Chan Chiu Yin v. Chan Ki Kau

CACV000468/2001

CACV 468/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 468 OF 2001

(ON APPEAL FROM LDPD NO. 1694 OF 2000)

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Coram: Hon Woo, Cheung and Yuen JJA in Court

Date of Hearing: 21 May 2003

Date of Judgment: 28 May 2003

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J U D G M E N T

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Hon Woo JA:

Introduction

1.On 6 March 2001, Deputy Judge Tong, as presiding officer of the Lands Tribunal, ordered possession of the premises known as Lot No 2230 in Demarcation District 51, New Territories ("the premises"), in favour of the landlord Mr Chan Chiu-yin ("landlord") against the tenant Mr Chan Ki-kau ("tenant") and that the tenant shall pay the landlord rent or mesne profits at the rate of $1,800 per annum from 1 January 1999 until possession is given up. Against the Order, the tenant now appeals.

2.By a summons dated 18 February 2003, the tenant applies to this Court for an order that he be at liberty upon the hearing of the appeal to adduce the additional evidence as contained in his 3rd affirmation affirmed on 14 February 2003 and the affirmation of Madam Liu Siu (Mrs Kwan) affirmed on 13 February 2003. At the hearing of the summons on 10 April 2003 by me as a single justice of appeal, I adjourned the application to be heard at the hearing of the appeal proper by the Court of Appeal. I granted leave to the tenant to file his 4th affirmation affirmed on 26 March 2003 and to the landlord to file an affirmation in reply within 10 days of the hearing. The landlord had already filed two affirmations to counter the tenant's proposed fresh evidence, namely, an affirmation of Madam Ching Tsui-han affirmed on 17 March 2003 and an affirmation of Madam Chu Tsui-mei affirmed on 18 March 2003. Pursuant to my direction, the landlord also filed Madam Ching Tsui-han's 2nd affirmation affirmed on 22 April 2003. No objection is taken of the slightly late filing.

3.At the commencement of the hearing by this Court on 21 May 2003, the additional or fresh evidence was read de bene esse, for the purpose of deciding on the application and for consideration of the appeal proper.

Background

4.By a Form CR 101 dated 20 January 2000 issued by the landlord to the tenant, the landlord required the tenant to notify him in writing within two months after the giving of the notice in the form whether or not the tenant would be willing to give up possession of the premises on 20 July 2000. The form also stated that the landlord would not oppose an application to the Lands Tribunal for the grant of a new tenancy. By a Form CR 105 dated 28 March 2000, the landlord required the tenant to make an application to the Lands Tribunal for the grant of a new tenancy of the premises. The Form CR 105 also stated that

"the Lands Tribunal will not entertain any application for the grant of a new tenancy if it is made either more than two months after the giving of this notice or after the current tenancy has terminated in accordance with Part IV of the Landlord and Tenant (Consolidation) Ordinance."

5.There was no response to these Forms CR 101 and CR 105 by the tenant. These two forms were issued pursuant to Part IV of the Landlord and Tenant (Consolidation) Ordinance, Cap 7 ("the Ordinance") with the consequence that the Lands Tribunal would grant either an order for possession or a new tenancy at a new rent.

6.By a Form 22 dated 27 July 2000, which is a notice of application under the Ordinance, the landlord applied to the Lands Tribunal for vacant possession of the premises on the basis that:

(a) on 20 January 2000, the landlord had served Form CR 101 dated the same day on the tenant to terminate the tenancy on 20 July 2000;

(b) the tenant had failed to serve a Form CR 102 on the landlord in response to the Form CR 101;

(c) on 30 March 2000, the landlord had served Form CR 105 dated 28 March 2000 on the tenant requiring the tenant to make application to the Lands Tribunal for a new tenancy; and

(d) the tenant had failed to make application to the Lands Tribunal in response to the Form CR 105.

7.On 28 September 2000, the landlord, represented by Madam Chu Tsui-mei, and the tenant appeared before Deputy Judge Tong of the Lands Tribunal. According to the transcript of those proceedings which were conducted in Punti, at the commencement of those proceedings, Madam Chu and the tenant affirmed before the judge to tell the truth. The judge ascertained from the tenant that the landlord was his landlord. The judge asked the tenant whether he agreed that he had not paid the rent as from January 1999, and the tenant replied in the affirmative. The judge then questioned the tenant whether the premises, describing it as the piece of land, were used for dwelling purposes. To this question, the tenant said, "No, it is used for agriculture." Then the judge questioned the tenant whether he was living at the premises and as to the use made of the three wooden houses ("sheds") on the premises. The tenant replied that two of the sheds were for living and for storage. He told the judge that two sheds had been lived in and the third shed was left vacant. He further said, "That means, all were for storing miscellaneous items, originally they were all for people's dwelling." The tenant also told the judge, when so asked, how the rent was calculated: it was calculated by rice (or crops).

