Law Woon King v. Appeal Tribunal (Housing) and Another

HCAL 15/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

HCAL 15/2011

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Before : Hon Au J in Court

Date of Hearing : 16 January 2012

Date of Judgment : 30 March 2012

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J U D G M E N T

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A.  INTRODUCTION

1.The Applicant has since 1993 been the tenant of a public rental flat (“the Flat”) at Kwong Tin Estate under a tenancy agreement (“the tenancy agreement”) dated 19 August 1993 with the Housing Authority (“the HA”) (2^nd respondent).  Kwong Tin Estate is a public housing estate managed by the HA under the Housing Ordinance (Cap 283) (“the HO”).

2.This is the Applicant’s judicial review seeking to quash:

(1)  The HA’s decision (“the HA’s Decision”) dated 30 July 2010 to issue and serve on her a notice to quit (“the NTQ”) to terminate the tenancy agreement and require her to vacate the Flat.

(2)  The decision (“the Tribunal’s Decision”) of the Appeal Tribunal (Housing) (“the Tribunal”) (the 1^st respondent) dated 5 October 2010 dismissing the Applicant’s appeal and confirming the NTQ.

B.  THE FACTS

3.The Applicant is now 75 years old and has been receiving Comprehensive Social Security Assistance (“CSSA”).

4.The Applicant initially lived with her son (“the Son”) and her daughter (“the Daughter”) in the Flat.  The Daughter has since 2004 moved out and the Son passed away in 2008.  The Applicant therefore lives alone.

5.She suffered a stroke in about 2004, and a second stroke in 2007.  She was hospitalized for 2 months in 2007 and the doctor was of the opinion that she required assistance in her daily living activities.  Eventually, she moved into an elderly centre (“the elderly centre”) at the end of 2007 when her CSSA grant was approved to cover its expenses.

6.She had been staying in the elderly centre since then.  It is the Applicant’s case that she would return to the Flat once or twice a week, accompanied by the Daughter, but there is no official record from the elderly centre to confirm the same.

7.At the same time, in June 2010, as the Flat had fallen into disrepair, the Daughter engaged a contractor at a fee of about $9,000.00 to repaint the ceiling and the walls of the Flat, using an extra CSSA grant made to the Applicant in 2010.

8.It is the Applicant’s case that before the Daughter decided to go ahead with the repainting, she had spoken to a Mr Hung (“Mr Hung”) of the Housing Department (“the HD”) to inquire about the possibility of carrying out the repainting work.  The Daughter said Mr Hung told her that the Flat would not be repossessed even if the Applicant was the only person living in it, and he assured the Daughter that she could put her heart at ease to repair the Flat.  Mr Hung’s case however is that he only told the Daughter that renovation works could not be carried out in breach of the tenancy agreement, and referred her to consult the management company of Kwong Tin Estate for details.  He also emphasised that when he made this reply, he was not aware of the fact that the Applicant had not been living in the Flat since 2007.

9.For convenience only, I would refer to this conversation in this judgment as “Mr Hung’s Alleged Assurance”.

10.On the other hand, on 5 May 2010, the Flat was subject to the HD’s random check against tenancy abuse.  It was then suspected that the Applicant was not occupying it, and the case was referred to the Public Housing Resources Management Sub-section (“PHRM”) for further investigations.

11.After these investigations, the PHRM concluded that there was non‑occupation of the Flat based on the following findings:

(1)     The PHRM officer inspected the Flat for 9 times during a period of 48 days between 11 May and 27 June 2010.  These visits were made at different times of the day, and included one Sunday and one public holiday.  There was no one to answer the door during all these visits.

(2)     The respective reading of the water and electricity meters of the Flat did not record any material change over the period from May to June 2010.

(3)     The PHRM’s officer was told by the Applicant’s neighbour during one of her above inspections that the Applicant had been admitted to the elderly centre, and a lady would sometimes visit the Flat.

