Letting a Public Rental or a Premium-Unpaid HOS Flat in Hong Kong: What the Ordinance Says, What the Court of Appeal Held, and Where the Occupier Stands

Six things to know first

1. There are two bodies of law here and they must never be merged. A public rental housing (PRH) flat is let to the household by the Housing Authority under section 16(1) of the Housing Ordinance (Cap. 283). A Home Ownership Scheme (HOS) flat is sold by the Authority under section 17A. One is a tenancy; the other is a sale subject to restrictions. Every rule, every consequence and every route below differs between them.

2. Since 31 March 2026, the person living in an unlawfully let PRH flat is himself committing an offence. Section 28A(1)(b) makes it an offence if the person "occupies, or agrees to occupy, a rental residential flat let by another person", and section 28A(4) provides that a person who commits an offence under subsection (1) or (3) "is liable on conviction to a fine of $500,000 and to imprisonment for 1 year". The commencement date does not have to be inferred from a notice: section 29A(3) states on the face of the statute that "This section as in force immediately before 31 March 2026 applies to an offence committed before that day as if the Housing (Amendment) Ordinance 2025 (25 of 2025) had not been enacted." Before that date these offences did not exist: the Ombudsman in January 2025 and the Bills Committee in June 2025 both record that the Authority could terminate the tenancy and could not prosecute the tenant for the abuse itself. ⚠ That is narrower than "no criminal consequence at all": it is a statement about Cap. 283 only.

3. But 〈subletting a public flat is a crime〉 is wrong, in three places. First, there must be money: section 28A(5)(a) defines a reference to letting as letting or subletting "for valuable consideration", and because subsection (1)(b) speaks of a flat "let by another person" that definition governs the occupier's limb too — the Authority's own page puts subletting that brings in no rent among tenancy breaches, not among the offences. Second, a sublet under the lease is outside the offence altogether: section 28A(5)(c) excludes a letting "under an authorized lease", section 28A(6) defines that term to include "a sublease or licence for occupation of land granted by virtue of and in accordance with such a lease", and section 16(2)(a) is the power under which the Authority may permit exactly that. Third, the trade-or-business limb has its own exception in section 28A(2), one branch of which applies where the tenant or another household member "is residing in the flat".

4. On the HOS side, the Court of Appeal decided this question in 2010. In Leung Wai Chi v Leung Lai Ching, CACV 29/2009, judgment 21 January 2010, on appeal from LDPD 2692/2008, an owner let an HOS flat with the premium unpaid and without the Authority's written permission. The Court held the tenancy void and the owner "disentitled to receiving or recovering the rent under the tenancy or other monetary relief" — and in the same paragraph held that the tenant had to give up vacant possession and was "not entitled to continue to rent or occupy the HOS flat in whatever manner". Section 7 below goes through that judgment.

5. Nothing in the Housing Ordinance lets anybody recover rent already paid. In 2025 the Bills Committee asked for a power to recover rents from subletting; the Administration answered on notices to quit, parallel proceedings and penalty alignment, and no such power was enacted.

6. Concepts to keep apart. Void, unenforceable and breach of covenant are three different answers with three different consequences. Illegality is a doctrine applied to facts, not a verdict that attaches to a category of agreement.

The question people ask: why doesn't 〈I rented it, so I'm a tenant〉 work here?

There are three different statuses and the law says three different things to them; most of the confusion starts by treating them as one.

They are the tenant (who holds the lease from the Authority), the sub-tenant (who has an agreement with the tenant) and the occupier (who is actually living there). The distinction is the Ordinance's own. The Ordinance uses "occupier" only sparingly, mainly in section 25, the information power. The provision that turns a person into a trespasser names only the tenant: section 19(2) provides that "Upon the termination of a lease under subsection (1), the tenant shall, if he is still occupying the land, be a trespasser thereon."

Three outcomes also have to be kept apart:

• Void — the agreement is treated in law as never having existed.
• Unenforceable — the agreement exists, but a court will not enforce one party's rights (or either party's) under it.
• Breach of covenant — a contractual term has been broken, the other side has contractual remedies, and the contract itself is not thereby void.

All three appear in this topic, and they land on different people. Sections 6 and 7 below show an HOS owner breaching a covenant in the deed of assignment (Schedule paragraph 1) while the Ordinance voids only a subset of transactions (section 17B) — two circles of different size, with the 2010 Court of Appeal decision sitting in the gap between them.

PRH: since 31 March 2026 the occupier commits the offence himself — but the three limbs do not share their conditions

The question is not 〈is subletting a crime〉. It is which kind of subletting, done by whom, and whether money changed hands. Section 28A has three limbs and they do not share their conditions or their defences.

The three limbs

Section 28A(1), added by the Housing (Amendment) Ordinance 2025 and in force from 31 March 2026:

In plain terms: (a) is the person who lets, (b) is the person who lives there, (c) is the person running a business in it. Since 31 March 2026 all three are principals, not accessories.

Limbs (1)(a) and (1)(b): money

Section 28A(5) defines what letting means:

and section 28A(6) defines "valuable consideration" as meaning "money or anything worth money".

*So valuable consideration enters through subsection (5)'s definition of letting. It therefore conditions limb (1)(a); and it conditions limb (1)(b) too, because limb (1)(b) speaks of a flat "let by another person" and "letting" has already been defined by subsection (5)(a). ⚠ It does not condition limb (1)(c): carrying on a trade or business in a rental residential flat is an offence whether or not anything is paid. The sentence 〈no money, no section 28A offence〉 is therefore wrong.* The Housing Authority draws a line from the other side: after listing the section 28A offences its page says that the behaviours it has just listed are serious tenancy abuses, while the ones it lists next breach the tenancy agreement instead and may lead to a Notice-to-Quit — and the list that follows includes subletting that brings in no rent.

Limbs (1)(a) and (1)(b) again: a sublet under the lease is outside the definition

This takes three provisions in three different parts of the Ordinance, read together:

• Section 16(1)(b) lets the Authority "fix the terms, covenants and conditions on which any land in an estate may be let or occupied";
• section 16(2) says those terms "may include terms, covenants and conditions which provide for—(a)the subletting by a lessee or sublessee of the whole or any part of the land or for the granting by such person of a licence to any person to occupy the whole or any part of the land";
• section 28A(5)(c) excludes a letting "under an authorized lease", and section 28A(6) defines

authorized lease as one that "(a)means a lease granted under section 16(1); and(b)includes a sublease or licence for occupation of land granted by virtue of and in accordance with such a lease".

So the Ordinance itself contemplates a sublet that the lease permits, and a sublease granted in accordance with the lease is itself an authorized lease and therefore outside section 28A. The sentence 〈subletting a PRH flat is a criminal offence〉 is wrong on the section's own words. The accurate sentence is 〈subletting outside the lease〉.

Limb (1)(c): the trade-or-business limb has two exceptions of its own

Subsection (2) sets out two independent exceptions, joined by the word "or". Both are exceptions to limb (1)(c) alone. Paragraph (a) is a trade or business permitted under an authorized lease, and it has nothing to do with whether anybody lives there; paragraph (b) is the residence one. So limb (c) cannot be reduced to 〈the flat that has stopped being a home〉: the subsection writes two ways out. The Authority's page renders this as not living in the flat but using it commercially, which tracks section 28A(2)(b) and only that half of the subsection.

The penalty, and a number that cannot rise on its own

Section 28A(4): "A person who commits an offence under subsection (1) or (3) is liable on conviction to a fine of $500,000 and to imprisonment for 1 year."

The form of that figure has legal consequences. Section 113B(1) of the Criminal Procedure Ordinance (Cap. 221) provides that "Where an Ordinance provides for a fine for an offence by reference to a level, the fine applicable for the offence is the amount shown for that level in Schedule 8", and section 113B(3) provides that "The Chief Executive in Council may by regulation amend the amounts set out in Schedule 8 to reflect his opinion of the effect of inflation on the value of the amounts set out in the Schedule since the date when the Schedule came into operation or since the date that the amounts in the Schedule were last amended." Schedule 8 currently reads: "Level 1 $2,000 Level 2 $5,000 Level 3 $10,000 Level 4 $25,000 Level 5 $50,000 Level 6 $100,000".

