Chan Yeuk Ming v. Hong Kong Housing Authority

HCAL 25/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 25 OF 2012

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BETWEEN

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Before: Hon Lam JA in Court (Sitting as an additional Judge of the Court of First Instance)

Date of Hearing: 21 August 2012

Date of Judgment: 21 August 2012

Date of Reasons for Judgment: 7 September 2012

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REASONS FOR JUDGMENT

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1.In this judicial review, the Applicant seeks to challenge the policy of the Housing Authority [“HA”] with regard to the allocation of public rental housing unit in respect of divorcees. After hearing submissions from the parties, I dismissed the application on 21 August 2012 with costs. I now give my reasons for the decision.

Background

2.The Applicant was born in Mainland China in 1958 and he came to Hong Kong in about 1981.  He is a Hong Kong permanent resident.  Since 1985, he lived in the Kowloon Walled City.  Upon clearance of the Walled City, he was re-housed to a public rental housing unit [“PRH”].  He was granted a tenancy at the Yau Tong Estate by the HA in 1991.

3.In 1986, he married in Mainland China.  His first son was born in 1987.  The mother and child came to Hong Kong to reunite with him in 1991 and they lived together at the PRH at Yau Tong.  His second son was born in 1994 in Hong Kong.

4.Due to HA’s plan to demolish the Yau Tong Estate, he and his family was relocated to a PRH unit at Tsui Ping South Estate in 1996.  He was the sole tenant under the tenancy agreement.  His wife (whom I shall continue to refer to as the wife in this judgment) and 2 sons were named as members of his household.

5.He and his wife divorced in 2011.  His wife had moved out from the PRH with the younger son in 2009.  In May 2010, she petitioned for divorce.  In March 2011, the custody of the second son was granted to the wife.  The elder son attained majority by then.  In April 2011, they reached agreement on financial relief.  He agreed to pay his wife $2,000 per month for her maintenance and another monthly sum of $2,000 for the maintenance of the younger son.  He also agreed to pay her 25% of his pension upon his retirement.  Nothing was said about the tenancy at the PRH at Tsui Ping South Estate and there was no provision for the transfer of such tenancy to the wife in the agreement.  The agreement was implemented by an order of the Family Court on 1 April 2011.  The decree absolute was granted in July 2011.

6.Since 1993, he has been working as a civil servant.  His monthly income, as declared by him in his appeal lodged with the Housing Appeal Tribunal on 8 September 2011 was $14,935.  In February 2012, that was increased to $15,900 with a subsidy of about $1,000 per month.  The significance of his current income level is that if he is required to satisfy the eligibility criteria for allocation of PRH today, he cannot meet the requirement of the Comprehensive Means Test [“CMT”].  The current level of maximum income limit for a singleton applicant is $8,740 per month.  The calculation of income, as I was told by Mr Wong on behalf of HA, gives credit to an applicant if he has to pay maintenance under a court order in a divorce case.  After deducting the $4,000 maintenance, the Applicant still exceeds the limit.

7.Though there was no reference to the transfer of the PRH in the agreement or the consent order, both the wife and the Applicant wished to retain the benefit of the PRH.  This is understandable in view of the huge difference between the rents and standards for PRH and private tenancy in Hong Kong.  As counsel submitted, PRH is a form of social welfare.  In the light of the Hong Kong property rental market, especially for those in the lower income group, subsidized housing is a very important welfare benefit.  And as shown by the statistics produced by HA, it is very much in demand.  The average waiting time from date of application to date of first offer was more than 2 years.  There is, of course, a set of eligibility criteria which an applicant must satisfy before a valid application can be made.

8.The wife approached the Housing Officer of Tsui Ping South Estate in July 2011 with regard to her housing need.  The wife had all along been a housewife since she came to Hong Kong and she suffered from chronic illness.  With the level of maintenance paid by the Applicant, she could not afford to pay the rent of a decent private accommodation for her and the younger son.  She requested to be allowed to move back to the PRH unit at Tsui Ping South Estate.  The elder son wrote to the HA on 21 July 2011 indicating that he would live with her and the younger son in order to take care of them.

