Thai Muoi v. The Hong Kong Housing Authority and Another

HCAL000155/1999

HCAL 155/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATION LAW LIST

NO. 155 OF 1999

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Coram: Hon Yeung J in Court

Date of Hearing: 8 - 9 May 2000

Date of Handing Down Judgment: 30 May 2000

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J U D G M E N T

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1. This is an application for judicial review. It relates to the decision of The Hong Kong Housing Authority (HKHA) to issue a Notice to Quit to the Applicant, Thai Muoi, and the decision of the Housing Appeal Tribunal (The Tribunal) confirming such notice, leave having been granted by this court on 21 December 1999.

2. On 17 March 1982, the Applicant as a tenant entered into a tenancy agreement with HKHA in respect of a public housing flat at No. 524 Kai Ning House, Kai Yip Estate, Kowloon (the flat).

3. The Applicant's husband, Ho Lam and their 4 children ranging from 16 to 25 years old are also listed as family members in the tenancy agreement.

4. Under clause 2(j) of the tenancy agreement, the Applicant agrees "not to use or cause or permit the said flat to be used for any illegal or immoral purpose."

5. Clause 4(g) further provides that "for the purposes of this Agreement any act, neglect or default of any members of the Tenant's family or of any servant of his shall be deemed to be the act, neglect or default of the Tenant."

6. On 22 July 1997, Ho Lam was intercepted at the Customs Arrival Hall, Lowu Control Point. He was found to have two packets of raw opium in the travelling bag that he was carrying. He was also brought back to the flat for a search. Two further packets of raw opium were found in a jacket inside a closet in his bedroom.

7. On 3 November 1997, Ho Lam was convicted of possession of dangerous drugs and was sentenced to the Drug Addiction Treatment Centre.

8. It was suggested that Ho Lam suffered from stomach cancer and had been using raw opium to relieve the pain. However it was not disputed that he had previous convictions for drug related offences and had been sentenced to the Drug Addiction Treatment Centre.

9. On 30 April 1999, HKHA issued a Notice of Quit to the Applicant under section 19(1)(b) of the Housing Ordinance (the Ordinance) on the basis that clause 2(j) of the tenancy agreement had been violated.

10. The Applicant appealed against the decision of HKHA to the Tribunal in accordance with section 20(1) of the Ordinance. The appeal was dismissed by the Tribunal on 19 August 1999, hence the present application.

11. The present application was taken out on 25 December 1999, about 4 months from the decision of the Tribunal. The short delay was caused by the application for legal aid. The Respondents quite rightly take no issue on it.

12. The court grants leave to the Applicant to proceed with this application out of time.

13. Counsel for HKHA, Mr Kenneth W H Chan makes a preliminary point that the decision of HKHA to issue the Notice to Quit is not open to judicial review because section 19(3) of the Ordinance ousts the jurisdiction of the court.

14. Section 19(3) of the Ordinance provides:

"No court shall have jurisdiction to hear any application for relief by or on behalf of a person whose lease has been terminated under subsection (1) in connection with such termination."

15. The suggestion is that the wordings of section 19(3) of the Ordinance are clear and if the court were to hold that despite such clear wordings, the decision of HKHA to issue a Notice to Quit is still subject to judicial review, it will render the statutory provision completely nugatory.

16. The power of the court to review the decisions of the executive authorities and the administrative tribunals on question of law is well established. There used to be a distinction between errors of law that went to jurisdiction and errors of law that did not. Such distinction has become blur as the principles develop in judicial review cases.

17. In Anisminic v. Foreign Compensation Commission [1969] 2 AC 147, it was held that as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any errors of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity.

