Chim Sui Ping v. Hong Kong Housing Authority and Another

HCAL 139/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 139 OF 2009

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(appointed under s 7A(6) of the Housing Ordinance, Cap 283)

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J U D G M E N T

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A. INTRODUCTION

1.The applicant is the tenant of a flat (“Flat”) in a public housing estate under a tenancy agreement (“the Tenancy Agreement”) dated 9 July 2008 with the 1^st respondent (“the HA”) as the landlord.

2.This is the applicant’s application for judicial review against (a) the HA’s decision (“the HA’s Decision”) dated 31 July 2009 to serve a Notice to Quit (“NTQ”) on her to terminate the Tenancy Agreement and require her to vacate the Flat, and (b) the decision (“the Appeal Decision”) of the 2^nd respondent (“the Appeal Tribunal”) dated 22 September 2009 confirming the NTQ.

3.In this application, the applicant asks for:

(1)  An order of certiorari to bring up and quash the HA’s Decision.

(2)  An order of certiorari to bring up and quash the Appeal Decision.

(3)  A declaration that the HA’s and the Appeal Decisions were unlawful because they were made without consideration of the applicant and her son’s right to home guaranteed by Article 29 of the Basic Law (“BL 29”) and Article 14 of the Hong Kong Bill of Rights Ordinance (Cap 383)  (“Art 14”).

(4)  A declaration that the HA’s and the Appeal Decisions were unlawful because they amounted to a disproportionate interference of the applicant and her son’s right to home guaranteed by BL 29 and Art 14.

4.The application is opposed by the HA, while the Appeal Tribunal maintains a neutral position and has not taken any steps in the proceedings.

B.  BACKGROUND FACTS

5.Public rental housing resources in Hong Kong is very precious.  The demand has always been very high while the supply is limited.  At any one time, there is a long waiting list for eligible people and families in Hong Kong applying to be allocated with public rental housing.

6.The HA is charged with the duties and responsibilities under the Housing Ordinance (Cap 283) (“the HO”) to manage and provide public rental housing to such eligible classes of people in Hong Kong[1].

7.The applicant is a single mother and has a teenage son.  She has also been suffering from a psychiatric condition requiring medical attention. 

8.She has been unemployed and receiving Comprehensive Social Security Assistance (“CSSA”) since early 2003.  In January 2004, she applied and was put on the waiting list for public rental housing. 

9.She was first allocated a public rental flat in Sha Kok Estate in June 2006, which she refused to take up on the ground of traffic inconvenience.  Between July 2007 and February 2008, the HA allocated to her three other public rental flats in different estates, which were all rejected by her on the ground of traffic inconvenience or floor level.

10.Eventually, on 24 June 2008, she was further allocated the Flat by the HA, which was accepted.  The Tenancy Agreement was signed on 9 July 2008 and the tenancy was provided to commence on 22 July 2008.  The applicant was the principal tenant under the Tenancy Agreement, and her son was included as a family member.

11.Under clause II(20) of the Tenancy Agreement, the applicant and her son were required to take up the tenancy within one month from 22 July 2008, and to thereafter retain regular and continuous residence therein.

12.Clause IV(2) of the Tenancy Agreement further provided that the landlord (ie, the HA) could exercise its right to re-enter the Flat and determine the Tenancy Agreement if the applicant (as the tenant) did not observe or perform her obligations in the agreement.

13.In July 2008, the applicant purchased some tiles and wall skirting for the Flat.  But she did not complete the refurbishment for lack of funds.  Instead she continued to stay in her parents’ flat (“the Mei Foo Flat”) in Mei Foo Sun Chuen with her son.  At that time, her parents were living in Canada.

14.In January 2009, the applicant’s parents came back to Hong Kong.  They lent her $90,000 to enable her to complete the refurbishment of the Flat. 

15.Then, some misfortunes hit that family.  The applicant’s father suffered a stroke.  Her mother at the same time had to go to Guangzhou in the Mainland to sort out her brother’s financial problems.  The applicant said that was why she had continued to stay in the Mei Foo Flat and to look after the father. 

16.At the same time, during their random check for possible tenancy abuse, the HA’s officers visited the Flat for 18 times between 10 March and 15 May 2009 (a total of 67 days).  Nobody answered the door in each visit.  The applicant was eventually found by the officers in the Mei Foo Flat and was interviewed on 14 and 15 May 2009.  She explained why she had not moved into the Flat and said that she would do so in the summer.

17.From 17 to 22 May 2009, the applicant purchased stainless steel gate and locks, washing machine, refrigerator and air conditioner for the Flat. 

18.On 27 May 2009, the HA issued an investigation report.  It was concluded that the applicant and her son had not retained regular and continuous residence in the Flat, and had alternative accommodation.  The report recommended issuing the NTQ.

19.In June 2009, the applicant’s father left Hong Kong for Canada.  The Mei Foo Flat was then let to a tenant for one year. 

20.On 18 June 2009, the applicant and her son moved into the Flat.  She then wrote a letter to the HA on 26 June 2009, further explaining why she had not been able to move into the Flat promptly.