(4)    Thus, on 28 June 2010, the PHRM officer went to the elderly centre for further investigations.  She found that the Applicant had been admitted there since November 2007.  The elderly centre staff also told the PHRM officer that (a) the Applicant required assistance in her daily life, (b) the Daughter had accompanied the Applicant to take time off once or twice every week, and (c) the Applicant was also certified to be in need of constant attendance with no definite discharge date.  At the same time, the Applicant herself on the other hand told the PHRM officer that she had made returns to the Flat, and the last visit was at the beginning of June 2010.

12.The PHRM officer submitted the investigation report to the HD on 13 July 2010, setting out the above results of the investigations and concluded that there was non-occupation of the Flat.

13.On 15 July 2010, a HA’s staff talked to the Daughter over the phone in relation to the non-occupation of the Flat.  The Daughter refused on behalf of the Applicant to voluntarily surrender the Flat and to accept a “letter of assurance” to be issued by the HA, despite having been explained that the Applicant could upon redemption of the letter of assurance be located a public rental housing flat in the event that she ceased to stay with the elderly centre or another old age home in the future.

14.In those circumstances, the HA was of view that, for the reason of proper and fair allocation and use of public housing resources, the non‑occupation of the Flat was a serious tenancy abuse warranting the issue of the NTQ.  By way of the HA’s Decision, it served on the Applicant the NTQ to terminate the tenancy agreement with effect from 31 August 2010.

15.In the letter enclosing the NTQ, it was stated that the Applicant had not been retaining regular and continuous residence of the Flat, which was in breach of a subsidized housing policy (“the Policy”) as contained in the document numbered SHC/2008 (“SHC/2008”).  It further stated that, the NTQ was issued pursuant to s 19(1)(b) of the HO.  The Applicant was reminded that she could appeal to the Tribunal against the NTQ within 15 days pursuant to s 20(1) of the HO.

16.On 9 August 2010, the Applicant lodged an appeal to the Tribunal against the HA’s Decision.  The Daughter represented the Applicant and acted in person.  In the written documents she submitted to the Tribunal, the main grounds of the appeal were:

(1)     The HA agreed to renovation works to be carried out to the Flat and the Applicant acted on Mr Hung’s Alleged Assurance.

(2)     The Applicant was in the Flat on 5, 23, 24 and 26 August 2011.

(3)     There lightings in the Flat were lit on 16 June, 3, 10, 17 and 24 August 2010.

17.The hearing of the appeal took place on 28 September 2011.  The Daughter and representatives from the HA appeared at the hearing.

18.By way of the Tribunal’s Decision, the Tribunal dismissed the appeal and confirmed the NTQ.  It also recommended the HA to issue a letter of assurance to the Applicant.

19.On 9 October 2010, the Applicant refused to accept the HA’s offer of letter of assurance.  As such, no letter of assurance has been issued.

20.As the Applicant refused to surrender the Flat, the HA issued an Eviction Notice to the Applicant on 21 October 2011 to notify her that there would be a scheduled eviction operation on or after 10 November 2010.

21.In October 2011, the Applicant applied for legal aid to commence judicial review proceedings.

22.On 9 March 2011, legal aid was refused.

23.On 22 March 2011, the Applicant acted in person and applied ex parte for leave to commence judicial review against the HA’s and the Tribunal’s Decisions.  She also sought extension of time.

24.On 24 March 2011, this Court granted leave to the applicant on papers.

25.Later, the Applicant was granted legal aid, and by consent, the Form 86 was amended on 9 September 2011.

C.      THE BASES OF THE NTQ

26.As mentioned above, the HA relied on s 19(1)(b) of the HO and the Policy as the bases for terminating the tenancy agreement.

27.S 19(1) of the HO provides as follows:

“(1) Notwithstanding the terms thereof, the Authority may terminate any lease-

(a) …

(aa) …

(b) otherwise, by giving such notice to quit as may be provided for in the lease or 1 month's notice to quit, whichever is the greater.

…”

28.Thus, the HA has a general power under the HO to terminate a tenancy of a public housing unit under its management by notice.