Section 28A(4) is not expressed by reference to a level; it states a cash sum. So the Chief Executive in Council's inflation power does not reach the $500,000 — only the legislature can move it — while the same power does reach the level 3 fine in section 26C, the level 4 fine in section 27 and the level 5 fine in section 26(1).

The time bar: six years, not two

Section 29A(1) has two limbs and they only make sense side by side:

Section 28A was carved into limb (b): three times the general commission period and twice the discovery period.

"Reasonable excuse" is not a general defence — it is a gate

Section 29B is often read as the defence for this Part. It is not. Section 29B(1) is a condition:

Only then do subsections (2) and (3) turn that reference into a defence and put the burden of disproof on the prosecution "beyond reasonable doubt".

Across the whole chapter, reasonable excuse appears only inside Part V (Offences and Penalties, sections 26 to 29B) — in section 26C, section 28A(3) and section 29B itself.

So within section 28A only subsection (3) — the paid intermediary — carries the words "without reasonable excuse". Limbs (1)(a) and (1)(b) do not. The Administration told the Bills Committee that subsection (3) is aimed at estate agents and persons providing intermediary services who assist in subletting the flats for profit.

One situation, two offences, two drafting choices

This contrast is the key point:

Section 26C in full: "A person who, without reasonable excuse, fails to comply with a requirement made under section 22A(4) commits an offence and is liable on conviction to a fine at level 3 and to imprisonment for 6 months." Section 27 opens "Any person who—(a)refuses or neglects to furnish any of the particulars specified in a requisition under section 25(1)" and closes "shall be guilty of an offence and shall be liable on conviction to a fine at level 4 and to imprisonment for 3 months."

In one sentence: refusing to give your name at the door leaves you a statutory defence; refusing to fill in the form does not. And section 25(1) is addressed to "the owner or occupier of any land, whether or not in an estate", so the occupier is inside section 27.

One boundary: all of this concerns the statutory defence.

If you have the Authority's combating-housing-abuses page open in another tab (https://www.housingauthority.gov.hk/en/public-housing/tenancy-matters/combating-housing-abuses/index.html): it prints the conduct and the maximum penalty and says nothing about defences at all, while section 29B's heading looks like a general defence for the Part and is in fact a gate opened by five words in the offence provision. The difference is invisible without running the sections against each other.

Who said 〈this doesn't concern you〉? Four official documents, and two counter-examples

The person the 2026 offence reaches is barely addressed in the official documents about it.

The Housing Authority's Tenancy Abuse Checker questions, the Ombudsman's Direct Investigation report DI/468 (20 January 2025) and the LegCo Bills Committee report CB(1)917/2025 (11 June 2025) are all framed around the tenant and the act of subletting, not around the sub-tenant or occupier; the Housing Ordinance itself refers to the "occupier" mainly in section 25 (the information power).

Three points follow.

First, the Authority's own tool names him in the warning and never addresses him. Its gloss on section 28A says that from 31 March 2026, under the 2025 amending Ordinance, anyone involved in letting a public rental flat, occupying one, or assisting with either may be prosecuted, and that the maximum penalty on conviction is a fine of HK$500,000 and imprisonment for a year. The question that gloss is attached to asks the tenant whether he or any family member has let the flat or any part of it out by any means — online platforms and estate agents among the examples it gives.

Second, the design paper names him once and then he vanishes. SHC 2/2025 §6 proposed a new offence against tenants, sub-tenants, licensees, sub-licensees and other persons who committed or assisted in serious tenancy abuse. By the time the Administration described the offence to the Bills Committee, the description covered limbs (1)(a), (1)(c) and (3): tenants who sublet their flats, including those who live in the flat and sublet part of it; tenants who do not live in the flat and use it for trade or business for profit; and estate agents and intermediaries who assist in subletting for profit. Limb (1)(b) is not described at all.

Third, and most important, because it is written into the statute itself. Section 19A(1) requires the Authority, where a lease has been terminated under section 19(1)(a) or (aa), to serve written notice on the tenant "specifying the date of the termination and the reasons therefor". Section 19A(2) sets out how:

In an unlawfully let flat the person behind that door is the occupier, and the statute permits a notice addressed to the tenant to be affixed to the door he answers. That notice is also what starts the only clock in the chapter — the 15 days in section 20(1)(a). The single document the occupier is most likely to see first is, by statute, written to somebody else.

Two counter-examples

Those four are enforcement and policy documents. The word "sub-tenant" is not absent from the statute book, and in two Ordinances it is protected —

• Lands Tribunal Ordinance (Cap. 17), section 8(8) names the sub-tenancy three times: the Tribunal may order "the payment of any other money which is due under the tenancy or sub-tenancy", "the disposal of any property left in the premises concerned by the tenant or sub-tenant", and "the payment of damages in respect of any breach of a condition of the tenancy or sub-tenancy".
• Landlord and Tenant (Consolidation) Ordinance (Cap. 7), section 119V is a criminal harassment offence whose first words are "Any person who unlawfully deprives a tenant or sub-tenant of occupation of any premises commits an offence"; and section 127A lets the Lands Tribunal, "on the application of a landlord, tenant or sub-tenant", determine a dispute "between a landlord and a tenant, or a tenant and a sub-tenant".

And those are precisely the two Ordinances that a Housing Authority tenancy is expressly taken out of. How, how far, and what is left behind the door is section 11 below.

When the Housing Department is at the door: what it can ask, and what happens if you refuse

The power to demand information is not new — the provision addressed to "the owner or occupier" has read that way since 1982. What arrived in 2025 is the power to demand proof of identity on the spot.

Entry and inspection: section 22

Two things to notice: "at any time", and that limb (b) reaches HOS flats — a sold flat still subject to the alienation restriction is inside the inspection power.

Requiring identification: section 22A, added in 2025

Section 22A(1) says who the section applies to: a person present on land in an estate let for residential purposes under section 16(1), or on land mentioned in section 22(b). There are then two triggers. Section 22A(2) is for performing a function under section 21 where the officer has reasonable grounds to believe the person is a trespasser. Section 22A(3) is the wider one:

And the power itself:

The sequencing is the mechanism. In SHC 2/2025 §8 the Authority set out why it wanted this: under sections 21 and 22 an authorised officer may evict trespassers and enter and inspect, but those sections do not empower the officer to demand the personal details of trespassers, tenants, authorised occupiers, unauthorised occupiers or suspected persons — such as a Hong Kong identity card — in the course of his duties, with the result that the Department would be unable to collect sufficient evidence to prosecute and secure convictions. The intention to prosecute came first and the identity power was asked for because of it; both arrived in the same amending Ordinance. And since 31 March 2026 the occupier of an unlawfully let flat does contravene the Ordinance, so section 22A(3) reaches him on the provision's own terms.

The written requisition: section 25

Section 25(1): "The Authority and any authorized officer may, for the purposes of this Ordinance, serve on the owner or occupier of any land, whether or not in an estate, a requisition in the specified form requiring him to furnish to the Authority or the authorized officer, within the time stated in the form, the particulars specified in the requisition." Section 25(2) adds a power to require the person to attend and "be examined concerning the occupation of the land". The 2025 amendment added subsections (3A) and (4), which extend the income-and-assets requisition to a tenant of estate land let for residential purposes "or another member of the tenant’s household".

Refusing: two offences, two drafting choices

This is where the table in section 2 lands. Refusing to give your name at the door is section 26C: level 3 and six months, and because the section says "without reasonable excuse" the statutory defence in section 29B applies. Refusing to complete a requisition is section 27(a): level 4 and three months, and the section does not use those words, so section 29B does not apply. A higher fine, half the imprisonment, and no statutory defence.