18. Mr Chan draws the court's attention to the passages in Administrative Law by Sir William Wade 7th Edition where the learned author at page 736 strongly criticizes the approach in Anisminic's case:

"The House of Lords had in fact extended their concept of jurisdictional error to such an extreme point that judges were driven to conclude that the basic distinction between jurisdictional and non-jurisdictional error, upon which the Anisminic judgment purported to be founded, had been rendered unintelligible. All error of law now appeared to be jurisdictional error, so that the decision of any administrative tribunal or authority could be quashed for such error, regardless of its nature. It has already been explained how this deduction was drawn in the Pearlman and Racal cases, and confirmed in the Page case; and how, on the other hand, the basic jurisdictional distinction was still upheld by the Privy Council and by the High Court of Australia.

According to the logic of the House of Lords, 'shall not be questioned' clauses must now be totally ineffective. Every error of law is jurisdictional; and error of fact, if not jurisdictional, is unreviewable anyway. So there is no situation in which these clauses can have any effect. The policy of the courts thus becomes one of total disobedience to Parliament. Under the basic distinction which formerly obtained, and which the House of Lords supposed that they were upholding in the Anisminic case, judges could at least say that they were obeying Parliament in some situations, while resisting ouster clauses in others. But now they seem to have lost sight of the reasons which justified their attitude originally."

19. Despite the aforesaid observation, clauses which seek to oust the power of the court to review the decisions of a lower court or an administrative tribunal on question of law are never given effect to save in the most exceptional circumstances.

20. In R v. Hull University Visitor, Ex parte Page [1993] AC 682, it was held that where a visitor's decision was made within his jurisdiction in that he had power under the relevant regulating documents to enter into the adjudication of the dispute in question, his decision was not amenable to challenge by judicial review on the ground of error in fact or law contained in that decision.

21. Such decision was reached on the very special circumstances of the case as demonstrated in the judgment of Lord Browne-Wilkinson at p. 700;

"In my judgment this review of the authorities demonstrates that for over 300 years the law has been clearly established that the visitor of an eleemosynary charity has an exclusive jurisdiction to determine what are the internal laws of the charity and the proper application of those laws to those within his jurisdiction. The court's inability to determine those matters is not limited to the period pending the visitor's determination but extends so as to prohibit any subsequent review by the court of the correctness of a decision made by the visitor acting within his jurisdiction and in accordance with the rules of natural justice. This inability of the court to intervene is founded on the fact that the applicable law is not the common law of England but a peculiar or domestic law of which the visitor is the sole Judge. This special status of a visitor springs from the common law recognizing the right of the founder to lay down such a special law subject to adjudication only by a special judge, the visitor."

22. The general situation has been correctly stated by Lord Griffiths in the same case at p. 693;

"It is in my opinion important to keep the purpose of judicial review clearly in mind. The purpose is to ensure that those bodies that are susceptible to judicial review have carried out their public duties in the way it was intended they should. In the case of bodies other than courts, in so far as they are required to apply the law they are required to apply the law correctly. If they apply the law incorrectly they have not performed their duty correctly and judicial review is available to correct their error of law so that they may make their decision upon a proper understanding of the law."

23. Lord Browne-Wilkinson also said at p. 702;

"Therefore, I agree with Mr Burke that in general any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed for error of law."

24. In South East Asia Fire Brick SDN v. Non-Metallic Mineral Products Manufacturing Employees Union and others [1981] AC 363, it was held that "no award shall be challenged, appealed against, reviewed, quashed or called into question in any court of law" were wide enough to oust the jurisdiction of the High Court to review the decision the Industrial Court by certiorari except when the Industrial court exceeded its jurisdiction. The case of course concerns the decision of a court and not that of a statutory body or an administrative tribunal.

25. In Pyx Granite Co. v. Ministry of Housing and Local Government [1960] AC 260, it was held that a finality clause did not affect the power to award a declaration that a decision or order made by a statutory body is invalid. In Att. Gen. v. Hanwell U.D.C. [1900] 1 Ch. 51; [1900] 2 Ch. 377, words such as "final and conclusive" were held to be ineffective to abridge or attenuate judicial review.