The Divorced Couples Policy [“the Policy”]

9.As regards the handling of tenancy of PRH unit in cases of divorce, the HA has a stated policy.  The policy has undergone changes over the years and it was the product of detailed discussions amongst members of the Rental Housing Committee.  The underlying rationale of the policy, as gleaned from the papers and minutes of the Committee, was explained by Connie Lam on behalf of the HA, at paras 7 to 9 and 12 of her 2^nd Affirmation,  

“7. It is beyond dispute that public housing resources in Hong Kong are scarce and highly-subsidised.  By way of example, as at 31^st March 2011, there were 152,000 eligible applicants waiting for the allocation of a PRH flat; but in the whole of 2010/2011 financial year, only about 16,000 PRH flats were allocated to those on the waiting list (out of a total of 25,000 flats allocated (about 6,000 of those were “transfer” cases only)), whether such flats were newly completed or became available through the existing tenants vacating.  The average waiting time for a first offer to be made to a Waiting List applicant is two years. … The allocation of such scarce resources should be made appropriately, fairly and only to those in genuine need.

8.  The fair and rational allocation of public housing resources, and to those in genuine need, is the fundamental objective which underpins all aspects of the housing policies of the Respondent.  Therefore, to be eligible for public housing in Hong Kong, a single applicant, or an applicant and his or her family members, must satisfy a Domestic Property Test (“DPT”) and a Comprehensive Means Test (“CMT”). …

9.  Save in truly exceptional cases involving genuine compassionate grounds, the application and satisfaction of the DPT and the CMT is necessary in all cases where additional allocation of public housing resources is required, i.e. where a PRH flat is allocated to a tenant for the first time, or where an additional flat is required for what has been a single household living in one single PRH flat. But where no additional allocation of public housing resources is required, and what is involved is only the “dealing” of a PRH flat already allocated to a household, the DPT and the CMT need not be applied. …

12.  The fundamental objective stated at paragraph 8 above also underpins and applies to the Divorced Couples Policy.  Another basic and important point underpinning the Divorced Couples Policy is that while the original household or family has been allocated one PRH flat, it cannot be a fair and proper allocation of public housing resources that simply because the couple has divorced, that fact alone, without more, automatically entitles the immediate allocation of one additional PRH flat to one of the divorced persons with the other retaining the original flat, and without any assessment of the eligibility of the former to a PRH flat.  However, as will be seen below, the policy is never inflexible and the Respondent would offer additional accommodation to the parties concerned in cases of genuine compassionate needs as referred and recommended by the Social Welfare Department (“SWD”), but even in such cases the DPT and the CMT must still be satisfied (unless the SWD recommends compassionate housing on a truly exceptional basis even though the DPT and/or the CMT requirements are not met).”

10.The current policy was set out by her at paras 24 and 25 of her 2^nd Affirmation,

“24. Under the prevailing Divorced Couples Policy …

(1) Divorced couples living in PRH flats will not be allocated additional public housing resources simply on the ground that they have divorced. Tenants in PRH flats are expected to make their own accommodation arrangements upon divorce.

(2) If an agreement cannot be reached between the divorced couple, the Respondent will generally favour the party having the custody of children by letting that party and the children have the flat to live in. If joint custody has been ordered by the court, only the party having the legal right to live with the offspring continuously and permanently will be granted the PRH tenancy. This also applies when there are other relatives living in the flat and they all choose to live with the party having custody.

(3) Under the situation stated at (2) above, the party given the original PRH flat would not be subject to the DPT or the CMT. This is because the PRH flat has already been allocated to the family, and no additional housing resources are required or involved by letting the party given the custody of the children (and with other relatives (if any) staying with that party) have continued occupation of the flat in which they have been residing. In such cases it is simply a transfer of tenancy or deletion of a family member as an authorised person. They are, however, required to declare their household income/assets biennially as in any other household living in PRH flats.

