Leung Ah Duen v. The Hong Kong Settlers Housing Corporation Ltd

HCAL 1600/2024

[2025] HKCFI 3715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1600 OF 2024

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REASONS FOR DECISION

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A.  Introduction

1.By and large, it is the Government that provides subsidised public housing flats for low-income families. The Tai Hang Sai Estate (“THSE”) is the exception, being the only privately owned subsidised housing estate in Hong Kong. It is owned, operated, and managed by the Respondent, the Hong Kong Settlers Housing Corporation Limited (“HKSHC”), a private company limited by guarantee.

2.According to established jurisprudence in Hong Kong, the Government’s decisions in relation to the provision or withdrawal of public housing benefits are generally amenable to judicial review. The question which arises in this case is whether the HKSHC’s decision to evict one of its tenants is also subject to judicial review. That question arises in the context of the HKSHC performing the functions of redevelopment of the THSE, and subsequent rehousing of its tenants.

3.THSE has been built for well over 50 years. There were calls in the 2010s (not least from its own residents) to redevelop the THSE. Answering those calls, the HKSHC formulated a concrete plan to do so in 2021. But to execute that plan, it had to rehouse the residents.

4.The Applicant is one of the residents that had to be rehoused for the redevelopment to go ahead. The HKSHC – as part of their plan – offered her two options on 2 June 2023: (1) she and her family of 5 could receive HK$960,000 to rent somewhere else during the course of the anticipated 5-year redevelopment period, and she would be offered a unit in the “new THSE” when its redevelopment was complete, or (2) she could take HK$1.2 million to move somewhere else permanently. If she did not move, then she would eventually be evicted.

5.The Applicant wanted to pick the first option. But she ultimately grew concerned about whether the rental allowance would be enough. She was also concerned about the HKSHC’s insistence – as part of the deal – that she forgo any potential claim against (amongst others) the HKSHC and the Government in respect of both the rental allowance and the surrender of her flat in the THSE. Due to these concerns, she ultimately decided that she would not bind herself to any option, and she refused to leave the THSE.

6.On 30 October 2023, the HKSHC served a Notice to Quit on the Applicant. The HKSHC has also commenced proceedings to evict her. Proceedings were also commenced against a small number of other tenants who had taken a similar stance to the Applicant.

7.In this judicial review, the Applicant challenged two decisions (collectively “Decisions”), being (1) the decision on 2 June 2023 to limit any rehousing arrangement to a one-off rental subsidy for the entire time that the THSE would be redeveloped made by the HKSHC if she wished to return to the THSE (“Rehousing Arrangement Decision”), and (2) the decision on 30 October 2023 to evict her from her flat (“Eviction Decision”). I granted leave on the papers on 20 September 2024, and gave directions to bring the matter to a substantive hearing.

8.The substantive judicial review hearing took place on 25 April 2025. At the hearing, the Applicant was represented by Mr Victor Dawes SC, leading Mr Martin Ho and Mr Sik Chee Ching of Counsel (the latter acting pro bono, with the permission of the Director of Legal Aid). The HKSHC was represented by Mr Jin Pao SC, leading Mr Michael Lok and Mr Paul Law of Counsel.

9.At the end of the hearing, I dismissed the application with reasons to follow. I also said that I would deal with the question of costs at the time of those reasons. These are my Reasons for Decision.

B.  Factual Narrative

B.1  The parties

10.It is well-known that in 1952 the Shek Kip Mei Fire broke out.

11.In response, a group of prominent social figures decided to incorporate HKSHC on 3 September 1952 as a private company limited by guarantee so to provide resettlement and affordable housing for squatters whose huts had been destroyed in the Shek Kip Mei Fire.

12.It is also clear from contemporaneous evidence that the Government was willing to lend “capital or money” to a “non-profit organization, to be incorporated by ordinance” for the HKSHC’s purposes. This eventually took the form of a low-interest loan, whereby the payments would bear interest at 3.5% per annum.

13.The HKSHC approached the Government for the allocation of sites for the resettlement of the squatters. The Government was happy to oblige, as it implemented other action plans in response to the Shek Kip Mei Fire, including the construction of Kwong Man Village (“Village”) on a piece of land known as NKIL 4479, Kowloon, Hong Kong. The father of the Applicant’s husband (“Tsang Senior”) eventually became an owner of a cottage built on the Village.

14.In 1961, the Government granted a parcel of land (New Kowloon Inland Lot No. 4479) (“Lot”) to HKSHC at a concessionary rate. Pursuant to its mandate under Special Condition 2(a) of the Conditions of Grant, the Respondent built a total of 1,603 flats and 8 building blocks on the Lot. This is, of course, the THSE.

15.Owners of the cottages in the Village were offered a flat in THSE, which was let to them below market rate. Tsang Senior (and his family) was one such eventual tenant – he signed his tenancy agreement with HKSHC for a flat on 23 September 1965 (“Flat”). At around the same time, the Applicant married into the Tsang family and lived with them. Thus – save for a short period of time between 1972 and 1973 – the Applicant lived in the Flat.

B.2  The early understanding of the nature of the HKSHC

16.Over the years, the HKSHC has been involved in certain high-profile ‘clashes’ with its residents, which has prompted various public exchanges between HKSHC and certain media outlets, and the Government and the Legislative Council as to the functions and nature of the HKSHC.

17.These exchanges are illuminating. For example, according to a Reply from the then Secretary of Housing, Mr Dominic Wong, to then Legislative Councillor Mr Ambrose Cheung Wing-sum dated 9 June 1999:

(1)  The Executive Committee of the HKSHC is “fully empowered to manage and let the flats”. Thus, the Government had “no authority to establish a mechanism to monitor” the HKSHC’s operations.

(2)  The level of rents currently charged in the THSE is in line with those of public housing rental estates managed by the Hong Kong Housing Authority (“HA”) and Hong Kong Housing Society.

(3)  There are no organizations that are similar to the HKSHC in Hong Kong. Nor did the Government have plans to make similar land grants as it did in 1961. The HKSHC and the THSE are thus unique.

B.3  Proposals to Redevelop THSE

18.From 2010 to 2015, the HKSHC developed concrete plans to demolish the THSE and build 5,000 flats for two reasons: (1) the THSE had become dilapidated and in need of repair. In particular, the majority of the residents were elderly persons, and there were no lifts for them to access their flats in the building blocks, most of which were 8 to 10 storeys high; (2) it would be in the general public interest to supply further houses.

19.The HKSHC’s proposals, of course, attracted a lot of public attention. But it is noteworthy that during this period, government officials on various occasions continued to stress that HKSHC was not part of the government machinery. For example:

(1)  On 9 March 2011, the then Secretary for Transport and Housing, Ms Eva Cheng, made clear to then Legislative Councillor Mr Frederick Fung that the Government and HA do not exercise “any control over the THSE”, as it was a “private housing estate which was built and managed by the Hong Kong Settlers Housing Corporation Limited (HKSHCL) according to the conditions of the land lease concerned”. Further, the Government had not handled any redevelopment cases of a similar nature to that of the THSE.

