Wong Yan Hong and Another v. Hong Kong Housing Authority and Another

HCAL001711/2000

HCAL 1711/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 1711 OF 2000

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Coram: Hon Yeung J in Court

Dates of Hearing: 11 and 17 May 2001

Date of Handing Down Judgment: 24 May 2001

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J U D G M E N T

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1. This is an application for judicial review of the decision of the Housing Authority (the Director) to issue a notice to quit to the Applicant and the decision of the Appeal Tribunal who confirmed such notice.

2. The Applicant, Chung So Mui and Wong Yan Hong (Mr Wong) are husband and wife.

3. Between 16 April 1984 and 31 July1998, the Applicant and her family occupied the public housing unit at Room 603, Shek Jing House, Chun Shek Estate Shatin (the old unit) under a tenancy held in the name of Mr Wong.

4. In June 1998, Mr Wong applied for a reallocation to another unit, as he was being threatened and harassed by a debt collecting company. He also applied to have the Applicant to replace him as the tenant.

5. The applications were granted and the Applicant and her family were reallocated to Room 311, Shek Fai House (the said unit) in the same housing estate. The Applicant was nominated as the tenant of the said unit to sign the tenancy agreement. The area of the said unit is the same as the old unit, namely 34.61 square metres, an area for a 4 members household.

6. In the Declaration for Application for Public Housing dated 28 July 1998, the Applicant declared that her sons Ho Yin and Ho Ming were both single and that they would move into the said unit.

7. Clause (4) of the Declaration stipulated that:-

"I understand that under section 26(1)(c) of the Housing Ordinance (Chapter 283), any person who knowingly furnishes false information when applying for public housing shall commit an offence. Upon conviction, it is punishable by fine at level 5 specified under Schedule 8 of the Criminal Procedure Ordinance (Chapter 221) and be imprisoned for 6 months. According to the policy of the Housing Authority, it may terminate any lease of public housing obtained as a result of any false information supplied upon an application for the lease, whether or not (he) is charged or convicted as a result thereof."

8. The content of the declaration had been explained to the Applicant in punti dialect before she signed the declaration in front of the interviewing officer of the Housing Authority.

9. On 13 November 1998, Ho Yin applied for cancellation of his occupancy right as he had moved out of the said unit after marriage. In fact, it is not disputed that Ho Yin married on 31 March 1998, 4 months before the Applicant made the declaration on 28 July 1998.

10. In respect of the false declaration, the Applicant was subsequently charged with the offence of "Knowingly making a false statement in respect of an application for a lease" under S.26 (1)(c) of the Housing Ordinance. The Applicant's explanation that she did not deliberately made the false declaration was not accepted. She was convicted as charged on 26 August 1999 and was fined $1,000.

11. On 30 September 1999, the Director issued a notice to quit to the Applicant terminating the tenancy of the said unit with effect from 31 October 1999. Apparently it is the policy of the Housing Authority that any lease of public housing obtained as a result of any false information supplied by the tenant may be terminated (the said Policy). The decision to issue a notice to quit to the Applicant was made in accordance with the said Policy.

12. It is the Director's position that a tenant who has made a false declaration is not automatically evicted. If the false declaration is made by mistake and not intentionally or knowingly, or where the false information is not material, or where there is no benefit to the tenant in making the false declaration, the Director may exercise his discretion and decide not to evict.

13. But in the present case, the Director would have made different housing allocation according to the decrease in the number of persons in the unit, i.e. a room of 28.89 square metres would have been allocated instead of a room of 34.61 square metres if the Applicant had not made the false declaration. In the circumstances, the false declaration of the Applicant was a serious violation of provisions in the Housing Ordinance, which justified the termination of the tenancy in accordance with the said Policy.

