鄭惠芬 v. 香港房屋委員會 (房委會)
Read the full judgment text of HCAL 1166/2023 on BabelCite. This High Court CFI judgment was delivered on 6 May 2024.
1. By her Form 86 dated 12 July 2023, the Applicant seeks leave to apply for judicial review so as to challenge a decision of the Hong Kong Housing Authority (“HKHA”) to reject the Applicant’s request for setting aside the Letter of Offer and the property transfer in respect of a public housing unit in Shatin (“Unit”) and restoration of the Unit to its original status as a public rental housing unit.
Cited by 6 cases · Cites 1 case
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HCAL 1166/2023 [2024] HKCFI 1059 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1166 OF 2023 ________________________ BETWEEN
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________________________ D E C I S I O N ________________________ A. Introduction 1.By her Form 86 dated 12 July 2023, the Applicant seeks leave to apply for judicial review so as to challenge a decision of the Hong Kong Housing Authority (“HKHA”) to reject the Applicant’s request for setting aside the Letter of Offer and the property transfer in respect of a public housing unit in Shatin (“Unit”) and restoration of the Unit to its original status as a public rental housing unit. 2.By my various directions given in October and November 2023, I gave leave to the HKHA to file an Initial Response to the application by 9 November 2023 (extended to 30 November 2023), and leave to the Applicant to file a Reply to that initial response by 7 December 2023 (extended to 28 December 2023 and further extended to 19 January 2024). My directions also indicated that I would then decide whether to deal with the application for leave to apply for judicial review on paper, and if so that I would proceed to do so without further notice to the parties. 3.The Initial Response dated 30 November 2023 was served by Woo Kwan Lee & Lo, solicitors for the Putative Respondent. In short, the HKHA’s position is that leave to apply for judicial review should be refused on various bases (which I shall traverse below). 4.The Applicant filed a bilingual Reply, in both Chinese and English, to the Initial Response on 16 January 2024, which has one hundred and thirty one paragraphs in total. In the Reply, she firstly set out her understanding of the background of the HKHA’s Tenants Purchase Scheme (“TPS”) from paragraphs 1 to 13. As the Reply’s paragraphs 14 to 15 and also the last section titled “The TPS is not a housing policy that benefits the people” are mainly the Applicant’s criticism on the TPS (see background of this scheme below) which do not actually concern the subject of this application, I make no comment on it. 5.Having considered the materials, I am satisfied that I can appropriately deal with the application on the papers. 6.This is my Decision. B. Background 7.The background has been helpfully summarised in the Initial Response, and can be restated broadly as follows. 8.The lease of the Unit by the HKHA to the father of the Applicant, Mr Cheng Wan, dates back to the 1990s. The Applicant’s mother, Ms Wong Yuk Ying (“Ms Wong”) and her four children (including the Applicant) were the authorised household members to reside in the Unit (“Authorised Occupants”). 9.The TPS was introduced by the HKHA in around 1998. Under the TPS, tenants and/or authorised occupants of certain public rental housing estates were allowed to purchase their rented units. Those tenants and/or authorised occupants who were interested in applying for the TPS were required to submit a completed “Letter of Offer” in duplicate, and “Part III – Declaration by the Authorised Occupants”, requiring each household member of 18 years old or above or who is income earning to sign a declaration. 10.A Letter of Offer in duplicate dated 27 December 2000 (“Letter of Offer”) – bearing signatures of the parents of the Applicant as purchasers and their four children (including the Applicant) as Authorised Occupants – was submitted by the parents of the Applicant to the HKHA to apply for the purchase of the Unit under the TPS (“TPS Application”). 