Liu Ng Chai Alias Liu Ng Tsai v. 姚華泰

HCA 27/2017

[2018] HKCFI 2041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 27 OF 2017

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Before: Deputy High Court Judge Marlene Ng in Chambers

Date of Hearing: 29 August 2018

Date of Handing Down Judgment: 5 September 2018

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JUDGMENT

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I. INTRODUCTION

1.The plaintiff (“P”) was the registered owner of a property known as the Remaining Portion of Lot No 189 in Demarcation District No 52, North, New Territories, Hong Kong (“Property”).

2.By a written Chinese tenancy agreement dated 19 October 2013 (“Agreement”) between P as landlord and the defendant (“D”) as tenant, the Property was let to D for 3 years from 1 September 2013 to 31 August 2016 at a monthly rent of $55,000 (“Tenancy”).

3.On 5 January 2017, P commenced the present action against D for (a) delivery of vacant possession of the Property to P, and (b) mesne profits at the rate of $55,000/month or at the prevailing market rent of the Property, whichever was higher, from 1 September 2016 until the date of delivery of vacant possession of the Property to P.

II. P’S CLAIM AND D’S DEFENCE

4.D alleged that on the day he signed the Agreement in duplicate, P took it away claiming he would arrange for stamping, but P never returned the stamped original duplicate of the Agreement to him.

5.P claimed his solicitors gave D written notice to quit dated 1 June 2016 (“NTQ”) requiring D to quit and deliver vacant possession of the Property upon expiry of the Tenancy on 31 August 2016. D paid rent to P up to expiry of the Tenancy. But in his Amended Defence and Counterclaim (“AD&C”), D denied he received the NTQ.

6.P claimed no new tenancy was created between P and D after expiry of the Tenancy, but D (a) continued to be in wrongful occupation of the Property without P’s permission on/after 1 September 2016, (b) failed/ refused to vacate and deliver up vacant possession of the Property to P, and (c) without P’s knowledge/consent deposited $55,000 into the joint savings account of P and Lee Cho Wai Patrick with Hang Seng Bank Ltd (“Account”) on 7 September 2016 in purported payment of rent for September 2016 (“Purported 9/16 Rent”).

7.D in the AD&C claimed he paid monthly rent on time, and never received any document requiring him to quit the Property. D agreed that on 7 September 2016 he deposited $55,000 into the Account, but he claimed it was monthly rent for September 2016.

8.P by his solicitors’ letter dated 23 September 2016 informed D (a) the Purported 9/16 Rent was not accepted, (b) to collect from P’s solicitors a cashier order in the sum of $55,000 (“Cashier Order”) being refund of the Purported 9/16 Rent, and (c) legal action would be commenced against him without further notice in default of delivery of vacant possession of the Property to P on/before 28 September 2016 (“23/9/16 Letter”). P claimed D failed to collect the Cashier Order from P’s solicitors.

9.D claimed he never received any notice to collect the Cashier Order. D alleged that in September 2016 a representative of P’s solicitors and a villager of 華山村 surnamed Liu made an appointment to meet him. At such meeting, a solicitor 廖興鴻 of P’s solicitors (“Mr Liu”) had in his hands a stamped original duplicate of a tenancy agreement, but D suspected the contents thereof were different from those in the one he signed in 2013 (see paragraph 2 above). D claimed on that occasion Mr Liu did not refund the Purported 9/16 Rent or give the Cashier Order to him.

10.P disagreed with D’s allegations. P claimed that on 19 October 2016 he commenced DCCJ5048/2016 against D to seek the same reliefs as in the present action, and on 31 October 2016 P’s solicitors personally served the Writ of Summons in DCCJ5048/2016 on D at a restaurant in Sheung Shui, New Territories. But the rateable value of the Property was found to exceed District Court jurisdiction, so P subsequently discontinued DCCJ5048/2016 and commenced the present action in the Court of First Instance. P claimed D well knew P required him to vacate and deliver up possession of the Property upon expiry of the Tenancy.

11.But D claimed he duly paid monthly rent by deposit into the Account, and until April 2017 P had not refunded such payments of rent to him. D denied he was in wrongful occupation of the Property.