21.As mentioned above, under the HA’s Decision made on 31 July 2009, the HA issued the NTQ to terminate the Tenancy Agreement.

22.The applicant lodged an appeal to the Appeal Tribunal against the NTQ in August 2009.

23.The appeal took place on 17 September 2009, where the applicant acting in person attended and answered questions raised by the Appeal Tribunal. 

24.By way of the Appeal Decision, the Appeal Tribunal dismissed the appeal and upheld the NTQ.  It set out its reasons in the Notice of Determination (“the Determination”). 

25.The applicant, while acting in person, then applied ex parte for leave to apply for judicial review against the HA’s and the Appeal Decisions.  On 6 January 2010, Poon J refused the leave application. 

26.The applicant appealed the refusal of leave to the Court of Appeal.  Legal aid was later granted for her appeal.  Her counsel then sought to amend the Form 86, which contained various new grounds of judicial review not advanced before Poon J. 

27.On 27 July 2011, the Court of Appeal allowed the appeal and granted her leave to apply for judicial review on these new grounds.

28.This is now the hearing of the judicial review.

C.  THE DECISIONS

29.The HA’s Decision was contained in a letter dated 31 July 2009.  It was stated therein that the applicant was in breach of Clause II(20) of the Tenancy Agreement in failing to maintain regular and continuous residence in the Flat ( “據悉你沒有經常持續居於上址單位內,違反租約第II(20)條的規定”).  It further said that as a result, the HA decided to issue the NTQ pursuant to s 19(1)(b) of the Housing Ordinance (Cap 283) (“HO”) and required the applicant to vacate the Flat by 31 August 2009.  Section 19(1)(b) of the HO provides that the HA could terminate a lease by notice as provided for in the tenancy agreement, or by 1 month’s notice, whichever is greater.

30.The applicant was also reminded in the letter that she could appeal the NTQ to the Appeal Tribunal within 15 days pursuant to s 20(1) of the HO.

31.In relation to the appeal before the Appeal Tribunal, the applicant had provided written submissions and answered questions raised at the hearing to explain why she had not been able to move into the Flat earlier.  In particular, the applicant’s explanations were that:

(1)  After she was allocated the Flat in July 2008, she was financially incapable to furnish the Flat adequately to render it liveable until her parents lent her $90,000 in January 2009.

(2)  Thereafter, however, it took some months for her to furnish the Flat adequately and properly.  It had taken so much time in particular because:

(a)  She needed to specifically source a tailor-made bed for her son, who was very tall (1.76 m), as she was unable to find a ready-made bed for him after shopping for quite some time.

(b)  She also needed to purchase a computer desk for her son’s use.

(c)  She needed at the same time to take care of the father (who was then suffering from a stroke), when her mother had to go to Guangzhou to take care of her brother’s financial problems.

(d)  She had not thought of moving into the Flat by say at least spending the nights there.

32.After hearing the applicant, the Appeal Tribunal found that the applicant had failed to regularly and continuously reside in the Flat between 16 February and 15 May 2009.  That was in breach of the Tenancy Agreement.  Although expressing its understanding of the applicant’s position, the Appeal Tribunal rejected that her explanations constituted good grounds to exercise its discretion to set aside the NTQ, in particular after taking into account the consideration that tenancy abuse should not be encouraged.

33.The Appeal Tribunal explained its conclusion at paragraphs 4‑7 of the Determination as follows:

“4. 在聆訊會上上訴審裁小組發現上訴人實際上自2008年7月獲配上址單位至2009年5月份，未有遷入。上訴人亦予以承認。上訴人所持的理由是她是單親家庭，與兒子雙依為命，依靠綜援維生，經濟困難，無餘力購置傢俱，唯有暫住父親位於美孚新邨的住所。該單位以前是她與父母和弟妹同住，後來父母和弟妹都不在香港居住，只餘下她和兒子租住父親家裹的一個房間，月租為2,600元，包括在綜援資助額內。她自2008年7月獲配上址單位後，公屋租金由綜援支付。父親容許她繼續住在美孚單位，不收取租金。直至她在2009年6月份遷入彩盈邨後單位已租出。上訴人父親於2009年1 月從加拿大回港後，才知道她的困難，遂聯同弟妹共借出9萬元，給上訴人作裝修單位和購置傢俱之用。上訴人又表示父親回港後，她須要多花點時間照料已多次中風父親的起居，因為期間上訴人弟弟因借錢不遂與父親發生爭執，令父親情緒受到困擾。另一方面，兒子在石硤尾區上學。住在父親家裹，也方便為兒子送飯。令上訴人最感困擾的是兒子身材高大，有1.76米高，坊間很難找到現成適合的睡床，上訴人曾考慮訂造睡床，又因造價太貴，超出預算而打消念頭。上訴人又表示她曾考慮把兒子一直使用的睡床從美孚搬至上址單位，但被母親反對。找不到現成適合的睡床便成了阻礙搬遷的最大原因。上訴人又透露她在十多年前曾患上耳水不平衡，現時已不用覆診。