26. In any state with separation of the powers, the right of the court to supervise the decisions of the executive is always zealously guarded against. As stated in de Smith, Woolf & Jowell's Principles of Judicial Review 1999 at page 97:

"In matters of public law, the role of the ordinary courts is of high constitutional importance. It is a function of the judiciary to determine the lawfulness of the acts and decisions and orders of the Executive, tribunals and other officials exercising public functions, and to afford protection to the rights of the citizen. Legislation which deprives them of these powers is inimical to the principle of the rule or supremacy of law. The courts have, therefore, long been zealous to resist encroachments upon their jurisdiction..............The view is widely held that 'the proper tribunals for the determination of legal disputes in this country are the courts, and they are the only tribunals which, by training and experience, and assisted by properly qualified advocates, are fitted for the task. It is a common-law presumption of legislative intent that access to the Queen's courts in respect of justiciable issues is not to be denied save by clear works in a statute. Subordinate legislation purporting to restrict or exclude access to the courts has been held to be ultra vires in the absence of express authorization of such provisions in the enabling Act."

27. In any event I am not persuaded that section 19(3) of the Ordinance is clear enough to override the presumption of the legislative intent that decisions by the executive, the tribunal or other official are justiciable by way of judicial review.

28. As Mr Pun on behalf of the Applicant quite rightly points out, the word "relief" in section 19(3) of the Ordinance can be reference to the private law reliefs such as reliefs against forfeiture and stay of execution or the like.

29. Mr Chan relies on the decision in In re Lau San-ching and Others [1995] 2 HKLR 14 where Mayo J held that Regulation 9(7) of the Boundary and Election Commission (Electoral Procedure) (Geographical Constituencies) Regulations, which provides that the decision of a returning officer is final and shall not be questioned in any proceeding whatsoever except by an election petition and that a rejection of nominations for election could not be challenged by judicial review since s. 30(2) of the Electoral Provisions Ordinance provides that "no election may be questioned........except by an election petition."

30. With respect, Mayo J did not decide that the decision of the returning officer or a rejection of nominations for election could not be challenged in court. He ruled that in the light of the special features of an election, the challenge should be mounted by way of an election petition and not judicial review.

31. Mayo J said at page 19 of his judgment:

"I accept the validity of the submissions made by Marshall, Q C for the respondents that one of the most important considerations under the legislations was to preserve the integrity of the electoral process. The procedure laid down for Election Petitions was designed to protect this in an orderly manner. Having regard to the tight timetable for each of the successive steps in an election, it would be most unsatisfactory if interested parties were unable to resort to the courts during the currency of the election and perhaps cause confusion and uncertainty which would redound to everyone's disadvantage."

32. And at page 22:

"What I think all of this boils down to is that if and when an Election Petition is mounted, arguments along these lines might be pursued. However, having regard to the clear wording of Regulation 9(7), I do not consider that it is possible to embark upon a Judicial Review simply on this basis."

33. Further as decided in R v. Secretary of State, ex parte Swati [1986] 1 All ER, where there is an alternative and appropriate remedy to judicial review, the alternative remedy should be resorted to before seeking judicial review. The applicants in Lau San Ching's case should have pursued the challenge by way of an election petition and not a judicial review.

34. The decision in Lau San Ching's case does not support the general proposition that ouster clauses can generally exclude the jurisdiction of the court to judicial review the decisions of the executive or a statutory body.

35. The issue had been carefully examined by Liu J as he then was in Chan Yik Tung v. Hong Kong Housing Authority [1989] 2 HKC 394. Liu J applied the principle established in Anisminic (supra) and concluded that notwithstanding section 19(3), the decision of the Housing Authority was amenable to judicial review.

36. At page 402 of Chan Yik Tung's case (supra), Liu J states:

"The applicant's allegation is that the Hong Kong Housing Authority and its Tenancy Appeals Committee have taken into account, as an irrelevant consideration, the feared ICAC investigation and impending action. The allegation that the Hong Kong Housing Authority and its Tenancy Appeals Committee had paid regard to matters beyond those fit for their proper deliberation, if substantiated, would constitute a jurisdictional error susceptible to judicial review. The decision to serve the Notice to Quit would arguable be a purported decision and thus a nullity. The Notice to Quit served may be said to be only a purported notice and would likewise be arguably a nullity. The termination may accordingly be impugned as a purported but not a real termination and hence invalid................................"