(4) The single party who has not been given custody of any child will have to leave the PRH flat. In case of difficulties in finding accommodation, he/she may apply for housing assistance:

(a) For genuine homeless cases, a one-person interim housing unit in the New Territories if he/she fulfils the CMT and the DPT. If he fails the CMT, he/she will still be given the interim accommodation but at market licence fee and the maximum period of stay is one year; and

(b) Apply for a PRH flat for himself or herself, and he/she will be subject to the same eligibility criteria as those applying for PRH flats for the first time, or for someone residing in a PRH flat but who desires to have a PRH flat of his own, including the CMT and the DPT. In this respect, he or she is treated in the same way as any other applicants for PRH flats, irrespective of his or her status as a divorcee, which is irrelevant. However, a credit of waiting time equivalent to the length of his/her former tenancy up to a maximum of 3 years will be given to those eligible divorced singletons waiting to be allocated PRH flat under the Single Person Waiting List. This credit is only available to a divorced singleton but not to any other categories of applicants on the Waiting List. In this respect, the divorced singleton is more favourably treated than any other applicants.

(5) If each party has the custody of one child (or more) and/or the tenancy consists of other relatives (save in the case under (2) above), and if separate housing units of PRH flats are desired, then additional public housing resources are required, and such allocation is subject to both parties fulfilling the CMT and the DPT (applied separately).

(6) Upon allocation of separate PRH flats, both parties will be required to declare their household income/assets biennially irrespective of their length of residence in PRH.

(7) If either party who has custody of one child (or more) fails the CMT or the DPT, the household concerned will be required to move out from the PRH flat. Those who pass the DPT but not the CMT may apply for temporary stay in the New Territories Interim Housing for not more than one year if they cannot secure alternative accommodation in a short time. During this period, they will be charged market licence fees.

(8) If both parties, each of which has the custody of one child (or more), fail the CMT or DPT, they may be allowed to withdraw their application for additional flat allocation and make their own accommodation arrangements (i.e. they will have to reach an agreement with the other party on the accommodation arrangement and inform the Respondent of their decision as soon as possible).

(9) Where the divorced couple does not have children, they should make their own accommodation arrangement and agree among themselves on whether transfer of tenancy is required. No additional housing unit will normally be allocated. The Respondent will not take sides by allocating the flat to one of them, or by assisting one party to expel the other. If disputes or violence are involved, a referral will be made to the SWD, and compassionate rehousing or family counselling may be offered if circumstances required (but the CMT and the DPT will still have to be satisfied).

25.    It should be noted that within the aforesaid policy, the Respondent always retains, and exercises where appropriate, a discretion to act flexibly and to provide housing assistance to a divorced party on compassionate grounds if referred and recommended by the SWD (and as mentioned at paragraph 12 above, the SWD may recommend compassionate housing on a truly exceptional basis even though the DPT or the CMT requirements are not met).  The policy has not been and is not applied inflexibly.”

11.Because of the application of the Policy, the Applicant was informed by a letter dated 26 July 2011 that the unit at Tsui Ping South Estate would be transferred to the wife and he had to submit a notice to quit to determine his tenancy by 9 August 2011.  He was also informed that interim housing could be offered if he had no place to live and satisfied the eligibility criteria for interim housing.  He could also apply for single person unit with a waiting time credit of up to 3 years in the waiting list if he was eligible.

12.Despite subsequent correspondence, the Applicant refused to move out.  At the request of the wife, another PRH unit was allocated to her in lieu of this unit since she needed public housing urgently. HA issued a notice to quit on 31 August 2011 demanding the Applicant to vacate from the unit by 30 September 2011.

13.The Applicant lodged an appeal against the decision of HA to issue a notice to quit.  The appeal was dismissed on 8 December 2011 and the Applicant was informed about the dismissal.

14.He filed an application for leave to apply for judicial review on 23 February 2012 and leave was granted on 26 April 2012 on the following grounds,

“房屋署就公屋住戶離婚後的住屋安排政策按現今的收入狀況以不同方式對待須遷離現有單位的單身人仕，違反基本法第25及36條及香港人權法第22條規定。

房屋署就公屋住戶離婚後的住屋安排政策以現今入息狀況審查離婚後遷離現有單位的單身人仕可否獲分配新公屋單位歧視離婚人仕，違反基本法第25及36條及香港人權法第22條的規定。”

The additional ground

15.At the hearing on 21 August 2012, Mr Pun applied for leave to add the following ground to challenge the decision.

“… the Respondent misapplied its Policy on Housing Arrangements for Divorced Couples in Public Rental Housing Flats (“the Divorced Couples Policy”) in that it failed to adopt a “common sense and flexible approach”, and failed to recognise, inter alia, that an agreement and/or understanding had been reached between the Applicant and his ex-wife in respect of all the aspects of their divorce including transfer of properties. It is settled law that in applying relevant policy, a public authority must properly understand the policy and apply it correctly: see Gransden v Secretary of State for the Environment (1987) 54 P & CR 86 at p. 94.”