(2)  On 29 October 2015, Mr Cheung Bing-leung, the then Secretary for Transport and Housing, pointed out that it was the HKSHC’s responsibility to “take care of the housing needs of the residents of Tai Hang Sai Estate” and make appropriate arrangements for them when studying various redevelopment options. Critically, he also pointed out that it was “impossible” for the HA to relocate residents affected by the redevelopment plans – otherwise, “it would be unfair to other public housing and Home Ownership Scheme applicants”. They would have to apply for “public housing through registration” and wait for a public rental housing (“PRH”) flat to be allocated to them in order. He further pointed out that HKSHC only from “time to time” seeks the Government’s view on its idea to redevelop THSE. He also pointed out that the Government had no plans to resume the land from HKSHC and take over this redevelopment project.

(3)  On 25 November 2015, Mr Yau Shing-mu, the Acting Secretary for Transport and Housing once again reiterated that the THSE was a private rental housing estate and is neither owned nor managed by the Government or the HA. Thus, the redevelopment arrangements would be determined by the HKSHC. And “just like other private property owners, as long as the redevelopment complies with the legislation, including the Town Planning Ordinance (Cap 131), the Buildings Ordinance (Cap 123) etc., and relevant lease conditions, HKSHCL can decide on its own as to whether, how and when to redevelop” the THSE. The Acting Secretary also informed Mr Frederick Fung (and the Legislative Council) that the Government understood that the HKSHC wanted to redevelop the THSE “on its own”.

(4)  On 16 May 2016, Mr Cheung Chun Yu, on behalf of the Secretary for Transport and Housing, reiterated that the THSE is not “owned or managed by the Government or the Housing Authority. The redevelopment arrangements for the estate depend” on the HKSHC. Indeed, only the HKSHC has the “right to decide for itself whether and how to redevelop” the THSE. Mr Cheung also reiterated that the HKSHC itself made a public promise that “they would make proper arrangements in this regard”.

B.4  The 2016 TPB Application

20.On 18 March 2016, the HKSHC submitted an application for planning permission to the Metro Planning Committee of the Town Planning Board (“TPB”) for the purpose of redeveloping the THSE (“2016 TPB Application”).

21.The 2016 TPB Application proposed to redevelop the THSE in two phases over a span of 10 years:

(1)  Phase 1 of the project would cover the south-eastern portion of the Estate, involving the demolition of Man Lok House and the eastern portion of Man Hong House. It would involve the construction of two new blocks of 1,289 flats for the relocation of all existing tenants of THSE.

(2)  Phase 2 of the project would involve the redevelopment of the remaining area of the THSE for the construction of 4 new housing blocks. 3,636 subsidised flats would be made available to the general public.

22.The HKSHC sought to rehouse and resettle the residents of the THSE in the following manner:

(1)  The affected tenants for Phase 1 would have the options to (a) move to and rent, vacant units in the remaining blocks in THSE, (b) to accept cash compensation to arrange for off-site rental or purchase of another unit based on individual preference to leave THSE permanently, (c) or purchase new units after redevelopment.

(2)  After the construction of the 2 new residential buildings after the completion of Phase 1, there would be 1,289 new residential units available, which would be sufficient for all remaining tenants to rent or purchase.

23.But, as admitted by the HKSHC, this resettlement proposal faced significant opposition. On 12 June 2016, 100 residents staged a protest in the THSE against the proposal. On 7 January 2017, the THSE Residents’ Rights Concern Group penned an open letter to the HKSHC expressing discontent over how residents were never consulted.

24.Such public opposition was noted by the Metro Planning Committee of the TPB. In particular, according to a summary of public comments received:

Rehousing Arrangement / Government Responsibility

(a) Proposed temporary housing measures are inappropriate and inconsiderate. Two reconstructed building blocks and higher levels in THSE were selected as temporary shelters during different phases, while the buildings do not have elevators and major affected residents are elderly. The high occupation rate of the selected building blocks also neglected.

(b) The rehousing arrangement is unsatisfactory. Residents affected need their shelter and regarding their low income, options including exchange of flats, fast track on queuing Public Rental Housing are being requested.

(c) Government should take over and consider THSE as Public Rental Housing.

25.On 24 June 2016, after extensive discussion between members of the Metro Planning Committee on the 2016 TPB Application – including whether the Government should “take the lead to assist the redevelopment of THSE” and be “less passive” – the TPB gave conditional approval to the 2016 TPB Application. However, the TPB included two advisory clauses as part of its approval, strongly advising the HKSHC to “provide subsidised rental flats within the redevelopment proposal to meet the needs of the affected existing tenants” of the THSE, and to note the Metro Planning Committee’s request that the Government should “not execute the lease modification for the redevelopment proposal before the rehousing arrangement had been satisfactorily resolved”.

26.Even though it was approved, HKSHC did not proceed with the 2016 TPB Application and went back to the drawing board.

27.On 18 March 2019, and in response to certain queries made by the Public Complaints Office of the Legislative Council, the HKSHC emphasised the following (“2019 Statement”), which is worth quoting in full:

1. There are 1,603 units in Tai Hang Sai Estate. As of December 2018, there are a total of 1,307 tenants and 296 vacant units in the entire estate. The vacancy rate for the past 10 years is detailed in the table below: -

	Number of vacant units	Vacancy rate
December 2018	296	18.47%
December 2015	269	16.78%
December 2013	253	15.78%
December 2008	197	12.29%

The first phase of the redevelopment proposal currently put forward by the Hong Kong Settlers Housing Corporation Limited involves the reconstruction of Man Lok House and Man Hong House. After the reconstruction, priority will be given to rehousing existing tenants. The reconstruction will also provide 560 new rental units (totaling a maximum of 823 units for rental purposes together with the renovated Man Tai House which consists of 263 rental units), and 729 new-built subsidized units for sale, totaling 1,552 units (823 for rental and 729 for sale) for the first phase hoping to be able to cater for the needs of different residents.

As to the second phase, arrangements would remain flexible and only be implemented after residents are able to reach consensus and subject to society’s needs.

2. The primary focus of the present redevelopment is to cater for the needs of residents. As such, existing residents of Tai Hang Sai Estate would be able to apply for renting or purchasing a unit post-redevelopment without having to undergo an income nor an assets test. As for those who are not existing residents, we will refer to the government’s housing policies at the time and practices of other relevant organizations, such as the Hong Kong Housing Authority and the Hong Kong Housing Society, in formulating and determining application eligibility and conditions.

B.5  Collaboration with the Urban Renewal Authority

28.On 8 March 2021, the HKSHC and the Urban Renewal Authority (“URA”) signed a Memorandum of Understanding (“MOU”) on how to redevelop the THSE. It was envisaged that the redevelopment project would provide over 3,300 units upon completion, including 1,300 units to rehouse existing tenants and 2,000 “Starter Home” units to be provided by the URA.

29.Clause 5 of the MOU, which provides for the “Interim rehousing of existing tenants” is of some significance in the present dispute. It relevantly provides:

(i) HKSHCL will make arrangements and pay for the cost for interim rehousing of the existing tenants of the Estate and, subject to Clause 5(ii) below, URA will reimburse HKSHCL the cost for the interim rehousing of the existing tenants of Site 2.

