Chan Yau Ling v. Housing Appeal Tribunal and Another

HCAL 427/2023

[2023] HKCFI 1192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 427 OF 2023

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DECISION ON LEAVE

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A.  Introduction

1.By a tenancy agreement dated 22 February 2021, the Applicant was granted a public rental housing unit by the Housing Authority (“HA”). By a Notice to Quit (“NTQ”) dated 31 August 2022, the HA terminated the tenancy agreement with effect from 30 September 2022. The Applicant appealed to the Appeal Tribunal (Housing) (“Tribunal”) which confirmed the NTQ by a decision dated 21 December 2022 (“Decision”).

2.By a Form 86 filed on 20 March 2023, the Applicant seeks leave to challenge the Decision by way of judicial review. The oral leave hearing was heard on 4 May 2023. The Tribunal took a neutral stance and was excused, as is usual. The Applicant was represented by Ms Myranda Lai of Counsel in the oral hearing, but the Form 86 and some of the written submissions filed on behalf of the Applicant were signed by Mr Valentine Yim of Counsel. The HA was represented by Mr Benjamin Lam of Counsel.

3.At the conclusion of the hearing, I reserved my decision.

4.This is my Decision on Leave.

B.  Background Facts

5.The Applicant is a married man with a wife and a son. The son is now 13 years old. All members of the family are Hong Kong residents. But since 2000, the Applicant had been working and residing in Shanghai. In 2009, the Applicant married his wife in Hong Kong and their son was born in Hong Kong in the same year. Apparently thereafter the family had been residing in the mainland until they eventually relocated back to Hong Kong in July 2022.

6.The Applicant applied for public rental housing in about 2014 or 2015. It was said that the plan was that the son should have his secondary school education in Hong Kong. Therefore, the family made the application when the son started to attend Primary 1, expecting it would take 6 to 7 years before a flat was allocated.

7.In February 2020, the Applicant was informed by the HA that he was allocated a flat (“Flat”) in a public housing estate known as Chun Yeung Estate. But the allocation was then temporarily withheld, because the Government had decided to utilise the Flat for Covid-19 quarantine purpose. In August 2020, the Applicant was informed that the Flat would become available for him again.

8.Eventually, on 22 February 2021, the Applicant signed the tenancy agreement in Hong Kong, with the tenancy to commence on 8 March 2021.

9.Clause II(20) of the tenancy agreement provides that the tenant and all family members shall take up the tenancy within one month after the commencement of the tenancy and thereafter shall retain regular and continuous residence in the premises.

10.The HA has the practice of conducting random checks on new public housing households against potential tenancy abuse. The Applicant’s Flat was one of the targets in the operation. Investigation by the HA showed that the Applicant and his family members had not retained regular and continuous residence in the Flat from December 2021 to mid-July 2022. This was evident from the facts that: none of the family members were sighted in any of the 28 surprise visits paid by the HA to the Flat; the readings on the water and electricity meters showed zero consumption; and immigration records showed that all the family members were out of Hong Kong almost 100% of the time.

11.The HA decided to terminate the tenancy by the NTQ, to recover the Flat. On 27 July 2022, the Applicant was informed by phone that, since he and his family were not residing in the Flat, the HA would repossess it.

12.The Applicant returned to Hong Kong the next day, on 28 July 2022, and so did the wife and son on 31 July 2022. The family have been residing in the Flat ever since.

13.It was not disputed that the family did not start living in the Flat until late July 2022. But the Applicant said that the family’s plan to relocate back to Hong Kong and to reside in the Flat started as early as when they first heard that they were successfully allocated the Flat in 2020, and long before they were informed on 27 July 2022 of the HA’s plan for repossession. Relocation efforts included looking for a secondary school place in Hong Kong for his son as early as in 2020, withdrawing from the son’s then school in the mainland after they had been informed in July 2022 that a secondary school place would be available, entering into a contract to renovate the Flat in 2021, and so forth. I will return to these matters in more detail below.

14.The Applicant said the delay in returning to Hong Kong was caused by the Covid-19 pandemic which made it difficult for him to get a job in Hong Kong and that the Hong Kong Education Bureau was unable to allocate a secondary school place for his son until the school year starting in September 2022.