14. The Director had also considered if a smaller flat should be granted to the Applicant after terminating the lease of the said unit. The Director decided against it because "of the importance of deterring tenants or potential tenants from making false declarations bearing in mind there are strong demand for public housing by the public. If the Director lightly let go of tenants who made false declarations knowingly and deliberately, such as that in the present case, the Director's policy on evicting tenants who made false declaration will be empty and 'toothless'. Tenants or potential tenants will have nothing to lose by making false declarations if they can always argue that the most that the Director can do is to transfer them to a smaller flat."

15. On 11 October 1999, the Applicant appealed against the decision of the Director to the Appeal Tribunal. The Applicant alleged that her education level was low and she did not understand the clauses in the declaration as she did not read them carefully. She also suggested that the income of the family was low and if they were forced to move out of the said unit, the family would become homeless.

16. The Appeal Tribunal dismissed the appeal and confirmed the notice to quit on 14 April 2000 after the Housing Authority placed a certificate of the said Policy before the Appeal Tribunal on 23 November 1999. The Appeal Tribunal was of the view that the Applicant had deliberately and falsely stated Ho Yin was single and as a result she was allocated a larger unit. The Appeal Tribunal also concluded that the Applicant had not demonstrated sufficient reason to make her case an exception to the said Policy.

17. The Applicant disagreed with the decisions of the Director and the Appeal Tribunal and hence the present application.

18. The application was made on 4 August 2000, more than 3 months after the decision of the Appeal Tribunal. Technically, the application was out of time under Order 53 of the Rules of the High Court.

19. I have considered the reasons for the delay advanced by the Applicant. I also take note that the Director is not taking any issue on the delay. I shall disregard the delay and treat the application as if it was made in time.

20. In support of this application, Mr Ng on behalf of the Applicant, makes the following points:-

1. As Mr Wong and Ho Ming are adversely affected by the decisions of the Director and the Appeal Tribunal, they should have been given the chance to be heard before those decisions were made, otherwise it is against the principle of natural justice;

2. The policy of terminating a lease obtained as a result of false information supplied upon an application for the lease admits no exception and such policy is therefore illegal;

3. In so far as the Director and the Appeal Tribunal had blindly followed the policy without taking into consideration the individual circumstances, they had not discharged their duties properly;

4. In any event, the policy should only be applicable to "fresh applications" and not "for exchange for leases" and the Director and the Appeal Tribunal should not have relied on the policy when dealing with the Applicant's case when the false declaration did not result in the Applicant obtaining any additional benefit when the sizes of the said unit and the old unit are identical;

5. It is also suggested that the policy is contrary to the rights to family life and the establishment of a family unit and hence in conflict with article 23 of the International Covenants on Civil and Political Rights and articles 10(1) and 11(1) of the International Covenant on Economic, Social and Cultural Rights as incorporated by article 39 of the Basic Law.

21. With respect, I do not see the relevance of the provisions of the International covenants or that of the Basic Law to the issues involved in this dispute.

22. "The protection of a family" and "the recognition of the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions" do not necessary mean that the Government of Hong Kong Special Administrative Region must provide all the citizens in Hong Kong with a unit in the public housing estates or housing of any particular kind.

23. Hong Kong is a densely populated metropolitan city with a chronic shortage of housing at all levels. Despite the effort on the part of the Government, it is still widely known and generally accepted that the living conditions of a lot of people in Hong Kong, including quite well off people are not satisfactory.

24. Naturally, public housing with its low rent is highly attractive and many people have to wait for a long time before a public housing unit is available. In order to ensure a fair distribution of the public housing units, the Government must be allowed to adhere to a workable policy so that tenants or potential tenants of public housing units will not abuse the system.

25. A fair distribution of public housing units will depend to a large extent on the background and circumstances of one applicant in relation to other applicants as those matters are relevant in deciding the type of housing, the location and the size of the housing to be provided as well as when to provide the housing.

26. The Government must rely on the individual applicant to provide the necessary information and it is incumbent upon such individual to give a true account about himself otherwise the system will be subject to abuse. The Declaration for Application for Public Housing must have been designed with that in mind.