Separately, section 26(1) makes it an offence knowingly to make a false statement "in furnishing the particulars specified in a requisition under section 25(1)" or "in an examination under section 25(2)", punishable by a fine at level 5 and six months. Section 26(1A) adds that where a conviction under section 26(1)(aa) or (c) has resulted in rent being undercharged, then "in addition to any penalty prescribed in subsection (1) imposed on him, he may be subject to a further fine of treble the amount of rent undercharged." Note what that is: a further fine on conviction. It is not restitution and it is not a recovery of sublet rent from the tenant.

The chain that ends in eviction: sections 19 to 21, and the two documents the Ordinance never mentions

Every link in this chain is written to "the tenant". What arrives is a flat, not a name. Here is the sequence, including what happens where a limb fails.

Step 1 — the lease can be terminated without notice. Section 19(1) opens "Notwithstanding the terms thereof, the Authority may terminate any lease", which overrides the lease itself; and limb (aa) permits termination "without notice, if, in the opinion of the Authority, no person authorized under the lease to occupy the land or part thereof occupies the land or part thereof". ⚠ The trigger is the words themselves — that no person authorized under the lease occupies the land. An unauthorised letting is one factual route to that state of affairs, not the state of affairs itself: a flat left empty, or a whole household that has moved away, satisfies the limb equally (step 7 below returns to this). It was added in 1976 — half a century before section 28A.

Step 2 — but a written notice is mandatory anyway. Section 19A(1): where a lease has been terminated under section 19(1)(a) or (aa), "the Authority shall, as soon as practicable after such termination, serve notice in writing thereof on the tenant specifying the date of the termination and the reasons therefor." So the words "without notice" in section 19(1)(aa) mean without notice beforehand, not without paperwork afterwards. How it may be served is in section 19A(2), quoted in section 3 above, and it includes affixing it to the door.

Step 3 — the tenant becomes a trespasser. Section 19(2): "Upon the termination of a lease under subsection (1), the tenant shall, if he is still occupying the land, be a trespasser thereon." The deeming provision names the tenant and nobody else. It does not deem the sub-tenant or the occupier anything.

Step 4 — the appeal belongs to the tenant, and the proviso does not reach the occupier either. Section 20(1) lets the tenant appeal to the panel "not later than 15 days" after service of the notice of termination under section 19A(2). The proviso lets the chairman permit an appeal to be made on the tenant's behalf "by a person authorized under the lease to occupy the land or part of it" — and a person occupying under an unauthorised letting is by definition not authorized under the lease. Both the right and the proxy are closed.

Step 5 — the appeal is not a formality, and this is the part most accounts leave out. Section 20(2) requires the appeal to "be in writing and shall state the grounds of the appeal". Section 20(3) says what the tribunal may do:

On the (aa) route the tribunal may suspend or cancel the termination outright; on the notice-to-quit route it may also amend. Printing only section 20(4) — "The decision of the tribunal shall be final." — without subsection (3) leaves a reader believing the appeal is a formality, and the section does not say that. (Section 20(2A) separately requires the tribunal to have regard to a certified Authority policy where the appellant was aware of it or could reasonably have been expected to be.)

Step 6 — the eviction provision is drafted to a status, not to a relationship. Section 21(1): "Subject to subsection (2), any person who is a trespasser in an estate shall leave the estate when ordered to do so by an authorized officer." The words "any person who is a trespasser in an estate" are wider than section 19(2)'s "the tenant".

Step 7 — section 21(2)'s shelter covers only one of the two routes.

It is keyed to a notice to quit under section 19(1)(b). The route that catches an unauthorised letting is section 19(1)(aa). On the words, a person whose lease was terminated under (aa) and who has appealed under section 20 is outside section 21(2) — even though section 20(1) gives him the appeal and section 20(3)(a) lets the tribunal cancel the termination.

Step 8 — the eviction itself needs no court order. Section 21(3): "Any trespasser ordered to leave an estate who does not, within a reasonable time, obey such order may be evicted from the estate by an authorized officer who may use such force as may be reasonably necessary to evict such trespasser and, for that purpose, may request the assistance of a police officer or any other authorized officer." Section 21 requires neither a court order nor a bailiff.

Step 9 — the court is ousted, and the ouster has an edge. Section 19(3): "No court shall have jurisdiction to hear any application for relief by or on behalf of a person whose lease has been terminated under subsection (1) in connection with such termination." On its own words it reaches a person whose lease has been terminated under subsection (1), and applications in connection with that termination. It is not a general ouster.

And the Court of First Instance's supervisory jurisdiction is a separate question from the ouster. The High Court Ordinance (Cap. 4) section 21K(1) makes an application for "an order of mandamus, prohibition or certiorari" one to be made "by a procedure to be known as an application for judicial review", and section 21K(3) provides that "No application for judicial review shall be made unless the leave of the Court of First Instance has been obtained in accordance with rules of court". Section 19(3) does not name judicial review, and on its face it does not speak to a case where there has been no valid termination under subsection (1) at all.

The two documents that are not in the Ordinance, and they carry the days

Cap. 283 knows only an order to leave under section 21(1). What is actually issued is a 〈Notice to Occupier〉 and then an 〈Eviction Notice〉, neither of which appears anywhere in the Ordinance. The one first-party account of the interval is a case narrative in the Ombudsman's report DI/468: the Appeal Panel confirmed the notice to quit on 26 July; the Housing Department issued a Notice to Occupier on 4 August requiring surrender by 11 August; the occupier did not surrender, so an Eviction Notice was issued on 12 August; and when that notice expired on 2 September the Department recovered the flat by eviction operation. Elsewhere the same report records a Notice to Occupier requiring surrender of the flat within seven days.

Read that with its own boundary: these are case narratives inside an oversight report, not a published procedure; the intervals in one case do not establish a rule; and "occupier" in those narratives means the person in the flat, who in the cases described was the tenant. It is quoted here because it is the only first-party description of what happens between a confirmed notice to quit and an eviction, and the Ordinance does not describe it at all.

As for belongings left in the flat: section 24 of Cap. 283 and section 8(8)(c) of the Lands Tribunal Ordinance both deal with it. See this site's guide on property left behind.

HOS: the real restriction is Schedule paragraph 1, and section 17B is only part of it

What the deed forbids is wider than what the Ordinance voids. The two things it forbids and does not void are "convey" and "part with possession" — and parting with possession is what letting is. That gap is the whole of this question.

How the restriction gets into your deed: section 17AA

The Authority sells estate land under section 17A. Section 17AA(1) then lets the Director of Housing "stipulate, by notice in the Gazette, that the agreement for sale and purchase and the deed of assignment shall be subject to the terms, covenants and conditions mentioned in the Schedule and the terms, covenants and conditions so stipulated shall be part of the agreement and deed." So the restriction does not bind you directly out of the statute; it is stipulated into your agreement and your deed, where it operates as a contractual term.

Two features of that section travel with everything this article says about the Schedule:

The Schedule can be amended by the Chief Executive in Council, and the amendment reaches deeds already made. And section 17AA(4): "For the avoidance of doubt, it is declared that notices and stipulations whenever made under subsection (1) are not and have never been subsidiary legislation."

Schedule paragraph 1: four verbs, and a release that needs both halves

This is the restriction an HOS owner is actually under. Its first words announce that it is "Subject to paragraph 4 of this Schedule" — paragraph 4 is the exceptions list, and it is the next heading below.

Four verbs — alienate, convey, charge, part with possession. Three times over — doing it, purporting to do it, agreeing to do it. One carve-out — to the Authority or a person it nominates.