(ii) All interim rehousing arrangements and related costs shall be agreed by both Parties (being HKSHC and the URA) before offering to the existing tenants of the Estate.

30.Of equal significance is Clause 6, which provides for the “Responsibilities of the Parties” (being HKSHC and the URA). According to clause 6(1)(d), the HKSHC would be responsible for – “at its own costs and expenses” – settling the interim housing issues of the existing tenants of the THSE and paying for the interim rehousing costs. Conversely, the URA was only responsible for reimbursing the HKSHC for the interim rehousing of the existing tenants of what is termed “Site 2”. I will return to this later.

31.On 25 June 2021, the HKSHC informed the relevant households that it would commission Consumer Search Hong Kong Limited to visit the various households in THSE so to further draw up “relevant redevelopment details”. It also told residents that it was exploring different supportive measures to cater for different needs, including the provision of subsidies and assistance to tenants in searching for temporary residence during the redevelopment period.

32.On 19 September 2021, the HKSHC and URA met to discuss various matters relating to the redevelopment of the THSE. One significant issue was the “compensation package” that would be offered to THSE residents for various rehousing arrangements during the period of redevelopment. According to the presentation slides prepared by the URA:

(1)  There were 3,875 members listed on the record of the THSE (“Registered Members”). 3,174 Registered Members answered a “Survey”, the primary purpose of which was conducted to ascertain the actual number of tenants in the THSE.

(2)  Compensation would be given to Registered Members who possessed “clean status”: i.e. those with (1) no alternative accommodation, (2) no domestic property ownership, and (3) no public housing benefits (“Eligible Residents”).

(3)  Eligible Residents would be entitled to an ex gratia rental allowance. It would be calculated by taking into account a number of factors, including (1) the living space requirement of the household by number of Eligible Residents, (2) the average rent level by the Rating and Valuation Department of a Type A domestic flat in Kowloon (which has an average rent of HK$393 per square metre for a flat less than 40m² in Kowloon), and (3) a 7% rental inflation for a tenancy term of 2 years. In practical terms, a household with 1 Eligible Resident would receive a monthly rental allowance of HK$9,000, and a household with (say) 9 Eligible Residents would receive a monthly rental allowance of HK$28,000.

(4)  The rental allowance would then be multiplied by 60 months. So, a household with 1 Eligible Resident would receive a total ex gratia rental allowance of HK$540,000.

(5)  For the Applicant – whose household consisted of 5 (family) members and Eligible Residents – she would receive HK$16,000 per month, and HK$960,000 over 60 months.

(6)  Significantly, the ex gratia rental allowance would be “extendable in case of project delay”.

(7)  A removal allowance would also be available to the Eligible Residents. But that is not the crux of the present dispute so I will not go into its details.

(8)  On the other hand, if Eligible Residents did not return, then they would be given a one-off ex gratia allowance, which was 110% of the applicable ex gratia rental allowance.

33.The above package was approved in principle by the board of the HKSHC at the meeting.

34.Following this meeting, in October 2021, the HKSHC published the “Tai Hang Sai Estate Redevelopment Project” booklet (“2021 Booklet”). Relevantly, it provided that redevelopment of the THSE would be divided into 2 sites. Site 1 would consist of two residential blocks providing approximately 1,300 residential units. Site 2 would provide 2,000 units for the “Starter Homes” as canvassed above. It would also include (amongst other things) 6,500 square metres of government, institutional or community facilities, and approximately 1,500 square metres of public recreational space.

35.More specifically on the issue of interim rehousing arrangements, it was said Eligible Rehousing Members (i.e. those who were, amongst other things, “registered and verified” according to the Survey, signed tenancy agreements with HKSHC, did not enjoy public housing benefits or owning residential property in Hong Kong), would receive (amongst other things) the following:

Ex-gratia Rental Allowance – calculated based on the number of members eligible for rehousing per household in order to support tenants in finding suitable temporary housing during redevelopment or making other appropriate arrangements. The allowance sum will be based on market rental levels.

36.Around the same time, the Chief Executive published her 2021 Policy Address (“2021 Policy Address”). She made clear that the Executive Council’s approval for the HKSHC and URA jointly to implement the project was approved “on condition that the HKSHCL will provide proper rehousing arrangements for existing tenants”.

B.6  Further consultation did not ease concerns

37.After the publication of the 2021 Booklet, the HKSHC further consulted the residents of the THSE on 21 October 2021, 22 October 2021, 25 October 2021, and 26 October 2021.

38.Through social services teams, a total of 16 briefings were held. They were attended by a total of 219 households. 291 further personal enquiries were answered. According to the HKSHC, the THSE residents’ feedback was all taken into account when “refining the details of the rehousing plans”. Whether or not this is correct – given the tight window between the publication of the 2021 Booklet and the submission of the 2021 TPB Application (see below) – is immaterial and nothing turns on this.

39.In any event, despite the HKSHC’s consultation / outreach, there was still considerable concern from the residents as to the interim rehousing arrangements. For example:

(1)  It was said that the “vast majority” of residents were dissatisfied with the approach of using rental allowances to handle temporary rehousing, as this would create various problems that are very unfair to underprivileged families. For example, it would be difficult for singles, elderly couples, low-income individuals and residents with mental or physical disabilities to rent units. The “principal tenant” might monopolise the subsidy, particularly in dysfunctional families.

(2)  Some residents were concerned as to whether the allowance amount would be sufficient to rent a reasonably sized unit. That is a concern that the Applicant had as well.

(3)  Most residents were also extremely dissatisfied with how they could not directly communicate with the representatives responsible for planning the redevelopment and making rehousing arrangements. They did not need an “explanation” of those arrangements, but to “provide opinions and requests for improvements to the new policy”.

40.In or around October 2021, the HKSHC and the URA submitted a fresh application to the TPB for the purpose of redeveloping the THSE (“2021 TPB Application”). Under the 2021 TPB Application, Sites 1 and 2 would be redeveloped in one single phase. This redevelopment was anticipated to be completed in 2028. There was no material change to any aspect of the ex gratia rental allowance that would be offered to eligible tenants as canvassed in the URA’s presentation slides and the 2021 Booklet.

41.On 10 December 2021, the TPB approved the 2021 TPB Application, in light of how it “could improve the living environment of the THSE residents and provide more housing units to meet the pressing housing need of the society”. However, the TPB noted there was still “grave concern” from THSE residents as to the appropriateness of the rehousing arrangements. Thus, it included an advisory clause that the HKSHC should communicate better with the affected residents in conducting consultation on the rehousing arrangement and where appropriate, improve the rehousing arrangement, to address their concerns.

42.But, as I understand it, no further consultation was carried out by the THSE.

43.On 17 January 2022, the HKSHC informed the THSE residents that it would commence – via Pioneer Management Limited – “detailed vetting of tenant rehousing and special allowance eligibility”. As alluded to above, HKSHC would inquire into whether (amongst other things) the resident had other domestic property in Hong Kong. To facilitate this process, the THSE residents would have to submit a “Household Information Declaration Form” (“Declaration Form”).