15.On 31 August 2022, the HA issued the NTQ pursuant to section 19(1)(b) of Housing Ordinance Cap 283 (“Ordinance”). Section 19(1)(b) permits the termination of any lease by giving one month’s notice to quit.

16.In a letter of the same date (“31/8/22 Letter”) accompanying the NTQ, the HA said that the prevailing policy (“Policy”) is to issue a notice to quit to terminate the tenancy under section 19(1)(b) if there is any breach of the terms and conditions in the tenancy (or contravention of the Marking Scheme for Estate Management enforcement, which is irrelevant for the present purpose).

C.  The Materials before the Tribunal

17.The Applicant then appealed against the NTQ under section 20 of the Ordinance. The appeal was heard on 12 December 2022. The Applicant had the benefit of a Mandarin/Cantonese interpreter at his request.

18.There were some disputes as to what materials were placed before the Tribunal and what were not. Whilst the factual assertions made by the Applicant before the Panel were largely in line with what was put before me, I agree with Mr Lam that there are facts, particulars or supporting documents which have only been made available to the Court in these judicial review proceedings, but which were not available to the Tribunal. I shall not take those into account.

19.Whilst taking a neutral stance, the Tribunal has helpfully provided a copy of the relevant materials that were before it for the purpose of the appeal. The most important document is a memorandum (“Memorandum”) prepared by the HA, which contains a summary of the relevant facts and documents on which it relied. The HA also exhibited to the Memorandum a letter dated 1 September 2022 (“1/9/22 Letter”) written by the Applicant addressing the HA. The 1/9/22 Letter sets out the Applicant’s plea and encloses various documents, including other letters written by the Applicant to other authorities seeking assistance.

20.In my summary of the facts and evidence before the Tribunal below, I shall make it clear when a piece of information or some particulars or supporting document was not placed before the Tribunal.

21.The Applicant’s factual case before the Tribunal was as follows:

(1)  After he was again informed in August 2020 that the Flat had become available to be rented to him, he wanted his sister, who was then living in Hong Kong, to sign a tenancy agreement and complete the formalities for him. The Applicant was working in Shanghai. Because quarantine was imposed in both Shanghai and Hong Kong at the time, he would have to take a total of 42 days’ leave from his work if he were to travel to Hong Kong to sign the tenancy agreement and then go back to the mainland.

(2)  The HA did not allow his sister to sign the tenancy agreement for him. The Applicant tried to seek leave from his employer for the purpose of travelling to Hong Kong, but such a long leave was not granted. The employer told him that he would have to risk his job if he were to leave his work without permission.

(3)  But the Applicant treasured the Flat since he had waited for years and decided to come back to Hong Kong despite his employer’s objection. He eventually came to Hong Kong in February 2021 and signed the tenancy agreement.

(4)  Upon his return to Shanghai in March 2021, he realised that his position at work had already been taken by someone else. As such, he lost his job with his then employer for whom he had already worked for 20 years.

(5)  He wanted the family to relocate back to Hong Kong and to take up the tenancy. But it was difficult to find a job in Hong Kong at that time during the pandemic, and his son had not yet been allocated a secondary school place in Hong Kong.

(6)  In May 2021, the Applicant and his family moved to Zhuhai. The Applicant found a job there, and the son switched to a primary school in that city. The son had to repeat primary 6 when he switched from Shanghai to Zhuhai. The exact time of moving to Zhuhai was only stated in the Form 86, but not in the materials before the Tribunal.

(7)  The Applicant had started to renovate the Flat in November 2021. On 5 November 2021, the Applicant entered into a contract with a design house in Shanghai for the interior design of the Flat, at the price of RMB5,000. On 2 July 2022, the Applicant signed a renovation contract for the Flat with a contractor in Zhuhai, at the sum of RMB280,000. On 8 July 2022, the Applicant paid RMB7,140 for the bathroom-ware for the flat. These matters were all supported by documents produced before me.

(8)  However, before the Tribunal, the matters concerning renovation of the Flat were not presented with as many details and the supporting documents were not produced. But the Tribunal was told that the Applicant had already started renovating the Flat and had spent RMB300,000, which amounted to 90% of his savings.

(9)  It was also explained before me with supporting documents that the Applicant applied to the Estate Management Office of Chun Yeung Estate for an approval to renovate the Flat on 29 July 2022. The application was approved on the same date. A notice to commence renovation work was issued on 5 August 2022. It appeared that the renovation project was indeed started, albeit it might not have been fully completed as planned.