29.There is no dispute that public rental housing is a limited and precious public resources in Hong Kong.  The HA is charged with the responsibility and task to properly manage public housing and to allocate it to those who are in genuine need.

30.According to the evidence, the waiting list for public rental housing is a long one.  At the end of the fiscal years 2009/2010 and 2010/2011, the numbers of application on the waiting list are respectively around 129,000 and 152,000, while the numbers of these applicants who have been successfully housed during these periods are only 20,875 and 15,900.00.

31.At the same time, there are incidents of serious tenancy abuses by existing tenants of public rental housing, such as non-occupation, failure to retain regular and continuous residence and subletting.  These would prolong the waiting time of the applicants.

32.In order to carry out its tasks and to prevent serious public housing abuses, the HA in 2004 implemented certain policy to deal with, inter alia, non-occupation cases.  Such a policy was then subsequently amended to become the Policy.  These have been explained in the Affirmation of Ko Siu Chu at paragraphs16 and 17 as follows:

“16. On 26^th March 1994, the then Management and Operation Committee (‘MOC’) of the 2^nd Respondent [ie, the HA] endorsed the policy of terminating a tenancy without warning:-

(1) in case of proven subletting with or without rental income; or

(2) in non-occupation cases, if tenant is staying in proven alternative accommodation or non-residence is observed for a continuous period of up to three months.

17. Even though the spirit of the above policy is clear, to avoid any possible confusion as to whether the terms of ‘non‑occupation’ and ‘non‑residence’ refer to ‘no occupation at all’ or ‘part with possession’, on 7^th July 2008, the Subsidized Housing Committee (‘SHC’) of the 2^nd Respondent endorsed a textual amendment to replace ‘non-occupation’ and ‘non-residence’ by ‘not retaining regular and continuous residence’. The policy of terminating tenancy under the following situations was reaffirmed:-

(1) subletting with or without rental income is proved;

(2) tenant is staying in proven alternative accommodation or not retaining regular and continuous residence for over three months; and

(3) ‘regular and continuous’ be construed in accordance with its ordinary meaning and reasonableness is the crucial yardstick in judging cases.”

33.The Policy in this regard is set out at paragraph 8 of SHC 27/2008:

“8. While the Department would maintain the existing administrative arrangements to deal with tenancy abuses, we propose to reaffirm the policy of Paper No. MOC 32/94 to take action to terminate a tenancy for clarity sake when –

(a) subletting with or without rental income is proved;

(b) tenant is staying in proven alternative accommodation or not retaining regular and continuous residence for over three months; and

(c) ‘regular and continuous’ be construed in accordance with its ordinary meaning and reasonableness is the crucial yardstick in judging the cases.”

34.Thus, under the Policy, the HA would generally terminate the tenancy of the subject public rental unit where abuses in the form set out thereunder are established.

35.It is paragraphs 8(b) and (c) of SHC 27/2008 that are of relevance for the present purposes.  As I mentioned above, the HA issued the NTQ on the basis that the Applicant had not retained regular and continuous residence of the Flat for more than three months.

D.      THIS JUDICIAL REVIEW

D1.    The grounds of judicial review

36.The Applicant raises various grounds to challenge the HA’s Decision and the Tribunal’s Decision in relation to the reliance and application of the Policy.  However, it is important to note that the Applicant does not challenge the validity or propriety of the Policy itself. As I understand them, these grounds are developed and pursued at the hearing by Mr Kwok for the Applicant in essence as follows.

37.In relation to the Tribunal’s Decision:

(1)     In the appeal before the Tribunal, the HA relied on the Policy to support the HA’s Decision.

(2)     In order to rely on the Policy, under s 20(2A)(b)(ii) of the HO, the Tribunal had to give reasons as to why it considered it appropriate to still have regard to the Policy despite the fact that there was nothing to show that the Applicant was aware or could have reasonably been aware of the Policy.  But the Tribunal has not given any such reasons in the decision.  This renders the Tribunal’s Decision impugnable under public law:  Lam Hei Ying v Hong Kong Housing Authority (unrep, HCAL 2299/2000, Yeung J, 23 January 2001) at p 8.