27. It is, in my view perfectly reasonable for the Housing Authority to have a policy that it may terminate any lease of public housing obtained as a result of any false information supplied in the Application for Public Housing or else it will be difficulty for the Housing Authority to discharge its functions and duties properly.

28. There is no basis for the suggestion that such a policy contravenes the provisions of the international covenants or that of the Basic Law.

29. Mr Ng complains that there was a breach of natural justice when Mr Wong and Ho Ming's housing benefits were taken away from them when they had not been informed of the said policy and had not been given the chance to make representations.

30. Under Section 19 of the Housing Ordinance, the Housing Authority may terminate any lease and the tenant has a statutory right to appeal to the Appeal Tribunal against such a decision. The Ordinance does not provide for any hearing before the Housing Authority decides to terminate the lease. If a tenant feels aggrieved by the termination of the lease decides to appeal, the Appeal Tribunal will conduct a full hearing under Section 20 of the Housing Ordinance.

31. The Housing Authority of course will make its own inquiry before deciding if the notice to quit should be issued, but there is in my view no obligation on its part to conduct a hearing and to allow a tenant or anyone else to make representation before making a decision.

32. In the light of the statutory framework of the Housing Ordinance, to insist that the Housing Authority must have a hearing or invite representations from the tenant or other affected parties before deciding if a notice to quit should be issued is to impose an unnecessary duty on the Housing Authority and to undermine the functions of the Appeal Tribunal.

33. In Sevenoaks District Council v. Emmott (1979) 30 P & CR 404, the Court of Appeal in England, in construing section 111 of the Housing Act 1957 concluded that

"a local authority's power in respect of houses owned by it included managing, regulating and controlling them and the decision whether or not to give a notice to quit had been left by Parliament to the authority which was not required to give its reasons for that decision; that where the authority's decision was occasioned by matters brought to its notice it was not its duty to give the tenant concerned the opportunity to make representations or to conduct a formal inquiry as to the merits of those matters."

34. With respect the reasoning in Emmott's case (supra) applies to the present case.

35. The Applicant had had a full hearing before the Appeal Tribunal. The compliant is that Mr Wong and Ho Ming had not been given the same opportunity and it constitutes a breach of natural justice.

36. No one should of course be condemned unheard. But whether the requirement of natural justice has been followed will depend on the facts of each case.

37. Tucker LJ said in Russell v. Duke of Norfolk [1949] 1 All ER 109 at 118: -

"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth."

38. Lord Bridge in Lloyd v. McMahon [1987] AC 625 at 702 made similar observations:-

"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of a the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

39. It must not be ignored that the said unit was leased to the Applicant not just as a residence for herself but for her family members as well. In the tenancy agreement itself, Mr Wong, Ho Yin and Ho Ming are all listed as family of the Applicant. Indeed under clause II(20) of the tenancy agreement, it is expressly agreed that "the tenant and all family members listed shall take up the tenancy of the said flat within one month after the commencement of the tenancy."

40. Clause III (7) also provides that

"For the purpose of this Agreement any act, neglect or default of any member of the Tenant's family or of any servant of his shall be deemed to be the act, neglect or default of the Tenant."

41. For the purpose of the tenancy agreement, the Applicant and her family are to be treated as one household and not separately. Knowledge acquired or representations made by the Applicant must be deemed to have been acquired or made by her family members as well.

42. There is no reason why Mr Wong and Ho Ming could not have made the representations to the Director or the Appeal Tribunal through the Applicant. In any event, whatever representations that could be made on behalf of Mr Wong and Ho Ming had already been made. Even in the present application, there is no suggestion that the Director or the Appeal Tribunal should be made aware of any other matters that they had not been made aware of.

43. It is perhaps worth mentioning that Mr Wong was originally one of the applicants in the judicial review application. He was refused leave as it was not considered that he should have a separate and independent right to pursue the matter. The same reasoning applies to the hearing before the Appeal Tribunal.