44.In response, on 10 February 2022, the Applicant wrote to the HKSHC twice. Amongst other things, she complained that the HKSHC never engaged in two-way communications with the residents. Nor had it ever given a concrete response to the residents’ request for “one house for one house” (“一屋換一屋”). Nor did not it provide any concrete details or explanations regarding the residents’ rehousing and ex gratia allowance.

45.On 28 June 2022, after the Applicant submitted her Declaration Form, the HKSHC informed the Applicant that 5 of her household members (including herself) were eligible for rehousing, and that a separate letter detailing the arrangements for rehousing and the release of ex gratia rental allowances would be issued.

B.7  The Rehousing Arrangement Decision

46.On 2 June 2023, the HKSHC made a press release regarding the rehousing arrangements for THSE (“Rehousing Plan”). According to the Rehousing Plan:

(1)  1,012 Declaration Forms were received. Approximately 67% of the tenants who submitted those Declaration Forms were fully or partially eligible for rehousing.

(2)  The HKSHC would evaluate residents’ eligibility for rehousing in a “flexible manner”.

(3)  More significantly, the HKSHC made clear that eligible tenants would be offered two rehousing options: either (Option 1) they could rent interim housing on their own or apply for transitional housing through social workers appointed by the HKSHC, or (Option 2) they could receive a one-off payment for moving out permanently. The Press Release also attached a schedule for how much an eligible tenant would receive according to the size of his or her household.

(4)  Tenants had 2 months to consider their options. But to encourage “timely move-out”, tenants would receive 20% of the rental allowance in advance on the day of signing the agreement, and the remaining amount would be paid upon their moving out within 6 months of the signing. In any event, the deadline for moving out was March 2024.

(5)  The “target completion” of the redevelopment project was now 2029.

47.On the same day (i.e. 2 June 2023), the HKSHC wrote to the Applicant specifically. Consistently with the Press Release:

(1)  The Applicant had two options.

(2)  Option 1 was for the Applicant to receive a one-off subsidy of HK$960,000 (for her 5-member household), together with a HK$62,000 moving subsidy. The Applicant would be entitled to return to the THSE after redevelopment under this option.

(3)  Option 2 was for the Applicant to receive a one-off compensation in the amount of HK$1,200,000, and a moving subsidy of HK$31,000. But, under this option, the Applicant would forgo the right to return to the THSE after development.

(4)  The Applicant would have to make a decision on or before 2 August 2023.

48.The Applicant would then have to sign a surrender agreement approximately 4 weeks after accepting one of the proposed arrangements. The Applicant would have to surrender the Flat to the HKSHC 6 months after signing the surrender agreement. But if the Applicant refused to accept the above arrangements, then the arrangements outlined would not apply, and the HKSHC would “immediately commence legal proceedings to repossess the Unit”. All fees related to the legal proceedings and administrative expenses would be borne by the household.

49.This is the Rehousing Arrangement Decision that is under challenge.

50.On 7 July 2023, the HKSHC published a notice titled “Arrangements on Allowance Payment and Execution of Legal Documents”. It required that the affected residents of the THSE should, in addition to surrendering their tenancies, execute an “Undertaking” whereby they relinquished any rights to claim against the HKSHC and the Government in relation to the surrendering of the flat in THSE.

51.Material to one of the submissions made for the Applicant, paragraphs 1 and 2 of the Undertaking read (in translation to English) as follows:

1. I shall not in any capacity whatsoever make any claim(s) against the Landlord or the Government of the Hong Kong Special Administrative Region or any government departments or any public organisations and authority or any other persons in respect of any compensation, ex-gratia allowance or other payments (including but not limited to any compensation, ex-gratia allowance or other payments relevant to commercial losses and any other) occasioned by or in relation to the surrender of the Unit.

2. I hereby absolutely waive, relinquish and abandon all existing and future claims in any nature (including but not limited to claims in relation to commercial losses and any other) against the Landlord or the Government of the Hong Kong Special Administrative Region or any government departments or any public organisations and authority or any other persons in respect of the surrender of the Unit.

52.On around 13 July 2023, the HKSHC also published a list of answers to some Frequently Asked Questions (“FAQs”) from the THSE residents. One such question was “what arrangements will be made if the redevelopment time exceeds five years?” The HKSHC responded:

According to the current proposal, the HKSHCL expects to repossess all units and commence development in 2024. The HKSHCL is confident that the redevelopment will be completed within five years. If the redevelopment is delayed due to unforeseen factors, the HKSHCL will handle arrangements flexibly and reasonably based on the circumstances at that time, following a “people-oriented approach”.

53.On 2 August 2023, the Applicant notified the HKSHC via the Reply Slip that she would like to take Option 1. But the Applicant did not sign any legal document surrendering her tenancy or bind herself to the Undertaking.

54.On 26 September 2023, the Applicant’s solicitors wrote to the HKSHC asking (amongst other things) to raise the amount of the “movement allowance”, so that the Applicant could “cover the expected rent to pay” while she awaited completion of the redevelopment of the THSE. But the HKSHC did not entertain this request.

55.It may be helpful to note again at this juncture the HKSHC’s response to the major complaint made by the Applicant, namely that the rental subsidy provided by the ex gratia payment may “run out” if there is a delay in the redevelopment project. The HKSHC is not blind to the possibility that, depending for example on the time when vacant possession of all units could be recovered, there might be delay to the redevelopment, or possibly delay from other unforeseen factors. But, the HKSHC stated that it remained committed to handling further rehousing arrangements flexibly and reasonably based on the circumstances prevailing at that time, where a case-by-case approach would be adopted to focus on the actual needs of residents.

56.As was explained in the HKSHC’s evidence:

(1)  Because different tenants will make different accommodation arrangements during the redevelopment period according to their own wishes and circumstances, it is necessary to handle them flexibly.

(2)  For example, some tenants may need to apply for other interim accommodation, whilst some might need help in applying for social assistance.

(3)  In light of the diverse needs of the tenants, a fixed policy for additional assistance for delays in redevelopment would not adequately address the individual needs of the tenants. All will depend on the actual situation in 2029, as well as the individual circumstances of tenants in need.

(4)  It was stressed that it is certainly not the case that the HKSHC will turn a blind eye to those genuinely in need of assistance, if there is any significant delay to the redevelopment.

57.I bear those matters in mind when considering questions of overall reasonableness.

B.8  The Eviction Decision

58.On 31 October 2023, the HKSHC issued the Applicant with a notice to quit (“Notice to Quit”). It notified the Applicant that her tenancy would be terminated on 30 November 2023.

59.On 29 November 2023, the Applicant’s son – Mr Tsang Chi Yuen – wrote to the HKSHC requesting it to take into account the Applicant’s status as a descendant and a family member of a settler of the Village, such that the Applicant’s household should enjoy a different set of rights from other residents of the THSE. Inter alia, the Applicant’s son asked for 2 units to be allocated to her household after THSE was redeveloped. This request was not entertained.

60.On 11 December 2023, HKSHC commenced DCCJ 5511/2023 to repossess the Flat. This was one of 67 civil actions that were commenced against the THSE residents who refused to accept the rehousing arrangements.

