Cheung Lok Pun Benedict v. Haider Ali

LDPD 1553/2016

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 1553 OF 2016

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BETWEEN

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REASONS FOR JUDGMENT

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1.This is an application by the applicant for recovery of possession of the premises situated at Room A, 4/F, Mo Wah Mansion, No.1184 Canton Road, Kowloon (“the Premises”) on the ground that the respondent has failed to pay rent for occupying the Premises on the basis of an oral tenancy.

2.Having heard the submissions by the parties, I made the following order (“the Judgment”):

(1) Subject to paragraph (4) below, the respondent do delivervacant possession of the Premises to the applicant;

(2) The respondent do pay the applicant arrears of rent/mesne profits as follows:

(a) balance of arrears of rent from 1 April 2016 to 31 May 2016 in the sum of $5,180;

(b) arrears of rent/mesne profits at the rate of $4,000 per month from 1 June 2016 until delivery up of vacant possession;

(3) If the respondent should on or before 22September 2016 (“Relief Expiration Date”) pay into the Tribunal all the arrears of rent/mesne profits as stated in paragraph (2) above (including all arrears of rent/mesne profits due on or before the date of payment), the respondent be relieved from the forfeiture incurred herein, and the lease of the Premises be reinstated;

(4) Unless otherwise ordered, all sums ordered to be paid under this judgment shall be paid into the Tribunal in cash, by cashier orders issued by banks in Hong Kong or by cheques drawn by firms of solicitors in Hong Kong, and such sums received by the Tribunal shall be released to the applicant;

(5) There be no order as to costs.

3.I said I would provide the reasons for the Judgment in due course. Here are the reasons.

Background

4.The applicant has become the owner of 4/F, Mo Wah Mansion, No.1184 Canton Road, Kowloon (including therefore the Premises) since 11 February 2015 pursuant to an agreement for sale and purchase dated 31 October 2014.

5.Then by a tenancy agreement both in English and in Chinese dated 30 March 2015 (“the Tenancy”), Mr Chan Chun Lam (“Mr Chan”) acting on behalf of the appliant let the Premises to the respondent for a term of one year from 1 April 2015 to 31 March 2016. The rental reserved was $4,000 per month plus electricity charges at $1.5 per degree and water charges at $13 per degree of consumption.

6.Clause 14 of the Tenancy, which was added in hand writing, stated that the deposit of $6,000 would be returned to ISS-HK, ie International Social Service (Hong Kong Branch) which is 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. The respondent is detained under section 32 or 37ZK of the Immigration Ordinance.

7.Mr Chan for the applicant filed an application to the Lands Tribunal on 26July 2016 for recovery of possession of thePremisesas stated at §1 above and in response the respondent filed a Notice of Opposition dated 4 August 2016, stating that the applicant should chase ISS instead of him.

Evidence

8.During the hearing on 25 August 2016, the respondent repeated the same because it was the arrangement between the applicant and ISS. He produced a copy of a “Landlord Notification Letter” of facsimile dated 11 May 2016 apparently prepared by ISS-HK which was addressed to: Provision of Assistance for Non-Refoulement Claimants Project, ISS-HK. The “Landlord Notification Letter” was printed bilingually in standard form and if in English stated as follows:

“I, Cheung Lok Pun, … (owner of the Premises). I hereby certify that (the respondent) is residing in above mentioned address. The tenancy agreement is valid from 1 April 2016 to 31 May 2016. The rent of (the Premises) will be HK$4,000 per month, electricity charge amount will be HK$200 per month, water charge amount will be HK$50 per month, gas charge amount will be HK$50 per month. I agree to receive rental and utilities assistance from ISS-HK for above mentioned ISS-HK service user (ISS-HK reserves the right of final decision on level of rental and utilities assistance)…..If the actual rent and consumption amount of utility are higher than the assistance level, the service user needs to pay the difference by his/her own….” (underline added)

9.The respondent further added that he did not deal with the applicant direct but through representative of ISS-HK. Here the applicant said he had talked to the respondent direct as regards the arrangement of tenancy.

10.On the other hand, the respondent submitted that he is not permitted to work in Hong Kong and would have no financial means to pay rent. He also said he had difficulty in reading English and he just signed the Tenancy when he was asked to do so, a plea of non est factum. In spite of the latter, the respondent conceded that this was not the first time he signed such a tenancy agreement; the previous ones were even in Chinese.

Non Est Factum

11.As pointed out by DHCJ G Lam SC (as he then was) in Wing Hang Credit Limited v Hui Chun Kit Benjamin & Anor (unrep., HCMP 732/2009, 3 November 2011) that:

“94. A person can only rely on the plea of non est factum if he was not careless in signing the document in question. It is for the person relying on the plea to prove that he took care. The opposite party bears no burden of proof of want of care: Gallie v Lee, supra, p.1019E per Lord Hodson, 1027B‑C per Lord Wilberforce.

95. The standard of care in this context has necessarily to be subjective. It must take account of the actual attributes of the signer. But as Lord Wilberforce, referring to persons who are illiterate, blind or lacking in understanding, stated in Gallie v Lee, supra, at p.1027E‑F, the law “will require of signers even in this class that they act responsibly and carefully according to their circumstances in putting their signature to legal documents”.”

12.Also, according to Chitty on Contracts, 32^nd  edition (2015), para 3-054:

“A person who signs a document may not be permitted to raise the defence of non est factum where he has been guilty of negligence in appending his signature. It was formerly held in a number of cases, of which the leading one was Carlisle and Cumberland Banking Co v Bragg that negligence was only material where the document actually signed was a negotiable instrument, for there was not otherwise any duty of care owed by the person executing the document to an innocent third party who acted in reliance on it. But these cases were much criticised, both by the courts and by writers, and they were eventually reconsidered by the House of Lords in Saunders v Anglia Building Society, above. Bragg’s case was overruled, and it was held that no matter what class of document was in question, negligence or carelessness on the part of the person signing the document would exclude the defence of non est factum. This does not depend on the principle of estoppel but on the principle that no man can take advantage of his own wrong.”

Conclusion

13.Having perused the background of the case as stated above, I considered the respondent is liable for the rental as tenant who has remained at the Premises after the Tenancy expired on 31 March 2016 on the basis of a short tenancy from 1 April 2016 to 31 May 2016. This is evidenced by “Landlord Notification Letter” produced by the respondent himself. Thereafter, the existence of an oral tenancy or a periodic monthly tenancy as claimed by the applicant cannot be denied or the respondent has no other right to remain at the Premises. In my judgment, the respondent’s plea of non est factum cannot sit comfortably with the evidence.

14.Mr Chan acknowledged that ISS-HK did pay $1,710 per month (inclusive of rent, electricity charges, water charges and gas charges) for the period from 1 April 2016 to 31 May 2016 and so the balance of rent owed by the respondent during the period is $5,180. ISS-HK has not paid anything afterwards.

15.Hence, I made my Order as per §2 above.

The applicant, represented by Mr Chan Chun Lam, appeared in person

The respondent, appeared in person