12.On the other hand, P claimed D not only failed to collect the Cashier Order, he deposited $55,000 into the Account on 6 October 2016. Indeed, after commencement of DCCJ5048/2016, D continued to deposit a monthly sum of $55,000 into the Account on 5 November 2016, 5 December 2016 and 4 January 2017. P claimed that upon receipt of the Writ of Summons in DCCJ5048/2016, D must have known P declined to let the Property to him after expiry of the Tenancy, and the monthly deposit of $55,000 into the Account was without P’s knowledge/consent.

III. D’S COUNTERCLAIM AND P’S DEFENCE

13.D claimed that for 36 years since 1980 he paid rent on time, and he counterclaimed for (a) recovery of government rent in respect of the Property and expenses for repair/maintenance of the vehicular access road he had paid for these 36 years, and (b) compensation for expenses he had incurred for repair of road damage caused by flooding from overflow of the drainage channels that adjoined the Property due to blockage.

14.D claimed his father came to Hong Kong in 1951, and lived in a wooden hut at 華山村北段20號 to raise dogs, pigs and chicken and to plant fruit trees for his living. Since 1979 D started to live at the Property with his father, and spent a year to develop the derelict land. In 1980, D applied for a licence to raise chicken. At that time, D grew vegetables, planted fruit trees and raised pigs and fowl for his living. In/about 2003, D applied for a licence to operate parking facilities for container trucks at the Property, and at his own cost installed water pipes and fire-fighting installations, planted trees, and designed/built drainage channels. D claimed he was also responsible for all “修橋、補路”, and he paid for all costs of repairs/maintenance for the past 36 years. The government issued to D 2 licences for chicken sheds and watchman shed, and also a licence for parking facilities. D required P to give him HK$500,000 in settlement.

15.D also sought an order requiring P to deliver up to him the original duplicate of the Agreement.

16.P reiterated the pleaded averments of his claim against D in support of his denial of D’s counterclaim.

IV.  ORDER 14 SUMMONS

17.On 3 April 2017, P filed a summons under Order 14 rule 1 of the Rules of the High Court (“RHC”) for the following reliefs: (a) D do deliver up vacant possession of the Property to P, (b) D do pay mesne profits in the monthly sum of $55,000 from 1 February 2017 until delivery up of vacant possession, and (c) costs of the action to P (“O14 Summons”).

18.On the same day (ie 3 April 2017) P filed the affirmation of 李祖衛 (“Lee’s Aff”), and on 19 July 2017 P filed his own affirmation (“P’s Aff”) and the affirmation of Kwok Yiu Chung (process server of P’s solicitors, “Kwok”) in support. On 7 July 2017, D filed his own affirmation (“D’s 1^st Aff”) in opposition.

19.P’s supporting affirmations verified that P was the registered owner of the Property:[1]

(a)  by a Conveyance on Sale dated 22 June 1949, Liu Muk Ting sold Lot No 189 in Demarcation District No 52, North, New Territories, Hong Kong (“Lot”) to P and 鄭專好 also known as 鄭鑽好;

(b)  on 28 November 1978, the government resumed a portion of the Lot, and the remaining portion of the Lot became the Property;[2] and

(c)  by a Conveyance as Gift dated 29 July 1980, 鄭專好 also known as 鄭鑽好 gifted “[her] 1/2^nd undivided part of share of and in [the Property]” to P.

20.P claimed a copy of the stamped duplicate Agreement dated 19 October 2013 was exhibited to Lee’s Aff (“Duplicate Agreement”), and such agreement provided that the Tenancy was for a term of 3 years from 1 September 2013 to 31 August 2016 at a monthly rent of $55,000. Lee’s Aff also verified the matters in paragraphs 8 and 12 above.

21.D’s 1^st Aff claimed D signed the Agreement in duplicate, and he handed them back for P’s signature thereon, but subsequently he was not given any signed duplicate. In September 2016, Mr Liu, a representative of P’s solicitors and a villager of 華山村 surnamed Liu met D at a restaurant. D claimed to recall there was a computer-printed clause in the agreement held by Mr Liu, but the Duplicate Agreement disclosed by P in the present action (see paragraph 20 above) did not have such provision. D complained it was unfair for P to refuse his repeated demands for a stamped original duplicate of the Agreement.