16.After hearing him, I refused to grant leave for the additional ground to be relied upon.  The evidence filed on behalf of the HA show that the wife had told the HA that she had not reached any agreement with the Applicant concerning the PRH at Tsui Ping South Estate.  When the HA wrote to the Applicant asking him to vacate pursuant to the Policy, the Applicant did not assert that he had made an agreement with the wife on that unit.  The Policy was explained in the correspondence between HA and the Applicant.  Yet, he did not see fit to raise any contention about having reached agreement with the wife on the PRH unit in the correspondence.  Nor did he do so in the appeal.

17.Judicial review is not an appeal and it is not an avenue for a party to raise new point of fact which had not been canvassed by him in the appeal.  If the Applicant wished to challenge the notice to quit by relying on an alleged agreement with his wife, he should at least raise the point before the appeal tribunal.  He did not explain why he did not do so.  It is now too late for him to make such assertion, which in any event is against the inherent probability in view of the personal circumstances of the wife.  Contrary to the submission of Mr Pun, the absence of any provision in the consent order made by the Family Court per se cannot be treated as evidence of his alleged agreement.  There could be many reasons why parties did not bring up the question as to the tenancy of the PRH unit in the Family Court.  In the absence of evidence as to what happened in the Family Court proceedings, one should not speculate.

No discrimination

18.The only question in this judicial review is therefore whether the Policy discriminates the Applicant as a divorced person, as such in contravention of Articles 25 and 36 of the Basic Law and/or Article 22 of the Hong Kong Bill of Rights.

19.Article 36 of the Basic Law provides that Hong Kong residents shall have the right to social welfare in accordance with law.  There is no doubt that, in Hong Kong, subsidized public housing, including PRH, is a form of social welfare.

20.The meaning and effect of Article 36 and its interface with Article 25 have been the subject of court decisions.  The leading authorities are Kong Yun-ming v Director of Social Welfare CACV 185 of 2009, 17 Feb 2012; Fok Chun Wa v Hospital Authority [2012] 2 HKC 413.  I tried to summarize some salient principles derived from these decisions in my judgment in another welfare case: Lam Wo Lun v Director of Social Welfare HCAL 133 of 2010, 14 May 2012 at paras 17 and 24 to 27.  I shall not repeat what I said in those paragraphs in this judgment.

21.As Stock VP held in Kong Yun-ming, qualifying conditions are inherent in any form of social welfare.  In other words, there is no abstract right to social welfare.  The crucial issue is whether the qualifying conditions satisfy the justification test.  In the present context, even though we are dealing with allocation of PRH unit instead of CSSA or other forms of social welfare payments, we are still in the realm of socio-economic policy.

22.As the Chief Justice said in Fok Chun Wa, in such an area where limited public resources are involved, the court recognized that matters of community policy are predominantly for the executive arm of the government.  In the wake of a legal challenge to the policy, the court will examine the policy by reference to the justification test, but it will do so with a broad margin of discretion being given to the administration. In areas not impinging upon core-values relating to personal or human characteristics, the court will only intervene where the line drawn is manifestly without reasonable foundation.

23.In the present context, it is important to identify precisely the nature of the problem facing the Applicant.  He is not claiming that the eligibility criteria are discriminatory.  With limited public housing resources and a huge demand for PRH units, the criteria are plainly necessary in terms of serving the legitimate aim of fair distribution of limited public resources and rationally connected with such aim.  Nor is there any suggestion that the line drawn by such criteria is manifestly without reasonable foundation.

24.What the Applicant really complaint about is that he had to undergo the CMT again because of his divorce.  But that is only one part of the whole picture.  The full picture is that due to divorce, there is a need for additional accommodation since the Applicant would live in a separate household.  Members of what used to be one family need additional housing resources to cater for the situation occasioned by the divorce.

25.In his submissions, Mr Pun submitted that the Policy is discriminatory in three respects,

(a)  It discriminates against him as the party not given custody of any child as compared with the wife;

(b)  It discriminates against him as compared with a sitting tenant of PRH who is not divorced but has the same current income level as the Applicant viz exceeding the CMT limit;

(c)  It discriminates against him as compared with a divorced person who is able to satisfy the CMT.