B.9  Whether the rehousing arrangements have been successful

61.By and large, the HKSHC’s rehousing arrangements have been successful from its perspective:

(1)  As at 3 August 2023 (i.e. the deadline for indicating acceptance of either Option 1 or Option 2), more than 95% of eligible tenants had submitted their “Reply Slip”, or their “Acceptance Form” (i.e. they had chosen either Option 1 or 2).

(2)  By 19 December 2024, it had recovered 1,200 households and 1,590 residential units (i.e. more than 99% of THSE). Over 1,200 households had already received their allowance.

C.  Grounds of Review

62.By her Form 86, the Applicant advanced 3 grounds of review against the Decisions:

(1)  The Decisions were in breach of policy, illegal, and/or failed to have regard to government directives, including the advisory clauses that the TPB included when approving the 2016 and 2021 TPB Applications, the 2019 Statement, and the 2021 Chief Executive Policy Address. The Decisions were unlawful in the public law sense because the HKSHC failed to comply with its own policy (and those stipulated by the Government and the TPB) that the setting up and implementation of a proper and lawful rehousing arrangement is a precondition to the redevelopment of the THSE.

(2)  The Decisions were Wednesbury unreasonable, as (amongst other things) (1) the rental subsidy of HK$960,000 that she would receive if she accepted Option 1 would immediately disqualify her from any public housing benefits, (2) the Applicant would be left to her own devices in being able to secure comparable alternative housing during the redevelopment of the THSE, and there was no guarantee that the rental subsidy would cover her family’s housing needs, whether due to delay in construction periods, surge in rental prices, or inflation generally, and (3) she would have no recourse against either HKSHC or the Government. The Decisions are even more unreasonable when considered against the context that there are no feasible housing alternatives, and the HA – when redeveloping other old public rental housing estates – would make use of suitable rehousing resources in the vicinity of the same estates for rehousing the residents.

(3)  The Decisions breached the Applicant’s substantive legitimate expectations that (amongst other things) she would be provided subsidised accommodations during this redevelopment period, she would not be subject to the risk of no housing, or that she would be evicted before a “satisfactory” rehousing arrangement was made, as by reason of the various Government directives and statements of the HKSHC as outlined above.

63.But whatever merits those grounds of review might seem to have at first blush, Mr Dawes accepted that the “critical question” was whether the Decisions are amenable to judicial review. And that was – rightly – the focus at the oral hearing. I shall turn to that now.

D.  Amenability to Judicial Review

64.The applicable principles are well-settled, so I hope I will be forgiven for referring to my own decision in 鍾凱研 v The General of the Salvation Army [2023] HKCFI 3273 at §66 for the relevant principles on amenability:

(1)  Only a decision made in the public law domain is amenable to judicial review.

(2)  Whilst the nature or the source of power or discretion is by no means irrelevant, it is the nature of the functions that the decision-maker was performing when making the decision under challenge that is of crucial importance.

(3)  In the absence of fraud, corruption, bad faith and breach of law, a purely commercial decision, or a decision made in the performance of a purely commercial function, is most likely a private law decision, not amenable to judicial review.

(4)  Put another way, the presence of a public element(s) of sufficient significance in the decision-making process could turn an otherwise commercial decision into a public law decision, amenable to judicial review.

(5)  What is sufficient is a matter of fact and degree, depending very much on individual cases. No hard and fast rule can be laid down. It is, in a borderline case, very much a matter of overall impression and one of degree.

65.Perhaps put slightly differently, a “body whose birth and constitution owed nothing to any exercise of governmental body may” still “be subject to judicial review if it has been woven into the fabric of public Regulation or into a system of governmental control … or is integrated into a system of statutory regulation … or is a surrogate organ of government … or but for its existence a governmental body would assume control”: see R v Insurance Ombudsman Bureau, ex parte Aegon Life Assurance Ltd [1994] CLC 88 at 93.

66.Mr Dawes correctly accepted that the source and nature of the HKSHC’s powers as exercised via the Decisions militate against amenability:

(1)  The HKSHC is a private company with its own constitution. Decisions are made by its board of directors, not the Government or pursuant to any statute.

(2)  The Eviction Decision – at the very least – was based on the tenancy agreement that existed between the Applicant and the HKSHC. Further, there is ample authority in Hong Kong that suggests that a decision to terminate tenancy agreements even by public bodies may not be amenable to judicial review precisely because the public body might be acting in its private capacity as a landlord: see Rank Profit Industries Ltd v Director of Lands [2009] 1 HKLRD 17; Sime Darby Motor Services Ltd v Director of Lands [2024] 2 HKLRD 319, §51 (G Lam JA). Even more so, a decision made by a private body to terminate a tenancy agreement is very much less likely to be subject to judicial review.

(3)  The Rehousing Arrangement Decision was a classic exercise of power qua landowner – it owns the Lot, and it can decide whether it wishes to redevelop the THSE, and if so, on what conditions.

67.That is why Mr Dawes sought to impress on me two cases – which he said are comparable to the present situation – where the English courts have found a private body’s functions to be amenable to judicial review, “even though the application of the source of power test would plainly point to a contrary conclusion”. In other words, the source of power test may not be determinative. But if I do not find the HKSHC to have exercised, or exercise, a public function, or if I do not find a sufficiently public element, then that is the end of the Applicant’s challenge.

68.The first case referred to by Mr Dawes is R (Beer (trading as Hammer Trout Farm)) v Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233, where the English Court of Appeal held that the decision of a local farmers’ market – similarly, a private company limited by guarantee set up by a local authority – to reject the applicant’s application for a license to participate in the market was amenable to judicial review.

69.I do not think this case helps the Applicant in this case. In the Beer case, Dyson LJ relied on the following factors in reaching his decision on amenability: (1) the company operated the market on town centre sites (i.e. publicly owned land), (2) the respondent company owed its existence to the relevant government council, in the sense that the company was set up by the council using is statutory powers and it was the council’s economic development office which paid for its establishment, (3) the company stepped into the shoes of the council, in the sense that the council ran the farmers’ markets prior to 2002, and after that, it was handed over to the company, and (4) thereafter, the council assisted the company in a number of respects. For example, the company’s registered office was in the council’s offices, and two council personnel provided ‘important assistance’ to the company.

70.Beer is thus readily distinguishable from the present case. While the land on which the THSE is located was given to the HKSHC by the Government at a concessionary rate, the HKSHC does not owe its existence to the Government. It was set up by some prominent social figures on their own. Nor is there any overlap in personnel between the Government or the HKSHC. Nor do I accept Mr Dawes’ submission that – on the strength of Beer – the HKSHC could be said to have ‘stepped into the shoes’ of the Government in the relevant sense. The Government had previously never operated or managed the THSE.

71.The second case is the case of R (Weaver) v London and Quadrant Housing Trust [2010] 1 WLR 363. There, a registered social landlord served on its assured tenant a notice seeking possession for rent arrears under ground 8 of Part I of Schedule 2 to the Housing Act 1988. The English Court of Appeal held that the decision to terminate a tenancy and seek possession of the premises was susceptible to judicial review. It is easy to see why: the landlord was a “registered social landlord” acting pursuant to a statute. Here, the Decisions were not made under statute, which readily distinguishes Weaver from the present case.

