Cheuk Ying Wah v. An Appeal Tribunal Appointed Pursuant To Sections 7a and 20 of the Housing Ordinance Cap. 283 and Another

HCAL145/2005

IN THE HIGH COURT OF THE

HONG KONG ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 145 OF 2005

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BETWEEN

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Before:  Hon. Lam J in Court

Date of Hearing:  30 November 2005

Date of Decision:  30 November 2005

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D E C I S I O N

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1.This is an application for leave to apply for judicial review in respect of the Housing Authority’s decision to terminate the tenancy of the Applicant on the ground of non-payment of rent.

2.The decision of the Housing Authority was confirmed by the Appeal Tribunal on 16 September 2005.  At the time of the hearing before the Tribunal, the arrears of the Applicant was from March 2005 up to the time of the hearing.

3.Today, I am told by Mr Cheng appearing for the Applicant that the Applicant has paid some of the arrears, but he had not been paying the rent for the later months.  So, as at today, the position is that he was in arrears for the rent from June to November 2005.

4.The Applicant was and is unemployed and he lived on public assistance.  In the amount he received each month from the Social Welfare, he got $1,600 for his living expenses, and on top of that, there is a sum of $730 given to him for payment of rent.  That has been the position during the time when he ran into these arrears of payment of rent.  In other words, from the money he received from public assistance, he used money paid to him for payment of rent for other purposes.

5.The Tribunal confirmed the decision of the Authority because the Tribunal did not find that there is any reasonable ground to believe the Applicant would pay up the arrears in due course, and also to believe that he would be punctual in future payment of the rent.

6.I remind myself that the purpose of judicial review is not to have a further appeal.  The Legislature has conferred the power and the discretion on the Tribunal, not on this court.  So, in the context of a judicial review, this court is only to examine whether the Tribunal has exercised their discretion in accordance with the law and also whether they have done so fairly.

7.At today’s hearing and also in the papers, the Applicant seeks to challenge the decision of the Tribunal on the basis that the Tribunal had not, in their reasons, given any express consideration as to the possibility of suspending the termination in order to see whether the Applicant would honour his promise to pay up all the rent in arrears and make punctual payment in the future.

8.Mr Cheng relied on the case of Ng Wai Sang v Secretary for Justice [1998] 3 HKC 501 to support the proposition that the Tribunal was obliged to consider each and every option and should not reject one of the options unless, on the facts before it, there was only one reasonable option.

9.As this is an application for leave, the test is that leave should be granted if the court thinks on further investigation the Applicant might have some arguable ground to challenge the decision of the Tribunal.  But as I have emphasised, it is not the function of the court in a judicial review to usurp the function of the Tribunal, and the purpose of a judicial review is not to have a further tier of appeal.

10.Having considered the submissions of Mr Cheng and the matters set out in the papers, I do not think there is anything which, on further investigation, might cause the court to set aside the decision of the Tribunal.

11.Ultimately, it is a question of fairness, as this is borne out by the reference by the Court of Appeal in the case of Ng Wai Sang to the English case of ex parte Cunningham [1991] 4 All.ER 310.  Of course, how fairness operates depends on the facts of each case.

12.Bearing in mind the facts of the present case which I have recited, I do not think one can criticise the Tribunal for reaching that conclusion.  After all, the Tribunal has heard the Applicant and they came to the conclusion that there is no reasonable basis for them to believe that the Applicant will be able to pay up the arrears and be punctual in the payment of rent in the future.  It seems to me that this is a conclusion which the Tribunal can reasonably reach on the materials placed before them.

13.Against that factual scenario, I do not think the Tribunal has a duty to consider or to expressly spell out in their reasons that they have considered the option of suspending the termination in the meantime.

14.In the circumstances, I do not think there is any basis for the court to grant leave for judicial review.  I therefore refuse the application.

15.I also order that the Applicant’s own costs be taxed under Legal Aid Regulations.

Mr Cheng Chi-hung of Cheng, Chan & Co., for the Applicant