26.As the Chief Justice observed in Fok Chun Wa at para 58(1), in every challenge based on equality, ultimately the question is: “is there enough of a relevant difference between X and Y to justify differential treatment?” His Lordship also remarked at para 58(2) that in the majority of cases it is necessary for the court to examine the three facets of the justification test in order to answer this ultimate question. 

27.The Chief Justice also recognized that there are rare cases where the court may comfortably answer the ultimate question without any recourse to the justification test.  This is reflected by His Lordship’s endorsement at para 58(3) of the approach of Lord Nicholls in R (Carson) v Secretary of State for Works and Pensions [2006] 1 AC 173 at para 3.  Lord Nicholls said,

“… the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such obvious, relevant difference between the claimant and those with who he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.”

28.With proper focus on the real issues raised in this case, it is apparent that this is probably one of those rare instances where the difference in treatment is obviously attributable to relevant difference between the Applicant and those he sought to compare with.  Be that as it may, I will nonetheless go through the analysis of the justification test for the sake of comprehensiveness.

29.In the present case, the legitimate aim in respect of the Policy, like the eligibility criteria, is fair allocation of limited public housing resources.  On the evidence, this is plainly a legitimate aim.  Mr Pun submitted that the Respondent cannot rely on this in the absence of evidence on the financial impact upon the Respondent if the Policy is to be replaced by a policy of re-housing all the divorcees.  This submission failed to take account of the statistical evidence on the number of PRH units available and the number of those on the waiting list.  It is fallacious to assume that it is solely a matter of financial impact.  PRH units cannot be built overnight.  Land for building such units is limited.  The number of PRH units that could be available for distribution at a particular point in time is finite.  The HA must have a policy for the fair allocation of such units. 

30.In substance, as far as it is material for present purposes, the Policy prescribed that if additional housing resource is required by a family facing divorce, it would only be allocated, subject to waiting time (with credit as mentioned), if the party without custody satisfies the eligibility criteria.  There is, quite clearly, a rational connection between the Policy and the legitimate aim.

31.Yet, Mr Pun contended that there is no rational connection.  He said, at paras 37 to 39 of his submissions,

“37. However, an Undivorced Person can retain his PRH tenancy so long as he does not divorce and not become a Divorced Singleton. Even if he has much higher income than the Applicant, he need not face the same hardship that the Divorced Couples Policy imposes on the Applicant. As a result, public housing resources are allocated to a person with smaller housing needs, contrary to the purported aims.

38. Similarly, under the Divorced Couples Policy, a Divorced Person with Custody can obtain the PRH tenancy of her family and remain in her flat even if she has much higher income than the Applicant, who may have much greater housing needs but has no custody of his children.

39.     Moreover, suppose a Lower Income Divorced Singleton has the same income level as the Applicant at the time of his being granted a PRH tenancy and, just like the Applicant, he divorces and becomes a Divorced Singleton.  If his current income level satisfies the CMT and DPT, he will be eligible to apply for PRH again under the Single Person Waiting List and, more importantly, he will be given a credit of waiting time equivalent to the length of his former tenancy up to a maximum of 3 years …. On the other hand, the Applicant is left with no PRH benefit because of his higher income level at the time of or after his divorce.”

32.With respect, such comparisons are unhelpful in considering whether the Policy is rationally connected with the legitimate aim.  Mr Pun has ignored those in the waiting list and chose to focus on those who enjoyed PRH benefits on account of their pre-existing status as sitting tenants: the person who did not undergo divorce (thus no additional housing resource is required); the divorcee who get custody of a child; the divorcee who can satisfy the eligibility criteria.  One simply cannot confine to such comparisons in deciding whether the Policy furthers the aim of fair allocation of housing resources.  It has to be borne in mind that if additional resource is allocated to people in the same situation as the Applicant, fewer units would be available for allocation to those in the waiting list who in all respect satisfied the eligibility criteria.  If one takes into account of the applicants for PRH units in the waiting list, the rationale of the Policy is plain and obvious.