44. A case of breach of natural justice has not been made out.

45. It is also the Applicant's case that the said policy, even if valid only applies to fresh applications for leases and not for exchanges for leases. The suggestion is that the applicant and her family were already enjoying the old unit that is of the same size as the said unit and the Applicant did not obtain any extra benefit by reason of the false declaration. In the circumstance, the decisions of the Director and the Appeal Tribunal to terminate the tenancy in respect of the said unit because of the false declaration are irrational.

46. The old unit and the said unit may well be of the same size. The Applicant and her family could have continued to live in the old unit after the marriage of Ho Yin. Nevertheless, they are two separate housing units, one in the name of Mr Wong and one in the name of the Applicant. There had been change in the Applicant's family circumstances and the family was no longer entitled to the original benefits when the question of a new lease arise.

47. Mr Wong had voluntarily given up the lease of the old unit and the Applicant was granted the lease of the said unit in her name. What is more important is that if the Applicant had not made the false declaration, she would not have been granted the lease of the said unit. She would have been granted a unit of smaller size. It is wrong to say that the Applicant did not obtained any benefit by reason of the false declaration.

48. I am not persuaded that the said policy should not apply to the Applicant's case or that the application of the said Policy is irrational.

49. In deciding to terminate the lease of the said unit, the Director and the Appeal Tribunal had taken into consideration the said Policy as well as the family circumstances of the Applicant, including their alternative housing arrangement, there is no basis for saying that the discretion has not been properly exercised.

50. There can be no dispute that the Applicant, by her false declaration, had obtained the lease of the said unit. There can also be no dispute that without such a false declaration, she could not have obtained such a lease. In the circumstances, it is obviously right and proper that the said lease should be terminated otherwise the Applicant would be benefited by her own wrongful act.

51. It is suggested that the Appeal Tribunal could have granted the Applicant a lease for a smaller unit that she could have obtained if she had made a true declaration. Both the Director and the Appeal Tribunal had considered such a possibility but had decided against it. In any event the Applicant, in this application does not seek any order that a small unit is to be granted to her. She seeks to quash the notice to quit and the decisions to terminate the lease of the said unit.

52. Much had been said on the question of whether the Applicant intended to gain a larger flat by the false declaration that she had made. In the criminal proceeding against the Applicant, the magistrate did not make any finding on the issue as it was not relevant. The Appeal Tribunal also did not make any finding on the issue.

53. Mr Ng, on behalf of the Applicant suggests that the Appeal Tribunal should make such a finding as it is relevant to the exercise of its discretion.

54. With respect I do not agree with such a suggestion. For the said Policy to bite, it has to be established that a lease is obtained as a result of any false information supplied upon an application for the lease.

55. It cannot be disputed that the Applicant had made a false declaration and as a result she was granted a larger flat than what the family was entitled to. Whether she intended to gain such extra benefit was not an essential ingredient before the said Policy could be invoked although it might not be difficult to infer that she did have such an intention. After all why else would the Applicant have made a false declaration knowingly and deliberately.

56. Despite the complicated and convoluted way in which the Applicant presents her case, the case is a simple one. The Applicant in applying for a lease of the said unit had knowingly and deliberately made a false declaration and as a result was granted a larger flat than what her family was entitled to.

57. The Director decided to terminate the lease in accordance with the said Policy. The Appeal Tribunal, having considered all matters presented by the Applicant including her family background, decided not to make her case an exception to the said Policy.

58. I have considered the background of the case and counsel's submissions carefully. The decisions of the Director and the Appeal Tribunal are not unlawful. There was no procedural irregularity and their decisions are not Wednesbury unreasonable. There is no valid basis upon which I can properly interfere with those decisions.

59. The application for judicial review must be dismissed and I so order.

60. I also make an order nisi that the Applicant is to bear the costs of the application to be taxed if not agreed. The order nisi on costs will be made absolute 14 days after the handing down of the judgment.

Representation:

Mr Maurice Ng, instructed by Messrs Wong & Chu, assigned by DLA, for the 2nd 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, absent