.

47.Point (2) is about the lack of independent documentary evidence showing the applicant’s working hours.  With respect, Mr Ng’s criticism that this point is inadequate as it consists of only “one sentence” and is without any “process of reasoning” is not justified.  As discussed above, there are a load of case authorities to the effect that brevity does not equate to inadequacy.  Also, the Tribunal was stating a blunt fact and no “process of reasoning” was called for.  Even the applicant accepts that the only available record which she obtained from a taxi company shows only the dates and time for which she rented a taxi, but not her working hours[53].  The absence of documentary evidence to support the applicant’s assertions about her working hours is plainly a relevant factor which the Tribunal was entitled to take into account in assessing the applicant’s credibility.

48.Moreover, I do not agree with Mr Ng’s submission that the Tribunal does not disbelieve the applicant’s evidence.  Given that the Tribunal has taken note of the HA’s concession as to what is capable of  constituting a “regular and continuous residence”[54], it would be obvious to the applicant and any reasonable reader of the Notes, as day follows night, that the Tribunal has rejected the applicant’s oral evidence that she spent 2 to 3 hours per day at the Flat, even though the Tribunal has not said it explicitly.  Otherwise, the Tribunal would not have said that the applicant was in breach of Clause II (20) of the Tenancy Agreement (“上訴人違反租約第 II(20) 條”). 

49.That the Tribunal does not accept the applicant’s evidence is made even more clearer by the starting phrase of Point (3): “即使”, which means “even assuming” or “even if”.  By that phrase, it is plain that the Tribunal is indicating a disbelief of the applicant’s evidence.   Moreover, I also agree with Ms Cheung’s submission that the Tribunal did take the applicant’s case at its highest, and did weigh her subjective evidence with the objective findings by the PHRM.  Even so, in the Tribunal’s assessment, the applicant’s evidence simply pales in significance and relevance.

50.By Point (4), the Tribunal has considered any hardship which the applicant may encounter should the Flat be re-possessed and what re-housing arrangement the HA would make to assist her. 

51.By Point (5), the Tribunal was acutely aware of its discretion not to confirm the NTQ in spite of the breach of Clause II (20). In the event, the Tribunal did not see any grounds for exercising that discretion. 

52.For the sake of completeness, there is a complaint[55] in the Amended Form 86 premised on s20(2A)(b)[56] of the Housing Ordinance as to whether the Tribunal had considered the HA’s established policy in issuing the NTQ.  However, this complaint has not been referred to in Mr Ng’s written or oral submissions.  With respect, counsel is correct not to place any reliance on this point which, in my judgment, is a “red-herring”.  The decision of the HA to issue the NTQ was based on its contractual right under the Tenancy Agreement and s20(2A)(b) has no application or relevance whatsoever. 

53.Having applied the relevant case authorities, I am of the view that the reasons contained in paragraph 41 of the Notes, taken as a whole, are sufficiently clear and adequate.  This ground fails.

As to Ground (2): Wednesbury unreasonableness

54.In view of my ruling on Ground (1) above, insofar as this ground is premised on inadequacy of reasons, it is bound to fail. 

55.Furthermore, since assessment of evidence is a matter for the Tribunal, it is not to point that not everyone would have come to the same decision on the evidence.  Once the Tribunal has rejected the applicant’s evidence, the Tribunal is entitled to reach the decision as it did on the basis of the objective evidence before it.  In other words, the Decision is not one that no reasonable tribunal could have made. 

56.This court is aware that the applicant had spent a significant sum on the renovation of the Flat when she first moved in and that she worries about her future accommodation when she ceases to work.  This court also understands that the Decision may cause difficulties to her.  However, this is not an appeal on merits and this court is unable to see any valid grounds for interfering with the Tribunal’s discretion by way of judicial review.

57.In this regard, I respectfully adopt the following passage of Yeung VP, who gave the judgment of the Court of Appeal in 胡小莉 對 香港房屋委員會[57], concerning the scarcity of land and the tremendous needs for public housing in Hong Kong:

“39. 香港地少人多，對大部分香港居民來說，居住是一個不容易解決的問題。為了協助無能力自置物業的居民，香港政府自上世紀70年代，便不斷大量興建公屋，然後以遠較巿場租值為低的租金，租住給有需要的居民。由於僧多粥少，政府在分配公屋時，必需謹慎行事，以避免流失寶貴的社會資源。根據房委會的政策，房委會對嚴重違約行為（包括租戶逾三個月非經常持續居住於單位），一律不予警告而發出遷出通知書。該政策是必須的，亦是合理的，否則公屋居民會濫用居住權，影響其他需要在公屋居住的香港居民的權利。

…

49. 行政機構有權作出它們認為是合理及適當的政策決定。法庭行使司法覆核權監察行政機構作出的決定時，所關注的並非是有關的決定是好還是不好。

50. 要法庭行使司法覆核權推翻行政機構作出的決定，申請一方要證明行政機構作出的決定是非法的，或是越權的；或是在作出決定的過程犯了程序上的錯誤，例如將不應考慮的無關因素考慮在內，或沒有將有關因素考慮在內；或行政機構作出的決定是極不合理的，是任何合理的行政機構都不會作出的。

52. 考慮到香港整體社會對住屋需求及公屋的短缺情況，房委會定下的政策，即當有任何租戶包括登記家屬成員逾三個月非經常持續居住於單位，房委會一律不予警告而發出遷出通知書，並非不合理的政策。上訴人指房委會的處理方法違反了《基本法》和《北京條例》的條款的說法是完全沒有基礎支持的。

…

54. 房委會的決定會對上訴人做成困擾，但不能被視為全不合理，更非任何合理的行政機構都不會作出的。”

58.Thus, the applicant’s ground on Wednesbury unreasonableness is not made out.

ORDERS

59.Based on the above, I dismiss the present application.

60.As to costs, I make an order nisi that the HA is to have its costs of these proceedings, to be taxed if not agreed.  The applicant’s own costs are to be taxed in according with the Legal Aid Regulations.