(10)  The Tribunal was not informed that the Estate Management Office had given approval to renovate on 29 July 2022. But they were aware that the family had been living in a semi-renovated flat since July 2022.

(11)  The Applicant said that he had enlisted the assistance of his sister to liaise with the Education Bureau for the purpose of securing a school place for his son in Hong Kong as early as 2020. But, back then, due to pandemic measures, schools in Hong Kong opened and closed intermittently. He was advised by the Education Bureau that his son would have to attend online class and the teaching would not be conducted in Mandarin to cater for his language ability even if a school place was available. The Applicant was advised to let his son to continue his study in Zhuhai and only to come to Hong Kong for the school year starting in September 2022.

(12)  In early July 2022, the Applicant’s sister was informed by the Education Bureau that a secondary school place for Form 1 in Hong Kong had been allocated to the son. On 6 July 2022, the Applicant applied for his son to withdraw from the school he was then attending in Zhuhai. There was produced before me an application form for “transfer of student” dated 6 July 2022, apparently submitted to the son’s school in Zhuhai. The reason for transfer as stated in the form was that the Hong Kong Education Bureau had confirmed that the son could come back to study in Hong Kong. On 26 July 2022, the Applicant was officially informed of the specific secondary school to which the son was allocated, supported by an allocation slip issued by the Education Bureau.

(13)  Since September 2022, the son has studied in that secondary school in Hong Kong. He had to repeat Form 1 upon the transfer from Zhuhai to Hong Kong.

(14)  The narrative concerning the son’s education given before me is consistent with what was put before the Tribunal, although some of the exact dates – for example the date of withdrawal from the son’s Zhuhai school – were only made clear in the Form 86. Some of the supporting documents were also not available at the hearing before the Tribunal. The time when the family started to look for a school place in Hong Kong was only pinned to the 2020 in the Form 86.

(15)  Having to repeat both primary 6 and Form 1 has had severe emotional impact on the Applicant’s son. He apparently considers himself a repeater and always kept his head low.

D.  The Hearing before the Tribunal

22.What transpired in the hearing held on 12 December 2022 was reflected in a document called “Hearing Minutes” (“聆訊紀要”) which, as the title suggests, appears to be the minutes of the hearing.

23.The minutes are dated 30 March 2023. Thus, the Applicant could not have had this document when he filed the application for leave to apply for judicial review on 20 March 2023. The minutes were provided to me, separately, by both the Tribunal and the HA as an annex to their initial responses (which I had directed). The Applicant presumably was also served with a copy at the same time. It appears that the minutes were produced by the Tribunal and/or the HA. In any event, no party contested the accuracy of the minutes.

24.The minutes start with setting out the case background. Then is set out the evidence pointing to the fact that the Applicant and his family had failed to regularly and continuously reside in the Flat, as evident by the surprise visits, the readings of the water and electricity meters, and the immigration records.

25.The minutes then go on to set out the Applicant’s case against the NTQ. What was said in §21 above was summarised in a broad brush manner. It also states that the Applicant submitted the following to the Tribunal: (1) if the Flat was repossessed, the Applicant’s family would once again have to embark on days of drifting around; (2) they had spent almost all of their savings on the renovation and the Applicant was in despair because that money would have to go down the drain; (3) the son would have to give up his study in Hong Kong and be transferred back to the mainland for his study. Both the adults and child of the family would have to compete for placement, looking for quarantine hotels, jobs and schools.

26.The minutes then set out the situation after the NTQ was issued. It is said that in three surprise visits, conducted in September and November 2022, the staff of the HA did find members of the family living in the Flat on all occasions. The wife was also met in a pre-arranged home visit in December 2022. During a 120-day period from 11 August to 8 December 2022, the average daily water consumption of the flat was 0.321 m cube, while the average daily electricity consumption was 6.3 kWh.

27.After summarising both parties’ case and the post-NTQ situation, it was then recorded in the minutes what appears to be the exchange between members of the Tribunal and the parties:

(1)  The Tribunal asked the HA on its efforts to combat tenancy abuse in public rental housing and the kind of publicity work done in 2019 and 2020. The HA replied that it distributed a booklet with the relevant information to all tenants in Chun Yeung Estate. The HA had also put up posters in the lobby of public housing buildings, and promoted against tenancy abuse by notices on public transportation and in TV advertisements.