38.In relation to the HA’s Decision:

(1)     The Policy as set out in SHC 27/2008 at paragraph 8 provides that a tenancy would be terminated if the tenant is (a) “staying in proven alternative accommodation” or (b) “not retaining regular and continuous residence for over three months”.

(2)     If the HA’s application of the Policy in this case is based on limb (a), that is, the Applicant has lived in an elderly home as an alternative accommodation, it has failed to follow its own procedures that it should give the Applicant a six-month deliberation period and two reminders to enable her to decide whether she would exercise an option to return to the Flat to live.  These procedures are only disclosed and revealed in this judicial review application but not before[1].

(3)     If the HA was simply relying on the 9 inspection visits it had made to the Flat over 48 days (in May and June 2010) to show that the Applicant was not retaining “regular and continuous residence over three months”, it had also failed to comply with the Policy’s own requirement of the three-months period, as the inspection visits only covered a period of two months.

(4)     Thus, in either case, the HA’s failure to implement these promulgated procedures or comply with the Policy’s own requirement renders the HA’s Decision unlawful: AG of Hong Kong v Ng Yuen Shui [1983] 2 AC 629 at 638E-G, 639G.

(5)     Further, and in any event, the HA has also failed to properly discharge its statutory duty under s 4(2)(e) of the HO to have regard to the interest, welfare and comfort of the Applicant as a tenant by issuing the NTQ. This is so because:

(a) If the Applicant is forced to leave the Flat (which is of a size of 34.76 sq m) and stay in the elderly centre, she would then only have a much smaller area available for her private personal occupation.

(b) This would be infringing the Applicant’s rights regarding her “home” under Article 17 of the International Covenant on Civil and Political Rights (“ICCPR”) and her right to adequate housing under Articles 10.1, 11.1 and 12.1 of the International Covenant on Economic, Social and Cultural Rights (“the ICESCR”).  These rights have been incorporated in Hong Kong under Article 39 of the Basic Law. 

(c) Such unfairness to infringe her rights to “home” is further underlined by Mr Hung’s Alleged Assurance, as she had spent money on the renovation under the expectation that the Flat would not be repossessed.

(d)     The HA’s failure to take into account of these relevant considerations in the exercise of its statutory duty vitiates its decision to issue the NTQ: R v Director of Immigration, ex parte Simon Yin Xiang-jiang (1994) 4 HKPLR 265, 273; Mok Chi Hung v Director of Immigration [2001] 1 HKC 281, 289.

(6)     Moreover, the above HA’s failure to comply its own procedures under the Policy and the failure to have proper regard to the Applicants’ rights to home also amount to an abuse of power by the HA in issuing the NTQ: R v North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622, 654B-G, 646C-D, 653D-654F, 657E-658F.

(7)     Alternatively, given the Applicant’s old age and poor health, the Court is entitled to assess the proportionality of the repossession: Manchester City Council v Pinnock [2011] 2 AC 104 at paragraphs 45-49, 51-58 and 64.

D2.    Discussion

39.I would first look at the ground seeking to challenge the Tribunal’s Decision.

40.It is not disputed that in the appeal, the HA relied only on the Policy in support of the issue of the NTQ.  Insofar as this is concerned, s 20(2A) of the HO is relevant for the Tribunal’s consideration of the HA’s reliance on the Policy.

41.S 20 of the HO deals with appeals to the Tribunal against a notice to quit issued by the HA.  S 20(2A) provides for an appeal where the HA seeks to rely on a policy to support the termination of a tenancy:

“(1) …

(2) …

(2A) (a) Paragraph (b) shall apply in relation to any policy of the Authority which is stated and specified as being such in a certificate in writing issued for the purposes of this subsection by the Authority's secretary and as regards which the certificate also certifies that the policy was both considered and applied by the Authority when deciding to terminate the lease or, where appropriate, to issue the notice to quit to which the appeal relates.