22.D’s 1^st Aff claimed that all along D deposited rent into the Account, and paid rent up to January 2017. D further claimed he did not receive the NTQ and/or 23/9/16 letter, and he did not know what place P meant when it was said these documents were posted at the main entrance of the Property (which comprised land, watchman shed and chicken sheds).

23.D’s 1^st Aff claimed the terms of the Tenancy that P set out in his pleadings were incomplete because D had continuously rented the Property since 1979. Due to lapse of time, D was only able produce 2 of the earlier tenancy agreements, ie the ones dated 25 May 1998 and 22 August 2007 that were signed by P and D. D claimed when he first rented the Property in 1979, it was a piece of derelict land and he spent about a year to develop it. D further claimed that in 1980 he spent money (but he forgot the amount) to build a watchman shed and 2 chicken sheds at the Property, and in 1981/1982 he applied for approval in respect of such erections.[3] After D developed the land, he grew vegetables, planted fruit trees and raised pigs and fowl.[4] In/about 1998, D applied to the Town Planning Board to change the user of the Property to parking facilities for container trucks. After approval was given in November 1998,[5] P filled up the fields, levelled the land, surfaced it with concrete and installed drainage channels. Due to lapse of time D could not remember how much he spent on such works, but it should not be less than $500,000. In 2003, apart from keeping a small portion of the Property for planting fruit trees, D changed its user to parking facilities for container trucks.[6] D claimed the Property (located in the northern plains in the New Territories) often suffered from flooding when it rained, so D urged P to repair the drainage system, but P ignored his requests. D claimed in the 36 years from 1980 up to the time of D’s 1^st Aff, he had spent $10,000 to $30,000 a year for repairs to the drainage system. In April 2017, he spent $36,100 for such purpose.[7] D also alleged he had spent a considerable amount of money to improve the Property to increase its value, “所以[D]對[Property]不限於只是一名租客, 還具有所有人權益, 不是非法佔用[Property]”. On the aforesaid basis, it was said there were triable issues.

24.P’s Aff claimed P instructed his solicitors to issue the NTQ and 23/9/16 Letter, and it was unreasonable for D to assert he had not received them:

(a)  on 1 June 2016, Kwok posted the NTQ at a conspicuous place at the main entrance of the Property (“Post Up Location”) as evident from Kwok’s affirmation of service filed on 12 December 2016 in DCCJ5048/2016; and

(b)  on 23 September 2016, Kwok posted the 23/9/16 Letter at the Post Up Location as evident from Kwok’s Aff.

P said if he had agreed to continue to let the Property to D, he would not have instructed his solicitors to issue the NTQ and 23/9/16 Letter, and/or he would not have deposited the Cashier Order with his solicitors for D’s collection. P claimed D became a trespasser in wrongful occupation of the Property as from 1 September 2016.

25.P’s Aff went on to say that in October 2016 P instructed P’s solicitors to commence legal action against D. On 31 October 2016, Kwok personally served the Writ of Summons in DCCJ5048/2016 on D at a restaurant in Sheung Shui, New Territories.[8] The 3^rd and 5^th paragraphs of the Statement of Claim endorsed on such Writ of Summons spelled out P’s case that the Tenancy had expired, and the Purported 9/16 Rent was deposited in the Account without P’s knowledge/consent. On 4 January 2017 P discontinued DCCJ5048/2016 as the rateable value of the Property exceeded $240,000, and on 5 January 2017 (ie the following day) P commenced the present action in the Court of First Instance.

26.P said the previous tenancy agreements referred to in D’s 1^st Aff were irrelevant as the tenancies thereunder had expired, and the Tenancy under the Agreement had also expired. P also exhibited to P’s Aff the Duplicate Agreement, and indicated the original could be made available at the hearing for argument.

27.P’s Aff denied any basis for D to claim compensation for his expenses in developing the Property, including levelling the land and improving the drainage system, which P considered was irrelevant in any event to P’s claim for recovery of vacant possession of the Property.

