Chan Nam v. Poon Siu-ping
Read the full judgment text of CACV 3/1980 on BabelCite. This Court of Appeal judgment was delivered on 27 May 1980.
1. This is a tenant's appeal against the District Judge's decision in giving possession of the suit premises to his landlady.
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CACV000003/1980
----------------- Coram: Roberts, C.J., Cons, J.A. and Yang, J. Date of Judgment: 27 May 1980 ----------------- JUDGMENT ----------------- Yang, J.: 1. This is a tenant's appeal against the District Judge's decision in giving possession of the suit premises to his landlady. 2. By her Statement of Claim dated 26th February, 1979, the landlady (hereafter referred to as "the respondent") claimed possession of the suit premises at 31A Haven Street, 9th floor, Causeway Bay under s.53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) as it stood before its amendment by s.5 of the Landlord and Tenant (Consolidation) (Amendment) Ordinance 1980, i.e. on the ground of greater hardship. It was not disputed that these were post-war domestic premises. 3. In his defence the tenant (hereafter referred to as "the appellant") pleaded that he would suffer greater hardship and that, in any event, the respondent had permitted him to sub-let a portion of the premises to another person as sub-tenant. 4. It is common ground that on 1st April 1969 the respondent, who was and still is the owner of the premises, granted an oral tenancy to the appellant at a monthly rental of $554.80 inclusive of rates. 5. The evidence given on behalf of the defence was that the appellant had sub-let a room in the premises to Mr. Lai Choi in 1976 at $320 per month. 6. The judgment of the trial judge was brief, but was amplified in a ruling given in the appellant's application for leave to appeal. The judge said that he was satisfied that the respondent required the premises for her and her son's use, but that the appellant would suffer greater hardship by the granting of possession to the respondent. For this reason, he came to the view that the respondent would fail to obtain possession under s.53(2)(b). 7. In the same ruling, he stated that he preferred the appellant's evidence that both parties had contemplated from the outset that he would sub-let. The judge did not believe the respondent's assertion that she did not know the appellant had in fact sub-let. He went on to say,
8. However, the judge made an order for possession, in favour of the respondent, on the ground that the respondent was entitled to invoke s.53(2)(e) because the appellant had sub-let without his landlady's consent in writing. 9. We do not feel it necessary to deal with the first ground of appeal, other than to say that we think that the judge, in view of the way in which the case had been conducted by two parties in person, took a sensible and practical course in permitting the pleadings to be amended at the close of the evidence. 10. The second ground of appeal is that the appellant must succeed, because the judge found as a fact that the respondent had waived any breach that might have been committed by sub-letting. Mr. Mok, counsel for the appellant, cited the recent decision of this Court in Chuk Yau-cheong v. Lee Miu-ying(1) which establishes that waiver is available where an order for possession of premises is sought under s.53(2)(e). 11. Mr. Ismail, arguing on behalf of the respondent, put forward four reasons why the appeal should be dismissed - 1. The judge found that neither party was aware of the existence of the provisions in s.53(2)(e); therefore neither party knew that oral consent to sub-let was not enough to deprive the landlord of his right to recover possession of premises which had been let without his written permission. For this reason there could not be a waiver of a breach by the respondent because she did not know there had been one. We do not agree. It matters not whether a party has previous knowledge of a statutory provision; he is entitled to take advantage of it when he becomes aware of it. 2. The judge's ruling should not be given the same status as a judgment. It was complained that the judge had gone into questions which were unnecessary for the purpose of making a ruling as to whether or not to grant leave to appeal. We are unable to see the force of this complaint. In coming to a decision in an application for leave to appeal, it is open to the trial judge to review the evidence and the facts and state his opinions on them. In so doing, he is not, as is suggested, reviewing or re-trying the case. 3. If this Court refers this case back to the District Court, then the Landlord and Tenant (Consolidation) (Amendment) Ordinance 1980 (Ordinance No. 6 of 1980) should be applied, in which case the appellant would now be certain to succeed on the facts by reason of the amendment to the "greater hardship" proviso. For this proposition counsel relies on Lam Wai v. Mak Yok-jan(2), which dealt with s.50 of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7). In the present proceedings, the relevant section is s.53(2)(b). Section 53(1) of Cap. 7 provides -
12. Section 4 of Ordinance No. 6 of 1980 amends s.52(1) by substituting the date "18th December 1979" for "the 15th December 1973". The amendment to s.53(2)(b) makes no reference to any particular date. 13. Lam Wai's Case decided that that part of Ordinance No. 6 of 1980 which brought certain classes of tenancy within the protection of Part II of Cap. 7 should have retrospective effect to 18th December, 1979, and that proceedings which were conducted between 18th December, 1979 and 15th February, 1980 (the date on which Ordinance No. 6 of 1980 came into effect) should be governed by such parts of Ordinance No. 6 of 1980 as were given retrospective effect to 18th December, 1980. 14. The amendment to s.53 of Cap. 7, effected by s.5 of Ordinance No.6 of 1980, was not given retrospective effect to 18th December, 1979, and certainly not to the date when the cause of action arose in this case. Thus, if we had referred the case back to the District Court, the same law would have had to be applied as in the earlier trial, with the same result so far as hardship is concerned. 4. That Chuk Yau-cheong v. Lee Miu-ying (supra) may be distinguished, as the facts in the present case are said to be much stronger. We see no substance in this argument. The ratio decidendi of that case is applicable to the present one. 15. For the foregoing reasons the appeal is allowed. Representation: Y.C. Mok (Peter Mark & Co.) for the appellant. A. Ismail (W.S. Lo & Co.) for the respondent. (1) (1979) Civil Appeal No. 14 (31st October, 1979) (2) (1980) Civil Appeal No. 38 (2nd April, 1980) |