(b) In considering an appeal under subsection (1)-

(i) if the tribunal concerned is satisfied that at the time of making the decision to which a certificate mentioned in paragraph (a) relates, the appellant was aware of the policy or could reasonably be expected to have been so aware, the tribunal shall have regard to such policy; and
(ii) if such tribunal is not so satisfied, it may, where it considers it appropriate so to do, have regard to such policy.

(3)…”

42.Thus, under s 20(2A)(a), if the HA is to rely on a policy to support the issue of a notice to quit for the purpose of a s 20 appeal, it should provide a certificate setting out the relevant policy in writing.

43.In the Applicant’s appeal to the Tribunal, the HA did provide a certificate setting out the relevant part of the Policy that it relied on to issue the NTQ, which is as follows:

“本人證明：

(Ｉ) 按照資助房屋小組委員會2008年7月7日藉SHC 27/2008 號文件所通過的政策，倘承租人逾三個月非經常持續居於單位，房屋委員會得採取終止租約行動，而｢經常持續｣一詞乃按其常義詮釋，審理個案時以合理標準為關鍵尺度。

(ＩＩ)      房委會或代房委會行事及代表房委會的高級房屋事務經理決定於2010年7月30日向羅煥琼女士發出遷出通知書，於2010年8月31日終止其於廣田邨廣雅樓2311室的租約時，已考慮及應用上述政策。”

44.It is therefore clear that the part of the Policy the HA relied on for the HA’s Decision was that the Applicant had not retained continuous and regular residence of the Flat for more than three months.

45.Under s 20(2A) of the HO, the Tribunal can only properly have regard to this Policy in determining the appeal either (a) if it is satisfied that the Applicant was aware of or could reasonably be expected to have been so aware of such a policy at the time of the HA’s Decision (under s 20(2A)(b)(i)), or (b) if the Tribunal is not so satisfied, it considers it still appropriate to do so (under s 20(2A)(b)(ii)).

46.However, Yeung J (as he then was) in Lam Hei Ying v Hong Kong Housing Authority, supra, has said that, if the Tribunal wishes to rely on s 20(2A)(b)(ii) of the HO to still have regard to a policy in determining an appeal, it must set out its clear reasons for doing so.  Otherwise, the tribunal’s decision should be quashed.  His Lordship explained his observations at p 8 as follows:

“ Again, there is no evidence at all to indicate that the applicant was aware of the policy or could reasonably be expected to have been so aware. The Tribunal should not have had regard to the policy.

If the Appeal Tribunal consider it appropriate to have regard to such policy when the applicant was not aware of the policy and could not reasonably be expected to have been so aware, the Tribunal must make clear its reasons.

The Appeal Tribunal is a statutory body and in the exercise of its powers granted under the relevant statute, it must comply with the requirements stipulated therein. Any failure would constitute procedural irregularities and render it decisions impugnable.” (emphasis added)

47.In support of this application to quash the Tribunal Decision, Mr Kwok for the Applicant submits that, since there was no evidence provided in the appeal before the Tribunal to show either that the Applicant was aware of the Policy at the time or that she could reasonably be expected to be aware of it (and the Tribunal also did not say that it was so satisfied), the Tribunal can only rely on s 20(2A)(b)(ii) of the HO to proceed to determine the appeal on the basis that it considered it appropriate to still have regard to the Policy.  However, the Tribunal did not give any reasons to explain why it considered it appropriate to do so.  In the circumstances, the Tribunal’s Decision should (says Mr Kwok) be quashed.