Then comes the release, and half of it is routinely dropped:

The word between (a) and (b) is "and", not "or"; and (b) says "has first paid". Five years does not lift the restriction on its own; the premium does, and only together with (a). The Authority's own alienation-restriction page (https://www.housingauthority.gov.hk/en/home-ownership/information-for-home-owners/resale-restriction/index.html , page's own revision date 1 April 2021) states the premium half — owners must pay the Authority a premium to have the alienation restrictions removed before they may let, sell or alienate the flat — and popular accounts remember the years half. Both are required, and 〈it's been ten years〉 is not a legal conclusion.

Paragraph 4: three things you may do without paying the premium, and letting is not one of them

Because paragraph 1 is expressly subject to it, paragraph 4 is the Ordinance's own list of what a premium-unpaid purchaser may do. Read entire, it has three limbs:

limb (b) permits an agreement for sale and purchase, after five years or after a declined offer to assign, "providing it is a condition of such agreement that the premium as assessed by the Director be paid to the Authority prior to assignment and within 28 days of the date of the agreement or within such period as may be otherwise stipulated by the Director"; and limb (c) permits, after two years, a sale into the restricted secondary market, to a person "certified by the Authority as a person eligible to buy relevant land" and "nominated for the purposes of this subparagraph by the Authority to buy particular relevant land".

Three things: a mortgage, a sale conditional on the premium, and a restricted-market sale. No letting.

This point matters: the Ordinance opened its own list of what may be done without paying, and letting is not on it. Section 10 below shows the consequence — the lawful Letting Scheme has to run through paragraph 1's nomination carve-out, because paragraph 4 has no door for it.

The premium is a process, with clocks, an appeal and a lapse

Paragraphs 5 to 12 are rarely described anywhere. In order: an administrative fee payable with the application (para. 5(a)); the Director's written notice of the prevailing market value, the amount, and a date "being not less than 28 days from the date of the notice" (5(b)); the fee credited against the premium if paid in time (5(c)); an appeal to the Lands Tribunal against the Director's assessment "within 28 days of the date of notification under subparagraph (b)" (5(d)); the Director's power to vary the assessment while an appeal is pending (5(e)); the Tribunal's valuation date (para. 6); a 7-day notice on withdrawal (para. 7); re-assessment on the Tribunal's figure (para. 8); refund or top-up within 28 days or as the Tribunal orders (paras. 9 and 10);

and paragraph 12, under which "the assessment of the premium shall lapse" if it is not paid in full in time.

Paragraph 11 is worth pausing on: it is the only paragraph in the Schedule that expressly permits a purchaser to part with possession, and the condition is payment of the assessed premium. In one sentence: parting with possession becomes lawful at the moment the premium is paid, and the assessment that fixes that moment lapses if the money is late.

Section 17B: what the statute actually voids is four transactions

Section 17B(1) is a three-limb gate: (a) the land is sold under section 17A, or is land the Authority may nominate purchasers for and is sold without its written permission; and (b) "the person to whom the land is sold purports to mortgage or otherwise charge the land or to assign or otherwise alienate it"; and (c) that person acts in breach of a term of the agreement for sale and purchase, a covenant in the deed, or (for a mortgage) a term authorized under Schedule paragraph 4(a). Only then:

The four things in that operative sentence — mortgage, other charge, assignment, other alienation — are the same four, in the same order, as the four in gate (b). The "void-list" is the gate repeated, not an independent enumeration. And section 17B does not refer to parting with possession.

Elsewhere in the chapter, "part with possession" appears in section 22(b), section 26A(1)(b), section 26B(3)(ii), Schedule paragraph 1 and Schedule paragraph 11. In each place it sits beside "alienate" as a separate item.

Section 27A follows section 17B; it does not stand on its own

Two things at once. First, limb (b) is a condition: a transaction must be "void by virtue of section 17B" before there is any section 27A offence. Second, limb (a)'s third alternative — "to enter into an agreement which relates to land" — is not on its face confined to the owner.

A law firm's newsletter and the Community Legal Information Centre both say that both parties to such an agreement commit an offence. That is not baseless — section 27A(a)'s third alternative does reach beyond the owner — but it is contingent, and neither source says on what. It is contingent on the same question as everything else in this half: whether the letting is void under section 17B. On the text that is not obvious. In court, in 2010, it had an answer.

The Authority's three live positions, each with its date

• The page on ways to sell an HOS flat (its own last revision date 25 June 2026) reproduces section 17B's list — a purported mortgage, charge, assignment or other alienation, and any agreement to make one, in breach of the agreement for sale and purchase or of a covenant in the deed of assignment, is void under section 17B — and therefore reproduces its gap: it never names a letting.
• The alienation-restriction page (last revised 1 April 2021) opens by saying that these are subsidised public housing and that buying, selling, letting and mortgaging them is subject to alienation restrictions.
• SHC 18/2026 §31 (15 June 2026) states the Authority's own reasoning: owners of subsidised sale flats under the Authority may not alienate, convey, charge or part with possession of a premium-unpaid flat other than to the Authority or a person the Authority nominates, and it is therefore not against the relevant legislation or the land lease terms to allow owners to let premium-unpaid flats to families in need nominated by the Authority. The same paragraph adds that where an owner's letting permission is revoked or cancelled the owner may be prosecuted for the offence of unlawful alienation — which can only mean section 27A, which bites only on section 17B voidness.

All three are live, and the one revised most recently — 25 June 2026 — is the one that omits letting. This is not a stale page overtaken by a newer one; the Authority maintains both accounts at once, with its own reasoning document in between. But an administrative position, however consistently held, is not a construction of a statute by a court. The court is the next section.

If you have both Authority pages open: you are looking at two different four-verb lists — section 17B's (mortgage, charge, assign, alienate) and Schedule paragraph 1's (alienate, convey, charge, part with possession) — and neither page tells you that they differ, or which of them was stipulated into your deed.

2010: the Court of Appeal decided this — and both halves of the judgment matter

The Court held the tenancy void and the owner unable to recover a dollar of rent. The same paragraph held that the tenant had to give up vacant possession and could not continue to occupy in any manner.

The case

Leung Wai Chi v Leung Lai Ching, Civil Appeal No. 29 of 2009, Court of Appeal (Tang VP, Cheung JA and Yeung JA), heard 16 December 2009, judgment 21 January 2010, on appeal from Lands Tribunal application LDPD No. 2692 of 2008. The judgment of the court was given by Yeung JA. Neither side was represented: the applicant appeared in person and the respondent was represented by her husband.

An HOS flat in Kwong Ming Court, Tseung Kwan O. In October 2007 the owner let it for two years at $6,500 a month, reduced to $5,000 from 15 January 2008. He did not have the Authority's written permission. He applied to the Lands Tribunal in October 2008 for arrears and vacant possession. Member Lo ordered the tenant to deliver up vacant possession, to pay arrears and mesne profits of $50,350 to 14 January 2009, mesne profits of $5,000 a month from 15 January 2009, and costs of $800. The tenant appealed, arguing that it was contrary to the public interest for the owner to collect rent on a flat let illegally.

One fact the judgment records: at [12] the court notes that the owner "admitted that he was in breach of the Housing Ordinance when he let the HOS flat and he was prosecuted, convicted and fined $6,000". That is one fine in one case. It is not a sentencing range.

The five moves

One. At [13]–[14] the court sets out section 17B in full and observes that "Section 27A of the Housing Ordinance even makes unlawful alienations in breach of section 17B an offence."

Two — the objective, at [15]:

Three — [16], and this is the answer to the textual point in section 6 above. The court records that "Although there is no statutory definition of the term ‘alienations’", and reasons from landlord-and-tenant doctrine: "a covenant restraining assignment or sub-letting is regarded as a covenant against alienations (see Woodfall - Landlord and Tenant, Vol 1, para. 11.116)". The same author, the court notes, treats section 93 of the Housing Act of England — that "the tenant will not, without the written consent of the landlord, sublet or part with possession of the dwelling-house" — as an implied covenant against alienation.

