AU ON AND ANOTHER v. MUNICIPAL SERVICES APPEALS BOARD AND ANOTHER

AU ON AND ANOTHER v. MUNICIPAL SERVICES APPEALS BOARD AND ANOTHER

The Board did not unlawfully deny representation because s.11 requires the Board's consent at the hearing and the applicants never properly sought such consent; the Board acted reasonably in limiting a non‑lawyer intervenor who lacked personal knowledge and risked hearsay; disclosure of the W5 tenancy was relevant to the applicants' mitigation and livelihood claims and did not produce unfair prejudice; accordingly the Board reasonably applied the departmental Policy and dismissal of the appeals was lawful.

Citation
AU ON AND ANOTHER v. MUNICIPAL SERVICES APPEALS BOARD AND ANOTHER
Parties
1st Applicant: AU ON; 2nd Applicant: TSE LAU FUN; 1st Respondent: MUNICIPAL SERVICES APPEALS BOARD; 2nd Respondent: DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 May 2007
Case Number
HCAL119/2006
Procedural Posture
Judicial Review / Final Judgment (application Dismissed)
Outcome
Application dismissed
Legal Topics
Right of Representation, Procedural Fairness, Judicial Review, Irrelevant Consideration, Discretionary Policy Application, Termination of Tenancy
Source Language
EN
Administrative Law Constitutional Law Municipal Law Tenancy Law Right of Representation Procedural Fairness Judicial Review Irrelevant Consideration +2 more

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Parties

AU ON

1st Applicant

TSE LAU FUN

2nd Applicant

MUNICIPAL SERVICES APPEALS BOARD

1st Respondent

DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE

2nd Respondent

Procedural Posture

Judicial Review / Final Judgment (application Dismissed)

Legal Issues

  1. 1 Whether appellants were denied the right to be represented by a non‑lawyer under s.11 of the Municipal Services Appeals Board Ordinance
  2. 2 Whether procedural unfairness arose from disclosure at the hearing of an additional tenancy (stall W5) without prior notice
  3. 3 Whether the Board took an irrelevant consideration into account and thus misapplied the Policy and tenancy clause

Ratio Decidendi

The Board did not unlawfully deny representation because s.11 requires the Board's consent at the hearing and the applicants never properly sought such consent; the Board acted reasonably in limiting a non‑lawyer intervenor who lacked personal knowledge and risked hearsay; disclosure of the W5 tenancy was relevant to the applicants' mitigation and livelihood claims and did not produce unfair prejudice; accordingly the Board reasonably applied the departmental Policy and dismissal of the appeals was lawful.

Court Disposition

Application dismissed

Orders

  • Application for judicial review dismissed
  • Order nisi that the applicants pay the 2nd respondent's costs of the application, to be taxed if not agreed