8.Eventually, the judge mentioned to Madam Chu that the land was let to the tenant as agricultural land and not as a dwelling. Madam Chu replied that the tenant was living there at the moment. Thereupon, the judge said:

"He is living there, so it is necessary to look at the proportion. That means, for example, how big is the piece of land, how many units do those sheds occupy, whether those sheds exist for the convenience of looking after the farm land, or the tenant is living in that shed, which is for people to live in as a dwelling, whether the farm land has been left entirely unattended, things like that. It is necessary to look at the evidence, the so-called principal use, what is the so-called primary user. Do you understand?"

9.Then the judge advised Madam Chu to obtain a certificate of land use from the Commissioner of Rating and Valuation, which certificate would let her know whether Part IV of the Ordinance was applicable to the premises. The judge further advised that if there was such a certificate, it would prove that the procedure taken by the landlord, namely through the use of Forms CR 101 and CR 105, was a valid procedure, otherwise it was not.

10.The judge also advised the tenant to get a Form 7 to write out clearly his reasons for opposition. Then the judge adjourned the proceedings sine die with liberty to either of the parties to restore.

11.On the same day of 28 September 2000, the tenant issued a Form 7 and in it, he wrote out under the printed heading "reasons and particulars", as follows:

"Increase of rent unreasonable, refuse to discuss with tenant, owner always changes, sometimes recovering the land, sometimes requiring payment of rent." (emphasis added)

12.Upon the landlord's application, the Commissioner of Rating and Valuation issued a Certificate of Primary User of Premises dated 2 February 2001 ("the Certificate"), certifying that in his opinion the primary user of the premises on 30 November 2000 (date of inspection) was domestic.

13.Madam Chu, on behalf of the landlord, and the tenant appeared before the judge again on 6 March 2001. According to the transcript of those proceedings, the following transpired.

14.Both persons again took the affirmation at the commencement of the proceedings. The judge then stated that the Tribunal had received the Certificate from the owner, stating that the "unit" on the premises was primarily for domestic use. He asked the tenant whether he knew of the Certificate and the tenant said "Yes". The judge then said:

"That means therefore your unit was for domestic use, therefore Part IV applies, do you know that?" (emphasis added)

The tenant said "Yes." The judge then dealt with the Forms CR 101 and CR 105, and after some questioning, Madam Chu confirmed to the court that she had never received Form 102 from the tenant.

15.After ascertaining from the tenant that he had not paid any rent at the rate of $1,800 per year as from 1 January 1999, the judge made the following statement:

"... Respondent [tenant], the situation is this, your unit now is under the control of Part IV, that means under the control of Part IV of the Landlord and Tenant (Consolidation) Ordinance, therefore if the owner issued to you CR 101, you have to give him CR 102 within two months, but if you did not do so, and if the owner requires recovery of the premises, you have no way to defend." (emphasis added)

16.Later on, the judge further explained to the tenant that he had not asked the Lands Tribunal for a new tenancy despite the expiration of the time stated in the Form CR 101, and that the related tenancy had been terminated on 20 July 2000 pursuant to the provisions of Part IV. As the tenancy had already been terminated, the tenant was remaining as a trespasser, and the landlord was entitled to recover the "unit". The judge asked whether the tenant understood. The tenant replied:

"Temporarily I understand. You finish speaking first."

The judge then told the tenant that he had finished and said:

"If you have any submissions, you can tell me the submissions whereby you can defend the owner's application to recover possession and the arrears of rent."

17.The tenant pointed out that the Certificate only related to 30 November 2000 as "one problem". He then mentioned the "second problem" that after the issue of the Forms CR 101 and 105 to him, he had notified a Mr Yam, who was managing the collection of rent for the landlord. As the tenant informed the judge that he had communicated with the landlord through the use of the telephone, the judge told him that CR 101 expressly stated that he had to notify in writing. Thereupon, the tenant admitted that he was negligent but insisted that he had replied to the landlord by telephone, but that there was no outcome. After that, the transcript shows nothing said by anyone and the next thing that was recorded was that the judge delivered his decision. He said:

"I have already finished asking about the case, the fact is that the truth, the fact of the judgment, is so obvious that the landlord had issued to you the valid CR 101 and 105, but you did not issue a valid CR 102 to the landlord, and did not apply to the Lands Tribunal for new tenancy within the prescribed time period, which caused your tenancy to expire on 20 July 2000. You are now only a trespasser on the above-named land."

The judge therefore proceeded to make the Order as set out in para 1 above.