33.We can turn to the last limb of the justification test: whether the difference in treatment is no more than that is necessary to accomplish the legitimate aim.  In this regard, what the Chief Justice said in Fok Chun Wa at paras 68 to 81 should be borne in mind.  In particular the following propositions are relevant for present purposes,

(a)  In the context of socio-economic policy concerning allocation of finite public resources, the court accepts that lines have to be drawn;

(b)  Save where the line is drawn in contravention of core values or where it is shown to be manifestly without reasonable foundation, the court would leave it to the executive or legislative branch of the government to identify the relevant line even though there could be hard cases;

(c)  Clarity of the line and administrative convenience in the implementation of the policy are legitimate considerations;

(d)  Possible alternative solutions (or even solutions of a less intrusive nature) do not per se render the policy unjustified.  In the examination of the third limb of the justification test (as in the other limbs as well), the respective roles of the judiciary, the executive and the legislature have to be recognized.  Thus, as the Chief Justice put it at para 75(3),

“Where a number of alternative, but reasonable, solutions to a problem exist, the court will not put itself in place of the executive or legislature or other authority to decide which is the best option. That is not its role. The court will only interfere where the option chosen is clearly beyond the spectrum of reasonable options; in other words, the option has clearly gone too far (or further than necessary) to deal with the problem….”

(e)  Where core-values are involved, the court will be particularly stringent in the application of the justification test.  Thus, where the unequal treatment strikes at the heart of core-values relating to personal or human characteristics which involve the respect and dignity that our society accords to a human being, the court would examine the matter with an anxious scrutiny.

(f)  The entitlement to social welfare is not a fundamental concept.  Rather it is a right inextricably bound with socio-economic considerations.  Such a right is to be contrasted with fundamental concepts going to the heart of our society: eg the right to security of person, freedom of expression, freedom of religion, the right to a fair trial. 

34.First, with regard to the difference in treatment between the wife and the Applicant, the contest is about which of them should get the tenancy of the PRH unit which had been allocated to the family.  Mr Pun complained that the Policy focused only on one factor: the custody of the child of the family.  Counsel submitted that there could be cases where the person to whom custody is granted is financially better off than the other party to the divorce.  This is obviously not the case here and Mr Pun did not suggest so.  However, in a systemic challenge to the Policy, counsel can refer to other situations to test the constitutionality of a policy.

35.In this respect, we are not talking about a difference in treatment based on the status of the Applicant as divorcee.  Both he and the wife are divorcees.  Prima facie, the party to whom custody is granted would have a greater need for accommodation in terms of number of persons to be accommodated and the need of stability for children.  Viewed thus, one cannot say the Policy (favouring the party to whom custody is granted) is manifestly without reasonable foundation.

36.As regards Mr Pun’s hypothetical situation of a party without custody being financially not so well-off as the one who gets custody, I think the argument is based on a misconceived perception as to the role of the HA and the court in handling the consequences of divorce.  As explained below, their roles should not be confused and it is not part of the HA’s role to act as a quasi-matrimonial court in respect of the allocation of the existing PRH unit between the two divorced parties.

37.Upon a divorce, the fair distribution of family wealth and the fair financial provision for the future maintenance is to be decided by the court by way of ancillary relief.  The court exercises its jurisdiction in such matters in accordance with the statutory powers under the Matrimonial Proceedings and Property Ordinance Cap 192 [“MPPO”] and the case law on how such discretionary powers should be exercised, including the Court of Final Appeal’s decisions in LKW v DD (2010) 13 HKCFAR 537 and WLK v TMC (2010) 13 HKCFAR 618.  Section 7 of the MPPO requires the court to have regard to all the circumstances of the case in the exercise of its power and one of the matters, as prescribed under Section 7(b), is “the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future”.  Financial burdens flowing from housing need is therefore a matter that the court should take into account in its determination of ancillary relief.