This deserves to be stated slowly. The court did not find "part with possession" inside section 17B. It construed "alienate", which section 17B does contain. That is why the textual observation in section 6 — that the Ordinance treats parting with possession as a fourth and separate thing — and this result can both be true: the court did not take that route.

Four — the conclusion, at [17]:

Five — [18] to [25], where the court states the general rule and then explains why this case is outside it. At [18]: "the legal principle is well established in numerous precedents to the effect that a breach of a covenant relating to land does not make a contract of letting or underletting the land illegal", citing Parker v Jones [1910] 2 KB 32, where Bucknill J said at page 38: "A covenant not to underlet without licence does not make an underletting in breach of that covenant illegal; it merely gives the lessor a right to re-enter." At [20] the court records that Hong Kong has adopted the same principle, in Har Sio-ying v Chung Yau-cheung [1987] HKLR 411.

But this owner had done more than breach a covenant. At [21] the court notes that he was in breach of the terms, covenants and conditions in the Schedule and had committed an offence. At [22]: "Whether the commission of an offence of illegal letting by a landlord would preclude that landlord from receiving the agreed rent would depend on the circumstances." — citing Shaw v Groom [1970] 2 QB 504, where a landlord who had committed an offence was nevertheless not precluded from recovering arrears, and Best v Glenville [1960] 3 All ER 478. Then at [23] the court says this case "is much more serious than those mentioned above", the letting being itself in contravention of the terms of purchase, "against the law and deemed void", and: "No one should derive a benefit from an illegal contract, including a tenancy."

The two halves — and the second is the reader's

At [26] the court says of the tenant and her husband that, knowing the owner had no right to let, "They were not worthy of sympathy." — and then: "But we have to consider the more important factor of public interest."

Then [28], in full:

And [29] does exactly that: "We allow Madam Leung’s appeal and set aside paragraphs 2, 3, 4 and 5 of the order of Member Lo made on 2 February 2009, but Madam Leung must still deliver up vacant possession of the HOS flat to Mr. Leung immediately in accordance with paragraph 1 of the order." Paragraphs 2 to 5 were the arrears, the mesne profits, the continuing mesne profits and the costs. Paragraph 1 — vacant possession — stood, and stood immediately. At [30] the court made no order as to costs of the trial or the appeal.

In one sentence: in that case voidness saved the tenant money and did not save her the flat.

What this decision reaches, and four things it does not

• It is a 2010 Court of Appeal decision about an HOS flat. It says nothing about a public rental flat and nothing about section 28A, which did not then exist — and no provision of Cap. 283 makes the letting of a PRH flat void (see sections 2 and 5 above). PRH and HOS must not be merged.
• It decided those facts. [22] itself says the answer "would depend on the circumstances".
• It is not authority for where Hong Kong now stands on the illegality doctrine generally. See section 8.
• It says nothing about the deposit. The judgment records at [8] that the tenant paid $13,000 as one month's rent and a deposit equivalent to one month's rent, and never returns to it.

Note the other half of the judgment. Public accounts of this case usually report only that the Court of Appeal held a letting contract for a Home Ownership Scheme flat void and the owner unable to recover arrears of rent. The other half of [28] — that the tenant still had to go, immediately, and could not continue to occupy in any manner — is what matters most to the person living in the flat.

The money: the Housing Ordinance has no route to it — and neither jurisdiction's statutes return it to the payer

Nothing in the Housing Ordinance lets anyone recover rent already paid. England legislated for exactly that money and sent it to the landlord.

Hong Kong: not one provision

Cap. 283 (2026-03-31 consolidation) contains no provision for unjust enrichment, restitution or repayment of rent already paid. Its references to recovery concern only section 24(4) (expenses of removal and storage of property taken into custody) and two provisions about recovery of a fixed penalty.

Note the limits of that point. It concerns Cap. 283 only, not the common law, and other legislation does provide something: two criminal-court compensation powers are triggered by exactly this kind of conviction, and neither of them sits in the Housing Ordinance.

Section 73 of the Criminal Procedure Ordinance (Cap. 221):

The amount so ordered is a debt, not a discretionary payment:

The magistrate's version is section 98 of the Magistrates Ordinance (Cap. 227), and it carries a ceiling the Cap. 221 power does not:

The key points. A criminal court has a compensation power on conviction, exercisable in addition to the sentence; under Cap. 221 the amount is deemed a judgment debt and is enforceable as one; and the magistrate's version is capped at $100,000 while the Cap. 221 power is not. It cannot be assumed that a person who paid rent under a void tenancy can recover it under either: whether money paid as rent is "loss of or damage to property" within these sections is a question of construction.

On the $100,000. That figure is written into Cap. 227 s. 98 itself. It is not a Schedule 8 fine level, so the Chief Executive in Council's regulation-making power in Cap. 221 s. 113B(3) — the power that moves the level 1 to level 6 amounts printed earlier — does not reach it. Only the legislature can move it, exactly as with the $500,000 in section 28A(4).

And a third, discussed later. Cap. 7 s. 119V(4)(a) lets a court that convicts of the harassment offence order compensation to the tenant or sub-tenant for damage, loss or inconvenience caused by the conduct constituting that offence. Its trigger is a s. 119V conviction, not a section 28A one, and whether Part IV reaches this reader at all is the question section 116 decides — but it is a statutory route to money that runs to the occupier. So the accurate statement is narrower: the Housing Ordinance contains no route to rent already paid.

It was asked for and not given

The legislative record is relevant. The Bills Committee report on the Housing (Amendment) Bill 2025 records at §18 that members enquired whether provisions would be included in the Bill to empower the Administration to recover from tenants the pecuniary interests arising from serious tenancy abuse — rents from subletting flats being the example given — so as to enhance the deterrent effect.

§19 is the answer, and it answers on something else: a notice to quit can be issued where abuse is confirmed; prosecution will follow where the evidence supports it; civil and criminal proceedings are to run in parallel as appropriate with no order of priority set between them; and the penalties are aligned with section 27A. The only recovery mentioned is different in kind — where evidence-gathering shows the tenant should have been paying additional rent under the Well-off Tenants Policy, the Administration says it will recover the difference in rent arrears from the tenant.

And no such power was enacted.

The legislature did not address validity

The legislative papers on section 28A (the Bills Committee report, the LegCo Brief, the Panel on Housing paper and SHC 2/2025) do not discuss whether a subletting agreement is void or unenforceable, what happens to a deposit, or section 19(3).

The Court of Appeal answered half of it

Section 7 above answers the owner's half: the tenancy was void and the owner was disentitled to the rent or other monetary relief. It does not decide whether rent already paid, or the deposit, can be recovered.

England legislated, and sent the money the other way

The Prevention of Social Housing Fraud Act 2013 (England and Wales), section 4(3): "An “unlawful profit order” is an order requiring the offender to pay the landlord an amount representing the profit made by the offender as a result of the" conduct constituting the offence. Section 4(6) sets out the calculation: "Step 1 Determine the total amount the offender received as a result of the conduct constituting the offence (or the best estimate of that amount). Step 2 Deduct from the amount determined under step 1 the total amount, if any, paid by the offender as rent to the landlord (including service charges) over the period" during which the offence was committed.

The measure of the order is the money the sub-tenant paid, and the whole of it goes to the landlord. So, on the statutes of the two jurisdictions: Hong Kong has no such provision at all, and England's sends the money to the landlord. Neither statute returns it to the person who paid it. ⚠ That concerns statutes only; whether the common law returns it is discussed in the next part.

Where Hong Kong stands on illegality: the Court of Final Appeal answered it on 15 April 2026

In Patel v Mirza [2016] UKSC 42 the Supreme Court reframed the question. Lord Toulson at [109] held that a court applying the common law doctrine of illegality should have regard to the policy factors involved and to the nature and circumstances of the illegal conduct, in deciding whether the public interest in preserving the integrity of the justice system should result in denial of the relief claimed — and said he put it that way rather than asking whether the contract was tainted by illegality, because the question is whether the relief should be granted. At [121] he held that a claimant who satisfies the ordinary requirements of a claim in unjust enrichment should not be debarred from enforcing it merely because the money he seeks to recover was paid for an unlawful purpose. (These two paragraphs are this site's summary, with their paragraph numbers.)