5. 上訴審裁小組在充分考慮所有文件資料、署方和上訴人的陳述後，綜合意見如下:

(a) 上訴人堅稱購置睡床和電腦枱是入伙的先決條件，甚至因買不到適合的睡床而不惜把購置傢俬的事一拖再拖延。委員不同意買不到適合的睡床是阻礙搬遷的最大原因，認為只是上訴人不願意考慮其他折衷辦法而已。再者，委員詢問上訴人有否考慮過白天前去美孚新邨的單位照顧父親，晚上回到與美孚相隔不太遠位於九龍灣的彩盈邨上址單位休息，或在彩盈邨的單位煮飯，再送到距離不遠的石硤尾兒子的學校，上訴人堅稱她的情況特殊，解決問題的唯一辦法只有長期住在父親家裹，其他安排都不可行。上訴人又表示她不知道租約上有關必須經常持續居住的條款。委員不認同上訴人的說法為不遷入上址單位居住的合理原因。

(b) 不似一般家庭，即使面對類似困難，都會有其他解決辦法，非不得已不會輕易丟下居住的地方不顧，上訴人堅稱與兒子長期住在父親家裹，既方便照顧父親和為兒子送飯，也是解決問題的唯一辦法，丟空上址單位是逼不得已的決定。儘管上訴人堅稱她的困境外人無法理解，委員認為事緣是上訴人過於輕率看待她必須及早遷入上址單位居住的責任而已。

(c) 在聆訊過程中，上訴人顯得有點激動，但委員明白到這只是上訴人在講述自己的處境時，一時情急而產生的自然反應，並不影響委員的決定。

6. 委員認為上訴人雖然曾陳述她的上訴理據，但委員並不認同此乃引用酌情權的因由，理由如下:

(a) 上訴人早於2009年1月份已籌得9萬元的裝修費用，並可優先購買睡床及電腦枱等重要器具。委員認為她若能及早按經濟能力安排裝修及入伙事宜，應不致於擔誤多月才完成。

(b) 上訴人為家庭問題受到困擾，以致忽畧了及早遷入單位居住，可以理解。然而在2009年1月份籌得裝修費後，在裝修過程中遇到困難也沒有嘗試找尋其他折衷辦法，只管一意孤行，按照自己的意願行事，甚至任由入伙一事不合理地拖延也不在乎。委員無法認同上訴人的想法。從另一角度看，上訴人是明白事理的人，相信她應該明白到綜援金已包括租金資助，既已得到應有的社會保障，卻對遷入單位居住這最起碼必須履行的責任，也沒有表現出足夠的自覺性。這一點令人難以接受。

7.    上訴審裁小組在充分考慮所有文件資料、署方和上訴人的陳述後，認為上訴人在2009年2月16日至2009年5月15日期間沒有經常持續居於上址單位，違反有關租約規定，證據確鑿。上訴人亦予以承認。委員認為上訴人必須明白因違約而履行交回單位的責任是理所當然的。在這前題下，若沒有足夠的酌情因素，任何尋求減輕違約責任的意圖都不會被容許，以免做成不良先例，甚至會助長濫用的風氣。在裝修和入伙的事情上，上訴人雖然有一套計劃，但被問及為何任由進度一再拖延時，上訴人只能提出令人難以盡信的理由，試圖說服委員在處理她的上訴時，除了體諒她面對的難處，並讓她保留單位的租住權外，別無選擇。上訴審裁小組在考慮署方的調查結果和發出遷出通知書的理據後，一致認為上訴人顯然沒有盡力履行有關合約條款，故不適宜單憑體諒她的難處，而行使酌情權，故一致同意確認遷出通知書會是比較公平的決定。再者，上訴人即使因是次終止租約而導致情緒受到困擾，可向社署求助。若上訴人因是次終止租約而無家可歸，也可向房屋署申請入住新界區的臨時收容中心或中轉房屋。”

34.Thus, by way of the Appeal Decision, the Appeal Tribunal dismissed the appeal and confirmed the NTQ.

D.  THE GROUNDS OF JUDICIAL REVIEW

35.Mr Pun for the applicant raises five grounds in support of the judicial review.  They are in short as follows:

(1)  The HA and the Appeal Tribunal, in making their Decisions, had failed to take into account of the right to home of the applicant and her son under BL 29 and Art 14.

(2)  Alternatively, if they had so taken into account of the said right, the Decisions interfered disproportionately with their right to home.

(3)  The HA had fettered its discretion in issuing the NTQ by adopting and adhering to a fixed rule of policy.

(4)  There was no sufficient evidence to support the Appeal Tribunal’s conclusion that the applicant “could not care less about her responsibility in taking up the tenancy promptly” ( 是上訴人過於輕率看待她必須及早遷入上址單位居住的責任而已);or that“she did not make an attempt to look for alternatives and unreasonably delayed to move” (上訴人不願意考慮其他折衷辦法而已); and

(5)  The Appeal Tribunal gave contradictory reasons in the Appeal Decision.