11.The HKHA accepted the TPS Application and subsequently transferred the ownership of the Unit to the parents of the Applicant on 23 February 2001 (“Sale and Purchase”). The Unit was held by the parents of the Applicant as joint tenants. After the death of the father of the Applicant, Ms Wong, as the surviving joint tenant, became the sole owner of the Unit. 12.In around September 2014, the HKHA was informed by the Applicant for the first time that she found that her family member(s) had forged her signature in the Letter of Offer (“Alleged Forged Signature Incident”), and had reported it to the Police. In December 2015, the Police informed the HKHA that it had arrested one person for alleged forgery. However, after seeking legal advice from the Department of Justice, the Police exercised the discretion not to prosecute and released the arrested person unconditionally, and indicated that there was no evidence suggesting that the rights of the Applicant had been prejudiced or were prone to be prejudiced in any substantial way by the Sale and Purchase. 13.In around November 2014, the HKHA received the Applicant’s report that her family had suddenly moved out of the Unit in September 2014 and since then her family had occasionally returned to the Unit to cause disturbances, and that in mid-October 2014, her family broke into the Unit and refused her entry to the Unit. The Applicant hence made a request to the HKHA for documentary proof of her status as an Authorised Occupant of the Unit. A letter dated 23 December 2014 was issued by the HKHA to the Applicant as the proof. 14.Since then, the Applicant has been seeking assistance from and/or making complaints to different government departments and authorities as follows:
15.On 28 February 2023, the Applicant wrote to the HKHA. She referred to the Judgment of the civil action DCCJ 6404/2019 handled down by the District Court on 7 February 2023 (“DCCJ 6404/2019 Judgment”), which was commenced by the Applicant against Ms Wong. In particular, she pointed out that as stated in the Judgment of DCCJ 6404/2019, Ms Wong admitted forging the signature of the Applicant in the Letter of Offer and that the Applicant did not agree to the TPS Application. She alleged that such acts were clearly in breach of the terms of the Letter of Offer and §26(2) of the Housing Ordinance Cap 283 (“HO”). She once again requested the HKHA to declare the Letter of Offer as invalid, and restore the Unit to its original status as a public rental housing unit and restore her original status and protection enjoyed by an authorised occupant of a public rental housing unit. 16.As shown in the DCCJ 6404/2019 Judgment, the claims made by the Applicant (as the Plaintiff) against Ms Wong (as the Defendant) were dismissed, including claims to (1) the loss of her status as an Authorised Occupant and her right to reside in the Unit as a result of her mother’s forgery of her signature in the Letter of Offer, and (2) the loss arising from her inability to return to the Unit to retrieve her personal belongings after she was evicted from the Unit by her family on 14 October 2014. The Court ruled against the Applicant and ordered her to pay for Ms Wong’s costs of the action. According to another Judgment dated 14 June 2023 in the same action, the Applicant’s application for leave to appeal was also dismissed. 17.After receipt of the request from the Applicant on 28 February 2023, the HKHA followed up with the Police on the status of the Alleged Forged Signature Incident in March 2023. The HKHA informed the Police of Ms Wong’s admission of her forgery of the signature of the Applicant in the Letter of Offer in the 2019 Civil Action, and requested the Police to review the case and advise if any action shall be taken in view of such development. On 24 March 2023, the Police informed the HKHA that the investigation had been concluded in 2015 and no prosecution had been made. 18.On 14 April 2023, the HKHA replied to the Applicant in relation to the decision that she intends to challenge in the present proceedings. The HKHA rejected the request of the Applicant for setting aside the Letter of Offer and the property transfer in respect of the Unit (“HKHA’s Decision”). C. Proposed Grounds of Review 19.As stated in her Form 86, the Applicant alleged that the HKHA’s Decision is unlawful, unreasonable and procedurally improper. Reading her Form 86, her affirmation dated 12 July 2023 and her Reply to the Initial Response, the Applicant’s proposed Grounds could be summarised as follows:
20.To succeed on the leave application, the Applicant has to persuade this Court that any of the above Grounds is reasonably arguable with a realistic prospect of success. 21.I will deal with the proposed Grounds of review (Grounds 1 to 4 and 6) first and then Ground 5 – Wednesbury unreasonableness, which is the logical order in which to do so. D. Ground 1: Contravention of the Basic Law, double unconstitutionality 22.It is trite that in an application for leave to apply for judicial review, the applicant needs properly to identify a specific and proper ground of review, namely by the identification of an alleged public law wrong. This is a mandatory requirement of RHC Order 53 rule 3(2)(a). As has been stated on many previous occasions, it is not for the Court to seek to identify or devise potential grounds of review. 23.In the Form 86, the Applicant’s argument on the “double unconstitutionality” was advanced as follows (in English translation, underlining in original):
24.In the Applicant’s Reply, she sought to explain further, inter alia, how the HKHA’s Decision contravened the Basic Law, which could be summarised as follows:
25.I note the following submissions of the HKHA as set out in its Initial Response are that:
26.The HKHA further submitted that, regardless of whether the Unit is still a public rental housing unit or has been converted into a private unit under the TPS, the Applicant’s status as an Authorised Occupant has remained unaffected, which was acknowledged by the District Court in the DCCJ 6404/2019 Judgment, ruling that the Applicant did not lose the status as an Authorise Occupant of the Unit due to the forged signature: see §56. I agree. 27.To better understand the Applicant’s argument, it is convenient to set out Articles 31 and 36 of the Basic Law (my emphasis):
28.It seems to me that the Applicant intended to rely upon the first part of the first sentence of Article 31 of the Basic Law (i.e. “Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region …”) as part of the bases for her so-called “double unconstitutionality” challenge to the HKHA’s Decision. 29.Article 31 of the Basic Law, in my view, is plain in its language when it says that the right of Hong Kong residents to move freely within the HKSAR. Without any ambiguity, Article 31 provides a constitutional guarantee for a person’s unrestricted movement between Hong Kong Island, Kowloon and the New Territories, save and except for entry into and exit from some restricted areas like secured reserved zones in the airport and border control points, which only allow access by a permit or valid travel document. 30.On the facts of the present case as set out above, Article 31 of the Basic Law is of no relevance. The HKHA’s Decision imposes no restriction on the freedom of movement of the Applicant within the HKSAR. With respect, the Applicant’s submissions were advanced on a mistaken basis. 31.Even leaving aside the Applicant’s contention on contravention of Article 31 of the Basic Law, her claim that the HKHA’s Decision is in breach of Article 36 of the Basic Law cannot be substantiated because, as traversed above, the Applicant has never lost the status as one of the Authorised Occupants of the Unit, which is confirmed by the HKHA’s letter dated 23 December 2014 in reply to her request on 8 December 2014 and the DCCJ 6404/2019 Judgment. 32.Hence, whilst it may be that there has been identification of an alleged public law wrong under the heading of “double unconstitutionality”, the allegation is made on a basis which is not reasonably arguable. E. Ground 2: Ultra vires, accepting an invalid Letter of Offer 33.Ground 2 alleges that (1) the HKHA can require Ms Wong, the current registered owner of the Unit, to transfer the Unit back to the HKHA according to Clause 9(8) of the Letter of Offer without resorting to any public or private law actions and (2) the current decision of the HKHA of accepting an “unacceptable and invalid” Letter of Offer is ultra vires. 34.In the Form 86, the Applicant stated that (in English translation, emphasis in original):
35.The gist of the arguments advanced by the HKHA for refuting the Applicant’s allegation of the HKHA’s Decision being ultra vires is that the understanding of the Applicant is mistaken. 36.In its Initial Response, the HKHA submitted that:
37.Most illegality arguments that come before this Court are premised on the lack of specific empowering provisions for the impugned actions. In that case, the authority would be expected to justify the legality of its actions by referring to some general powers in the statute which are said to be wide enough to cover the impugned actions. However, the Applicant’s case is not that there is a lack of specific empowering provisions for the HKHA’s Decision. Rather, her case is that the Letter of Offer, being “invalid and unacceptable” (as she alleged), was accepted by the HKHA for the Sale and Purchase of the Unit in 2001 under the TPS. 38.I agree the HKHA’s suggestion that the public law error of ultra vires as put forward by the Applicant to challenge the HKHA’s Decision is misconceived. It is trite that the doctrine of ultra vires ought to be reasonably understood and applied. 39.On the facts of the present case and looking at the correspondence between the Applicant and the HKHA as a whole, there is no evidence suggesting that the HKHA has acted in excess of its statutory powers for accepting the Letter of Offer for the Sale and Purchase of the Unit which was completed in 2001. In particular, the Applicant did not point out any specific statutory or common law duty which might mandate the HKHA to raise requisition to or further verify the Letter of Offer (submitted by the Applicant’s parents, Mr Cheng and Ms Wong, to the HKHA for application for purchase of the Unit under the TPS in December 2000), when no irregularity was found in the Letter of Offer and no complaint was received at that time. 40.I see no reasonably arguable illegality in the HKHA’s Decision as suggested in Ground 2. F. Ground 3: Harbouring unlawful persons, providing information to the Applicant and other government authorities in bad faith 41.As can be seen from the heading of Ground 3 as stated in the Form 86, it is not a public law ground of review as to the HKHA’s Decision itself. Nonetheless, the details of this Ground as set out in the Applicant’s Form 86 are as follows (in English translation):
42.The Applicant essentially repeated and elaborated further some of the above points in the Reply to the Initial Response. 43.In the Initial Response, the HKHA firstly submitted that the Applicant’s allegations in Ground 3 are totally unfounded because the HKHA has provided information to the Applicant and the relevant government authorities in response to their requests for assistance in the investigation and processing of the Applicant’s application or reports. The HKHA also submitted that the Applicant’s serious allegation of the HKHA being “misleading” is wholly unfounded as it is based solely on her dissatisfaction with the decisions made by the relevant government authorities after considering the information. 44.I note from the Form 86, the Initial Response and the Applicant’s Reply that, since 2014, and in addition to the commencement of proceedings in the District Court, the Applicant did make complaints to different government departments and authorities (see above) in respect of the discovery of the Alleged Forged Signature Incident and the alleged loss of the status as an Authorised Occupant of the Unit. 45.It may be that the Applicant is dissatisfied with the responses from those departments or bodies and, unsurprisingly, the dismissal of all her claims against her mother, Ms Wong, in DCCJ 6404/2019. But, it does not seem to me to matter whether the Applicant’s accusation of the HKHA being “misleading” is solely based on her dissatisfaction. 46.On the facts and looking at the correspondence between the HKHA and other government departments and authorities (for examples, the Police and the LAD) as a whole, the HKHA has been liaising with them and has provided relevant information for investigation and responses to their letters/memos. There is no evidence suggesting that the HKHA has intended to harbour any person who is alleged to have committed crimes, nor that the HKHA has provided information to the Applicant and other government departments and authorities in bad faith. 47.Ground 3 is not reasonably arguable. G. Ground 4:Excessive delay in performing legal duties 48.The Applicant alleged that there was excessive delay in the HKHA’s performance of its legal duties. In the Form 86, the Applicant stated (in English translation) that:
49.The Applicant essentially repeated and elaborated further most of the above points in the Reply to the Initial Response. 50.The gist of the HKHA’s counter-argument is that the Applicant’s allegation of the HKHA’s serious delay in discharging its duties defies logic and is a complete disregard of the context of time and circumstances. 