28.Kwok’s Aff verified he did on 1 June and 23 September 2016 respectively served the NTQ and 23/9/16 Letter by posting the same at the Post Up Location. For service of the NTQ, Kwok exhibited his own record of the service he effected at 10:30am on 1 June 2016. For service of the 23/9/16 Letter, Kwok exhibited his own record of the service he effected at 11:10am on 23 September 2016, and 2 photographs showing such letter was affixed to the metal gate at the Post Up Location.

29.The O14 Summons came before Master K W Wong for argument on 20 December 2017 (“Master Hearing”). On the same day, after hearing submissions from P’s solicitor and D who was self- represented, the learned master ordered D to (a) deliver up vacant possession of the Property to P, (b) pay mesne profits in the sum of $55,000 per month to P from 1 February 2017 up to delivery up of vacant possession of the Property, and (c) pay P costs of the action to be taxed if not agreed (“Order”).

30.On 9 March 2018, Master H Au-Yeung granted leave for P to issue a writ of possession for recovery of vacant possession of the Property.

31.On 22 March 2018, P filed Notice of Appeal to seek leave to appeal against the Order out of time (“Application”). On the same day, D filed his 2^nd affirmation (“D’s 2^nd Aff”) in support.

32.In D’s 2^nd Aff, D claimed he was out of time in respect of his intended appeal against the Order because:

“1. 有關於遲交上訴文件，本人在最近一次資[咨]詢免費律師才知道需於2017年12月20日當日起2星期內提出。由於本人在2017年12月20日當日最後一次上庭後，仍等待通知下次上庭時間。實屬不知道自己已經敗訴。

2. 而當時法官提及對方律師回去商量訟費，我的理解為我還未輸。加上本人只有小學程度，理解能力有限，只明白輸或贏。當時法官沒有明確指出，也沒有清楚告訴我在這場官司已經輸了不用再上庭。

然而本人口音嚴重，與法官有可能在溝通上存在很大的誤解。

4. 本人多次在法庭上要求對方律師出示與本案有關的兩份正本土地租約，因為業主曾派出代表律師與我見面，對方出示一份合約的內容與我當時親筆簽名的合約不一樣，我有條件懷疑對方原告捏造文件。

5. 另外，對方一直沒有發還一份正本合約歸我，對方到現在都是手持兩份正本合約。在一整年的訴訟時間裏都沒有在法庭上出示兩份合約的正本。直到2017年12月20日，對方律師依然沒有出示兩份合約正本，我依然未能核對兩正本合約的真異。

6. 本人一生積蓄投入DD52的189地段，把原來的爛地發展成有價值的地段。因本人的付出才會提升此地價值。所以如果不補償，不公平，不合情，不合理。”

33.On the same day (ie 22 March 2018), D filed a summons for stay of execution of the Order due to exceptional circumstances (“1^st Stay Summons”). At the hearing of the 1^st Stay Summons on 28 March 2018, Master A Ho dismissed such summons.

34.On 19 April 2018, a Writ of Possession was issued.

35.On 10 July 2018, D filed a summons for stay of execution of such Writ of Possession, and for an order allowing him to postpone the deadline for vacating the Property under the Order until 12 October 2018 because “…… 需要遷折[拆]物業, 包括人住屋三間, 雞屋兩間, 並安置家人, 因此需時尋新居住址” (“2^nd Stay Summons”).

36.On the same day, D filed his 3^rd affirmation (“D’s 3^rd Aff”) in support. In D’s 3^rd Aff, D asked for leave to “延遲搬遷日期。2018年10月12日搬出。理由: 因需要遷折[拆]物業, 包括人住屋三間, 雞屋兩間, 並安置家人, 因此需時尋新居住址。要安置姚潤生 ……、姚偉東 ……、姚曉潼 ……、姚文軒、賀彩平。暫緩執行日期為2018年4月19日的管有令狀”.

37.At the hearing of the 2^nd Stay Summons on 11 July 2012, Master J Wong dismissed such summons.

38.On 12 July 2018, P executed the Writ of Possession, and recovered vacant possession of the Property.

39.The Application came before me for hearing on 29 August 2018 (“Hearing”).