36.I would now deal with these grounds in turn. 

D1.  Failure to take into account the right to home of the applicant and her son and/or it was a disproportionate interference of their   right to home

37.The first and second grounds can be considered together, as they are both premised on the submissions of proportionality and the right to home. 

38.The applicant’s arguments in support of these two grounds can be summarized as follows:

(1)  The HA and the Appeal Tribunal were duty bound to consider proportionality of evicting the applicant and her son from the Flat, because their right to home is guaranteed under BL 29 and Art 14.

(2)  In Manchester City Council v Pinnock (No 1)[2], the Supreme Court of England, following the jurisprudence then developed by the European courts under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, laid down the proposition that the local authority (in deciding to bring possession proceedings against a demoted tenant, and any panel reviewing its decision) had a duty to act rationally and to investigate the relevant facts fairly, and to (in the same context and relevant facts) consider proportionality.  The same proposition applies equally to the Hong Kong’s context in relation to HA’s decisions (and the relevant Appeal Tribunal’s decisions) to evict tenants living in public rental housing.

(3)  In the present case, the HA and the Appeal Tribunal had failed to consider whether it would be proportionate to issue or to confirm the NTQ in light of the hardship to be suffered by the applicant and her son.  They did not consider whether there was a less onerous means to achieve the end.

(4)  Alternatively, if the HA and the Appeal Tribunal had in fact taken into account of the applicant and her son’s right to home, their decisions were unlawful as they interfered disproportionately such right in light of the financial circumstances of the applicant, her state of health, her and her son’s hardship and the subsequent facts that she and her son have already moved into the Flat and expended significant sums to refurbish it and have taken it as their home.

(5)  The court, in considering whether the decisions (in evicting the applicant and her son) were disproportionate in the public law sense, must now be entitled to assess by itself (instead of remitting it back to the authority) the proportionality of making the decision. Further, in making that assessment, the court must also have the power to resolve any relevant dispute of facts and take into account of all relevant facts, including those that have arisen even after the making of the Decisions[3].

39.In relation to the applicant’s above submissions, and for the present purposes only[4], Ms Wu for the HA is prepared to accept that:

(1)  The Decisions are subject to the test of proportionality (as laid down in Pinnock).

(2)  The Flat could be considered as “home” under BL 29 and Art 14.

(3)  The court itself in assessing proportionality can take into account of facts that have arisen after the Decisions.

40.However, the HA’s submissions are that (a) the Appeal Tribunal had considered whether it would be reasonable and proportionate to confirm the NTQ, there is thus no question that it had failed to consider the same, and (b) in any event, the Decisions are reasonable and proportionate in all the circumstances of the present case, after applying the test in Pinnock.

41.In light of the parties’ above submissions, Mr Pun for the applicant has urged the court (if it finds favour of these two grounds) to assess proportionality itself based on all the evidence that has been adduced in this application, instead of remitting the matter back to the Appeal Tribunal for reconsideration. 

42.I agree with Mr Pun, and am prepared to assess proportionality of the decision to evict the applicant.  

43.Thus, in my view, it is not necessary for me to consider individually whether the applicant has made out the first or second ground of the judicial review, as I am satisfied (in carrying out the assessment myself) that a decision to evict the applicant is proportional after taking into consideration of all the circumstances of the present case (including the post-Decisions facts relied on by the applicant).  I would explain why.

44.It is accepted by both parties for the purpose of the present case that the test of proportionality is the one as observed by Lord Neuberger in Pinnock at paragraph 52.  The question the court has to ask under this is “whether the eviction is a proportionate means of achieving a legitimate aim.”

45.In dealing with this question, it is illustrative to see how Lord Neuberger explained the question in greater detail in the context of public housing resources at paragraphs 51 to 54 in Pinnock as follows:

“51. It is necessary to address the proposition that it will only be in ‘very highly exceptional cases’ that it will be appropriate for the court to consider a proportionality argument. Such a proposition undoubtedly derives support from the views expressed by Lord Bingham, and has been referred to with apparent approval by the European court in more than one case. Nevertheless, it seems to us to be both unsafe and unhelpful to invoke exceptionality as a guide. It is unhelpful because, as Baroness Hale of Richmond JSC pointed out in argument, exceptionality is an outcome and not a guide. It is unsafe because, as Lord Walker observed in Doherty v. Birmingham City Council [2009] AC 367, at paragraph 122, there may be more cases than the European court or Lord Bingham supposed where article 8 could reasonably be invoked by a residential tenant.

52. We would prefer to express the position slightly differently. The question is always whether the eviction is a proportionate means of achieving a legitimate aim. Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority’s ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers.