(2)  It appears that one of the Applicant’s main complaints before the Tribunal was that the HA had failed to give him any warning in the period from March 2021 to July 2022 before serving the NTQ. As such, the Applicant was unable to make an informed decision about whether or not he should take up the tenancy and relocate the family to Hong Kong. His point was that it would be impossible or nonsensical for the family to relocate back to Hong Kong immediately following the commencement of the tenancy, in light of the facts that (a) it was difficult for him to find a job in Hong Kong during the pandemic and (b) his son had not yet been allocated a school place in Hong Kong. It was the Education Bureau’s advice for the son to continue his study in Zhuhai until the September 2022 school year. However, he was only told that the Flat would be repossessed after all the arrangement for relocating the family back to Hong Kong had been made.

(3)  The HA said that it was not its responsibility to remind a tenant to reside in the unit or to ask the reason why the tenant did not live in that unit. The HA also pointed out that if a person does not live or work in Hong Kong, and his family members also do not live in Hong Kong, there is no reason why that person would be in need of a residence in Hong Kong.

(4)  The Tribunal pointed out that whether the Applicant should accept the public housing unit allocated to him was a matter for his personal consideration. When he was informed about the allocation, he could have told the HA that his family had been living in the mainland and were not in need of the Flat and refused the allocation. The Tribunal emphasized that public housing resources are precious and that many people have not been allocated such flats after waiting for many years. The Tribunal had to carefully consider how to reasonably allocate such precious resources.

(5)  The Tribunal asked about the current situation of the wife and the son and their future plans. The Applicant said that his wife had been working at the KFC near where they lived since September 2022. The son has started to attend the school allocated to him in Hong Kong since September 2022. After the son learned of the NTQ, he refused to go to school.

(6)  When the Tribunal learned that the wife did not work until she came to Hong Kong, the Tribunal asked why the wife did not come to live in Hong Kong since she was not at work. The Applicant responded that his son had not yet been allocated a place in Hong Kong school and it would be difficult for the wife to take care of the son and the renovation of the Flat all by herself.

E.  The Decision

28.The Decision is contained in a letter dated 21 December 2022 issued by the Panel. It was said, upon careful deliberation, the Tribunal decided to confirm the NTQ pursuant to section 20(3) of the Ordinance. No reasons were given in the Decision itself.

29.The only reasons are to be found in the last paragraph, §36, of the Hearing Minutes:

36. 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，審裁小組一致決定確認署方發出的遷出通知書，理由如下：

(1) 署方的調查證實，上訴人、其太太及兒子均沒有經常持續居於上址單位。因此，上訴人違反租約第II（20）條，署方有充分理據發出通知書。

(2) 審裁小組認為必須確保公屋資源得到妥善運用，否則，對眾多輸候公屋的申請人不公平。

36. Having considered the written material submitted by the appellant and the Department, as well as the statements, questions and responses of all parties concerned in the hearing for the appeal, the Tribunal unanimously decided to confirm the NTQ issued by the HA with the following reasons:

(a) the HA’s investigation confirmed that the appellant, his wife and son did not live in the about unit on a regular basis. Therefore, the appellant breached Clause II(20) of the tenancy agreement, and the HA had sufficient grounds to issue the notice to quit.

(b) the Tribunal considered that it is necessary to ensure that public-housing resources are reasonably used. Otherwise, it would be unfair to the many applicants who were waiting for public-housing.

30.As said, the Hearing Minutes are dated 30 March 2023, more than three months after the actual date of the hearing. As already set out, the hearing before the Tribunal was on 12 December 2022, and the Decision was conveyed by letter on 21 December 2022. But it is unclear whether the Decision was made and conveyed to the Applicant at the conclusion of the hearing, with the reasoning (since) recorded in the Hearing Minutes dated months later.

F.  Proposed Grounds of Review

31.In the Form 86 signed by Mr Yim, four grounds of review are proposed.

32.Ground 1 is that the HA has failed to take into account relevant matters. The relevant matters are that:

(1)  The Applicant and his family have a genuine and earnest need for public-housing.