72.Notwithstanding the above, Mr Dawes advanced other reasons why the HKSHC still can be said to provide a “public function”, or there is some public element which renders the HKSHC’s functions amenable to judicial review. He submitted that:

(1)  The act of providing affordable housing to low-income families is an inherently public function. This is shown by how the HKSHC (1) was established at the initiative of the Government, and (2) funded by way of a Government loan.

(2)  Its unique public function is recognised in various pieces of legislation. For example, it is defined as one of the public bodies under section 2 of and paragraph 20 of schedule 1 to the Prevention of Bribery Ordinance Cap 201 (“POBO”). A tenancy with the HKSHC is an “excluded tenancy” pursuant to paragraph 2 of Schedule 6 to the Landlord and Tenant (Consolidation) Ordinance Cap 7 (“LTCO”), alongside tenancies with the Government, the HA and the Housing Society.

(3)  The HKSHC has received preferential treatment from the Government as it was initially funded by a low-interest loan advanced by the Government, and the Lot itself was granted at a concessionary rate.

(4)  The Government had been heavily involved in the whole redevelopment project as shown by (amongst other things) the 2021 Policy Address. The redevelopment was proposed as if it was “part of the Government’s own initiatives”.

(5)  The URA is to reimburse the HKSHC of the expenses associated with Site 2.

(6)  The Undertaking requires residents to forgo all claims against the HKSHC and the Government. This shows that the HKSHC is not just another private landlord but is in reality an extension of Government.

73.As creative as those arguments may be, I did not accept them for the following reasons:

(1)  As a matter of fact, the HKSHC was not established at the initiative of the Government. It was established by prominent social figures. It is right that a loan was given to the HKSHC in 1952. But even where an entity receives significant levels of public funding, this is not an indication that such a body or its functions are public, as many indisputably private bodies, such as many bodies whose activities are cultural, and many charities, receive public funding: see Hong Kong Rifle Association v Hong Kong Shooting Association [2013] 3 HKLRD 362 at §25.

(2)  One school of thought may be that it is deeply unattractive to saddle organizations (especially non-profits) which are set up in the public good – like the Hong Kong Shooting Association or the Leonard Cheshire Foundation in R (Heather) [2002] 2 All ER 936 – with judicial reviews, such that the organizations might think it preferable simply not to operate at all, with the consequence of the public losing substantial benefit.

(3)  I see something in the idea that the provision of subsidized housing for low-income families is per se a public function, and it may be thought (though this is entirely hypothetical) that but for the unique historical circumstances, the THSE would have been operated by the Government. But I do not think it right to rely on hypotheticals when deciding the question of amenability – which underlies why I did not accept Mr Dawes’ submission that the HKSHC stepped into the shoes of the Government in the requisite sense.

(4)  More forceful was Mr Pao’s submission that the functions been performed by the HKSHC are simply those of a private owner of a large estate, albeit one seeking to manage it on a non-profit-making basis.

(5)  I do not think I can read too much into the statutes cited by Mr Dawes. This case and its circumstances are not concerned with matters relating to, or the specific offences listed from sections 4 to 8 of the POBO. Nor is the LTCO helpful. Paragraph 2 of Schedule 6 makes clear that “excluded tenancies” include other tenancies which are not held by the Government or public bodies.

(6)  It might be said that the reason why the POBO lists the HKSHC as a “public body” is because it recognises that it provides a “public good” in the form of subsidised housing for low-income families, and no private citizen should be able to use improper means to gain an illegitimate advantage in relation to this public good and should face criminal consequences if he or she does so. But the fact that a body provides a public good does not mean it should be subject to judicial review. For example, private independent education establishments in Hong Kong – which indisputably provide a public good – are generally not subject to judicial review.

(7)  I also accept Mr Pao’s submission that the mere fact that existence of the body is explicitly or implicitly recognised in legislation is insufficient to make the body reviewable: see de Smith’s Judicial Review (9^th ed) at §3-057. Further, there is no suggestion that the HKSHC has been “woven into” a wider “fabric of public Regulation or into a system of governmental control” beyond those two Ordinances – if those two Ordinances can even begin to be seen as a system of governmental control.

(8)  I do not think it can be said that the HKSHC received “preferential treatment” – especially given the HKSHC’s position is rather unique – just because the HKSHC received some benefit in money or money’s worth from the Government. The logic of Hong Kong Rifle Association would seem to apply with the same force.

(9)  I also do not think the Government could be said to be heavily involved in the redevelopment of the THSE. This is plain from the Government’s own statements from 2011 to 2015 to the effect that (1) it did not exercise any control over the HKSHC, (2) the HKSHC would have to apply to the relevant Government bodies such as the TPB like any other private landlord to effect its proposed redevelopment, (3) the redevelopment of the THSE was down to the HKSHC alone, (4) it was the HKSHC’s wish to redevelop the THSE “on its own”, and (5) the THSE residents could not expect to receive any “preferential treatment” and be rehoused in PRH units during the redevelopment, as this would be unfair to those who are already ‘in the queue’. In particular, the last point precisely shows how the Government wished to ‘distance’ itself from the redevelopment of the THSE. The Government’s clear intention can also be seen from the comments made by the THSE residents, and members of the Metro Planning Committee of the TPB, who criticised the Government for not taking up a more active role in the redevelopment.

(10)  Indeed, if in historical perspective, it was clear from statements from the Government 1999 – well before the redevelopment of the THSE – that the Government did not want to manage or operate the THSE. As it said, the Executive Committee of the HKSHC was “fully empowered to manage and let the flats”, and the Government had “no authority to establish a mechanism to monitor” the HKSHC’s operations.

(11)  It is unsurprising that the 2021 Policy Address would wish to address the redevelopment of the THSE, as the issue itself garnered public attention and the Policy Address would have been expected to speak on it, and the URA was partner in it.

(12)  The URA’s reimbursement of the HKSHC is insufficient to make the Decisions amenable to judicial review in light of Hong Kong Rifle Association. In essence, the arrangement between the HKSHC and the URA resulted in a commercial agreement from private negotiations as to the parameters of their collaboration.

(13)  I accept Mr Pao’s submission that under the Undertaking, the Applicant would forgo claims against not only the Government, but against “any other persons”. Obviously, the purpose of the Undertaking – as evidenced by its broad terms – was to ensure that there would be no serious dispute that a THSE resident could not change his or her mind and bring a claim against someone in the future after accepting the ex gratia rental allowance, which may jeopardise the viability of the redevelopment project, which may in turn, also affect other THSE residents.

74.The Decisions are thus not amenable to judicial review. I would dismiss the Applicant’s challenge on this ground alone.

E.  Alternative Available Remedy

75.Though the point is perhaps now academic, it might be said that the Applicant’s challenge to the Eviction Decision faced another problem. This is because of a possibly alternative available remedy – usually a bar to the pursuit of judicial review.

76.This arises in the context of the District Court proceedings DCCJ 5511/2023 brought by the HKSHC in seeking to evict the Applicant, where the Applicant (and others in similar claims) had in essence raised as a defence to that claim the matters raised by way of judicial review challenge in these proceedings.