53. In this connection, it is right to refer to a point raised by the Secretary of State. He submitted that a local authority’s aim in wanting possession should be a ‘given’, which does not have to be explained or justified in court, so that the court will only be concerned with the occupiers’ personal circumstances. In our view, there is indeed force in the point, which finds support in Lord Bingham’s comment in Kay v. Lambeth London Borough Council [2006] 2 AC 465, 491, paragraph 29, that to require the local authority routinely, from the outset, to plead and to prove that the possession order sought is justified would, in the overwhelming majority of cases, be burdensome and futile. In other words, the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession. But, in a particular case, the authority may have what it believes to be particularly strong or unusual reasons for wanting possession – for example, that the property is the only occupied part of a site intended for immediate development for community housing. The authority could rely on that factor, but would have to plead it and adduce evidence to support it.

54. Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right – indeed the obligation – of a local authority to decide who should occupy its residential property. As Lord Bingham said in Harrow London Borough Council v Qazi [2004] 1 AC 983, 997 at paragraph 25:

‘ the administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second-guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification.’

Therefore, in virtually every case where a residential occupier has no contractual or statutory provision, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way ”. (emphasis added)

46.Further, at paragraph 64 of the judgment in Pinnock, Lord Neuberger has also observed that proportionality is more likely to be a relevant issue in respect of occupants who are more vulnerable as result of mental illness, physical or learning disability, poor health or frailty, and that the issue may also require the authority to explain why (if that is the case) they are not securing alternative accommodation for those occupants in such cases.

47.From these observations, one could distill the following guidelines in assessing proportionality in judicial review against public housing authority’s eviction decisions:

(1)  The question to be asked under the issue of proportionality is whether the eviction is a proportionate means of achieving a legitimate aim.

(2)  The burden to show that the eviction is proportional is on the authority.

(3)  However, in situations where the occupant has no right under private law to remain in the property, it would be regarded as a strong case in support of proportionality.  In these cases, the proportionality of the eviction decision is generally strongly supported by (a) the vindication of the authority’s unencumbered ownership rights, and (b) the fact that it would enable the authority to comply with its duties in distributing and managing public housing resources for a fair allocation of its housing for the needy people.  This is particularly so as it is both the right and obligation of the authority, in discharge of its duties, to decide who should occupy its property.

(4)  Further, in this regard, unless the contrary is shown, the authority is generally assumed to be acting in accordance with its duties in dealing with the property in making an eviction decision when the authority is entitled under private law to possession per se.

(5)  Thus, in most cases, where the authority is entitled to possession as a matter of private law, there will be a very strong case that the eviction decision is proportionate, unless there are clear and strong factors showing otherwise.  Such factors may include circumstances of a particularly vulnerable occupant (such as one who is suffering from mental or physical illness) where the eviction together without the arrangement of an alternative accommodation may cause exceptional hardship on the occupant.  But each case must be assessed on its own facts. 

48.Applying these guidelines to the present case, it is clear to me that a decision to terminate the Tenancy Agreement is proportional in all the circumstances.

49.First, the proportionality of the NTQ is strongly supported by two facts:

(1)  There is no dispute that the applicant was in breach of clause II(20) of the Tenancy Agreement.  The HA was entitled to terminate the tenancy, and the applicant has no right under the Tenancy Agreement (or the HO) to remain in possession of the Flat.  Thus, the NTQ would serve to vindicate the HA’s ownership rights.

(2)  The NTQ enabled the HA to comply with and discharge its duties in relation to the distribution and management of public housing resources in Hong Kong.

50.Secondly, in carrying out such duties and obligation, it is for the HA to balance between the applicant and her son’s right to the Flat on the one hand, and the right of the public at large to public rental housing on the other.  The HA’s said right and obligation to decide who should occupy public rental housing should not generally be subject to “second-guess” by the court. 

51.The evidence shows that at the end of years 2009/2010 and 2010/2011, the numbers of application on the waiting list for public rental housing were around 129,000 and 152,000 respectively, whereas the numbers of waiting list applicant who had been successfully house were just 20,875 and 15,900 respectively.  These numbers show how precious public rental housing is and HA thus has to take tenancy abuses very seriously. 

52.On the other hand, in relation to the applicant’s case, it cannot be disputed that she was in breach of the tenancy agreement in failing to move into the Flat within the timeframe provided therein, and to maintain regular and continuous residence after the allocation of the Flat. 

53.Mr Pun for the applicant is not (I believe) saying that the applicant’s right to home (in particular under public rental housing) is an absolute one.  This must be right.  What counsel is submitting is that, in balancing her right to home, the court should consider the following factors of the applicant and her son in assessing proportionality of the decision to evict her:

(1)  The financial hardship that may be caused to her and her son if she had to vacate the Flat as she is a recipient of CSSA and is not working.

(2)  They have in fact now moved into the Flat and expended significant sums to furbish it. 

(3)  The breach was relatively a minor one, which was caused in substance by her financial hardship but not intentionally.

(4)  Her particular vulnerability given her mental illness.

(5)  If she is evicted, she would have to be put on the waiting list again for public rental housing, which invariably would involve another lengthy wait.