Hong Kong has made the same move. On 15 April 2026 the Court of Final Appeal handed down Mai, Jieping trading as Fai Tat RMB Exchange v Wong Chi Hung, FACV 5/2025, [2026] HKCFA 14. Three things, and they are separate things.

One — contract. Ribeiro PJ, at [78]:

Two — unjust enrichment, which the Court answers separately. At [87]:

At [110], on why the two are not one question:

And at [129], the distinction in a sentence:

Three — and no hard-and-fast rule was laid down. Chief Justice Cheung, at [8]:

[134] is the Court's answer to the question on which leave was granted, and it states its own scope — a contract governed by Hong Kong law held unenforceable for illegality under foreign (or Mainland) law, where there has been a total failure of consideration and the defendant was unjustly enriched:

This case is not about Home Ownership Scheme flats and not about the Housing Ordinance. It is about a renminbi exchange agreement unlawful under Mainland law, and a claim brought in Hong Kong to recover the RMB 1 million paid under it. It is relevant in two ways, and both are about the framework rather than about any outcome:

• *Hong Kong now applies the Patel range-of-factors approach, not Tinsley*. So [22] of the 2010 decision in section seven — that whether an offence of illegal letting would preclude the landlord from receiving the agreed rent would depend on the circumstances — points the same way as today's framework. It remains what one Hong Kong court said about one set of facts, not a rule.
• Whether the landlord can recover the rent and whether the person who paid it can get it back are two questions, and neither answers the other. That separation is what [110] and [129] hold. The 2010 decision answers the first. The second — whether a subtenant can recover rent or a deposit in unjust enrichment — is not answered by this appeal, whose question was about foreign illegality, and needs a solicitor's advice on the facts.

⚠ So there is no single answer to whether rent or a deposit already paid can be recovered. [8] says why: everything depends on the facts of the particular case and the illegality concerned.

Beware older material. Articles from 2019 and earlier may say that illegality in Hong Kong is still governed by Tinsley; that has been overtaken by the decision of 15 April 2026.

Reporting: the process and the numbers

The Government's reply in the Legislative Council on 20 May 2026 sets out the whole funnel with its denominators: since the Award was launched, and as at end March 2026, the Housing Department had received 5 400 non-anonymous reports under it, and after initial screening about 900 cases carried enough basic information to warrant further follow-up. It goes on to record that of those roughly 900 cases, investigation of about 600 had been completed as at end March 2026; that the Assessment Panel had completed two rounds of review and confirmed 25 substantiated cases under the Award; that the informant in each substantiated case received $3,000 and a certificate of appreciation; and that the Authority issued Notices-to-Quit to all the households involved in those cases. The same reply records that in the 25 substantiated cases the investigation period ranged from three to eight months.

Two denominators, both correct, nine times apart:

• 25 of 5,400 reports = 0.46%
• 25 of about 600 completed investigations = 4.2%

They answer different questions.

The same reply names the Government's own commonest false positive. Cases that could not be pursued were put down to a lack of essential information — the identity of the tenants, or the estate or building they live in — to misunderstandings found on preliminary verification, an approved addition to a household mistaken for unauthorised subletting being the example given, or to routine complaints about matters such as noise or environmental hygiene.

The wider base is a different measurement and the two must not be chained. The Ombudsman's report DI/468 gives, in its Table 6, the number of complaints or reports of PRH abuse received by the Housing Department and the number substantiated after investigation for each year from 2017/18 to 2024/25 (as at November), and the substantiation rate across those years runs between 2% and 7%. That is a different class on a different calendar from the same report's Table 19, which counts abuse cases by calendar year — 12,407 in 2024 against 6,796 reports in 2024/25. Abuse cases are not a subset of reports, and no funnel runs between them.

The lawful route: the existing scheme has run for seven and a half years with 217 agreements currently valid — and the 2026 White Form scheme is a separate one

There is a lawful way to let a premium-unpaid subsidised sale flat. Its legal basis is that the tenant is somebody the Housing Authority has nominated; its machinery is a set of certificates plus a letting permission which the Authority's own paper describes as revocable or cancellable.

It is named in the statute book. Schedule 6 paragraph 2(e) to the Landlord and Tenant (Consolidation) Ordinance excludes from Part IVA "a tenancy of premises under the Hong Kong Housing Society’s Letting Scheme for Subsidised Sale Developments with Premium Unpaid". The legislature knew about the Scheme, named it in an Ordinance, and what it did was put its tenancies outside rent control.

Why it is lawful, in the Authority's own reasoning. SHC 18/2026 §31 says that owners of subsidised sale flats may not alienate, convey, charge or part with possession of a premium-unpaid flat other than to the Authority or a person the Authority nominates, and that it is therefore not against the legislation or the land lease terms to let a premium-unpaid flat to a family in need nominated by the Authority.

Read that with section 6 above and the structure for Housing Authority flats is complete: the Scheme cannot run through Schedule paragraph 4, because paragraph 4 opens only three doors — a mortgage, a conditional sale and a restricted-market sale — and none of them is a letting. It runs through paragraph 1's own carve-out, "other than to the Authority, or such person as the Authority may nominate". That is why the Authority can operate it without amending the Ordinance.

⚠ That is the structure for Housing Authority flats, and for those only. Forty of the 673 agreements are Housing Society flats. The Authority did not sell those under section 17A, and their letting restrictions sit in Government land-grant documents rather than in the Cap. 283 Schedule. For Housing Society flats, check the letting restrictions in those documents.

The same paragraph carries the other half: where an owner's letting permission is revoked or cancelled, the owner may be prosecuted for the offence of unlawful alienation — which can only be section 27A, and section 27A depends on section 17B voidness.

How many people use it, with the denominators. The same paper records that as at 31 March 2026 around 673 tenancy agreements had been signed since the Scheme began — 633 of them for Housing Authority flats and 40 for Housing Society flats — and that around 217 were currently valid. It also supplies the Authority's own denominators: in the first quarter of 2026 there were about 350,000 non-owner domestic households in private buildings with incomes not exceeding the White Form limit, and about 360,000 subsidised sale flats under the Authority and the Housing Society with premium unpaid and ten or more years of ownership; and the 3,000 quota announced in the 2025 Policy Address for the new letting scheme accounts for about 1% of either figure.

⚠ Two schemes, and they must not be merged. The 673 and the 217 are figures for the existing scheme. The 3,000 quota belongs to the new scheme for White Form applicants, which carries a Letting Permit Fee. The Housing Authority's official announcements of 18 June and 15 July 2026 said only that the scheme was expected, or would, launch or accept applications in September 2026; an expected date is not a statement that applications have opened. One scheme's usage cannot be divided by the other scheme's quota. Status as at 5 September 2026.

Using the existing scheme's own figures:

• 673 ÷ 360,000 ≈ 0.19% — agreements ever signed
• 217 ÷ 360,000 ≈ 0.060% — currently valid

And seven years earlier. A Legislative Council reply of 6 November 2019 recorded that since the Scheme's launch the Housing Society had received applications from 13 owners, six of whom were issued an Eligible-to-Let Certificate, and applications from 53 tenants, 19 of whom were issued an Eligible-to-Rent Certificate — with no tenancy agreement yet signed — and that there were then around 340 000 Authority owners holding their flats with the premium unpaid for ten years or more.

The two pools are differently defined — 340,000 Authority owners in 2019, 360,000 Authority and Housing Society units in 2026 — so they are not a like-for-like trend. The take-up figures are: zero, then about 217 live agreements seven and a half years on.