(2)  There were genuine problems caused by the Covid-19 pandemic, including the son’s schooling, such that the Applicant was unable to come back to Hong Kong and to retain regular and continuous residence in the Flat.

(3)  The Government has taken various measures to assist Hong Kong citizens during the pandemic. The HA has allowed tenants of public rental housing to be in arrears of the rentals for the period of 12 months.

(4)  The Applicant had in fact planned to relocate back to Hong Kong well ahead of time when he received the NTQ. He started to look for a school in Hong Kong for his son back in 2020.

(5)  The HA has not been consistent in its actions. On the one hand, on 27 July 2022, the Applicant was told that he would be issued the NTQ by the end of that month. On the other hand, the HA approved the Applicant’s application to renovate the Flat on 29 July 2022, and issued to the Applicant the notice for commencement of renovation work on 5 August 2022.

(6)  The Applicant had spent a significant sum of money on the renovation of the Flat.

(7)  When a staff member of the HA (a Ms Choy) conducted surprise visits in August 2022, she noticed that the family was indeed living in the Flat and that renovation was undergoing.

33.Ground 2 is that the HA has fettered its discretion. The argument is that the HA’s power to terminate a tenancy under section 19(1)(b) is discretionary. Likewise, the Tribunal also has a discretionary power under section 20(3) to confirm, amend, suspend or cancel the notice to quit.

34.The Applicant relies on the well-established public law principle that whilst it is legitimate for a decision-maker to whom discretion has been entrusted to adopt a policy to guide his exercise and implementation of the discretion, he must not allow his policy to fetter his discretion. In other words, the policy must not be applied blindly and rigidly to the extent of precluding the decision-maker from departing from the policy by taking into account circumstances and merits of the particular case in question. A policy of general application must admit exceptions and the decision-maker cannot blindly follow a pre-existing policy without considering anything said to persuade him that the individual case in hand is an exception: see Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corporation [2009] 5 HKLRD 620 at §§31-35; R (Mas Group Holdings Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2019] EWCA 158 (Admin) at §56; and R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2006] 1 WLR 3923 at §16.

35.Whilst the Form 86 does not take great care to define the “policy” that is said to be too rigid or too rigidly applied, it is reasonably clear from the context that it is a reference to the “Policy” as identified in the HA’s 31/8/22 Letter – a policy requiring the serving of a notice to quit for breach of tenancy agreement such as Clause II(20).

36.It is said that the Tribunal simply relied on the Policy requiring a tenant to retain regular and continuous residence in his flat without giving proper consideration to the particular circumstances of the case. These circumstances include the problems caused by the pandemic, that the Applicant had started to look for a school in Hong Kong since 2020 as a step towards relocating back to Hong Kong, that the Applicant had spent a significant sum on renovating the Flat, etc. In other words, the Policy was applied in such a way that it automatically determined the outcome.

37.Ground 3 is that the HA failed to meet its Tameside duty by making sufficient enquiry into the Applicant’s case. This ground has – in my view, correctly – not been pursued by Ms Lai at the oral hearing, and has thus become irrelevant and I will not consider it further.

38.Ground 4 is that the Decision is unreasonable in the public law sense. In effect, the Applicant reiterated the particular circumstances of the family which he said should have persuaded the Tribunal to exercise its discretion in the Applicant’s favour.

G.  Ground 1 & Ground 4

39.It is convenient to deal with Ground 1 and Ground 4 together. This is not least because both grounds rely on broadly similar factual matters but also because, as will be seen below, the “failure to consider relevant matters challenge” in this instance is also a rationality challenge.

40.In the context of a public law challenge based on the suggestion that the decision-maker has failed to take into account relevant considerations, it is important to distinguish between three different categories of consideration: (a) those clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had: (b) those clearly identified by the relevant legislation as considerations to which regard must not be had; and (c) those to which the decision-maker may have regard if, in his judgment and discretion, he thinks it right to do so. In relation to the last category, what is and what is not a relevant consideration is for the decision-maker, not the court, to decide; and so is the weight to be accorded to such a factor if the decision-maker considers it relevant: see BI v Director of Immigration [2016] 2 HKLRD 520 at §47.