48.The Tribunal explained the Tribunal’s Decision in its written reasons (“the Reasons”) dated 31 March 2011 as follows:

“ 上訴審裁小組得悉，房屋署的善用公屋資源分組經過深入調查後，發現單位的承租人羅煥琼女士沒有經常持續在藍田廣田邨廣雅樓2311室居住，署方遂聯絡羅女士及她的女兒王女士，表示若住戶自願交回單位，署方可考慮發出保證書，但王女士拒絕接受。由於此戶違反房屋政策，署方遂於2010年7月30日向此戶發出遷出通知書，於2010年8月31日終止其租住權。在署方發出遷出通知書後，上訴人仍居住在安老院，而單位的水電用量則有輕微間歇性的增幅。

2. 上訴人已授權女兒王雲慧女士(單位非認可人士)代表出席聆訊會。

3. 上訴人代表表示，上訴人已於2008年入住安老院，2008年6月房屋事務主任上門查訪時，她已向該職員承認，因此，上訴人代表認為上訴人入住安老院一事並不是秘密，署方職員應早已知悉。署方代表回應，根據署方的紀錄，上訴人在2008年11月申報入息時，出示了領取綜援的文件，但沒有上訴人已入住安老院的紀錄。

4. 上訴人代表又表示，她在本年6月曾向署方職員查詢，若戶籍內只有上訴人一人，單位會否被收回，及可否在單位內進行裝修工程，當時署方職員表示單位不會因為只有上訴人一人居住而被收回，他們亦可進行裝修工程。署方代表確認，租約事務管理處曾於本年6月接獲上訴人代表的查詢，但當時他們仍未收到善用公屋資源分組的調查報告，遂按一貫政策，回覆上訴人代表可按程序進行裝修工程。

5. 至於上訴人的健康狀況及日後的居住情況，上訴人代表表示，上訴人患有高血壓，曾兩度中風，現時雖然行動不便，需要使用輪椅，及不能自理，但健康狀況已好轉，可以自行進餐，亦較有朝氣。本年6月前上訴人只返回單位數次，而在完成裝修工程後，上訴人則在上訴人代表照顧下，每星期返回單位一次，並留宿一天。上訴人代表表示，單位對上訴人有很大的意義，因為親友可到單位探望她，她亦希望日後可多返回單位，收回單位會對她造成很大的傷害。

6. 上訴人代表又表示，她已花了萬多元進行裝修，並重申不接受保證書，指出若家中的物件都被丢掉，即使日後再編配另一個單位給上訴人，亦很難再建立一個家，亦會對上訴人造成很大的傷害。

7. 上訴審判小組認為入住安老院、長期留住醫院或出國留學的承租人並非必然需要終於其租住權。上訴審判小組需要就每個個案事實，衡量上訴人是否仍然有居於該公屋的需要，儘管是很低的機會率。

8. 經詳細考慮上訴人代表及署方所呈交的文件和口頭陳述後，上訴審裁小組認為上訴人已入住安老院、年事已高、出入必須使用輪椅及曾兩度中風，日常生活必須依靠他人照顧。上訴人在安老院已居住逾三年之久，並無證據顯示在未來日子裡她能離開安老院返點公屋單位居住。上訴人實在沒有在上址單位居住的需要，上訴人代表要求保留單位只是基於上訴人心靈上的需要，上訴人代表為母親支付的萬多元裝修費用，只可以被理解為製造一個上訴人與親友的聚腳點，但單單此點並不足夠作為上訴人局於該單位的需要。若上訴審裁小組讓上訴人保留單位，會浪費公屋資源。因此，經過審慎考慮後，上訴審裁小組一致決定確認房委會向此戶發出的遷出通知書。

9.       上訴審裁小組同時建議署方向上訴人發出保證書，在上訴人日後有住屋需要時編配一個公屋單位給她。”

49.When I read the Reasons as quoted above, it is not entirely clear to me whether the Tribunal dismissed the appeal by having regard to or relying on the Policy. 

50.On the other hand, the HA accepts in this application that the Tribunal did have regard to the Policy in making the Tribunal’s Decision[2]. This is also consistent with the fact that the only basis relied on by the HA in the appeal to support the HA’s decision was by reference to the Policy.  The Tribunal also did not say in any clear terms in the Reasons that it did not have any regard to the Policy in determining the appeal.

51.In the premises, on a fair reading of the Reasons together with the position taken by HA in the appeal, I am satisfied that the Tribunal did have regard to the Policy in determining the appeal and coming to the Tribunal’s Decision. 