18.On 20 March 2001, the tenant served a notice of appeal on the landlord. It is to be noted that throughout the proceedings before the Tribunal, there was no legal representation of either of the parties. All the documents used before the Tribunal, whenever written by the parties, were written in Chinese. The proceedings were conducted in Punti and the transcripts of the proceedings on both 28 September 2000 and 6 March 2001 are in Chinese. Moreover, the "reasons and particulars" given in the Form 7 dated 28 September 2000 were written by the tenant, and so were the grounds of the appeal.

19.The evidence before us shows that the tenant had applied for legal aid as early as on 25 September 2000 for the proceedings before the Tribunal but that was refused. On 14 March 2001, ie after the judge had made the order under appeal, legal aid was again refused. In the middle of September 2001, the tenant again applied for legal aid. On 30 October 2001, legal aid was granted for the purpose of continuing this appeal. On 21 February 2002, legal aid was discharged. In early August 2002, the tenant applied for legal aid again. Eventually, the tenant obtained a Legal Aid Certificate dated 28 August 2002 for the prosecution of this appeal.

20.The homemade grounds of appeal are, to say the least, nebulous, because the expressions used by the tenant are far from clear. Similar unsatisfactory manner of expression was noticeably used in the Form 7. It is however clear that one of the grounds of appeal, and I would say the major ground, is that the premises were agricultural land and were primarily used for agricultural purposes. If this ground is established, then Part IV of the Ordinance has no application, and the procedures adopted by the landlord for recovering the premises were inappropriate and his application to the Lands Tribunal should have been dismissed. However, this ground is a challenge to a finding of fact by the judge, as opposed to his having erred in point of law, and is not allowed by s 11(2) of the Lands Tribunal Ordinance, Cap 17.

21.Other grounds raised in the homemade grounds of appeal are quite irrelevant and relate also to facts. They are of no merit and I do not think it necessary to deal with them.

Grounds of appeal

22.By a Supplemental Notice of Appeal dated 9 January 2003, five grounds on points of law are raised. Grounds 1 and 2 complain that the judge erred in law in treating the Certificate as irrebuttable and/or conclusive evidence for the determination of the user of the premises, thereby erroneously held that Part IV of the Ordinance applied. Ground 3 states that the judge erred in misdirecting the tenant into believing that the Certificate was irrebuttable and that Part IV of the Ordinance applied to the premises.

23.Ground 4 is based on alleged irregularities ("ground of irregularity") at the hearing before the judge on 6 March 2001, as follows:

4. ..., the learned Deputy Judge further erred by failing to ask the Respondent (Appellant) [tenant] as to whether he had any objection or evidence in rebuttal to the Certificate [p. 5 of the Transcript].

(a) The learned Deputy Judge had erred in law in holding that Part IV of the Ordinance was applicable and after the learned Deputy Judge erroneously satisfied himself that there was no defence to the termination notice ("Form CR 101") served under Part IV of the Ordinance he proceeded to announce his decision without ascertaining from the Respondent (Appellant) whether he has completed his case/evidence and/or allowing him the opportunity to produce, adduce and/or advance the same.

(b) The learned Deputy Judge had further erred by ignoring the Respondent (Appellant) who indicated that he wished to be heard by keeping his right hand raised throughout the time when the said order was made up to the time when the Court rose. By such irregularities as aforesaid, the Respondent (Appellant) was thereby deprived his natural right to be heard and/or having a fair trial.

24.Ground 5 states that the judge should have found that the Certificate was rebutted by various items of evidence, which are those intended to be raised as fresh evidence.

25.It can be seen that while the factual basis for grounds 1 to 3 can be found in the transcript of the proceedings before the judge on 6 March 2001, the foundation of grounds 4 and 5 is built on the fresh evidence sought to be received by this Court.

The fresh evidence

26.Briefly, the fresh evidence contained in the affirmations of the tenant and Madam Liu Siu (Mrs Kwan), a neighbour on adjoining land, consists of their statements that the premises have been agricultural land and used for agricultural purposes. The tenant also provides a history of the occupation and use of the three sheds on the premises. Colour photographs of the inside of one or more of the sheds and the electric meters serving the sheds as well as a number of documents to prove that he was not living in the sheds except in connection with farming purposes are exhibited. He also talks about his bringing the farming produce from the premises to the market for sale. He says that he was not allowed by the judge to give the evidence that the premises were used for agricultural purposes. Para 15 of his affirmation affirmed on 14 February 2003 states:

"At the hearing on 6th March 2001, I was NEVER asked by the presiding officer as to my objections to the said R & V certificates. I was only asked by the presiding officer whether I was aware of the said R & V Certificate and whether [sic] understand the contents of the said R & V Certificate and I was led to believe as if the said R & V Certificate was definitive in determining the user of the Land. I was answering questions from the presiding officer during the hearing. I thought I would be given an opportunity to raise any objection to the said R & V certificate and/or to prove that the Land is of agricultural user but that was not the case. To my surprise, the presiding officer, without asking whether I have such objection and/or evidence or whether I have anything to say, abruptly said that he had finished asking questions about the case. When the presiding officer was beginning to deliver his judgment at the end of the proceedings, I immediately raised my right hand trying to indicate to the presiding officer that I have submissions to make. However, the presiding officer ignored me and appeared to start announcing his decision. When I realised this, I continued to put up my right hand and indicating that I wanted to say something but the presiding officer did not let me speak and I dared not to interrupt him. I was so eager to tell him that I have evidence to rebut the said R & V certificate that I kept my right hand up while he continued to announce his decision. After he announced his decision, I shouted out that I have something to say but I was told by the presiding officer's clerk that the case had finished. At that time, the presiding officer was still in Court. I was completely ignored by the presiding officer and then someone said loudly 'Court' and then the presiding officer bowed and then went out of the Court. ..."

27.He further states that Madam Liu Siu was with him at the hearing on 6 March 2001 and his raising of hand that was ignored was witnessed by Madam Liu Siu, and that he could have called her as his witness. All these are confirmed by Madam Liu Siu in her affirmation.

The law relating to the admissibility of fresh evidence

28.Order 59, rule 10(2) of the Rules of the High Court provides:

"The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds."

29.The judge made the Order under appeal after hearing the parties on the merits. It is therefore necessary for the tenant to show that there are special grounds to justify the Court of Appeal in receiving the fresh evidence.

30.A good summary of the law relating to the adduction and admissibility of fresh evidence can be found in High Court Civil Procedure, 2002, Vol 1 paras 59/10/10 - 59/10/13. To establish "special circumstances", the applicant must satisfy the three conditions laid down in Ladd v Marshall [1954] 1 WLR 1489, where Denning LJ (as he then was) said at 1491:

"... To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

We have to apply those principles to the case where a witness comes and says: 'I told a lie but nevertheless I now want to "tell the truth." It seems to me that the fresh evidence of such a witness will not as a rule satisfy the third condition. A confessed liar cannot usually be accepted as being credible. To justify the reception of the fresh evidence, some good reason must be shown why a lie was told in the first instance, and good ground given for thinking the witness will tell the truth on the second occasion. If it was proved that the witness had been bribed or coerced into telling a lie at the trial, and is now anxious to tell the truth, that would, I think, be a ground for a new trial and it would not be necessary to resort to an action to set aside the judgment on the ground of fraud. Again, if it was proved that the witness made a mistake on a most important matter and wished to put it right, and the circumstances were so well explained that his fresh evidence was presumably to be believed, then again there would be ground for a new trial: see Richardson v. Fisher (1823) 1 Bing. 145. ... I am afraid it is simply a case where a witness who has told a lie at the first hearing now wants to say something different. It would be contrary to all principle for that to be the ground for a new trial. In my judgment this appeal and the motion should be dismissed."

31.Mrs Dora Chan, counsel for the tenant, has drawn our attention to the fact that after the Civil Justice Reform of 1999, the English Court of Appeal has time and again reiterated the importance of the overriding objective, which is to do justice, in dealing with applications for receiving fresh evidence. She cites Nima SARL v Deves Insurance Public Co Ltd [2002] All ER (Comm) 449, at para 40 and Hertfordshire Investment Ltd v Bubb and Anr [2000] 1 WLR 2318 at 2325E-H, in support. Regardless of the post-1999 situation in England, it is clear from these two cases that the English Court of Appeal has continued to apply the principles laid down in Ladd v Marshall.

32.On the other hand, Mr Tommy Ho, for the landlord, argues that an appellant who was deprived of a just and fair hearing is not recognised as an exceptional case where the Ladd v Marshall conditions apply in a modified form. He refers to para 59/10/14 of the Hong Kong Civil Procedure to show that the exceptional cases are limited to three kinds of appeal proceedings, namely, judicial review, committed orders and infant welfare. But it is to be noted that the notes to para 59/10/14 only apply to fresh evidence of pre-trial matters or events.

33.There are two kinds of fresh evidence in the present case, the events at the trial before the judge that relate to the alleged irregularity and those pre-trial events that relate to the primary user of the premises. The evidence forming the foundation of the ground of irregularity was not possibly available before the judge at the hearing on 6 March 2001 because the evidence relates to what happened before him on that day. This evidence could not have been made available despite any reasonable diligence on the part of the tenant. The first condition in Ladd v Marshall only applies to the evidence of the user of the premises.

34.I am also of the opinion that if the ground of irregularity is made out this would amount to a special ground under Order 59, rule 10(2) entitling this Court to exercise its discretion to receive the fresh evidence of the pre-trial events for whatever appropriate use that can be made of it. The reason is that once the irregularity is established it would be tantamount to the tenant, despite reasonable diligence, not being able to use such evidence at the trial.