V.  LEGAL PRINCIPLES: APPEAL

40.It is trite that an appeal from the master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the master; but he is in no way bound by it.[9]

VI.  LEGAL PRINCIPLES: APPEAL OUT OF TIME

41.Order 58 rule 1(3) of the RHC provides inter alia that unless the court otherwise orders, notice of appeal against a master’s decision or order must be issued within 14 days after the decision or order appealed against was given or made. Under the proviso “unless the court otherwise orders” in Order 58 rule 1(3) of the RHC and pursuant to Order 3 rule 5 of the RHC, the court has a discretion to grant enlargement of time to appeal.

42.In Postwell Ltd v Cheng Kap Sang,[10] DHCJ Wong Yan Lung SC stated that:

“...... Although I agree ...... that the absence of an acceptable explanation for the delay does not preclude the court’s discretion to extend time, I am of the view that in applications for extension of time to appeal an adverse order or adjudication, as opposed to extension of time to remedy other procedural default, the court should be slow to accede to the application in the absence of an acceptable reason for the delay.”

43.In considering whether to extend time to appeal, the court has to consider all relevant factors, particularly (a) the length of the delay, (b) the reasons for the delay, (c) the merits of the proposed appeal, and (d) the degree of prejudice to the other party.[11] DHCJ Peter Ng SC (as he then was) in Hady v Bazar[12] reminded that after the Civil Justice Reform it is incumbent on the court to give effect to the underlying objectives of the RHC when exercising any of its powers (see Order 1A rules 1 and 2 of the RHC), but the court must always recognise the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties (see Order 1A rule 2(2) of the RHC).

44.In respect of the Application for appeal against the Order out of time, Mr Lee, counsel for P, objected to D’s attempt to appeal at such late stage. At the Hearing, I dealt with the intended appeal against the Order on a de bene esse basis (ie the court would hear submissions from both parties on the intended appeal against the Order but would reserve decision until this Judgment on whether to grant extension of time for P to appeal against the Order).

VII. LEGAL PRINCIPLES: ORDER 14 APPLICATION

45.A plaintiff may invoke the procedure under Order 14 of the RHC where there is no valid defence to his claim or otherwise a triable issue. The rationale is set out in Hong Kong Civil Procedure 2018:[13]

“ ...... The underlying policy of the summary procedure is to prevent a defendant from delaying the plaintiff from obtaining judgment in case in which the defendant clearly has no defence to the plaintiff's claim: Man Earn Ltd v Wing Ting Fong [1996] 1 HKC 225.

‘Order 14 proceedings for summary judgment when there is no defence to a claim are an important feature of the legal process. It enables plaintiffs in cases where there is no defence to obtain expeditious summary judgment to avoid unnecessary delay. When applied for, it is for the defendant to show that there is a triable issue or an arguable defence if he is to be allowed his day in court. To deny him his day in court, if he shows a triable issue or an arguable defence, is indeed a fearful injustice. On the other hand, if he has no defence and he obtains leave to defence, equally, there is injustice to the plaintiff’ (Manciple Ltd v Chan On Man [1995] 3 H.K.C. 459 at 466, per Mortimer JA).

The machinery of O.14 works on the basis that if the plaintiff's application is properly constituted, he is prima facie entitled to judgment unless the defendant shows cause to the contrary or the application is dismissed. ......”

46.In Ng Shou Chun v Hung Chun San,[14] Godfrey J noted it was not appropriate to embark on a mini‑trial of the action on affidavit evidence. The court should ask itself the question whether what the defendant says is credible or believable. If so, he must have leave to defend; if not, the plaintiff is entitled to summary judgment. Hong Kong Civil Procedure 2018 goes on to say that:[15]

“...... ‘In considering whether there are triable issues the Court will, of course, not take the alleged defence on its face value but test it against the evidence disclosed in the affidavit including matters such as contemporaneous documents, whether the alleged defence is inconsistent with the defence previously put forward or whether the defence is only recently raised despite opportunity being given to the defendant to respond earlier. The Court will also consider the inherent probability of the defence. But what the Court should not do is to conduct a mini‑trial on complicated factual issues’: Paul Y Management Ltd v. Eternal Unity Development Ltd (unrep., CACV16/2008, [2008] H.K.E.C. 1359 at [19] per Cheung J.A. ……”