77.As I understand it, my grant of leave in these proceedings caused the District Court to hold up a decision on the eviction claim, on the basis that the grant of leave might suggest that the Applicant had an arguable defence to that claim. At the hearing of this application on 25 April 2025, I was given to understand that a hearing in the District Court proceedings would take place within the next two weeks or so. It was partly for that reason, and because I thought that all parties and the District Court should know what I thought to be the appropriate outcome of this judicial review challenge, that I gave my decision at the conclusion of the hearing on 25 April 2025, with reasons to be handed down later.

78.My decision was, as already stated above, the decision to dismiss the application for judicial review. I assume that would have been factored into the eviction proceedings in some way. Therefore, I probably do not need to address any further question of any available alternative remedy. Besides, the fact is that I have heard and determined the judicial review challenge to the Decisions, including the Eviction Decision – though that necessarily focused on the challenge to the Rehousing Arrangement Decision.

F.  Analysis on the Grounds

79.Given my above conclusions, I propose to deal with the Grounds of Review more economically.

80.In his oral submissions, Mr Dawes said that the three grounds of review boiled down to one question, namely whether it is right for the HKSHC to devise a redevelopment plan which shifts the risks to affected residents, should the ex gratia subsidy run out for one reason or another. He submitted that, in the context of vulnerable people, those people should not be asked to take a ‘wait-and-see’ approach, where that also is apparently inconsistent with the terms of the Undertaking required to be given by them. Therefore, it is convenient to start with Ground 2, as Grounds 1 and 3 seem to me to turn on what a “proper” or “satisfactory” rehousing arrangement is.

81.I accepted Mr Pao’s submission that the threshold of an unreasonableness challenge is “necessarily high”, given that the Court is not to usurp the role of the decision-maker. In particular, I heeded the notion that the Court is not concerned with the merits, wisdom or desirability of a policy or administrative decision. I also accepted Mr Pao’s submission that given more than 95% of the THSE residents had accepted either Option 1 or Option 2 pursuant to the Rehousing Plan, the Decisions (which were also taken pursuant to the Rehousing Plan) are unlikely to be Wednesbury unreasonable, in the sense that no reasonable decision-maker could have made those Decisions.

82.Of course, it may not be correct that the acceptance level evidences “broad support” for the Rehousing Plan, particularly against the context that even up to the approval of the 2021 TPB Application there was still “grave concern” about the rehousing arrangements. The 95% acceptance level might just reflect how Hong Kong citizens and the THSE residents are intensely practical and prudent, in choosing to accept the offer on the table rather than to be evicted and suffer the attendant consequences. But, that such a high percentage did accept the options tends to show general reasonability, not the opposite.

83.I accepted Mr Pao’s submission that it is not Wednesbury unreasonable not to have provided the Applicant with alternative housing. Simply put, the HKSHC lacks the necessary housing resources to do so as it only operates the THSE. Further, the Government has repeatedly said that it would not offer public housing to tenants of THSE as it would be unfair to those who are in the queue for PRH units. The HKSHC cannot force the Government to offer PRH units to THSE residents.

84.I understand the point that it might be less desirable or even undesirable for the Applicant to seek alternative housing on her own. It might have been unreasonable for the Applicant and her family of five to be given no assistance whatsoever in finding alternative housing. But that does not seem to be the case. The HKSHC has repeatedly told the THSE residents in the 2021 Booklet and the Rehousing Plan that a team of social workers would assist them in find and renting suitable accommodation. The Applicant would not be left to her own devices.

85.In that regard, I also noted that the HKSHC and its team of social workers might be able to find “transitional housing” for the Applicant. I understand that it might not be the “best” option, but a finding of Wednesbury unreasonableness does not turn on whether the Court might conceive of other possible options. I bore in mind the Applicant may be allocated to a different district, and it would be difficult for the Applicant as an elderly person to adapt to a new environment, and there is no guarantee that the Applicant can continue to live together with all members of her current household. But against the context that the redevelopment of the THSE is widely seen as necessary, and some sacrifices must be made for the redevelopment to go ahead, I would not say that the mere fact that the Applicant may have to source transitional housing renders the Decisions unreasonable. In that regard, I note that 203 households have applied for transitional housing through the HKSHC’s team of social workers, and 142 of these households have successfully applied and indeed moved in. So transitional housing is a practically available option for the Applicant.

86.The Applicant also complained that she would be disqualified from public housing benefits (i.e. PRH eligibility) as (1) the ex gratia rental allowance is HK$960,000, which (2) comfortably exceeds the HA’s means test with an upper limit of HK$655,000 for the total financial resources of a 5-member household. But, first, this potential problem is somewhat alleviated by the existence of compassionate rehousing, whereby the Social Welfare Department (“SWD”) would offer housing assistance to those who have “genuine and imminent long-term housing needs” not just for medical reasons, but “social” reasons as well. I also noted that 28 households from the THSE have applied to the SWD on this basis, and 23 of them were successful.

87.But, secondly and perhaps more fundamentally, I also failed to see how PRH eligibility comes into the picture. The whole point of the ex gratia payment is to provide the Applicant with a source of funds from which to provide alternative accommodation in the interim redevelopment period. To complain that the provision of funds which facilitate that alternative accommodation also has the effect of removing PRH eligibility seemed to me to make no sense.

88.Further, the Applicant’s complaint is really based on Option 1 (and not Option 2). That means she envisages that she would return to THSE. Therefore, there is also little sense in thinking that the Applicant might apply for a PRH unit – particularly when (as the Applicant says) the average waiting time for a PRH unit is 5.5 years, and the THSE could be completed in 5 years.

89.The Applicant’s main complaint – as seen in her solicitors’ letter dated 26 September 2023, and in her evidence filed in these proceedings – is that the ex gratia rental allowance of HK$960,000 might turn out to be insufficient. I accept that is a not wholly unreasonable concern. I take into account that between the 2021 TPB Application and the Relocation Plan – which were close in time to each other – the target completion date of the redevelopment was moved from 2028 to 2029 – without any corresponding change in the rental allowance. Against the background that (1) the HKSHC was heavily criticised for its outreach / consultation efforts with the THSE residents, (2) the HKSHC seemed to have shifted slightly from its original position that the rental allowance would be extendable in the case of project delays (as shown in the URA presentation slides), to the current promise to deal with delays in a “flexible” manner if and when they materialise (as shown in its series of answers to FAQs and in the evidence for these proceedings), the Applicant has some basis for a concern as to whether the HKSHC would properly handle matters relating to the rental allowance in case of project delays.

90.I also see the force in Mr Dawes’ submission that the whole point of having a relocation subsidy is to give assurance to the residents of the THSE from the very start that they will have a roof over their heads until redevelopment is completed. Given that it is not unusual for redevelopment projects to suffer delays – and there is evidence to show that the redevelopment process might take more than 5 years – it might have been reasonable for the THSE / URA to calculate the rental allowance on a more generous basis, so as to give the Applicant (and other THSE residents) more assurance, rather than merely to promise that they would handle arrangements flexibly and reasonably based on the circumstances following a ‘people-oriented approach’.