35.Now I turn to examine whether the ground of irregularity is made out and whether the fresh evidence of the pre-trial events intended to be adduced by the tenant satisfies the three conditions in Ladd v Marshal. In doing so, I have borne in mind the submissions made by Mr Ho that none of the three conditions is fulfilled.

The first condition - reasonable diligence - irregularity

36.All the fresh evidence relating to the user of the premises, perhaps except a few documents, could have been produced to the Lands Tribunal before or at the hearing of 6 March 2001. The notable exception is a letter dated 11 July 2002 issued by the Commissioner of Rating and Valuation, stating that according to the findings from his staff's inspection on 22 April 2002, the premises were used primarily for agricultural purposes and that the concerned tenancy would be excepted from the application of Part IV of the Ordinance ("letter of 11/7/02").

37.Mrs Chan points to four irregularities in the proceedings before the Lands Tribunal in aid of her submission that the tenant had exercised reasonable diligence but failed to adduce the fresh evidence of the user before the Tribunal, namely,

(1) the judge appeared to have misled the tenant that the Certificate dated 2/2/01 was conclusive and irrebuttable;

(2) the tenant was not allowed by the judge to finish his "points" or defences, before the judge proceeded to deliver his decision;

(3) the tenant was never asked by the judge whether he had any objection to the Certificate throughout the hearing which was focused completely on whether the procedures under Part IV of the Ordinance had been complied with; and

(4) when the judge started to announce his decision, the tenant raised his right hand and kept his hand up during the whole delivery of the judge's decision, but he was ignored by the Tribunal altogether.

38.I will examine these alleged irregularities globally, although it is unnecessary for me to deal with each one of them in equal detail.

39.The "raising of hand" incident is stated in the tenant's affirmation, but whether it is true cannot be seen from the transcript of the proceedings of 6 March 2001, because the recording of the proceedings would not include gestures or acts that do not make any sound.

40.Regarding the tenant's alleged raising his hand when the judge was delivering his decision on 6 March 2001, Madam Chu's affirmation (filed on behalf of the landlord) states that she does not recall that the tenant had done so. She says that she honestly believes that

"if the respondent [the tenant] did want to say something by raising his hand, there was no reason that the court clerk or the presiding officer did not give him an opportunity to make his submission. The presiding officer had been reasonable and patient in treating the parties during the hearings on 28 September 2000 and 6 March 2001. Further, it is confirmed by the 28/9 and 6/3 transcripts that the respondent did not have any valid ground to submit to the presiding officer."

41.At the hearing on 10 April 2003 before me, I specifically told counsel that an opportunity should be given to the judge and his clerk to comment on this "raising of hand" incident since, apart from the tenant and Madam Liu Siu (who is alleged to have been present in the proceedings on 6 March 2001) and Madam Chu, the judge and his clerk also participated in the proceedings and that this Court would be greatly assisted by such comments, if available, in deciding on this issue. A letter dated 12 April 2003 was sent by the solicitors for the landlord to the Tribunal accordingly, but no reply had been received up to the hearing of this appeal. The tenant also sought confirmation from the court interpreter who was present in the Tribunal at the 6 March 2001 hearing, but the interpreter's response was that he did not have any recollection of what happened on that day. I note that Madam Chu's affirmation says that she does not recall the tenant raising his hand in those proceedings. It is not a firm denial to the firm statements deposed to by the tenant and Madam Liu Siu.

42.I now turn to examine the situation of the proceedings before the Tribunal as follows, having regard to the transcript of the proceedings on both 28 September 2000 and 6 March 2001.

43.Section 10(5)(a) of the Lands Tribunal Ordinance, Cap 17 provides that:

"The proceedings of the Tribunal shall be conducted with as much informality as is consistent with attaining justice ..."

44.It appears from the transcripts that the judge adopted a certain degree of informality in dealing with the case before him. At the commencement of each day's proceedings, both Madam Chu and the tenant took an affirmation to tell the truth, before the matter further proceeded. The judge then explained to the parties what was the case about and started to question whichever person he wished. The party would reply and the judge would ask him/her questions and he would turn to ask questions of the other party. On 28 September 2000, when the tenant had not filed Form 7 to state his reasons for opposition, after questioning both parties and appreciating that the tenant's case appeared to be that the premises were let as and used for agricultural purposes, the judge quickly identified that the issue between the parties was whether the premises were primarily used as a dwelling to come within Part IV of the Ordinance. He also identified a number of very pertinent questions on the issue (see para 8 above). He then advised the landlord to obtain a Certificate of Primary User from the Commissioner of Rating and Valuation, and advised the tenant to file Form 7. I do not consider anything that happened on 28 September 2002 was erroneous or irregular.