41.On the face of it, section 19(1)(b) requires no more than serving one month’s notice to quit. Nor does section 20(3) offer more guidance. None of the matters relied upon by the Applicant are identified as a relevant consideration to which the HA and/or the Tribunal is mandated to have regard under the Ordinance. In other words, matters relied upon by the Applicant fall within the category, the regard and the weight accorded to which is primarily a matter of discretion for the Tribunal.

42.That said, the Tribunal’s decision is, of course, still subject to the Court’s supervisory jurisdiction exercised in judicial review. The Court can still review if it would be irrational not to take into account certain factors or to accord them the weight as the Tribunal has decided. In this sense, both Ground 1 and Ground 4 could be said to be a conventional irrationality challenge. The overlap between the two grounds in the present case is all the more apparent when the irrationality challenge in Ground 4 is run on the basis that the Tribunal has failed closely to examine the very same matters which are put forward as relevant considerations under Ground 1.

43.The hurdle an applicant has to overcome for a rationality challenge is a high one. But it does not mean that the Tribunal is given entirely free rein.

44.In the case of 金素妍 對 香港房屋委員會主席 [2021] HKCFI 3188, the Applicant was issued a notice to quit for failing to retain regular continuous residence in the public-housing unit allocated to her. There, the applicant was a single parent. The housing unit was allocated to her and her daughter. Her case was that she worked as an immigration consultant which required her travelling to Europe. She landed in Europe in December 2019 and reached Turkey in February 2020. Because of the global pandemic and the lockdown measures adopted by Turkey, her work which was originally scheduled to finish by the end of February 2020 had eventually delayed her return until the end of 2020. Further, because the return air ticket and quarantine hotel expenses were expensive, she had only managed to return to Hong Kong in May 2021 after she had borrowed sufficient money. Because her daughter was under 16, she had arranged for the daughter to be taken care of by a relative when she was not in Hong Kong. The applicant emphasized that her being away from Hong Kong was involuntary. She had to work, and was as stranded in Turkey because of the pandemic and earthquake. If she returned to Hong Kong before completing the work, she would have to risk having to pay damages to her company for a breach of contract and to pay all her expenses in Turkey by herself.

45.In 金素妍, the Tribunal confirmed the notice to quit on the basis, among others, that it was inconsistent for the applicant to suggest that she was unable to return to Hong Kong because of the quarantine expenses but was then eventually able to return and paid for 28 days’ compulsory quarantine; and that the fact that the daughter was in the care of a relative would suggest that the Applicant and her daughter did not have a genuine need for housing. K Yeung J granted leave on the basis that the inconsistency identified by the Tribunal was debatable. He also decided that it was reasonably arguable that it was irrational for the Tribunal to have concluded that the applicant and the daughter had no genuine need for housing when the applicant did not stay in Turkey voluntarily and had to arrange a relative to take care of her daughter.

46.Every case must be decided on its own merits, and it seems to me that the facts of this particular case are rather different from the facts of that case. The question in this case is whether it is at least reasonably arguable that there was a public law failure to take into account material matters, or that it was be irrational for a decision-maker in the position of the Tribunal not to have decided in the Applicant’s favour.

47.As I understand it from the materials put before the Tribunal and the Hearing Minutes, the Applicant’s case was that he should have been given some period of time for him properly to arrange the relocation of his family back to Hong Kong, and a period longer than what would normally be expected was justified by the pandemic and the consequent difficulties in relocating back to Hong Kong.

48.The starting point of the consideration seems to me to be that the Applicant must have known of the consequences flowing either from (a) not entering into the tenancy, or (b) entering into the tenancy. Obviously, the Applicant probably would not have wanted to pass up the opportunity offered to him by the offer of the tenancy. That is why, notwithstanding the difficulty that it might cause for him to come to Hong Kong to sign the tenancy agreement personally, he did in fact come to Hong Kong for that purpose (though he then immediately returned to the Mainland). But equally obviously, the Applicant must have known that having entered into the tenancy agreement he was required to take up residence and continue it. Acknowledging for the moment that there might have been some practical difficulties in doing so, the Applicant must be taken to have chosen to enter into the tenancy notwithstanding that he knew there were practical difficulties in complying with its terms requiring nearly immediate and then continuing residence.

