Lau Kam Ping Jacqueline v. Mahilum Arlyn Aropo

LDPD 472/2017

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 472 OF 2017

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BETWEEN

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DECISION
(LEAVE TO APPEAL)

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1.This is an interlocutory application taken out by the respondent on 8 June 2017 (“Present Interlocutory Application”) seeking leave to appeal

against a decision dated 31 May 2017 by the Tribunal dismissing an earlier interlocutory application taken out by the respondent on 17 May 2017 (“the Earlier Interlocutory Application”).

Background

2.This appeal is originated from an application by the applicant on 9 March 2017 for recovery of possession of the premises situated at Room B, Flat D, 8/F, Hill Main Mansion, 41 Ha Heung Road, To Kwa Wan, Kowloon (“the Premises”) on the ground of expiry of a tenancy in respect of the Premises on 28 February 2017.

3.Whereas no Notice of Opposition was filed by the respondent, a default judgment dated 5 May 2017 (“the Default Judgment”) was made by the Tribunal pursuant to Rule 15 of the Lands Tribunal Rules. It required the respondent to deliver vacant possession of the Premises to the applicant and pay the applicant arrears of rent/mesne profits at the rate of $1,800 per month from 1 March 2017 as well as the costs of this application in the sum of $800.

4.On 17 May 2017, the respondent filed the Earlier Interlocutory Application seeking to stay execution of the Default Judgment. The ground in support of the Earlier Interlocutory Application as contained in the Affidavit attached thereto was basically that the respondent had two babies to take care of and his rental payable would be paid by the International

Social Service (“ISS-HK”)[1]. The Affidavit also referred to an earlier application by the applicant for recovery of possession of the Premises on the ground of arrears of rent, being LDPD 1449/2016. The order of that case was made on 8 November 2016 which however has no relevance on this case.

5.Hearing of the Earlier Interlocutory Application took place before me on 31 May 2017.  I found then that:

(1)  The tenancy in respect of the Premises dated 25 March 2015 had expired on 28 February 2017 and there was no right of renewal by the respondent i.e. the tenant;

(2)  The applicant refused to renew the tenancy with the respondent.

6.I therefore dismissed the Earlier Interlocutory Application and leave to issue Writ of Possession was granted on 5 June 2017.

Present Interlocutory Application

7.In support of this Present Interlocutory Application, the respondent stated mainly in his affidavit on 8 June 2017 that he needs more time to move out the Premises and he would only be able to leave by December 2017.

8.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 Present Interlocutory Application could be taken as issues in the “point of law”. Section 11(2) of Cap. 17, Lands Tribunal Ordinance (“the Ordinance”) provides that:

“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.”

Leave to Appeal

9.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.”

10.I do not consider the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

Conclusion

11.The interlocutory application by the respondent to seek leave to appeal is dismissed.  There be no order as to costs.

The applicant appeared in person

The respondent appeared in person

[1] International Social Service (ISS) 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. For instance, an allowance is provided for each asylum seeker or torture claimant who prefers to look for his/her own accommodation instead of the one provided by ISS.