54.With respect to Mr Pun, in my view, all these factors whether looked at alone or jointly, do not constitute any special circumstances to negate the strong case of proportionality of a decision to evict the applicant:

(1)  The factors set out at paragraph 53(1), (2), (5) above apply to most tenancy abuses cases, and thus do not constitute any further strong grounds to show that the eviction is disproportional.

(2)  Insofar as paragraph 53(3) is concerned, the Appeal Tribunal has taken that into account, but do not find the explanations to justify not terminating the tenancy.  I do not find this conclusion to be unreasonable or irrational.  Further and in any event, the breach in my view cannot be described as a minor one in light of the following evidence before me:

(a)  By way of her signed Declaration dated 9 July 2008, the applicant confirmed to the HA of her understanding of the provisions of the Tenancy Agreement, which included the obligations to promptly move into, and thereafter maintain continuous residence, of the Flat.  Notwithstanding this, she still breached the provisions. The applicant’s own claim (made at the hearing before the Appeal Tribunal) that she was not aware of the obligations could not in my view render the breach a minor one.

(b)  Her explanation based on financial difficulty could only apply to the breach before January 2009.  Since then, she was given sufficient money by the parents to enable her to promptly and quickly refurbish the Flat and move into it. This she did not do.  Instead, notwithstanding the contractual obligations under the Tenancy Agreement and the fact that the Flat was a public housing, she still took a long time to look for a bed and computer desk for the son.  It was only after she had been interviewed by the HA officers in May for tenancy abuse that she reacted more promptly to furnish the Flat and decided to move into it in June 2009.

(c)  The Flat was the applicant’s fifth choice of public housing estate (in different locations and of varying ages) in two years’ time (from 5 June 2006 to 24 June 2008).  Finally after being given her choice, she however still misused it by not observing her obligations under the Tenancy Agreement.

(3)  In relation to paragraph 53(4) above, although there is no dispute that she suffers from a form of mental illness, there is no evidence at all before me to show what adverse impact or effect, if any, it would have on her relating to the mental illness if she has to vacate the Flat.  As such, I cannot see how this factor alone would make a strong case of vulnerability as envisaged under Lord Neuberger’s observation in Pinnock[5].  In any event, in the present case, the evidence shows that the applicant could apply for interim housing when she vacates the Flat under the NTQ[6]. This she has indicated that she would not need any such interim housing.  Instead, she has made it clear to the HA that she only would ask to be given 2 months to make the necessary arrangements to move out of the Flat if she fails in her judicial review application.  She has also revealed that her maiden family had already reserved a room for her and her son at the Mei Foo Flat if she is to be evicted from the Flat[7].  In these circumstances, I cannot see how it can be suggested that the NTQ would cause so much extra hardship on the applicant to the extent of rendering disproportionate a decision to evict her.

55.In the premises, in balancing all these factors together against the precious and very stringent public rental housing resources in Hong Kong, I am clearly of the view that, in the circumstances of the present case, a decision to evict the applicant is proportional to achieving the legitimate aim[8] of a fair and efficient distribution and management of public rental housing resources for those in genuine need in Hong Kong and of preventing tenancy abuses.

56.For these reasons, after taking into account of all the relevant facts in the present case, including the ones that have arisen after the Decisions, I conclude that a decision to terminate the Tenancy Agreement and evict her in light of her breaches of the Tenancy Agreement is a proportional one.

57.In the circumstances, the Court would not grant any substantial relief under the 1^st and 2^nd grounds of the judicial review.  She must therefore fail under these two grounds.

58.I would also wish to add one more observation under these grounds.

59.Although I have proceeded to deal with these grounds of judicial review on the basis of proportionality under the Pinnock principles, I must make it clear that this judgment should not be regarded as the court’s unreserved acceptance (without hearing full arguments) of (a) the applicability of proportionality in Hong Kong as a recognised stand alone ground of judicial review against public housing decisions, or (b) the applicability of the full Pinnock principles.

60.This is so as the change of the English courts’ attitude and jurisprudence from refraining from entering into the balancing exercise of proportionality for public housing decisions[9] to engaging itself directly the balancing exercise (including resolving disputes of facts) under the

Pinnock principles, may or may not be directly applicable to Hong Kong:

(1)  As Ms Wu pointed out up in her oral submissions (when reserving her position if the matter went further), the Pinnock case dealt with a situation where a protected tenant under the relevant English statute was demoted to an unprotected tenant, and where the local authority further sought a possession order from the court through court procedure.  This may in nature be a very different matter from the usual notice to quit cases in Hong Kong where tenancy abuses were found.

(2)  The public rental housing resources circumstances in Hong Kong may well be very different from those in the UK.  This may put a very different local context and policy background against which the Hong Kong courts should consider whether and how they should embrace proportionality as an individual ground of judicial review against decisions concerning allocation and management of public housing resources in Hong Kong.

61.In the premises, whether and how the Pinnock principles on proportionality should apply in Hong Kong regarding public rental housing decisions must require further careful consideration at the next appropriate occasion after hearing full arguments.