“...... The defence set up need only show that there is a triable issue or question or that for other reason there ought to be a trial; and leave to defend ought to be given unless there is clearly no defence in law such as could have been raised on the former demurrer to the plea and no possibility of a real defence on the question of fact (Jacobs v. Booth’s Distillery Co. (1901) 85 L T 262; Runnacles v. Mesquita (1876) 1 Q.B.D. 416). Where there are unexplained features of both the claim and the defence which are disturbing because they bear the appearance of falsity and disreputable business dealings and questionable conduct, the court should not make tentative assessments of the respective chances of success of the parties or the relative strengths of their good and bad faith, and should not on such an examination grant the defendant conditional leave to defend, but should give unconditional leave to defend: Billion Silver Development Ltd v. All Wide Investments Ltd [2000] 2 H.K.C. 262, applying Extraktionstechnik Gesellschaft für Anlagenbau Gmbh v. Oskar (1984) 128 S.J. 417 ......”

47.But to raise a triable issue or arguable defence, the defendant cannot be sparing of the particulars of his defence, and then claim that as a result of his own parsimony in details there is an obscurity which must await trial for illumination.[16] Further, “‘[a] desire to investigate alleged obscurities and a hope that something will turn up on the investigation cannot, separately or together, amount to a sufficient reason for refusing to enter judgment for the plaintiff. You do not get leave to defend by putting forward a case that is all surmise and Micawberism’ (per Megarry V.-C. in Lady Anne Tennant v. Associated Newspapers Group Ltd [1979] F.S.R. 298)”.[17]

VIII. DISCUSSION

48.The Order was made on 20 December 2017, so D should have lodged his appeal against the Order on/before 3 January 2018. D’s intended appeal was out of time for more than 3 months. In my view, the delay was substantial given the statutorily prescribed period is 14 days.

49.As for the reason for the delay, D claimed he did not realise at the Master Hearing that he failed to resist the O14 Summons (and hence he failed in his defence against P’s claim) and/or the Order made was against him, and it was only at a free legal advice session shortly before 22 March 2018 that he realised he had to lodge his appeal against the Order within 14 days. He further blamed his misunderstanding on (a) his poor ability to appreciate the learned master’s oral decision because he only had primary education, (b) the learned master might have misunderstood him as his spoken Chinese was heavily accented, and (c) the learned master’s failure to tell him he had “lost” and did not have to attend court again. D claimed he thought he had not “lost” his defence against P’s claim because the learned master asked him to discuss the matter of costs with P’s solicitors.

50.The issue on the question of delay was whether D understood the Order made by the learned master at the Master Hearing, so the ground in (b) above was irrelevant. In respect of grounds (a) and (c) above, I am unconvinced that at the Master Hearing the learned master failed to tell D and/or D did not understand he had failed in his opposition to the O14 Summons. First, D attended various interlocutory hearings in respect of the O14 Summons prior to the Master Hearing (ie on 28 March, 8 May, 26 June and 31 July 2017) whereby various masters gave directions for filing affirmation evidence and adjourning the O14 Summons for argument. D did not complain of difficulty or inability to understand the directions/ orders made orally at those hearings, and he accordingly filed D’s 1^st Aff in opposition. Secondly, D must have realised at the Master Hearing the O14 Summons had been finally disposed that day otherwise there would have been no point for the learned master to urge parties to discuss about the quantum of costs payable. Thirdly, there was no affirmation evidence before this court showing D had attempted to approach P to discuss the quantum of costs payable, and there was no affirmation evidence that he made enquires with either P’s solicitors and the court what was to happen next if he thought no conclusion was reached over the O14 Summons at the Master Hearing. Had he done so, he would have been told he had “lost” on the O14 Summons and was required to pay costs of the action.