45.On 6 March 2001, the tenant had by then filed the Form 7, although the landlord through Madam Chu denied that a copy had been served on the landlord. The reasons for opposition written by the tenant on the Form 7, as mentioned in para 11 above, did not raise any defence that the premises were domestic. If the tenant's reasons for opposition are treated as a pleading and that the parties are bound by their pleadings, in accordance with the practice and procedure of the Court of First Instance, which apply to the Tribunal by virtue of section 10(1) of the Lands Tribunal Ordinance, since the reasons do not raise the issue whether the premises were domestic or otherwise, then it cannot be said that the judge erred in not dealing with this issue when the parties were before him on 6 March 2001. On that day, as Mrs Chan correctly submits, the judge treated the primary user of the premises being domestic as a foregone conclusion (see paras 14, 15 and 16 above), obviously having regard to the Certificate before him. It is also true then that the judge focused on whether the landlord had complied fully with the requirements of the provisions and forms of and under Part IV of the Ordinance. He was apparently satisfied with such compliance. He specifically asked the tenant what defences he had to object to the landlord's application for possession and arrears of rent and mesne profits. In the circumstances of the case so far, no irregularity or unfairness to the tenant seemed to have occurred.

46.However, it appears from the transcript of the 6 March 2001 proceedings that upon being asked his defences, the tenant started to make points. He was allowed to finish with the first point and the second point. But it appears that after the second point, the judge started to deliver judgment. One does not know from the transcript whether apart from the two points raised by the tenant, he had any other points or defences to make. The delivery of the judge's decision seemed quite abrupt, without his asking whether the tenant had finished with his submissions. Had he asked such a question, the tenant could not now complain that he had not finished raising all his defences, nor could his "raising hand" allegation be well received. His "raising hand" allegation is also supported by the affirmation of Madam Liu Siu. Madam Liu says that she was in the Tribunal at the time, witnessing the tenant raising his hand and continuing to do so until the judge retired. Madam Chu's affirmation deals with Madam Liu's attendance in the Tribunal on 6 March 2001 as follows:

"I had been representing the applicant in a few similar cases at that time. I know that whenever there was a hearing between the applicant and one of his tenants, other tenants of the applicant on nearby land would sometimes come to attend the court hearing in order to gain some court experience. Therefore, even if, which is denied, Mrs Kwan [ie, Madam Liu Siu] was also present at the hearing on 6 March 2001, I would not feel surprised at all. Further, I recall clearly that neither the respondent [the tenant] nor Mrs Kwan had ever told me that she would act as the respondent's witness before or at the hearing on 6 March 2001. I honestly believe that even if Mrs Kwan was there, Mrs Kwan did not come to act as the respondent's witness at that time and she just tried to gain some information for her husband's case."

47.Again, Madam Chu's denial of Madam Liu's presence in the Tribunal on 6 March 2001 is far from firm.

48.Mrs Chan has also drawn my attention to the fact that the judge never asked the tenant if he agreed to the Certificate or asked him if he intended to rebut it. In this regard, it is pertinent to note that during the 28 September 2000 hearing, the judge asked a number of questions relating to the user of the premises and the purposes for which they were let. The tenant's answers made it clear to the judge that those were the issues raised by the tenant. That was why he advised the landlord to obtain a certificate of primary user and adjourned the case sine die, not knowing how long it would take for the certificate to be obtained. Notwithstanding that, when the parties appeared before him again over five months later, because of the availability of the Certificate stating the primary user being domestic, the judge no longer treated those issues as live issues. On 6 March 2001, the judge did not have the benefit of the transcript of the proceedings on 28 September 2000. What he had was the Form 7 with nebulous reasons for opposition written by the tenant, which did not seem to raise those issues. Had the judge remembered what went before him on 28 September 2000, he would, I am sure, have been more alert to those issues that formed the crux of what the tenant told him at that earlier hearing and would probably have asked the tenant whether he maintained his case that the premises were agricultural or whether he agreed to or wished to challenge the Certificate.