51.In the Initial Response, the HKHA gave a detailed account of the process of its handling of the Applicant’s requests and complaints, its follow-up with the Police about the investigation and its replies to the complaints lodged by the Applicant with other authorities (including the Legislative Council Secretariat and the Office of The Ombudsman) about her dissatisfaction with the HKHA’s handling of the Alleged Forged Signature Incident. The detailed account covered the period from September 2014 (since the Applicant’s first report of the Alleged Forged Signature Incident to the HKHA) to around February 2023 (when the Applicant first cited the Judgment of DCCJ 6404/2019, stating Ms Wong’s admission of the forged signature, and the HKHA’s subsequent follow-up with the Police), which need not be repeated here. 52.Undue delay on the part of an administrative body (if any) is not a fact relevant to the determination of whether an applicant should be granted leave to apply for judicial review, unless such delay is relevant to illegality, procedural unfairness and/or irrationality of the administrative body’s decision. That said, on the facts of the present application and looking at the correspondences between the Applicant, the HKHA and other authorities as a whole, there is no evidence suggesting that there was intentional serious delay of the HKHA in discharging its duties. 53.Further, as pointed out by the HKHA in the Initial Response, the Applicant’s assertion that the HKHA may apply to the Court for exclusion or extension of the limitation period, pursuant to the Limitation Ordinance Cap 347 (“LO”), for criminal prosecution of the offence of making false statements under section 26(2) of the HO is wrong, because the LO is not applicable to the alleged criminal offence. The scope of application of the LO is clearly set out in its Part II, which is of no relevance to criminal prosecution. 54.Ground 4 is not reasonably arguable. H. Ground 6: Breach of natural justice, failure to protect reasonable expectations, causing prejudice to the Applicant 55.Ground 6 alleges that the HKHA’s Decision was in breach of the rules of natural justice and failed to protect the reasonable expectation of the Applicant. In the Form 86, the Applicant submitted as follows (in English translation):
56.The gist of the HKHA’s response to this Ground is that the Applicant’s status as an Authorised Occupant of the Unit is not affected by the Sale and Purchase, which did not deprive the Applicant of her rights as an Authorised Occupant; that she is still an Authorised Occupant which has been confirmed by the HKHA on multiple occasions; and that regardless of whether the Unit is still a public rental housing unit or has been converted into a privately owned unit under the TPS, the Applicant’s status as an Authorised Occupant has remained unaffected, which is acknowledged in the Judgment of DCCJ 6404/2019. 57.On the facts of the present case as traversed above, there is no force in the suggestion that the challenged decision is tainted with procedural impropriety or unfairness. With respect, the Applicant’s contention of the HKHA having failed in protection of the legitimate expectation of the Applicant is irrelevant. 58.It seems to me that this Ground is more or less repackaging of the above other Grounds as put forward by the Applicant. Ground 6 has no merit. I. Ground 5: Wednesbury unreasonableness 59.The Applicant submitted that the HKHA’s Decision is Wednesbury unreasonable or irrational. In the Form 86, she stated that (in English translation):
60.In the Initial Response, the HKHA submitted that this Ground is without merit because:
61.It seems to me that this intended Ground of review – Wednesbury unreasonableness or irrationality – is essentially relabelling of Ground 2 as set out in the Form 86 of the Applicant. I have dealt with the question of irrationality in that context as well. 62.Ground 5 is not reasonably arguable. J. Conclusion 63.As was noted at the start of the DCCJ 6404/2019 Judgment, the Applicant’s complaints essentially arise out of the family dispute between her and her mother. Though I have not needed to bring it into account as part of the above reasoning, it might be thought that (1) this application is in part an indirect challenge to the findings made in that judgment, and/or (2) this application has been brought following the failure to obtain the desired primary outcome in the available alternative avenue of proceedings in the District Court. 64.In any event, on the law and principles applicable, none of the proposed Grounds of review is reasonably arguable with any realistic prospect of success. 65.Therefore, the Applicant’s application for leave to apply for judicial review is dismissed. 66.However, in the exercise of my discretion, I make no order as to costs.
The applicant, acting in person Woo Kwan Lee & Lo, solicitors for the putative respondent |
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