51.Fourthly and more importantly, the sealed copy of the Order (in Chinese) had been served on D. According to Kwok’s 4^th affirmation filed on 2 March 2018 in support of the application for issuance of a writ of possession pursuant to the Order, Kwok affirmed as follows:

(a)  on 12 February 2018, Kwok attended the Property and posted up at the Post Up Location a sealed copy of the Order and a true copy of a English/Chinese bilingual notice that set out particulars of the Order, asked D to pay to P mesne profits and costs as ordered, and further stated that in default of vacating the Property or any application by D and/or all persons in actual possession of the Property to the court for relief or otherwise P would proceed to recover possession of the Property upon the Order without further notice (“Notice”);

(b)  on 13 February 2018, Kwok again attended the Property and found the sealed copy of the Order and true copy of the Notice he had posted on 12 February 2018 had disappeared, and he then posted up at the Post Up Location a sealed copy of the Order and a true copy of the Notice; and

(c)  on 14 February 2018, Kwok again attended the Property and found the sealed copy of the Order and true copy of the Notice he had posted on 13 February 2018 had disappeared, and he then posted up at the Post Up Location a sealed copy of the Order and a true copy of the Notice.

52.Since P was in occupation of the Property in February 2018, he must have had notice of the Order and Notice. He gave no explanation about the Order and Notice served to the Property in mid-February 2018, and why he failed to take action since then until 22 March 2018.

53.Whilst recognising D was self-represented, I am not convinced his explanation as to why he did not appeal or make enquiries to ascertain the procedure for appeal until shortly before March 2018 was credible. Upon delivery of an adverse decision in court or upon receipt of an adverse order which a litigant did not accept, it would be incumbent on such litigant to make enquiries as to how and when to challenge such decision or order. D’s reason for the delay was unpersuasive.

54.As regards the merits of the intended appeal, the Tenancy expired by effluxion of time on 31 August 2016. There was debate as to whether D received the NTQ, but it was neither here nor there. As explained in Merry, Hong Kong Tenancy Law,[18] “[a] lease for a fixed period automatically ends on the expiry of the stated term. So, if L grants T a lease for 10 years beginning on 1 January 2007, it will expire on 31 December 2006. There is no need for the landlord to serve notice to quit, unless this is required by the lease”. There was no requirement for notice to quit to be issued in the Agreement (as evidenced by the Duplicate Agreement), and D did not suggest otherwise in his affirmation evidence. Thus, P issued the NTQ merely out of abundance of caution, and there was no legal requirement for the same.

55.D alleged the Tenancy continued after 31 August 2016 because he continued to pay rent by deposit into the Account. In Shun Ho Energy Development Company Limited v Golden Crown Industries Limited,[19] Kwan JA (giving the judgment of the court) said at paragraph 44 as follows:

“For there to be estoppel, the tenant must show a clear and unequivocal representation that there was a new tenancy agreement on the expiry of the old tenancies ……”

56.In Halsbury’s Laws of Hong Kong,[20] in circumstances where a tenancy is terminated by notice to quit (which was not required in the present situation), it is said that:

“Question of so-called ‘waiver’ usually arise when some act is done by the landlord after the expiration of a notice to quit which either necessarily or prima facie imports the recognition of an existing tenancy. ……it may be possible to show that the landlord’s act was done with some other intention; and when that evidence is offered, it must be determined, as a question of fact, whether the act was intended to create a new tenancy. …… Payment and acceptance of rent so accrued due[21] implies, however, the concurrence of both parties and may operate to create a new tenancy. The crucial question is always with what intent the rent was paid and accepted, that is to say, whether it was with the mutual intention of creating a new tenancy …… Other instances of the acceptance of rent not operating as a ‘waiver’ of the notice to quit are where it is accepted because of a misunderstanding between different departments of the landlord, or an error in programming a computer, or where it is accepted in lieu of double rent or double value, or where it is accepted pending the hearing of an action for possession. It is common practice for landlords to accept monetary payments after the expiry of a notice to quit as mesne profits in order to prevent the possibility of waiver.”

57.Further, acceptance of rent by the landlord after proceedings for possession have already been issued does not in law constitute waiver on the part of the landlord as service of a writ containing an unequivocal claim for possession operates as a final election to determine a lease.[22] P commenced DCCJ5048/2016 on 19 October 2016 with claim for recovery of vacant possession of the Property. Any purported payment of rent after that date could not amount to any waiver, estoppel or creation of new tenancy.