D2.  Procedural impropriety or illegality: the HA had fettered its discretion in deciding to issue the NTQ

62.The applicant says the HA had fettered its discretion under s 19(1) of the HO in adopting a policy, which in practice or implementation, is so rigid that it amounts to rules which exclude consideration of the individual cases. 

63.Under this ground, the applicant relies on the HA’s own evidence under the Affirmation of Lam Kit Wan, where it is deposed at paragraph 17 as follows:

“On 26^th March 1994, the then Management and Operation Committee (“MOC”) of the [Housing Authority] endorsed the policy of terminate 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.”

64.Mr Pun for the applicant thus submits:

(1)  It seems that in coming to the HA’s Decision, the HA was heavily influenced by a rigid policy whereby once a tenant had breached her tenancy agreement by not moving into the flat within a period of three months after the commencement of the tenancy agreement, it would issue a notice to quit under s 19(1)(b) of the HO.

(2)  In any event, in practice, the HA had fettered its discretion in issuing the NTQ.  This is so, as although it is clear to the HA that the applicant and her son had moved into the Flat and resided there since 18 June 2009, and that the applicant had written lengthy letters to explain why she was unable to move in earlier, the HA still issued the NTQ on 31 July 2009.

65.The gist of the above submissions is that, when deciding to issue the NTQ, the HA (a) had not given the applicant an opportunity to explain her personal circumstances as to why she was in breach of the Tenancy Agreement, and (b) in any event had not taken into account of her explanations as matter of policy.

66.In my view, the above ground is not made out on the facts of the present case:

(1)  First, when the applicant appealed the HA’s Decision to the Appeal Tribunal, the applicant was clearly given a full opportunity to put forward all the explanations and evidence she wanted to rely on to say why she should not be required to vacate the Flat despite the breach.  In the appeal, the HA did not rely on any policy nor did the Appeal Tribunal refer to any.  The Appeal Tribunal had considered her explanations but, in the exercise of its own discretion, decided to confirm the NTQ.  There is therefore simply no question of the Appeal Decision being tainted by procedural irregularity of the application of a rigid policy, or the rigid application of a policy.   The Appeal Decision to confirm the NTQ is a valid one.

(2)  Further and in any event, the evidence shows that, during the investigations made by the HA’s officers, the applicant was given various opportunities to explain why she had not moved into the Flat.  The applicant was interviewed by the HA’s officers on 14 and 15 May 2009, at which occasions she explained to them why she had not moved into the Flat earlier and stated that she had planned to do so in the summer.  Moreover, even after the issue of the investigation report on 27 May 2009, the HA continued to accept the applicant’s letter dated 26 June 2009, whereby she explained again why she had not been able to move into the Flat promptly.

(3)  At the same time, at paragraph 23 of the Affirmation of Lam Kit Wan, the HA explains why in non-occupation cases, the defaulting tenant’s subsequent rectification of such breaches is generally not accepted as a good reason to withhold the issue of a notice to quit.  Then, at paragraph 49 of the Affirmation of Lam Kit Wan, it is further deposed that the decision to issue the NTQ was made “on the basis of the matters set out above”, which includes the interviews of the applicant whereby she explained the reasons for not moving in, and the letter she wrote on 29 June 2009 to explain her situations.

(4)  Reading the above evidence as a whole, I am not satisfied it has been shown that the HA’s eventual decision to still terminate the Tenancy Agreement notwithstanding the applicant’s explanations was made on the basis that that it had simply ignored those explanations as a matter of policy. 

67.I therefore also reject this ground.

D3.  Unreasonableness: no sufficient evidence to support the   conclusion in the Appeal Decision

68.In explaining the Appeal Decision, the Appeal Tribunal at paragraphs 5(b) and 6(b) of the Determination concluded that the applicant lightly treated her responsibility in taking up the tenancy promptly (“過於輕率看待她必須及早遷入上址單位居住的責任”), and that she did not make an attempt to look for alternatives and unreasonably delayed to move in (“任由入伙一事不合理地拖延也不在乎”). 

69.Mr Pun submits that the evidence before the Appeal Tribunal does not support these conclusions because:

(1)  It appears that the Appeal Tribunal did not cast doubt on the explanation of the applicant that she was not aware of her contractual duty to retain regular and continuous residence in the Flat. 

(2)  The applicant explained that her failure to retain regular and continuous residence in the Flat was due to the need to look after her father in the Mei Foo Flat and because of her financial difficulties.

70.As such, the Appeal Decision (Mr Pun furthers submits) may be impugned on Wednesbury unreasonableness on the basis that the finding is not supported by any evidence or not reasonably capable of being supported by the evidence taken as a whole[10].

71.I am unable to accept Mr Pun’s submissions. 

72.These findings must be read in context and as a whole of the relevant part of the Determination.  If one reads paragraphs 4-6 of the Determination together (as quoted above), I accept the submissions from Ms Wu that the Appeal Tribunal came to the above findings on the following bases:

(1)  The applicant should work things out to commence tenancy as soon as possible as was required by the Tenancy Agreement (“上訴人是明白事理的人，相信她應該明白到綜援金已包括租金資助，既已得到應有的社會保障，卻對遷入單位居住這最起碼必須履行的責任，也沒有表現出足夠的自覺性。這一點令人難以接受”).

