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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DECISION
(LEAVE TO APPEAL OUT OF TIME)

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1.This is an interlocutory application taken out by the respondent on 28 September 2016 seeking leave to appeal out of time against my judgment made on 25 August 2016 (“the Judgment”). 

Background

2.This appeal concerns 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 had failed to pay rent for occupying the Premises on the basis of an oral tenancy.

3.The only defense as stated in the Notice of Opposition by the respondent dated 4 August 2016 was that he was not the tenant of the Premises but the International Social Service (“ISS”) was.  In the same Notice of Opposition, the respondent also stated:

“When I finish my contract, I have ask (sic) (the applicant) give me back my deposit ...”

4.Having heard the submissions by the parties on 25 August 2016, I made the Judgment as follows :   

(1) Subject to paragraph (3) below, the respondent do deliver vacant possession of the Premises to the applicant;

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

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

(ii) 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 22 September 2016 (“Relief Expiration Date”) pay to the applicant 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 suit premises be reinstated;

(4) ...

(5) There be no order as to costs.

5.Reasons for the Judgment were handed down on 5 September 2016.

Respondent’s interlocutory application

6.In the respondent’s interlocutory application of 28 September 2016, he mainly repeated his submissions as contained in his Notice of Opposition and during the hearing on 25 August 2016.

7.In this morning when this interlocutory application was heard, I reminded the respondent that I could not see how these grounds put forward by him in this interlocutory application could be taken as issues in the “point of law”. However, the respondent still could not point out “point of law” involved in the Tribunal’s order of 25 August 2016 even after I read out in open court the relevant section, section 11(2) of Cap. 17, Lands Tribunal Ordinance (“the Ordinance”), regarding this point:

“Subject to section 11AA and the provisions of any Ordinance relating to appeals from the Tribunal, 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.”

8.On the other hand, the respondent maintained that he was only urged to sign the tenancy by officers of ISS at their office and therefore the ISS should be responsible.

9.This fact was confirmed by Mr Chan Chun Lam (“Mr Chan”) for the applicant.  Mr Chan said if the tenancy was not signed in front of officers of ISS, he would not have let the Premises to the respondent.  Mr Chan also submitted that before signing the tenancy, officers of ISS had explained the tenancy to the respondent.

Leave to Appeal out of time

10.Section 11AA (6) of the 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.”

Discussion

11.Summing up, since the grounds stated by the respondent as the grounds of appeal were the “findings of facts” which formed the basis of the Judgment, and more importantly, were not issues in “point of law”, I cannot see how the respondent should be given the leave to appeal.  

12.This is originally a simple application for recovery of possession and payment of outstanding rent/mesne profit.  Under the Judgment, the respondent had a relief period for payment of outstanding rent by 22 September 2016, failing which the applicant had the right to obtain vacant possession of the premises.  Since the respondent failed to pay the outstanding rent in full by the Relief Expiration Date, the applicant will be granted writ of possession of the premises.

13.Since both parties are not legally represented, I decide not to make any costs order for this application.

Conclusion

14.The interlocutory application by the respondent to seek leave to appeal out of time is dismissed. Costs order nisi that there be no order as to costs.  The cost order shall become absolute if no party applies to vary the order.

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

The respondent, appeared in person