52.It is not disputed that no evidence had been placed before the Tribunal to show that at the time of the HA’s Decision, the Applicant was aware of, or could reasonably be expected to be so aware of the Policy.

53.The HA has in the present judicial review sought to adduce some evidence to show that the Applicant was aware of the Policy or should reasonably be expected to be so aware of it.  This evidence is in the forms of public housing estate regular newsletters and tenancy abuses report forms to be used by complainants for suspected tenancy abuses.

54.This evidence is in my view irrelevant to this application and I should pay no attention to it, since this has not been introduced before the Tribunal[3]. This Court in judicial review is not an appellate court and should not look at new evidence which was not before the Tribunal.  

55.In the circumstances, the Tribunal could only lawfully[4] have regard to the Policy if it considered it appropriate to do so and gave clear reasons to explain why so.

56.However, no such explanations were given in the Reasons.

57.Applying Lam Hei Ying, supra,I am thus satisfied that the Tribunal’s Decision is impugnable as it has not set out any or any clear reasons as to why the Tribunal considered it appropriate to still have regard to the Policy when there was no evidence to show that the Applicant was aware of the Policy or that she could reasonably be expected to be aware of it at the time of the HA’s Decision.

58.I would therefore quash the Tribunal’s Decision.

59.In my view, given I now quash this decision on the above ground, the proper course is to remit the appeal back to the Tribunal for a fresh consideration. 

60.As a result, I do not think it is appropriate for me to deal with the other grounds relied on by the Applicant in seeking to quash the HA’s Decision itself.  This is particularly so since most of these grounds had not been advanced in the appeal, and they are generally facts sensitive.  It is trite that the Court’s role in judicial review is a supervisory one but not sitting in an appellate capacity.  It should generally not be concerned with grounds which should have been but not raised in the proper appeal avenue, especially those which are facts sensitive[5]. 

61.For examples, in the present case:

(1)     In relation to the complaint that the HA had not complied with its own promulgated procedures or the requirement under the Policy itself, they relate to the evidence on compliance and should have been advanced before the Tribunal by way of appeal.  I note that the evidence of the procedures of giving six-months notice in relation to tenants who have moved to live in elderly homes was not reviewed and relied upon by the HA at any time before the present application, and thus was not known to the Applicant earlier.  It may thus be suggested that she would not have been able to raise such a challenge at the appeal.  However, as far as I can see, this requirement is only relevant to cases on alternative accommodation under the Policy, which was not relied on by the HA in issuing the NTQ (see paragraphs 43 and 44 above)[6]. This particular ground is thus in not relevant to the appeal or this judicial review. 

(2)     For the challenges that, in issuing the NTO, the HA had failed properly discharge its purported statutory duty under s 4(2)(e) of the HO in failing to take into account of the personal circumstances of the Applicant and her rights to “home” under the ICCPR and ICESR, these are also related to fact findings and legal arguments which could and should have been raised before the Tribunal in the appeal. 

62.Even in relation to the proportionality argument, I do not regard it to be appropriate for the Court to determine it now, as I have remitted the appeal to the Tribunal for reconsideration.  The merits, if any, of the proportionality argument may well depend on the reasons to be given by the Tribunal if it seeks to confirm the NTQ after considering the appeal afresh.  It is also facts sensitive.

E.      CONCLUSION

63.For the above reasons, I would quash the Tribunal’s Decision and direct that the appeal be remitted back to the Tribunal for a fresh consideration.

64.The Applicant is still successful in this application.  I therefore further make an order nisi that the HA[7] do pay the costs of this application to the Applicant, to be taxed if not agreed.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.  Unless any of the parties applies by summons to vary it, the order nisi shall be made absolute 14 days from today.

Mr Kwok Sui Hay, instructed by Tang, Wong & Chow, assigned by the Director of Legal Aid, for the applicant

Attendance of the 1^st respondent was excused

Ms Teresa P C Wu, instructed by Li, Kwok & Law, for the 2^nd respondent