49.Where the Applicant was in effect asking the Tribunal for a discretionary indulgence to be allowed to him, notwithstanding the clear and undisputed breach of the terms of the tenancy, it is at least unfortunate that the Applicant appears to have been less than forthcoming in his dealings with the HA. Perhaps he thought he might take up residence sooner than he was in fact ‘able’ to do so. Perhaps he hoped that no one would notice his non-residence in the meantime. But there is real force in the HA’s argument that if a person does not live or work in Hong Kong, and his family members also do not live in Hong Kong, there is no reason why that person would be in need of a residence in Hong Kong. That is perhaps exacerbated in this case where the Applicant and his family had been away from Hong Kong for a considerable period even before the offer of the tenancy agreement in 2020.

50.I accept that it may be – in general – common sense that how quickly a family would or could relocate back to Hong Kong could at least be substantially dependent on when the child or children of the family could get a school place in Hong Kong. Looking at it only from the point of view of education, it may well be unreasonable to expect the Applicant’s family (including the son) to return to Hong Kong, possibly against the advice of the Education Bureau, when there was as yet no school place for the son. But this case depends on looking at matters from the point of view of the HA, and public housing resources and requirements. In reality, when the Applicant apparently accepted the advice of the Education Bureau, he was in practical terms acknowledging that he and his family did not need public housing in Hong Kong (at least not yet). The Tribunal was entitled to consider that the Applicant had weighed the pros and cons of staying in Hong Kong as opposed to in the Mainland.

51.As Mr Lam said, on the Applicant’s own case, it was not until July 2022 that the family decided to come back to Hong Kong once a school place had been found. I also note that it was only after the return in July 2022 – in immediate response to being notified of the coming NTQ – that there was the real flurry of activity relating to the Flat (even if some documents identify some earlier steps towards taking up residence).

52.Next, relying on the materials placed before the Tribunal and the Hearing Minutes, Mr Lam said the factual matters now relied upon by the Applicant either (a) were not put before the Tribunal for its consideration, or (b) were already considered by the Tribunal, or (c) were irrelevant matters.

53.Mr Lam pointed to the fact that that the Tribunal was not informed about the approval for renovation given by the HA on 29 July 2022, or the notice to commence renovation issued on 5 August 2022. Ms Lai argued that the Tribunal must be aware of its own policy on renovation and thus one would assume that it would be aware of the renovation approval in light of its knowledge about the actual renovation in progress. But, I do not agree with Ms Lai. The Tribunal is obviously independent of the HA. It should not be assumed that the Tribunal must know about the HA’s policy or practice, and still less, that the actual facts did conform with the policy or practice. The Tribunal is not to be the subject of fair criticism for failing to take into account a matter which was not informed by the Applicant. I would not take into account the renovation approval.

54.For most of the other matters, the HA said the Tribunal had already taken them into account, relying on the Hearing Minutes. It is said that the alleged difficulty caused by the pandemic and the son’s schooling were recorded as part of the case background in the minutes and constituted the bulk of the dialogue between the Applicant and the Tribunal members. The Applicant had also stressed how he would suffer from being evicted if the Tribunal did not set aside the NTQ and this was tantamount to a submission on the Applicant’s earnest need for public housing. The HA thus said these matters had all been considered by the Tribunal.

55.I think that what is set out as part of the case background or recorded as dialogue in the Hearing Minutes is a reasonably reliable guide as to what had been considered by the Tribunal. I acknowledge that the circumstances post-NTQ might therefore also be thought to have been considered by the Tribunal, since there was a section dedicated to this topic in the Hearing Minutes (even though now the HA’s stance is what transpired post-NTQ is irrelevant and those facts should not be taken into account in the Tribunal’s decision making process). But I do not lose sight of the fact that the Tribunal had rather less information than was made available to the Court, and is now available to the HA – as to which, see the Postscript below.

56.I acknowledge that the Decision letter itself contains no reasons, and the one-paragraph reasoning set out in §36 of the Hearing Minutes says little more than that the Applicant had breached the tenancy agreement and that the Tribunal had to treat other applicants awaiting public housing fairly. But, first, there is no ‘reasons’ challenge made by the Applicant and, secondly, the Decision needs to be read in the context of the totality of the matters in the Hearing Minutes. I also acknowledge that looking just at the Decision and Hearing Minutes, it cannot be seen precisely how the Tribunal has factored into the decision-making process those matters said to be relevant. But, fairly read, it seems to me that the Tribunal acknowledged the breach of the tenancy agreement, and against the various facts and matters which it had just recited thought that fairness to applicants awaiting public housing generally required the NTQ to be upheld, notwithstanding the arguments put forward against that.