(2)  It did not cross the applicant’s mind to return to the Flat at night despite the proximity between Mei Foo and Kowloon Bay (“委員詢問上訴人有否考慮過白天前去美孚新邨的單位照顧父親，晚上回到與美孚相隔不太遠位於九龍灣的彩盈邨上址單位休息，或在彩盈邨的單位煮飯，再送到距離不遠的石硤尾兒子的學校，上訴人堅稱她的情況特殊，解決問題的唯一辦法只有長期住在父親家裹，其他安排都不可行”).

(3)  The applicant refused to rank occupation of the Flat as a matter of priority.  It only came after her other concerns (“不似一般家庭，即使面對類似困難，都會有其他解決辦法，非不得已不會輕易丟下居住的地方不顧，上訴人堅稱與兒子長期住在父親家裹，既方便照顧父親和為兒子送飯，也是解決問題的唯一辦法，丟空上址單位是逼不得已的決定 ”).

(4)  The applicant was in a position to complete the renovation after January 2009.  Her failure to do so resulted in prolongation of the non-occupation of the Flat (“上訴人早於2009年1月份已籌得9萬元的裝修費用，並可優先購買睡床及電腦枱等重要器具。委員認為她若能及早按經濟能力安排裝修及入伙事宜，應不致於擔誤多月才完成。上訴人為家庭問題受到困擾，以致忽略了及早遷入單位居住，可以理解。然而在2009年1月份籌得裝修費後，在裝修過程中遇到困難也沒有嘗試找尋其他折衷辦法，只管一意孤行，按照自己的意願行事，甚至任由入伙一事不合理地拖延也不在乎”).

73.In relation to these reasons of the Appeal Tribunal, Mr Pun emphasized that in her evidence at the appeal hearing, the applicant never stated or said that she treated getting the bed and computer desk “as a matter of priority”.  Moreover, she on the other hand stressed that, at the relevant time, she had not thought of moving into the Flat first to at least stay overnight, given that she needed to look after her father at the Mei Foo Flat.  This, Mr Pun says, may at most show that the applicant was careless on her part, but it cannot support the conclusion that “the applicant refused to rank occupation of the Flat as a matter of priority.  It only came after her other concerns”.

74.As I mentioned above, notwithstanding that she had obtained $90,000 in January 2009, it is the applicant’s evidence that she still took time to try to look for a suitable bed and computer table for her son.  This had taken several months.  It is also her evidence (as borne out by the transcript of the appeal hearing) that she had not thought of moving into the Flat earlier even though the Flat was not yet fully furnished.

75.This further delay (and the reasons thereof) of moving into the Flat since January 2009 must be viewed in the context that there was already a lapse of 6 months[11] after she was allocated the Flat and the commencement of the Tenancy Agreement.  Looking at these facts objectively in this context, I am of the view that it is fully and reasonably open to the Appeal Tribunal to form the views as set out at paragraph 72 above, which then further support the findings that the applicant was “過於輕率看待她必須及早遷入上址單位居住的責任” and “任由入伙一事不合理地拖延也不在乎”.  These are certainly not findings and conclusion that can be said to be Wednesbury unreasonable in the context of the evidence before the Appeal Tribunal.

76.I therefore reject the challenge that these findings are not or could not be reasonably supported by the evidence. 

D4.  Procedural impropriety: contradictory reasons

77.Under this ground, the applicant says it is contradictory for the Appeal Tribunal to, on the one hand, expressly acknowledge that “上訴人爲家庭問題受到困擾，以致忽略了及早遷入單位居住，可以理解”, while on the other hand find that the applicant “過於輕率看待她必須及早遷入上址單位居住的責任”.

78.As such, Mr Pun says the Appeal Decision is tainted with contradictory reasons.  The decision therefore falls foul of the requirement that reasons in support of a decision must be both “adequate and intelligible”.  It should be quashed by way of judicial review[12].

79.There are no merits in these submissions.

80.The fact that the Appeal Tribunal was sympathetic to one of the explanations given by the applicant does not mean that, taken all the evidence and explanations together, it could not reasonably come to the view that the applicant was still “過於輕率看待她必須及早遷入上址單位居住的責任”.  As I explained above in rejecting the applicant’s 4^th ground of judicial review, this particular finding is reasonably supported by the evidence taken as a whole before the Appeal Tribunal.

81.I therefore do not find it to be contradictory in the Appeal Tribunal’s above finding as suggested by Mr Pun.

82.This ground must similarly fail.

E.  CONCLUSION

83.The applicant has failed in all her grounds of judicial review.  The application must be dismissed.

84.I further make an order nisi that costs of the application be to the HA to be taxed if not agreed.  The applicant’s own costs are to be taxed in accordance with legal aid regulations.