Kong Shing Tai v. Khan Usman

HCMP 3010/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3010OF 2016

(ON AN INTENDED APPEAL FROM LDPD NO 1746 of 2016)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.On 30 September 2016, Mr Lawrence Pang, a member of the Lands Tribunal (“the Member”), ordered the Respondent (tenant) to deliver vacant possession of the premises known as Room A on Roof, 15 Sheung Heung Road, To Kwa Wan to the Applicant (landlord). He made the order on the ground that the Respondent failed to pay the full rent when it fell due since 1 July 2016. He also ordered the Respondent to pay the arrears of rent and mesne profit at the rate of $2,000 per month until the delivery of vacant possession.

2.The Respondent sought leave to appeal.  That application was refused by the Member on 20 October 2016.

3.By a summons of 4 November 2016, the Respondent renewed the application for leave to appeal in this court.  The grounds of appeal were set out in a 2-page attachment to the summons.  It was supported by an affirmation of 4 November 2016.  The Respondent said he filed the summons out of time because he took time to make an unsuccessful application to waive filing fee and then to borrow money to pay for the same.

4.He also wrote to the Court on 9 November 2016 urging the Court to grant him an urgent interim stay because the Applicant has taken enforcement action by way of writ of possession.

5.Section 11(2) of the Lands Tribunal Ordinance sets out the permissible scope of an appeal from the decision or judgment of the Lands Tribunal.  In short, there can only be appeals on point of law.

6.Further, Section 11AA of the Lands Tribunal Ordinance provides that leave to appeal is required and it should only be granted if the court is satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interest of justice that the appeal should be heard.

7.The matters set out in the attachment to the summons state that the Respondent was not staying at the suit premises and he only acted as a tenant as the occupier Mr Rehman is a torture claimant and the landlord was only willing to sign tenancy agreement with a Hong Kong resident.

8.He further said that Mr Rehman had reached a verbal agreement for the reduction of rent from $2,000 to $1,200. 

9.He also alleged that the building at the premises was constructed illegally and he doubted if the Applicant is the lawful owner of the premises.

10.None of these are properly framed questions of law.

11.As regards the allegation of verbal agreement on reduction of rent, the Member had heard evidence and found against the Respondent.  The Member found that the rent is $2,000.  This is a finding of fact which cannot be challenged in an appeal on points of law only.

12.As regards the allegation of illegal structure which the Respondent relied on to cast doubt on the Applicant’s title as landlord, as a matter of law, a tenant cannot dispute the title of his landlord.

13.We have read the written Decision of the Member of 20 October 2016.  We cannot discern any errors of law on the part of the Member in coming to his findings and conclusions.  

14.For these reasons, we refuse to grant leave to appeal.  It also follows that the application for interim stay of execution is also dismissed.

15.We are of the view that the application is totally without merit and we make an order pursuant to Order 59 Rule 2A(8) of the Rules of the High Court that no party may request our determination to be reconsidered at an oral hearing inter partes.  

The applicant acting in person

The respondent acting in person