91.However, in this connection, I think there is considerable force in the idea that the Applicant’s complaint is premature, because, as Mr Pao submits, the delay has not yet occurred, and may never occur. It is probably unnecessary to deal with the question of prematurity separately, as it can be brought into consideration of the overall assessment of reasonableness.

92.I acknowledge that the Applicant is saying that the Rehousing Arrangement Decision is unreasonable precisely because the HKSHC should have ‘baked into’ the rental allowance the real prospect of delay in redevelopment from the outset, bearing in mind that the whole point of this subsidy was to give the THSE residents a peace of mind, following its people-oriented approach. But I do not accept that the approach taken is for that reason Wednesbury unreasonable.

93.Rather, there seems to me to be logic in the approach identified by the HKSHC in its communication to the THSE residents, as well as in the evidence filed in these proceedings. The ability to react flexibly, so as to deal with individual tenants and their particular circumstances, if there is a delay and at the time that any delay arises, is to my mind both reasonable and sensible. For one thing, unless and until there is any actual foreseeable delay, the relevant likely period of the delay would be unknown. That period would be of some importance in any reaction to it, and would best be served by flexibility in dealing with individual tenants’ circumstances when it is known and at the time. That may not require awaiting the end of the current anticipated five-year redevelopment period, and that is a matter which is also facilitated by retained flexibility.

94.Indeed, there is some irony in that the stance adopted by the Applicant (and a number of other tenants at the THSE) may have itself increased the likelihood of the delay to the redevelopment period. Most of those affected by the redevelopment, and who have opted to move into the new THSE after redevelopment, will already have vacated the premises and commenced alternative rental arrangements elsewhere with the benefit of the ex gratia sum received. The uncompromising stance adopted by the Applicant (and the other remaining tenants) may ultimately inure to the dis-benefit of the HKSHC as a whole, and so indirectly to all tenants including the Applicant (and the others). There is also potential adverse impact on those people who would be housed in the starter homes to be developed by the URA. This is and would continue to be at least unfortunate. It is also unattractive if the impression is left that the Applicant (or her family members) and the other tenants appear to be holding out so as to extract better terms from the HKSHC than has been offered to, and accepted by, the vast majority of the THSE tenants.

95.I also bear in mind that there is no allegation of bad faith, nor unfairness in the decision-making process, and that the impugned Decisions arise in the context that the HKSHC has been managing the THSE for more than half a century.

96.Thus, I did not find the Decisions to be unreasonable, and Ground 2 was not made out.

97.I also would not have found Ground 1 to have been made out.

(1)  It is well-established that a public authority cannot make a decision departing from its stated policy as a result of its misinterpretation or misunderstanding of the policy: see Hong Kong Television Network Ltd v Chief Executive in Council [2016] 2 HKLRD 1005 at §50.

(2)  Further, I accept that when interpreting a policy, it must be borne in mind that citizens are led to believe that carefully drafted and considered statements truly represent the policy which will be observed in decision-making. Policy statements must be interpreted objectively in accordance with the language employed by the public authority, bearing in mind (1) that a broader and wholly untechnical approach should prevail, and (2) that the very reason for making a policy statement is to give guidance to the public: see Re McFarland [2004] 1 WLR 1289 at §24.

(3)  The correct interpretation of the policy is ultimately a matter for the Court.

(4)  But the logically prior question is whether there was in fact a policy.

(5)  In that regard, it has been said that the kind of policy which will be enforceable as a matter of public law must be one that can readily be identified. Otherwise, it would create absurd results: government officials might have unwittingly bound themselves by previous statements which might, as a matter of ordinary language, be described as “statements of policy”. Civil servants might have to trawl through thousands of statements to examine and haphazard a guess as to whether the Government had unintentionally made a policy from which it cannot lightly depart: see R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] PTSR 190 at §§105-106; R (Good Law Project Ltd) v Prime Minister [2022] 1 WLR 3748 at §115.

(6)  In this context, I agreed with Mr Pao’s submission that the advisory clauses in the 2016 TPB Application and 2021 TPB Application, the 2019 Statement, and the 2021 Policy Address – read either cumulatively or individually – do not constitute a policy in the public law sense: namely, that the Decisions cannot be made unless there is a “proper rehousing arrangement” in place.

(7)  Most fundamentally, the way in which this alleged policy is framed begs the question of what exactly a “proper rehousing arrangement” is. If there is considerable uncertainty as to what a “proper rehousing arrangement” is – a core plank of this alleged policy – then it suggests that this “policy” either does not exist, or it cannot be enforceable as a matter of public law because its contours are not readily identifiable.

(8)  In any event, given my conclusions on Ground 2, I do not think the HKSHC departed from its stated policy. To my mind, it had enacted a “proper rehousing arrangement” and the Decisions were made pursuant to it. I find further support in how the HKSHC had never said that it would have a substitute flat in place for each and every affected THSE resident or household. Rather, it was made clear from the start that rental subsidies would be part of the arrangement – and for obvious practical reasons.

98.For similar reasons, I did not think Ground 3 is made out.

(1)  The principles relating to substantive legitimate expectations have been set out in Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1 at §§92, 94-97, 101-102 and Tung Chun Co Ltd v Town Planning Board [2018] 3 HKLRD 466 at §73. I do not need to rehearse here those principles in detail.

(2)  In his skeleton submissions, Mr Dawes submitted that the various Government directives and HKSHC statements engendered two substantive legitimate expectations: (a) the Applicant need not take any risk that she may find herself without a shelter before she is relocated to the redeveloped THSE, and (b) the HKSHC would not evict affected residents – including the Applicant – before proper and satisfactory rehousing arrangements were made.

(3)  Even if the first substantive legitimate expectation was created, I do not think the HKSHC breached it. That is because she would be able to find a roof over her head with the ex gratia rental allowance offered to her.

(4)  The real question is whether she would continue to have one if the allowance runs out, if the redevelopment of the THSE is delayed. Thus, the real question under Ground 3 is whether the second substantive legitimate expectation was breached.

(5)  Whether the second substantive legitimate expectation was breached depends on whether the Rehousing Plan – which the Decisions were made pursuant to – was Wednesbury unreasonable. As I have held, they were not unreasonable. Thus, I cannot hold that the HKSHC breached the Applicant’s second substantive legitimate expectation, even if such a legitimate expectation had arisen.

G.  Conclusion

99.It was for the above reasons that I dismissed the Applicant’s application for judicial review.

100.As to costs, I see no reason why costs should not follow the event, such that the Respondent’s costs be payable by the Applicant, with certificate for two Counsel. The Applicant’s own costs will be taxed in accordance with the Legal Aid Regulations. I will make this order first on a nisi basis, which will become absolute after 14 days unless a prior application is made to vary this order. Any variation application will be dealt with on paper.

Mr Victor Dawes SC, Mr Martin Ho, and Mr Sik Chee Ching (pro bono), instructed by Ho Tse Wai & Partners, for the Applicant

Mr Jin Pao SC, Mr Michael Lok, and Mr Paul Law, instructed by PC Woo & Co, for the Respondent