Kam Shing Ki v. Fan Kam and Others

CACV000034/1983

Landlord and tenant - claim for possession on ground that premises reasonably required by landlord as residence for himself and a son over 18 years - sub-tenants alleging that order for possession would be manifestly unjust and inequitable - Court of Appeal would not interfere with finding of judge unless no reasonable judge, properly directing himself, could have found as he did.

Practice and procedure - appeal - notice of appeal must state grounds of appeal - whether an error alleged is one of law or of fact, the specific error must be indicated - a monochrome photostat print of an amended pleading should not be included in an appeal record.

Date of hearing: 13th April 1983.

Date of handing down "Reasons for judgment"; 26th April 1983.

M. Merry (D. L. A.) for Appellants/Defendants.

K.K. Pang (Y. T. Chan & Co.) for Respondent/Plaintiff.

BETWEEN

Coram: Sir Alan Huggins, V.-P., Li & Barker, JJ. A.

Date of Judgment: 26th April 1983.

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REASONS FOR JUDGMENT

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Sir Alan Huggins, V. -P.:

1. The respondent Landlord applied to the District Court for an order for possession under s.53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance against his tenant (the 1st Defendant) and 11 sub-tenants. Although the trial judge said that the claim was made on the ground that the Plaintiff required possession for occupation as a residence "for himself, his family and a son over the age of 18 years" this overlooked an amendment or re-amendment which was made to the Particulars of Claim - it is not clear which it was, because the appeal record improperly includes a monochrome photostat print of the writ. However, nothing turns upon this amendment. Again, although in March 1981 the action was properly begun in the District Court, it was not tried until February 1983. The notes of proceedings are entitled "In the District Court of Hong Kong", but the judgment is entitled "In the Victoria Lands Tribunal of Hong Kong". Whether there is more than one Lands Tribunal in Hong Kong is doubtful. However, it is clear that since 1st October 1982 all proceedings should have been continued in the Lands Tribunal. No issue was raised before us as to the jurisdiction of the Presiding Officer to hear the case, and we assume that the judge was sitting in his capacity as a Presiding Officer of the Lands Tribunal. He found that the premises were reasonably required by the Plaintiff for occupation for himself and his second son and that it was not manifestly unjust to make an order for  possession. Three sub-tenants appeal.

2. The Notice of Appeal set out eight "grounds of appeal". Most of them were not proper grounds of appeal at all, in that they alleged errors without indicating what those errors were, e.g. "7) that the order was against the weight of the evidence". Whether an error alleged is one of law or of fact, the specific error must be indicated. Counsel before us sought leave to amend Ground 1 to allege that the judge misdirected himself in law by applying proviso (i) - the manifest injustice test - to the Appellants whereas proviso (ii) - the hardship test - should have been applied. This point was not taken before the trial judge and counsel for the Respondent had not come prepared to argue it, although he suggested that there was binding authority in his favour. We gave leave to amend on terms, which the Appellants were not prepared to meet. Accordingly we say nothing more on this point.

3. An application for leave to amend Ground 7 to allege that on the evidence a reasonable judge, properly directing himself, could not find that it would not be manifestly unjust or inequitable to make an order for possession was not opposed and this was, in the event, the only matter argued before us. The injustice or inequity alleged was extreme hardship, and it was held in Lam Chuk-yin v Chan Kwok-kwan Civil App. 1981 No. 97 that "extreme hardship to the tenant may be a dominant factor in refusing possession", although Mr. Vice-President Leonard went on to say that "hardship of itself seldom can be". A case where hardship was found to amount to manifest injustice or inequity was Kong Tai Sang v Wong Kowk Nang Civil App. 1982 No. 113. That was a case where the District Judge was satisfied that the consequences of making an order for possession against the tenant would be "horrendous" and yet thought that Lam Chuk-ying v Chan Kwok-kwan precluded him from finding that "the making of an order would be thoroughly unjust" and obliged him to make such an order. The court was unanimous in holding (1) that he had misdirected himself as to the ratio decidendi of the earlier case and (2) that, in view of the finding which the judge said he would have made but for that misdirection, an order for possession must be made.

4. Whether extreme hardship amounts to manifest injustice or inequity must always be a matter of fact for the trial judge and this court will be reluctant to interfere with his decision provided that he has not misdirected himself by considering irrelevant matters or by ignoring relevant matters. It was for this reason that counsel felt constrained to obtain leave to amend Ground 7 in the manner indicated. He submitted that the hardship on these three Appellants would be even greater than the hardship on the tenant in Kong Tai Sang v Wong Kwok Nang, but we think that no useful purpose is served by comparing the facts in other cases when one is dealing with questions of this kind.

5. The essence of the Appellants' case was that they were all of advanced years and might have difficulty in finding other accommodation. The judge clearly accepted that, whether or not he had jurisdiction to make an order against a principal tenant in respect of only part of the flat, he was not bound to make orders against the sub-tenants personally. The 1st Appellant, who occupied a small cubicle in the suit premises, was aged 81. Although the record initially describes her as "male" she said she was "a widow" and it seemed to be common ground that she was female. She paid $127 per month as rent. She received $225 a month from the Social Welfare Department and unspecified amounts from her children and grand-children One of her sons called daily with food. The 2nd Appellant was aged about 80 and the 3rd Appellant was 76. They occupied bed spaces in a corridor and paid $56.20 and $44.50 respectively in rent. Both were unemployed, had no family and were dependant on social welfare benefits. The learned judge expressed considerable concern at the situation of all three Appellants and felt sorry for them. Nevertheless no misconduct on the part of the Plaintiff was alleged. The Plaintiff was himself 83 years of age and his wife about 70. The judge said:

"I do not consider that having found he needs the premises I should resile from that stance and give him only part, leaving two old men living in what must be cupboard like bed spaces in the hall and the elderly woman in a small cubicle all sharing the same toilet and kitchen."

It was not, of course, necessary (or legitimate) for him to resile from his decision on the "reasonable requirement" issue, but it was relevant to consider the urgency of the Plaintiff's requirement in relation to the hardship on the Sub-tenants. It was not contended that he failed to do so. The Plaintiff was living in a 400 sq. ft. flat with his wife, his eldest son and that son's wife and four children, these last being aged between 15 and 7 years. There were two bedrooms and a sitting room. The Plaintiff found the young children "noisy and boisterous" and he and his wife wished to have the comparative quiet of a 600 sq. ft. flat to be shared with their second son, his wife and his 19 year old daughter. This son was living in a small flat for which the Plaintiff was himself paying a rent of $1,900 a month. In addition the daughter-in-law is a nurse and the judge took into account that the Plaintiff considered it would be an advantage to have a nurse with him and his wife during their declining years.

6. This was a difficult case and it might be that another judge would have come to a different conclusion - we do not say we would have done so - but that did not mean that the trial judge was necessarily wrong. In our view there was evidence upon which he could find that no manifest injustice or inequity would result, He weighed the matter with great care and it would have been entirely wrong for us to interfere.

26th April 1983.

Representation:

M. Merry (D. L. A.) for Appellants/Defendants.

K.K. Pang (Y. T. Chan & Co.) for Respondent/Plaintiff.