Does ordinary tenancy law help? Three doors in Cap. 7, and what is behind them

Three exclusions that say the same thing are drafted differently. What the difference amounts to, in the end, is a criminal harassment offence.

The three doors

A sub-tenancy granted by a PRH tenant is not held from the Authority; it is held from the tenant. So on the words, Part IV is expressly closed to it and Parts IVA and V are not.

That is an observation about wording; it does not mean Part IVA or Part V necessarily protects you. Each has its own gate, below.

What is behind the Part IV door

Part IV's security-of-tenure machinery was largely repealed in 2004. Sections 117 to 119K and 119M to 119Q were repealed by Ordinance 16 of 2004, s. 3.

Section 119V was not repealed. It is a criminal harassment offence:

Subsection (2) creates a second offence for acts calculated to interfere with the peace or comfort of the tenant or sub-tenant, or persistently withdrawing services, where the person knows or has reasonable cause to believe that this is likely to make them give up occupation or refrain from exercising a right — same penalties. Subsection (3) gives a defence of reasonable grounds. Subsection (4)(a) lets the convicting court order the offender "to pay to the tenant or sub-tenant such sum as it thinks fit by way of compensation for damage, loss or inconvenience suffered by the tenant or sub-tenant by reason of the conduct constituting the offence". And subsection (5): "premises (處所) includes part of any premises." — which reaches a single sublet room.

So the drafting difference has a subject. The Part that section 116(2)(bc) expressly closes to "a sub-tenancy created out of" a Housing Authority tenancy is the Part that contains the harassment offence.

The tempting overstatement here is false. Many provisions of Cap. 7 mention the sub-tenant, so 〈the only provision written for the sub-tenant〉 would be wrong. The accurate statement is narrower: Parts I and II, which contain most of those references, both expired at midnight on 31 December 1998; Part IVA's harassment offence names only the tenant; and the operative harassment offence that does name the sub-tenant (section 119V) sits inside the Part that is expressly closed.

Part IVA has its own gate, and it is "subdivided unit"

Section 120AAZO(1): "If a person unlawfully deprives a tenant of a regulated tenancy for a subdivided unit of occupation of the subdivided unit, the person commits an offence." It names only the tenant. And Part IVA's application provision requires the tenancy to be one "the subject premises of which are a subdivided unit" (s. 120AAB(1)(c)) — so unless the flat has been subdivided, Part IVA cannot reach it at all. (The subdivided-unit regime is a separate subject; see this site's guide on it.)

Part V: the exclusion itself is a discretionary executive order

This is a rule-45 point and it is rarely made. What takes Housing Authority tenancies out of Part V is not the Ordinance; it is Cap. 7A, a piece of subsidiary legislation — and its enabling provision is section 123(2) of Cap. 7:

So the whole position of PRH tenancies under Cap. 7 rests on an order made by the Chief Executive in Council in absolute discretion.

Part V's own application provision is the widest in the chapter, and it says so in terms:

and its own public-landlord exclusion, section 121(2)(h), reaches only "a tenancy held from the Government" — the Government, not the Authority.

What is left of Part V? Its notice-of-termination machinery — sections 122, 124 and 127 — was also repealed in 2004. What survives is section 121, section 123, section 126 (in the absence of an express covenant, an implied covenant to pay rent and "a condition for forfeiture for non-payment within 15 days of the due date"), section 127A — the Tribunal may, "on the application of a landlord, tenant or sub-tenant", "entertain and determine any dispute or difference which may arise under this Part between a landlord and a tenant, or a tenant and a sub-tenant, or any of them, including any dispute as to the rent that is payable for, or the right to possession of, any premises" — and section 127B:

So even at the end of that road there is a ceiling: a sub-tenant's security of tenure cannot exceed the principal tenant's — and in a PRH flat the principal tenant's lease can be terminated without notice under section 19(1)(aa).

A caution

All of the above is about the words of four provisions; it does not mean Part IVA or Part V applies to anybody. How "held from" in section 116(2)(bc), Schedule 6 paragraph 2(d) or Cap. 7A section 2 is construed in this context is not settled.

Which forum? The Lands Tribunal — and an appeal needs leave

It is not a coincidence that the case in section 7 started in the Lands Tribunal rather than in a court. The Lands Tribunal Ordinance (Cap. 17) says so.

Section 8(6): "The Tribunal shall have jurisdiction to make an order for the recovery of possession of any premises or for the ejectment of a tenant from those premises, whether under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise."

Those last two words are why an owner whose tenancy falls outside every Part of Cap. 7 can still bring possession proceedings there.

Section 8(8) lists what the Tribunal may order in the same application: "an order for the payment of rent and mesne profits (including interim payments of rent and mesne profits)"; "an order for the payment of any other money which is due under the tenancy or sub-tenancy"; "an order for the disposal of any property left in the premises concerned by the tenant or sub-tenant"; "an order for the payment of damages in respect of any breach of a condition of the tenancy or sub-tenancy"; and compensation within the meaning of section 120AAZK of Cap. 7.

Section 8(9): "In the exercise of its jurisdiction, the Tribunal shall have the same jurisdiction to grant remedies and reliefs, equitable or legal, as the Court of First Instance."

Appeals have two gates. Section 11(2) lets a party appeal to the Court of Appeal "on the ground that such judgment, order or decision is erroneous in point of law" — a point of law, not a finding of fact. And section 11AA(1): "Subject to subsection (2), no appeal may be made under section 11(2) unless leave to appeal has been granted by the Tribunal or the Court of Appeal." Section 11AA(6) adds that "Leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave is satisfied that—(a)the appeal has a reasonable prospect of success; or(b)there is some other reason in the interests of justice why the appeal should be heard."

That is the route the case in section 7 travelled — and both parties travelled it without lawyers.

Legal aid: there are two gates, and most people have only heard of one

The one everyone quotes is the money. The other is section 10(3), the merits test. ⚠ The existence of a test is not evidence of how often it is the operative one.

Gate one — financial resources. Section 5(1) of the Legal Aid Ordinance (Cap. 91): legal aid "shall, subject to and in accordance with this Ordinance, be available for any person whose financial resources do not exceed $452,320, for the civil proceedings mentioned in Part 1 of Schedule 2, except proceedings mentioned in Part 2 of that Schedule." That figure was last amended by L.N. 29 of 2026 — it can be changed again by Legal Notice. (Some online sources still give the old figure of $449,620; the current figure is $452,320.)

Gate two — section 10(3), the merits test.

— with four further grounds at (d) to (g), including six continuous months out of Hong Kong after the application and failure to comply with a requirement under section 9(b) or (c).

So passing the means test is one of two questions, and the second is reasonable grounds plus seven discretionary refusal grounds. Neither the Community Legal Information Centre's page nor the Legal Aid Department's means-test line carries it.

The same test does a third job. Section 5AA: "The Director may waive the limit of financial resources imposed under section 5(1) where the Director is satisfied that, having regard to the matters set out in section 10(3), a person would be granted a legal aid certificate in proceedings in which a breach of the Hong Kong Bill of Rights Ordinance (Cap. 383) or an inconsistency with the International Covenant on Civil and Political Rights as applied to Hong Kong is an issue."

Third, which forums are inside the Schedule. Schedule 2 Part 1 item 1 covers "Civil proceedings in any of the following courts" and lists the Court of Final Appeal, the Court of Appeal, the Court of First Instance and the District Court. Item 4 is the whole of the Lands Tribunal's presence in the Schedule: "Proceedings in the Lands Tribunal under Part II of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7)."

And Cap. 7 section 74B(1) provides: "Subject to subsections (3), (4) and (5), this Part shall expire at midnight on 31 December 1998." Section 74B(2) lets the Legislative Council "by resolution amend subsection (1) by substituting for the date specified therein such date as may be specified in the resolution" (sections 48(1) and (2) do the same for Part I) — a rule-45 date, and it is printed with its power.