38.As mentioned above, due to the huge gap between the standard and rent of PRH unit and private housing, in a case where the family has been living in a PRH unit, the allocation of such unit can make a huge difference in terms of the proper level of maintenance to be paid by one party to the other.  The means of a party who cannot continue to live at the PRH unit (and not being eligible for an additional unit to be allocated) would necessarily be diminished in terms of the rent he or she has to pay for accommodation in the private market.  On the other hand, the party who continues to live at the PRH unit would have a smaller need in terms of maintenance.  Translating this to the facts of the present case, if the wife were not given the benefit of the PRH unit, her financial needs (and that of the younger son) in terms of accommodation would be greater and the level of maintenance that should be paid by the Applicant would probably be higher.  At the same time, if the Applicant could not get a PRH unit, his available means for payment of maintenance would be diminished.  The court would take these factors into account in achieving a fair overall result.  As Ribeiro PJ said in LKW v DD (2010) 13 HKCFAR 537 at para 56, the implicit objective of the exercise is to arrive at a distribution of assets which is fair as between the parties.  

39.Thus, the court cannot properly come to a conclusion on ancillary relief until it has a fair idea as to how the PRH unit would be allocated and whether the party who needs to move out of the unit is eligible for a new single-person PRH unit.  In respect of the latter question, as demonstrated by the facts of the present case, because the amount of the periodic maintenance payable to the wife would be deducted from the income of the Applicant for the purpose of the CMT, that would have a bearing on his eligibility.

40.Judges in the Family Court are familiar with the Policy and ancillary relief in respect of families involving PRH units are dealt with on the basis that the Policy applies.  Even in cases of settlement between the parties, the terms of settlement have to be approved by the court which would take into account of the Policy in giving or withholding approval.

41.Thus, the effect of the Policy should have been factored into the overall fairness between the divorced couple in the ancillary relief granted by the court.  In this respect, there is no difference between a divorced couple who resided at private self-owned unit before divorce and a divorced couple who resided at a PRH unit.  Inevitably, at least one of them have to move out of the pre-existing unit and the effects of such a move will have a bearing on the ancillary relief ordered.  The difference in treatment is necessitated by the divorce.  It is the role of the court to grant ancillary relief which, notwithstanding the difference in treatment, is fair between them.

42.The role of the HA is different.  Section 4(1) of the Housing Ordinance Cap 283 provides,

“The Authority shall exercise its powers and discharge its duties under this Ordinance so as to secure the provision of housing and such amenities ancillary thereto as the Authority thinks fit for such kinds or classes of persons as the Authority may, subject to the approval of the Chief Executive, determine.”

43.To perform such duty and function, the HA has to formulate policy for the determination of the classes of persons to whom tenancies of PRH units would be allocated.  As explained above, the fair allocation of such resources is a legitimate aim and the fair allocation involves not only allocation to sitting tenants, but also those in the waiting list.  Arguably, it also includes fairness to those about to come onto the waiting list.

44.As between the divorced couple, the HA cannot and should not play the role of a quasi-family court in investigating and assessing what is fair as between them.  The HA does not have the statutory power to adjust the means between the divorced couple.  The overall fairness between the couple must be left to the court.  Instead, the HA needs to formulate a clear and reasonable policy for the allocation of an existing PRH unit as between the divorced couple and, once formulated, administer the policy.

45.Mr Pun’s hypothetical case proceeds on the assumption that the housing need of the singleton divorcee is greater than that of the divorcee with custody of children due to the difference in their respective means.  There are several problems with this assumption.  First, the difference in means does not necessarily imply that the housing need of the singleton divorcee is greater.  Actually, both divorcees have housing needs to be addressed upon divorce.  The financial burden and responsibilities flowing from such needs should be addressed (and addressed fairly between them) in the ancillary relief proceedings in court.  It has to be emphasized that one important consideration in the court’s exercise of power in cases with children is, as far as possible, a stable environment (including housing) should be provided for the upbringing of children.  The divorcee with custody, as the primary carer of the child/children, obviously needs more support than the singleton divorcee.  Housing need, especially for children, cannot be measured simply by reference to means.  Familiarity with the location and the surrounding neighbourhood, personal network in the community, travelling distance to schools are also important.

46.Second, the singleton divorcee can still apply for PRH unit if he or she can satisfy the eligibility criteria with a three year credit in waiting time.  Interim housing is also provided.  Thus, the Policy also addresses the housing need of the singleton divorcee.

47.Third, for those singleton divorcee who cannot satisfy the eligibility criteria, it must be taken that he or she has the means to obtain accommodation in the private market.  As explained above, any inadequacy in or fair distribution of means between the divorced couple should be addressed in the ancillary relief proceedings in court.