37. In Wong Pei Chun and Others v. Hong Kong Housing Authority [1996] 2 HKLR 293, Sear J also ruled, be it in a different context, that the decision of the Housing Authority to issue notices to quit is amenable to judicial review.

38. I am not persuaded that I should depart from the long line of authorities to conclude that the decision of HKHA is not open to judicial review because of section 19(3) of the Ordinance and Mr Chan's submission on this issue fails.

39. In support of this application, Mr Pun for the Applicant raises a number of matters. It is suggested that there was no evidence to support the finding that the flat had been used for an illegal purpose or that the Applicant had permitted such use. It is also suggested that the decisions of HKHA and the Tribunal are oppressive and disproportionate to the alleged wrong doing of the Applicant.

40. Mr Pun also suggests that the decision of the Tribunal is tainted with procedural irregularities in that not only did the Tribunal fail to give reasons for its decision, it had also taken into consideration irrelevant matters and had failed to take into consideration relevant matters.

41. In the memorandum for appeal, the following is mentioned:

"Appeal

On 3rd May 1999, the Appellant appealed against the termination of tenancy ..... on the grounds as follows:

(a) Only their eldest daughter worked to support the family of six and the rest of them, two daughters and a son, were at school. They led a difficult life and could not afford to find another accommodation elsewhere. Removing them from their flat shall definitely render their family of six homeless;

(b) Her husband Ho Lam was disease-stricken. The raw opium was brewed for healing purposes, not for business purposes. Moreover he had been penalized and thus the Housing Department should not terminate their tenance.

Opinion of the Housing Department

The Housing Department opined that the appeal be dismissed on the following grounds:-

(a) According to the verdict of the Court, it was confirmed that the husband of the Appellant did possess dangerous drugs within their existing public housing flat, which contravened the provision of the Tenancy Agreement. In this circumstances, issuing a Notice to Quit against the Appellant is not unreasonable;

(b) To recover possession of the public housing flat is indicative of the determination of the Housing Department to clamp down on abuse of public housing flats and support for the Government's anti-drug trafficking efforts. Further, it can be effectively deterring public housing tenants from using their flats for illegal purposes;

(c) If the family of the Appellant is rendered homeless as a result of removal from the flat, the Housing Department may consider to house them in a temporary housing center."

42. In deciding to confirm the Notice to Quit, the Tribunal made two points:-

"(1) The Appellant, Thai Muoi, her husband Ho Lam was convicted by Court of possession of dangerous drugs at the address of Room 524, Kai Ning House, Kai Yip Estate. The Appellant said as Ho Lam suffered from cancer, he homemade alcohol soaked with raw opium for relieving pain. But she did not know of her husband's possession of opium at home. The Appellant also said that Ho Lam had long ago been convicted of drug related charges.

(2) The tribunal took into account that Mr Ho was suffering from cancer but the Tribunal found that the allegations of the Appellant that Ho Lam only consumed opium for medical purposes and she was absolutely ignorant of Ho's possession of dangerous drugs at home were incredible. The Appellant also said that Mr Ho Lam had been convicted previously of drug-related charges. Given the fact that the Appellant permitted others to use the above flat for illegal purpose in breach of Clause 2(j) of the Tenancy Agreement, the Appeal Tribunal decided unanimously to confirm the Notice to Quit issued against the Appellant by the Housing Department."

43. It is clear that the Tribunal had taken into account the family circumstances of the Applicant before rejecting her appeal. There is no basis for suggesting that the Tribunal had failed to take into consideration relevant matters. The Tribunal was also entitled to assume the responsibility to support the Government's anti drug trafficking efforts.