58.In light of (a) the NTQ issued prior to expiry of the Tenancy that made clear P required D to deliver up vacant possession of the Property after 31 August 2016, (b) P had no right to elect at the time when D unilaterally deposited the Purported 9/16 Rent and a further sum of $55,000 into the Account on 7 September and 6 October 2016 respectively, (c) on realising the deposit of the Purported 9/16 Rent into the Account P by his solicitors issued the 23/9/16 Letter to D reiterating his stance (as explained in paragraph 8 above) and offering refund of the Purported 9/16 Rent by the Cashier Order, (d) the 23/9/16 Letter was actually served by delivery to the Property (see paragraph 28 above) despite D’s allegation of not having received the same (which allegation I have found to be unconvincing), and (e) prompt commencement thereafter of DCCJ5048/ 2016 by P against D on 19 October 2016, I find D failed to show any clear and unequivocal representation of any new or continued tenancy in respect of the Property after 31 August 2016.

59.Next, despite D’s serious allegation of suspected forgery of the Agreement, such assertion was a matter of mere surmise. D did not deny he signed a tenancy agreement in respect of the Property for a term of 3 years from 1 September 2013 to 31 August 2016 at a monthly rent of $55,000, and he raised no allegation in his affirmation evidence that the contents of the Duplicate Agreement disclosed by P did not reflect the terms as agreed or as per the tenancy agreement he signed save for his query over a computer-printed clause (see paragraph 21 above). But D failed to articulate what that clause provided, and whether it had any relevance to the issues in the present action, ie that D had to vacate the Property upon expiry of the Tenancy. In my view, there is no arguable merit in such contentions.

60.In respect of D’s allegation that he had improved the Property such that its value had been enhanced, even if D had carried out improvements on the Property as he alleged, as a matter of law, a tenant cannot remove landlord’s fixtures when he vacates the leased property as they are part of the land, but he can remove trade, ornamental and domestic fixtures put in by him during the tenancy so long as their removal does not irreparably damage the leased property and the parties have not agreed otherwise.[23] Further, clause 4 of the Duplicate Agreement provides it was incumbent upon D to remove tenant’s fixtures upon delivery of vacant possession of the Property as follows:

“(四) 乙方在約滿或提前終止而遷出時，必須將乙方及乙方之合法分租客全部物品搬走，以清手續。倘若乙方藉故取巧不交門匙或留下破舊箱櫃等物件，不予搬走或故意阻延時間，在乙方遷出三天以內，乙方仍不來取，甲方可視作乙方放棄權利論。……”

Given the legal principles and contractual provision, I am unable to see any unfairness as D alleged. As Mr Lee pointed out, D had notice of P’s intention to recover vacant possession of the Property since 2016.

61.In the circumstances, there was no triable issue or arguable defence to P’s claim for vacant possession of the Property and/or mesne profits as claimed.

62.Further, it would cause unfairness and prejudice to P if the court were to grant leave for D to appeal at this stage when P had (a) successfully resisted D’s 1^st and 2^nd Stay Summonses with costs orders in his favour, (b) executed the Writ of Possession and recovered possession of the Property thereby having incurred time and cost for such exercise, and (c) put the Property to his own use since July 2018.

63.At the Hearing, D made submissions (which were rather confusing and not supported by affirmation evidence) that P should have allowed him and his family road access to D’s home (presumably after P’s recovery of vacant possession). However, such submissions did not go to the matter of the intended appeal, and D would have to seek advice and/or take appropriate action, legal or otherwise, as he saw fit.

IX.  CONCLUSION

64.For all of the above reasons, I consider (on de bene esse basis) that the intended appeal against the Order was unmeritorious, and there was no cogent basis to extend time, so I dismiss D’s Application for leave to appeal against the Order out of time.

65.There is no reason why costs should not follow event. I therefore grant a costs order nisi that D shall pay P costs of the Application for leave to appeal against the Order out of time to be taxed if not agreed.

66.Should D require translation of this judgment into punti language, he can contact my clerk to arrange an appointment for a court interpreter to verbally translate this judgment to him at the High Court Building at a mutually convenient time.

Mr Ivan Lee, instructed by Leung Kin & Co, solicitors for the plaintiff

The defendant acting in person and present