Huang Pui Ying v. Ugbe Ngozi Kenneth

LDPD 2309/2015

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 2309 OF 2015

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DECISION
(APPLICATION FOR LEAVE TO APPEAL)

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Background

1.This is an interlocutory application taken out by the respondent on 19 November 2015 seeking leave to appeal against the Judgment made on even date. 

2.The applicant, as landlord, and the respondent, as tenant, entered into a tenancy agreement in Chinese (“the T/A”) by which the applicant let to the respondent the premises at Roof on 9/F, No 44B Kwun Chung Street, Kowloon (“the Premises”) for a term of 2 years from 1 September 2014 to 30 August 2016 at a monthly rent of HK$3,000 inclusive of management fee and rates, etc.

3.However, a clause 18 which was added in hand-writing states the T/A can be terminated at any time.

4.In a Notice of Application filed to the Tribunal on 28 October 2015, the applicant applied for recovery of possession of the Premises on the ground that a notice of termination had been served whereby the tenancy had come to an end on 1 October 2015.

5.The respondent filed a Notice of Opposition on 3 November 2015 stating that the T/A could not be terminated. In addition, the respondent stated that he had successfully appealed against the judgment of LDPD 421 of 2015 where the Tribunal ordered him on 30 March 2015, inter alia, to pay the rent/ mesne profits in arrears from 1 October 2014 to 31 March 2015 subject to a relief expiration date. Pursuant to an order of the Court of Appeal in CACV 165 of 2015 dated 25 June 2015, the relief expiration date was subsequently extended to 13 July 2015.

6.The respondent complied with the order and paid the sum of $6,191 on 29 June 2015.

Hearing on 19 November 2015

7.At the hearing on 19 November 2015, the respondent said that he had rented the Premises since 2011 and the T/A was an “extension” of previous tenancies. He however failed to observe there exists clause 18 as described above. Even the tenancy agreement proffered by him as exhibit also contains the same clause.

8.It is regrettable that the respondent confessed that he could not read Chinese but the general rule is that a person is estopped by his or her deed; a party of full age and understanding is normally bound by his signature to a document, whether he reads or understands it or not.

9.Mr Lam Sai-ho Charles (“Mr Lam”), as the applicant’s son, appeared on her behalf. Mr Lam firstly commented that the commencement date of the term of tenancy as shown on the copy of tenancy kept by the respondent had been changed without his acknowledgement; it can be easily recognized as the original commencement date of 1 September 2014 had been whited out by correction fluid and replaced by 1 December 2013 in different colour. Mr Lam added that as the T/A was one of the renewals, he had emphasized to the respondent upon renewal that the tenancy was 「生約」, ie subject to be determined at any time.  The applicant conceded that the T/A was signed well after the commencement date.

10.Mr Lam explained that the reason why he intended to exercise his right to terminate the T/A was owing to the malicious action commenced by the respondent in the Small Claims Tribunal alleging the cut-off of water supply after the hearing of LDPD 421 of 2015.

11.During the course of hearing, Mr Lam also produced evidence that the respondent had half of the monthly rental in arrears for November 2015 as International Social Service (“ISS”) which claims to be an international non-governmental organization that seeks, among others, to provide assistance in kind to asylum seekers and torture claimants as referred from the Social Welfare Department only managed to pay $1,500 on the respondent’s behalf. The respondent then said as the applicant commenced this application on 28 October 2015, he was not supposed to pay the rental anymore.

12.Towards the end of the hearing, I raised issue with the applicant on his notice of termination which was dated 1 September 2015. Mr Lam explained that he himself handed over the notice of termination on 30 August 2015 to the respondent instead of 1 September 2015. The notice of termination was in both English and Chinese.

13.The respondent then denied ever meeting Mr Lam around that time and explained he was not usually at home. Mr Lam responded that he is a sophisticated landlord in similar lettings and had no reason to tell lie.[1] I have no reason to disbelieve what Mr Lam said and on the other hand, I had serious doubt on the respondent’s mere denial of meeting Mr Lam. The respondent had not disclosed such denial in his Notice of Opposition and never said anything as such until I raised the issue. I do not accept such allegation by the respondent.

14.In any event, it is not necessary for the respondent to receive the notice by hand. Under section 62(3) of the Conveyancing and Property Ordinance, Cap 219, the notice shall be sufficiently served if it is left at the last-known place of abode of the respondent or, is affixed or left for him on the land comprised in the lease, ie the Premises.

15.In the end of the hearing, therefore, I made my order as follows;

(1) The respondent do deliver vacant possession of the Premises to the applicant;

(2) The respondent do pay the applicant balance of arrears of rent from 1November 2015 to 30November 2015 in the sum of $1,500; 

(3) The respondent do pay the applicant the costs of this Application which is summarily assessed at $100.

Interlocutory Application on 19 November 2015

16.The respondent took out an Interlocutory Application on 19 November 2015 seeking leave to appeal against my judgment above and asking for stay of execution of my judgment pending appeal. 

17.According to section 11(2) of the Lands Tribunal Ordinance (“the Ordinance”), any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law.

18.Hearing took place today on 27 November 2015 where the respondent repeated his argument that he had not received the notice of termination from Mr Lam or the applicant and the T/A would not expire until August[2] 2016.

19.The respondent also complained that Mr Lam had cut-off his water supply for one year but according to Mr Lam, this was an ungrounded allegation which would however be dealt with by the Small Claims Tribunal on 30 November 2015.

Leave to Appeal

20.Section 11AA (6) of the Lands Tribunal Ordinance provides 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.”

21.After considering what the respondent presented in his affirmation supporting his interlocutory application, and after hearing what the respondent supplemented in his oral evidence and submissions, I consider those arguments by the respondent had been dealt with in the hearing on 19 November 2015 as stated in §§11-13 above[3]. I decide that the respondent’s appeal has no reasonable prospect of success, and the respondent failed to satisfy that there is some other reason “in the interests of justice” why the appeal should be heard.

22.This is a simple application for recovery of possession. Since I do not allow the respondent the leave to appeal, the consequential application by the respondent for stay of execution of possession of the premises pending appeal is therefore refused.

Conclusion

23.The interlocutory application by the respondent to seek leave to appeal and stay the execution of the order for possession are both dismissed, with no order as to costs.

The applicant, represented by Mr Lam Sai-ho Charles, appeared in person

The respondent, appeared in person