44. The effect of an eviction order may well have devastating effect on the Applicant and her family, but that is not a ground for removing from the HKHA the right under the tenancy agreement which is basically contractual.

45. Clause 2(j) clearly only bites when the flat has been used for illegal or immoral purpose and whoever has perpetuated the offending act may be punished in accordance with the relevant criminal provisions. The so call double jeopardy is to be expected and cannot be a reason for not invoking clause 2(j) to bring an end to the tenancy unless the consequence of which is so out of proportion that no reasonable tribunal would take such a step.

46. Mr Pun relies on R v. Barnsley M.B.C., Ex parte Hook [1976] 1 W L R 1057 to support the contention that the decisions of HKHA and the Tribunal are unduly oppressive and disproportionate.

47. In Barnsley's case, the license of a stallholder in a town market under an oral license from the borough council was terminated because he had been seen urinating in a side street after the market was closed and the public lavatories were locked. One of the reasons for quashing the decision of the council was that the punishment was too severe.

48. The distinguishing features in the case was that the Barnsley Corporation Act 1989 and the bylaws made under the Act on which the license was granted contained no express provisions about, inter alias, the determination or revocation of a stallholder's license or the terms on which it was held.

49. In the present case, the tenancy was granted on the express agreement that the Applicant shall "not use or cause or permit the said flat to be used for any illegal or immoral purpose."

50. In my view, if the Applicant was in breach of a term of the tenancy agreement and HKHA exercised its right arising out of such a breach, she could have no legitimate complaint on the basis that the punishment was too severe.

51. The family circumstances of the Applicant do deserve sympathy. The other family members may well be punished for having done no wrong. But should the Applicant be proved to be in breach of the tenancy agreement, the decision of HKHA to serve the Notice to Quit and the confirmation by the Tribunal of such notice cannot be said to be Wednesbury unreasonable.

52. Was the Applicant in breach of Clause 2(j) of the tenancy agreement?

53. Mr Pun suggests that the flat had not been used for any illegal purpose and hence clause 2(j) could not be relied upon to terminate the tenancy agreement. He suggests that the finding of the raw opium inside the jacket of Ho Lam was a single and separate incident and it did not involve the use of the flat for an illegal purpose. He relies on Waller v. Thomas [1921] 1 K.B. 541 and Fok Ming Hung v. Chan Hing Hong [1981] HKC 514.

54. Waller's case deals with a situation whereby the tenant was convicted of selling beer within prohibited hours. It was held that such use of the premises did not constitute use of the premises for "illegal purpose". It has to be remembered that the selling of beer was not an offence and it was only made an offence because the selling was done within the prohibited hours.

55. Lush J said at page 550:

"There was only one case of sale within prohibited hours, and I do not think that an isolated breach would be sufficient to justify the learned judge in holding that the house was used for an illegal purpose. Those words refer to putting a house to an improper use to carry out an unlawful purpose."

56. Mc Cardie J said at page 552:

"I agree with Lush J that the object of this clause is to deal with cases in which the improper user of the premises is in furtherance of an unlawful purpose, and not with an isolated instance of illegality in carrying out a lawful purpose."

57. With respect, Waller's case does assist the Applicant at all. I also do not see how Fok Ming Hung's case can be of assistance to the Applicant either when it decided that the use of a premises for the storage of heroin on a single occasion warrants eviction by the landlord, relying on the decision in S. Schnieders & Sons Ltd v. Abrahams [1925] 1 KB 301.

58. Bankes LJ said at p. 307 in S. Schneiders' Case (supra):

"It may be that the mere fact of a crime being committed on the premises would not constitute a user of the premises by the tenant for an illegal purpose; for example, if the tenant was convicted of an assault upon some one who happened to be on the premises in the occupation of the tenant, and if that were the only evidence, I doubt whether the tenant could be said to have been convicted of 'using the premises for an...... illegal purpose' within the meaning of s. 4. But if the tenant uses the premises as a coiner's den or as a deposit for stolen goods, a single instance of such uses seems to me quite enough to satisfy the language of the statute."