49.In the circumstances, on the balance of probabilities, I have drawn the conclusion, for the purposes of this application alone, that the tenant had not finished raising his defences before the judge. While this is not meant at all to be a criticism of how the judge handled the case before him, he might well have forgotten the issue between the parties that was raised by himself on 28 September 2001. It was a difficult situation for him to handle when the reasons for opposition filed by the tenant were far from clear. Yet, the premises concerned were specifically mentioned by the tenant in his Form 7 to be "land". The premises were different from the ordinary domestic premises which are usually "units" or flats in buildings, which term "unit" was used by the judge on many occasions at the hearing on 6 March 2001. While the issue of whether the premises were domestic or otherwise was raised by the judge himself at the hearing on 28 September 2000, the issue might have been overshadowed by the Certificate produced by the landlord. Therefore, on 6 March 2001, the judge did not ask the tenant any question about the actual user of the land, apparently relying, exclusively or conclusively, on the Certificate. In the circumstances, I come to the view that the tenant had used reasonable diligence in his attempt to adduce the fresh evidence which, of course, cannot possibly include the letter of 11/7/02 which he subsequently obtained from the Commissioner of Rating and Valuation and other documents which post-dated the hearing on 6 March 2001. This is tantamount to saying that I am satisfied that there was an irregularity at the hearing on 6 March 2001 that the judge did not give an opportunity to the tenant to submit his case or adduce his evidence of the primary user of the premises being agricultural.

50.The decision on the ground of irregularity in favour of the tenant alone will not, in my view, entitle this Court to intervene. It is necessary to examine the two other conditions in Ladd v Marshall regarding the pre-trial events mainly relating to the primary user of the premises so as to enable this Court to decide whether the Order under appeal should be set aside. Without the fresh evidence of the primary user of the premises, the Tribunal is bound to be satisfied, as the judge was, that the prima facie evidence of primary user in the Certificate should be accepted and become decisive of the issue.

The second condition - importance of the fresh evidence

51.S 115A of the Ordinance provides as follows:

"(1) Notwithstanding the purpose for which premises were let, in determining the nature of a tenancy for the purposes of this Part the following provisions shall apply-

(a) in any agreement in writing between a landlord and tenant, a term that the premises shall be used for a specified purpose shall be prima facie evidence that the premises are being used for such purpose;

(b) notwithstanding any evidence as to whether premises were originally let as a dwelling or not let as a dwelling, premises which are being used primarily for another purpose shall be deemed to have been let for such other purpose; but where such primary user is user as a dwelling and in breach of any term in the agreement with the landlord, the onus is on the tenant to establish that such user has been agreed to by the landlord, expressly or by implication, or acquiesced in by him;

(c) subject to paragraph (d), where there exists insufficient evidence as to whether premises were let as a dwelling or not let as a dwelling, the nature of the tenancy shall be determined by the primary user of the premises;

(d) where there is evidence that premises were let otherwise than as a dwelling, or that they were being used otherwise than as a dwelling at the commencement of a sub-tenancy created out of the original tenancy, any premises the subject of such sub-tenancy shall themselves be deemed to be used otherwise than as a dwelling until the sub-tenant satisfies the Tribunal to the contrary;

(e) the use of premises as a boarding or lodging house is a use other than as a dwelling.

(2) In determining whether premises were let, or are being used, as a dwelling, the following may be taken into account-

(a) the covenants, terms and conditions in any Government lease or tenancy;

(b) any occupation permit given by the Building Authority under section 21 of the Buildings Ordinance (Cap 123), or under any Ordinance replaced thereby, in relation to the premises;

(c) normal additional uses of premises consistent with the domestic nature of a tenancy having regard to the following-

(i) floor area in occupation part or full-time for such uses;

(ii) the number of people engaged in such uses but not dwelling on the premises;

(iii) the furnishings, fittings and contents of the premises; and

(iv) the gross profits resulting from such uses relative to the rent or proportion thereof paid by the person making such profits.

(3) Where a dispute arises as to whether a tenancy is domestic, the landlord or tenant may, if primary user is relevant to the dispute, apply in the specified form to the Commissioner for his certificate as to the primary user of the premises and shall specify in the form the nature of the dispute.

(4) Whether or not a dispute arises as to whether a tenancy is domestic, a landlord or tenant may apply in the specified form to the Commissioner for his certificate as to the primary user of the premises.

(5) Where a person applies to the Commissioner under subsection (4) he shall-

(a) specify in the application form a day, other than a public holiday, on which he would like the inspection to be carried out;

(b) at the time when he lodges the application, pay such fee as may be determined by the Financial Secretary by notice published in the Gazette; and (Amended 32 of 2002 s. 9)

(c) lodge the application form with the Commissioner not less than 10 days before the day specified in the form.

(6) The Commissioner shall, where practicable, carry out the inspection under subsection (7) on the day specified in the application or, if the inspection cannot be carried out on that day, as soon thereafter as is reasonably possible.

(7) Subject to subsection (8), where an application under subsection (3) or (4) is made to the Commissioner, he shall inspect the premises, and may-

(a) where he is satisfied on the evidence available as to the primary user, issue free of charge in the case of an application under subsection (3) and serve on the landlord and tenant a certificate in the specified form as to the primary user of the premises on the day of his inspection;

(b) where he is not so satisfied, issue free of charge in the case of an application under subsection (3) and serve on the landlord and tenant a notice in the specified form declining to express an opinion as to the primary user of the premises.

