Wong Chun Ming v. Choy Tai Tung and Others

CACV000042/1982

BETWEEN

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

Date: 13 May 1982

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JUDGMENT

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Sir Alan Huggins, V.-P:

1. The appellant Plaintiff claimed possession of a flat under s.53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance. The claim was originally made on the ground that she required the premises for occupation by "her son and his family and her daughter, both her said son and daughter being over the age of 18". At the trial this was amended so as to claim the premises for occupation "by herself, her son and her daughter each of whom is over age of 18 years". The Plaintiff explained this change by saying that, whereas she had planned to remain in her present flat with her husband while the son and daughter moved to the suit premises, she had now decided that they should all move. As she owned her present flat also, she offered to let it to the 1st Defendant (the principal tenant) at a rent of $2,000 a month if her claim were successful.

2. The judge found that the Plaintiff had failed to establish a reasonable requirement for the premises and said that he would, in any event, have concluded that it would be manifestly unjust and inequitable to make an order for possession. The Plaintiff appeals.

3. The Plaintiff is at present occupying a flat consisting of two bedrooms, a sitting-room and usual offices, the total area being some 500 sq, ft. She is herself 66 years of age, as is her husband. They occupy one bedroom. Their son (aged 30), his w wife and two children (aged 4 years and 15 months) occupy the second bedroom. Their daughter (aged 22) has been studying in the United Kingdom but has come home for every summer vacation and it was alleged that she would be returning early this year to live with her parents after the conclusion of her training. When at home she sleeps in the sitting-room. The suit premises occupy an area of 1300 sq. ft. and are divided into cubicles.

4. The learned judge repeatedly said that the whole case was based upon the fact that the daughter was coming back to Hong Kong in 1982 and wished to live with the Plaintiff, and he concluded:

"I find that the plaintiff has established no more than a desire that sooner or later her daughter should live with her in the suit premises and that is not enough. The plaintiff's claim therefore fails."

With respect to him, this was not the whole basis of the Plaintiff's claim Miss Kwan, who appeared on the appeal for the 1st, 3rd, 4th, 5th and 6th Respondents, has sought to justify the judge's assertion by assuming that the Plaintiff did not make out a case apart from the return of the daughter, but I do not think that will do: it is not clear that the claim must have failed apart from the return of the daughter. Counsel who appeared for the Plaintiff in the court below presented his final submission in uniting and it is abundantly clear that, quite apart from the " needs of the daughter, the Plaintiff was complaining that the son and his family were living in cramped conditions. It was common ground that the Plaintiff's family is well-to-do and it is far from absurd to suggest that for four adults and two children to wish to move from a flat of only 500 sq. ft. was necessarily unreasonable. It was no answer that the family had lived in that flat "without stated hardship" since 1967, because there are now the two young grand-children. There was evidence - although the judge did not say whether he believed it - that the Plaintiff approached the tenant, when the second grand-child was born, with a view to obtaining possession and that the 1st Defendant thereupon suggested that he should be offered money as consideration for his moving out. In the result I am persuaded that the first issue to be decided has never been properly considered. That alone undermines the decision of the trial judge and there ought to be a new trial.

5. It was further contended on behalf of the Plaintiff that the judge was wrong to disbelieve the evidence that the daughter intended to return to the family home. It was said that he refused to admit a letter from her which was tendered in evidence, but no record of such tender and rejection of evidence appears in the judge's notes and we have said that we will normally accept the official transcript as correct until the judge has at least been invited to amend it. There was no evidence from the daughter as to her intentions and the judge said that the only other evidence on the matter was hearsay, which was uncorroborated and which could not be taken as proof. He thought the Plaintiff was a "dominating character" who would readily assume the facts to be as she wanted them to be and went on to say that even if a lost letter and a telephone call to which the Plaintiff testified, and which he held to be inadmissible, were in truth admissible in evidence he was not satisfied that the daughter intended to return in early 1982. What the judge does not appear to have taken into consideration is the inherent likelihood that an unmarried girl who had lived with her parents in Hong Kong until 1977, whose parents continued to live in Hong Kong and who has regularly returned to Hong Kong for her summer holidays would in the normal course of events return to her parents' home on the completion of her training unless there were some evidence to suggest that she had other plans. The judge said that, even if she were going to return, he was not satisfied "that it would be for any significant period of time". The fact that she intended to return at all would be a material factor which ought to be thrown into the balance.