59. And Atkin LJ said at page 311:

"'Using' the premises in this section does not necessarily involve a continuous or repeated user. If the tenant formed the deliberate purpose of robbing a man, allured him into the premises and so used them for the purpose, it would be sufficient for the section if they were once so used."

60. In Abrahams v. Wilson [1971] 2 Q B 88, the court was concerned with the connection of a conviction for possession of drugs with the using of a premises for illegal purposes. Widgery LJ concluded at page 94:

"If the drugs are on the demised premises because the defendant is there and has them in his or her immediate custody, such as a pocket or a handbag, then I would say without hesitation that that does not involve a 'using' of the premises in connection with the offence. On the other hand, if the premises are employed as a storage place or hiding place for dangerous drugs, a conviction for possession of such drugs, when the conviction is illuminated by further evidence to show the manner in which the drugs themselves are located, would I think be sufficient to satisfy the section and come within Case 2."

61. In the present case, Ho Lam clearly had used the flat to keep or store the raw opium if not to hide them. The flat had indeed been used for an illegal purpose.

62. That of course is not the end of the matter. I still have to decide if the Applicant was in breach of clause 2(j) of the tenancy agreement. There is no suggestion that the Applicant had used or caused the flat to be used for an illegal purpose. Did she nevertheless permit the flat to be so used?

63. In Berton and Others v. Alliance Economic Investment Co. Ltd. and Others [1922] 1 KB 742, it was held that the covenants not to "permit" the unauthorized user of the premises and not to "suffer" unauthorized acts therein did not bind the defendants to do more that to take reasonable steps to secure that the premises should be used according to the terms of the lease and not otherwise. Atkin LJ said at p. 759:

"To my mind the word 'permit' means one of the two things, either to give leave for an act which without that could not be legally done, or to abstain from taking reasonable steps to prevent the act where it is within a man's power to prevent it."

64. Mr Pun suggests that a person cannot be said to have permitted an act unless he has actual knowledge that the act will be done and chooses to deliberately close his eyes to what is going on and abstains from taking any action. That may be setting too high a standard.

65. In Hill & Redman's Law of Landlord and Tenant (1999) Volume 1, para. 7085, note 2, reference is made to the case Norton v Charles Deane Productions Ltd [1970] EGD 286. It is stated that "Swanwick J applied observations of Atkins LJ in the Berton's case (supra) on the meaning of 'permit or suffer'. Swanwick J condensed what Atkin LJ said into the statement that 'an act that a party could have, but had not prevented was 'permitted' by that party if he could reasonable have foreseen that the act might be done."

66. Despite the observation by Mr Pun, on the evidence I am of the view that it was open to the Tribunal to disbelieve the Applicant when she said she had no knowledge of Ho Lam using the flat to keep the raw opium. The Tribunal was entitled to conclude as it did that the Applicant did have knowledge about such matter. In any event, she must have reasonably foreseen that Ho Lam would use the flat to kept the raw opium in view of their relationship and the past history of Ho Lam.

67. The fact that the Applicant had knowledge or that she could reasonably have foreseen that Ho Lam would keep raw opium in the flat does not mean that the Applicant had permitted the flat to be used for such purpose. It must be established that she had abstained from taking reasonable steps to prevent it when it was within her power to do.

68. Unfortunately neither HKHA nor the Tribunal had taken into consideration such matter. They were clearly working on the assumption that once it was established that the Applicant had knowledge of Ho Lam making use of the flat to keep the raw opium, clause 2(j) would be breached and HKHA was entitled to serve the Notice to Quit.

69. In adopting the approach as they did, HKHA and the Tribunal had committed errors of law.

70. Mr Chan suggests that clause 4(g) could have been relied on. As Ho Lam had clearly used the flat for an illegal purpose and being the Applicant's husband, his act, neglect or default shall be deemed to be those of the Applicant.