57.As already noted, the facts just recited included the Applicant’s allegation of the havoc wrought by the pandemic on his ability to find a job in Hong Kong and as to the son’s being allocated a place in a Hong Kong school, culminating in the Applicant being ‘stranded’ in the Mainland, as well as how the Applicant would suffer from being evicted if the Tribunal did not set aside the NTQ (a plea equivalent to one that he had an earnest need for public housing).

58.It may be, though it was not expressed, that the Tribunal thought that it is unfair to other persons awaiting public housing if a person who has taken a tenancy fell to take it up until suddenly prompted to do so by being given a NTQ. Obviously, no one would wish to think that it is or should be easy to avoid the consequences of breaching a tenancy agreement by rushing back into residence.

59.In the circumstances, though not without some hesitation, I have reached the conclusion that Ground 1 and Ground 4 are not reasonably arguable with any real prospect of success.

H.  Ground 2: Fettering of discretion

60.It is not seriously disputed that the HA and/or the Tribunal still retains discretion whether or not to terminate the lease even though the Applicant was not in regular and continuous residence of the Flat in breach of clause II(20) of the tenancy agreement.

61.Ms Lai, on behalf of the Applicant, submitted that the Hearing Minutes do not show that the Tribunal had considered whether to exercise its discretion. Rather, the minutes only shows that the Tribunal has rigidly applied the Policy requiring regular and continuous residence.

62.The failure to retain regular and continuous residence in breach of the tenancy agreement was not disputed. In this light, had the Tribunal considered that it had no discretion but to confirm the NTQ, then the entire hearing held on 12 December 2022 would be redundant in the Tribunal’s mind. This seems rather unlikely.

63.But I also note that, as recorded in the Hearing Minutes, one of the submissions made by the HA was indeed that they would not ask why the tenant was not living in the unit if he was not living in the unit. That submission may support the Applicant’s argument that the HA had rigidly applied its policy without allowing room for departure in exceptional circumstances. But I do not think that means the Tribunal necessarily took the same approach. As stated, if there was the application of a rigid policy to confirm an NTQ upon satisfaction of the breach of the tenancy agreement, that would have rendered redundant at least a significant part of the appeal, which is not likely. Where there is no dispute as to the record contained in the Hearing Minutes, I do not think it reasonably arguable that the Tribunal might have reached the conclusion it did through the rigid application of the Policy without considering the merits of the individual case before it.

64.Ground 2 is, therefore, also not reasonably arguable with any real prospect of success.

I.  Conclusion

65.In the circumstances, it seems to me that the Applicant’s application for leave to apply for judicial review stands to be dismissed.

J.  Postscript

66.However, that may not be the end of the matter. This is because, through these proceedings, the HA has been given further points which the Applicant wishes to rely on, or further material in support of points already relied upon. I have in mind the further information about the son and his education, and the further information about the renovation – not least, the apparent ‘mismatch’ of the HA in giving permission to renovate (causing the Applicant to expend considerable funds in reliance on that permission) at the same time as issuing a NTQ, which would require the Applicant to vacate premises that he was just given permission to renovate.

67.In those circumstances – and notwithstanding the conclusion to which it appears to me that the Court must be driven on the application for leave to apply for judicial review, applying the appropriate principles applied to the available facts (at the material time) – there is clearly room for the HA to consider the updated position. By now, in accordance with the permission granted to him by the HA itself, the Applicant has expended considerable funds in renovating the Flat. He has done so because he, his wife and his son are now resident in Hong Kong. At least the wife is in employment, and the Applicant wishes to be employed. The son has taken up the school place offered to him by the Education Bureau, which had apparently advised him to await taking up that place.

68.It might be thought that these various matters identify now a genuine need for public housing for the Applicant and his family. The question may arise now as to whether that genuine need and the other factors mentioned are somehow outweighed by the previous period of breach of the tenancy agreement.

Ms Myranda Lai, instructed by Lee Chan Cheng, for the applicant

The 1^st putative respondent was excused from court attendance

Mr Benjamin Lam, instructed by Woo, Kwan, Lee & Lo, for the 2^nd putative respondent