6. Complaint is also made of the judge's ruling on the question whether an order for possession would be manifestly unjust or inequitable. He treated the benefit sought by the Plaintiff as being of small moment, for he said:

"Realistically the whole family would enjoy marginally better accommodation and no more than that. They are a prosperous family with large capital holdings and substantial earnings."

To describe an increase of well over 100% in the accommodation available to the Plaintiff in the same building as "marginally better accommodation" is scarcely fair. The fact that the Plaintiff's family is prosperous is not relevant to this issue: see Luk Chor-sang v Kwok Lui-kit 1981 Civ. App. No. 140, decided after judgment was given in this case. The fact that an order for possession would result in the eviction of 17 persons would, of course, be an important factor but the judge appears not to have considered the offer made by the Plaintiff to let to the 1st Defendant the flat which she now occupies. I appreciate that acceptance of this offer might lead to the separation of the 1st Defendant from some of the other Defendants, his sub-tenants, but it would mean that the number of persons left homeless by an order for possession would be reduced. It is not in dispute that all the Defendants were Fukienese, but I prefer not to decide whether it was open to the judge to take judicial notice of the alleged fact that Fukienese "are to some extent outsiders in a slightly hostile community" so that they might reasonably wish not to be separated. It may be that the word "hostile" conveys something more than the judge really intended, in which event the disintegration of this "family" could not be regarded as the calamity which the judge foresaw. If, having considered all the relevant matters, and only the relevant matters, the judge had nevertheless decided that an order for possession would be manifestly unjust and inequitable, I might have been forced to support him, whatever I might have decided had I been the trial judge. As it is, I think there would have had to be a new trial of this issue even if we had been able to support the judge's decision on the issue of reasonable requirement.

7. Two other matters need to be mentioned. The judge at the beginning of his judgment referred to a recent survey which showed that in cases under s.53(2)(b) "a large proportion of flats so regained have remained vacant for periods up to the two year period specified under s.53(7) & (7B) of the Landlord & Tenant Ordinance". This was, to say the least, an unfortunate observation, for, in spite of a subsequent warning to himself that he must nevertheless approach the case purely on the evidence before him "and not on the basis of an ingrained suspicion of those parties who come before me claiming and indeed resisting possession", any plaintiff whose claim was dismissed would in such circumstances be likely to believe that the judge was biased against landlords seeking possession for their own occupation. Secondly, the judge said:

"I accept too that a tenant cannot say that his premises are not reasonably required merely because the landlord has other tenants against whom he might have proceeded. This however is a matter which can be relevant on the general issue of reasonableness."

One is driven to suspect that the judge had in mind that, as in England, no order for possession could be made unless it was reasonable to make such an order but there is no "general issue of reasonableness" under the Hong Kong legislation. It needs to be emphasized that, once a plaintiff has established that he reasonably requires the suit premises, the only remaining issue is whether it would tie manifestly unjust or inequitable to make an order for possession and the correct test of that is laid down in Chow Wing v Yuen Chi-hung 1980 H. K. L. R. 788.

8. We allowed the appeal and ordered a new trial.

Yang, J.A.

9. I agree with the learned Vice-president's judgment. I only wish to stress that I too viewed with disquiet the opening words of the trial judge's judgment and did not think that his next paragraph really cured what he had said. This is however not a matter which calls for our decision in this appeal.

Barker, J. A.:

10. I entirely agree.

13th May 1982.