71. Mr Chan further suggests that although the Notice to Quit in question did not expressly refer to clause 4(g), the Notice to Quit was still valid and could be relied on. It is further suggested that there was no breach of natural justice by not referring to clause 4(g) as it is a deeming provision and there was no response that the Applicant could have made to that point even if it was expressly referred to.

72. I may be persuaded by Mr Chan's submission if there is any indication that HKHA or the Tribunal had borne in mind clause 4(g) in their deliberation.

73. I have carefully considered all the relevant materials before the court, I have no hesitation in concluding that HKHA and the Tribunal had never taken into consideration clause 4(g) when issuing and/or confirming the Notice to Quit in question.

74. It is not a question of whether the Applicant could have made any response if clause 4(g) had been referred to. The more important issue is whether HKHA and the Tribunal would inevitably have come to the same conclusion in issuing and/or confirming the Notice to Quit because clause 4(g) was breached.

75. I must not ignore that if clause 2(j) is relied on, we are concern with wrong doing committed by the Applicant personally whereas clause 4(g) relates to the vicarious liability of the Applicant for the wrongdoing of someone else. Such matter must have certain bearing on the way in which HKHA and/or the Tribunal choose to exercise the discretion in deciding whether to issue or to confirm the Notice to Quit.

76. It is legitimate to expect that if the Applicant herself had committed no wrong, she might be dealt with in a more lenient manner. As HKHA and the Tribunal had not relied on clause 4(g) in reaching their respective decisions, they are not entitled to rely on it to justify their decisions in this application.

77. HKHA is entitled to issue a fresh Notice to Quit in reliance on clause 2(j) after proper consideration has been given to the question of whether the Applicant had taken reasonable steps to prevent Ho Lam from storing raw opium in the flat if it is accepted that the Applicant either had knowledge or at least could have reasonably foreseen that such act would be done. HKHA is also entitled to rely on clause 4(g) if it is considered fair to do so.

78. If HKHA makes a decision adverse to the Applicant and if the matter is then referred to the Tribunal, the Tribunal will no doubt take into consideration all the relevant matters before deciding if the Notice to Quit should be confirmed or otherwise although I must say to evict the Applicant's family in the circumstances is an extremely harsh decision to make.

79. I wish to point out that if HKHA alleges that a tenant is in breach of clause 2(j) of the tenancy agreement on the basis that the tenant has permitted the flat to be used for an illegal or immoral purpose, before issuing a Notice to Quit, HKHA should put the allegation to the tenant and invite response from the tenant with a view to ascertain if the tenant has knowledge of the offending act or if he could reasonably foresee the offending act.

80. The tenant should also be asked to provide particulars of the steps taken by him to prevent the offending act.

81. HKHA must be satisfied either the tenant has knowledge of the offending act or can at least foresee it and has taken no reasonable steps to prevent it before a Notice to Quit can be issued for breach of the tenancy agreement.

82. If clause 4(g) is relied on, it must also be clearly stated.

83. On an appeal, the Tribunal must consider those issues before deciding if the Notice to Quit should be confirmed.

84. Unfortunately the aforesaid approach had not been followed and the decision to evict the Applicant was reached on errors of law.

85. By reasons of the matters aforesaid, both the decisions of HKHA to issue the Notice to Quit to the Applicant and the decision of the Tribunal in confirming such Notice to Quit must be quashed and I so order.

86. I also make an order nisi that HKHA and the Tribunal should bear the costs of the Applicant to be taxed if not agreed. The order nisi on costs will be made absolute 14 days after the handing down of the judgment.

87. The Applicant's own cost is to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr Hectar H Pun, instructed by Messrs Ho, Tse, Wai & Partners assigned by DLA, for the Applicant

Mr Kenneth Ng, instructed by Messrs Philip K H Wong, Kennedy Y H Wong & Co., for the 1st Respondent

Messrs Lo & Lo, for the 2nd Respondent being absent