48.Therefore, I do not think there is any basis for suggesting that the Policy contravenes Article 25 of the Basic Law and/or Article 22 of the Hong Kong Bill of Rights in terms of the difference in treatment between the Applicant and the wife.

49.I shall now turn to the argument based on the difference in treatments between the Applicant and a sitting tenant who does not go through any divorce and has means greater than the Applicant.  The complaint is that such sitting tenant can retain his PRH unit despite his means has increased to a level exceeding the CMT limit whilst the Applicant has to move out.

50.Here, the Applicant is obviously not comparing like with like.  The sitting tenant who does not go through any divorce does not require any additional allocation of PRH resources from HA.  On the other hand, the Applicant, by reason of the allocation of the pre-existing unit to the wife, demanded the allocation of an additional unit to him.

51.Under the prevailing policy, all sitting tenants of the HA can continue to enjoy the benefit of the tenancy of PRH unit already allocated to him despite his means has, since the allocation, exceeded the CMT limit.  The Policy does not deprive the Applicant’s family of that allocated unit.  That unit is allocated to the wife based on a policy that, for reasons given above, is constitutionally sound.

52.The Applicant is required to go through the eligibility test again only because he sought to have an additional unit allocated to him.  In this connection, though he is occupying the same unit, it should be regarded as additional unit because HA had to allocate a new unit to the wife due to his refusal to vacate from this unit despite the notice to quit.

53.In order to compare like with like, the Applicant’s situation should be compared with all applicants for new or additional PRH units.  The evidence shows that all such applicants need to satisfy the eligibility criteria.  The Applicant is not treated unfavourably.  There is simply no basis for suggesting that there were any inequality in treatment based on his status as a divorcee.

54.Lastly, the Applicant argued that the Policy is invalid because of the difference in the treatments of those who can satisfy the eligibility test and those who cannot.  With respect, it is difficult to understand how such argument can be sustained when the validity of the eligibility criteria is not challenged.

55.Thus, properly analysed, none of the contentions on inequality has any merit.  The challenge based on Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights is rejected.

Right to social welfare and right to protection against interference with home

56.In the course of his submissions, Mr Pun made references to the right to social welfare under Article 36 of the Basic Law and the right to protection against arbitrary or unlawful interference with home under Article 14 of the Hong Kong Bill of Rights to enhance his arguments on inequality.

57.There is no independent challenges based on these articles in the Form 86 and no leave has been granted for such independent challenge to be made.  As I understand his submissions, Mr Pun only relied on these articles to contend for a more intense scrutiny under the justification test.  In substance, they add nothing to the argument on inequality.  In Kong Yun Ming,the Court of Appeal has adequately explained why a right to social welfare under Article 36 cannot be considered in abstract.  The same point is made by Ma CJ in Fok Chun Wa at para 80. As regards the right to protection of one’s home, the following dicta of Baroness Hale in Ghaidan v Godin-Mendoza [2004] 2 AC 557 at para 135 can help us to identify the real issue,

“… Everyone has the right to respect for their home. This does not mean that the state — or anyone else — has to supply everyone with a home. Nor does it mean that the state has to grant everyone a secure right to live in their home. But if it does grant that right to some, it must not withhold it from others in the same or an analogous situation. It must grant that right equally, unless the difference in treatment can be objectively justified. …”

58.Therefore, it all boils down to the justification for unequal treatments.  For reasons already given above, the only real point of substance in the present context is the differential treatments between the wife and the Applicant.  That is not a case in which core-values are involved.  In any event, even if this court were to adopt an intense scrutiny, as explained above, the difference in treatments is amply justified.

59.I have therefore reached the conclusion that the Policy is constitutionally sound and valid.  The same conclusion was reached by Chu J (as she then was) in楊家幹對房屋署HCAL 2 of 2009, 15 Sept 2009 (though the arguments advanced before Her Ladyship are not as sophisticated as those presented here) and that decision was upheld on appeal in CACV 227 of 2009, 14 May 2010.

60.For all these reasons, the application for judicial review is dismissed.

Mr Hectar Pun, instructed by JCC Cheung & Co, for the Applicant

Mr Stewart Wong, SC and Ms Queenie Lau, instructed by Fairbairn Catley Low & Kong, for the Respondent