In one sentence, and it is the useful one: at first instance in the Lands Tribunal the Schedule points at a Part that expired in 1998; on appeal to the Court of Appeal, item 1(b) is on its face open. That is exactly the shape of the case in section 7 — lost below, won on appeal.

The boundary: this establishes what Schedule 2 says and that the Part it names has expired. It does not establish that no legal aid is available for anything a subsidised-housing occupier might bring.

Why the law is shaped this way: the 2025 amendment was the Authority's own design

Three dates, a penalty that was copied rather than calculated, and a time bar that was tripled because the old one was defeating prosecutions.

Three dates, side by side

• 13 January 2025 — the date of issue of SHC 2/2025, the Housing Authority's Subsidised Housing Committee paper. It already contains the whole design. §6 takes section 27A — unlawful alienations — as the model, notes that a person who commits unlawful alienation of a subsidised sale flat is liable to a fine of $500,000 and one year's imprisonment, reasons that serious tenancy abuse is the same in nature because both concern abuse of public housing resources for personal gain, and proposes a new offence against tenants, sub-tenants, licensees, sub-licensees and others who commit or assist in serious tenancy abuse. §7 pitches the penalty at the same $500,000 and one year as section 27A, states that these are maxima, and records that the court retains the discretion to fix an appropriate penalty in each case. §8 sets out the case for the identity power.
• 20 January 2025 — the completion date of the Ombudsman's Direct Investigation report DI/468.
• 22 January 2025 — its announcement date.

The design paper predates the report's completion by seven days and its publication by nine.

What that licenses and what it does not, said plainly. It does not show the two were unconnected — the Ombudsman's investigation was under way long before its completion date, and its start date has not been published. But it does mean that a claim that the report led to the Bill is not supported by the published record. And the 18-page Bills Committee report never mentions the Ombudsman, and never mentions the Audit Commission.

So what can be said is: the Authority proposed it, the Ombudsman reported on the same problem in the same fortnight, and the legislative record cites neither the Ombudsman nor the Audit Commission. What cannot be said is that the report produced the Bill.

The penalty was copied, not calculated

$500,000 and one year is not a figure derived from the harm caused by PRH abuse. It is the figure already attached to the HOS offence, aligned across on a stated theory that the two abuses are the same in nature. SHC 2/2025 says so itself and the Bills Committee report repeats it. That is also the reason these two halves belong in one article: the Administration treats the HOS branch as the model for the PRH branch.

Why the time bar went from two years to six

Because the old one was defeating prosecutions, and the Audit Commission measured it. Audit Report No. 61, Chapter 3 (30 October 2013), §4.58 records that in 2011 and 2012 respectively 28 cases (2%) and 12 cases (2%) reached the Prosecutions Section after the time bar had expired, with a further 61 (5%) and 57 (10%) arriving with less than two months to run. The Ombudsman put the Authority's prosecution rate for PRH abuse cases over the preceding seven years at between 1.7% and 4.2%, and said the deterrence was inadequate.

The 2025 amendment then moved sections 26(1)(aa), (c) and (2), 27(c), 27A and 28A(1) and (3) out of the general two-year / six-month rule and into the six-year / one-year rule, and repealed the old section 29A(2). The practical meaning for a reader is direct: exposure created from March 2026 runs for up to six years from the conduct.

What the position was before, in two independent voices

• The Ombudsman, January 2025, at §6.12: for serious cases of abuse relating to occupancy status, such as subletting and reletting, the Authority was only empowered to terminate the tenancy and not to prosecute the tenants.
• The Bills Committee, June 2025, at §4: under the existing Ordinance, even where a PRH tenant commits serious tenancy abuse, the Authority has only the power to terminate the tenancy agreement and not the power to prosecute, so the deterrent effect is minimal.

Both predate section 28A, and they agree: before 31 March 2026, unlawfully letting a PRH flat carried no criminal consequence for the tenant, and none at all for the person living in it.

The scale of enforcement

• The Government's reply of 20 May 2026: since the current-term Government assumed office, as at end-March 2026, the Authority had recovered over 10,000 PRH flats for tenancy abuse and breach of tenancy agreement or housing policies. Against the over 800,000 PRH households the Authority recorded in 2023, that is about 1.25% of the stock over roughly three years and nine months.
• DI/468 Table 19 gives, for calendar years 2018 to 2024, the total number of abuse cases, the number prosecuted with the prosecution rate, and the number convicted with the conviction rate. Over the seven years: 1,401 prosecutions out of 50,976 abuse cases = 2.75%, and 1,094 convictions. The familiar "1.7% to 4.2%" is not a variation around a mean: it is the span between the first year (2018, 1.7%) and the last (2024, 4.2%).
• 2024 is a discontinuity on both sides: abuse cases rose from 7,084 in 2023 to 12,407 (+75%) and prosecutions from 164 to 518 (+216%). That is the year before the offence commenced.

Two boundaries travel with those figures. First, Table 19's rate is for PRH abuse as a class in a report whose discussion is principally about false statements — it is not a subletting prosecution rate. Second, no enforcement record under section 28A has been published. That is not the same as saying nobody has been prosecuted: the section commenced on 31 March 2026, and the most recent published enforcement figures (20 May 2026) are about notices to quit, not about prosecutions under the new section.

How England does it: the same common-law rule, two different legislative choices

On the narrow question of a mere covenant, England and Hong Kong say exactly the same thing. The difference is that Hong Kong's restriction is not a mere covenant.

The same starting point. The guidance issued in November 2009 by the Department for Communities and Local Government with the Chartered Institute of Housing, for social landlords, says at §5.12 that a sub-tenancy created in breach of a tenancy agreement not to assign or sublet does not prevent it from being a legally binding agreement between the tenant and the sub-tenant — with a footnote to Governors of Peabody Donation Fund v Higgins [1983] 1 WLR 1091 — while adding that it may expose the tenant to eviction for breach of the agreement, and the sub-tenant to eviction from the property in the course of those proceedings. (This site's summary, with its paragraph numbers.)

*That is the proposition Leung Wai Chi states at [18] from Parker v Jones. And the Hong Kong court then said: this owner did more than breach a covenant — the letting was itself in contravention of the terms of purchase, and it was an offence. So the comparative contrast is not 〈England says X and Hong Kong is silent〉. It is that both jurisdictions say the same thing about a mere covenant, and Hong Kong's is not a mere covenant.*

The same department, four years apart, on the same person. The 2009 guidance, in a section headed as being about supporting the victims of unlawful subletting, tells officers conducting visits to be sensitive to the fact that the sub-tenant may be unaware of their unauthorised status and will need support and housing advice about future housing options and rights, adds that unauthorised occupiers may be vulnerable or have support needs, and warns at §4.24 that unauthorised sub-tenants also face a real risk of being illegally evicted by the tenant once the situation has been uncovered; §4.25 then requires landlords to arrange a housing-need assessment, homelessness advice and signposting to independent legal advice. Four years later the same department's Impact Assessment for the Prevention of Social Housing Fraud Act 2013 says at §50 and again at §72 that eviction of those occupiers should not pose a large obstacle, because sub-tenants paying market rent for a social home are likely to be able to move on easily and find private-sector accommodation.

Both are quoted or reported here, and neither is used to overwrite the other.

And one drafting point that makes section 6's textual observation a real argument rather than a quibble. The civil limb of the 2013 Act, section 5(3)(a), pairs the same two verbs the Hong Kong Schedule pairs: the conditions are that a tenant, "in breach of an express or implied term of the tenancy, has sub-let or parted with possession of— i the whole of the dwelling-house, or ii part of the dwelling-house without the landlord's written consent". Treating subletting and parting with possession as two things is a drafter's habit in the parent jurisdiction too.

One boundary: the 2009 guidance's statement at §5.4 that unlawful subletting is not illegal because subletting without prior consent is not a criminal offence was overtaken in England by the 2013 Act. The 2009 guidance is relevant here only for the contract point and its posture towards the sub-tenant.