(8) Where the Commissioner issues a certificate under subsection (7)(a), no further application may be made under subsection (3) or (4) before the expiry of 1 year from the date on which that certificate is issued.

(9) A certificate issued by the Commissioner under subsection (7)(a) shall, for all purposes, including an application under subsection (10), be prima facie evidence of the facts set out therein and of the primary user of the premises on the day on which they were inspected.

(10) A party to any tenancy may apply to the Tribunal to determine whether or not a tenancy is domestic and the Tribunal may determine that question for the purposes of this Part."

52.It can be seen that according to s 115A(9), the Certificate relied on by the judge is only prima facie evidence of the facts set out therein and of the primary user of the premises on the day on which they were inspected, namely, 30 November 2000.

53.In Kwong Cheung Sun v Ko Wing On [1982] HKC 404, the plaintiff landlord sought recovery of premises, claiming the premises were non-domestic. The defendant tenant pleaded under Part II of the Ordinance (then the Part of the Ordinance that was similar to Part IV of the present Ordinance, applicable to domestic premises) that the premises were domestic. The landlord produced a certificate from the Commissioner of Rating and Valuation stating that the premises were business premises at the date of inspection. The tenant did not challenge the certificate. After hearing evidence from the landlord, the trial judge did not accept the certificate as prima facie evidence of the premises being for business purposes. The Court of Appeal held that as the trial judge concluded that the premises were let for domestic purposes, the landlord must show change of user. The Court of Appeal continued, at page 407F:

"The certificate did so. These certificates are, we consider, having regard to the statutory provisions relating to them, of great evidential worth which is in no way lessened by the care evinced by the staff of the Department of Rating and Valuation in their preparation. It must not be overlooked that before the certificate is issued, the premises have been visited. True, the officials concerned measure the individual parts of the premises and attribute to each part a percentage user and they may well be wrong (as the trial judge thought they were here) in their attributions. They also, however, have an opportunity, by their visit of assessing the overall effect of the occupancy, an advantage not enjoyed by the trial judge. When the intimation (as to the right of appeal) to the tenant endorsed on the certificate is ignored, his position becomes the more untenable. The trial judge is, of course, entitled to look at all the evidence to see if the prima facie evidence afforded by the certificate is rebutted but it was for the respondent [tenant] to show that it is rebutted not for the appellant [landlord] to show that it is not."

54.In the present case, according to the receipt of rent for the years 1995 and 1996, on which the rent was calculated by reference to nine piculs of rice per annum, the premises could be said to have been let as agricultural land and not for dwelling purpose. This purpose of the letting as agricultural land appears now to be admitted by the landlord in his homemade respondent's notice dated 9 April 2001 in opposition to the tenant's appeal. By virtue of s 115A(1)(a) of the Ordinance, the purpose of the letting would be prima facie evidence of the user of the premises. According to Kwong Cheung Sun v Ko Wing On, the burden of proving that the premises were domestic fell on the landlord. He produced the Certificate to the Tribunal. By virtue of section 115A(9) of the Ordinance, such certificate "shall, ... be prima facie evidence of the facts set out therein and of the primary user of the premises on the day on which they were inspected". According to s 115A(1)(b), "premises which are being used primarily for another purpose shall be deemed to have been let for such other purpose". It was held in Kwong Cheung Sun v Ko Wing On and Wholly Earn Investment Ltd v Chui Wai Leung, HCA 3675/1988 (3 November 2000, Jackson J, unreported) that a certificate of primary user is of "great evidential worth" or "the most compelling evidence". It is then for the tenant to challenge the domestic user of the premises as stated in the Certificate. It is in this light that I come to consider the evidence now sought to be adduced in challenging the fact and opinion stated in the Certificate that the premises were on 30 November 2000, the day of inspection, primarily used for domestic purposes.

55.There are various items of evidence showing agricultural user or non-domestic user of the premises set out in the tenant's affirmation. I need mention only three significant items, namely,

(1) the premises are of an area of about 8,000 to 10,000 square feet, and the three sheds are of a total area of 300-400 square feet; and there have been about 800 mature fruit trees on the premises;

(2) the tenant has been living from 1992 to date at two residential flats one after another, with documents in support that letters addressed to him were addressed to the addresses of those flats;

(3) as from July 1998 up to some time in May 2002, the electricity charges made by the utility company for the electricity used through the two meters for the supply of electricity to the premises were about $30 for a period of every two months, which was the minimum charge that the company would make, showing that little electricity was used on the premises, demonstrating that the premises could not have been used as a dwelling.

56.The three items of evidence relate to the factors under s 115A(2)(c) of the Ordinance that the Tribunal may take into account. These items of evidence cannot be said to be conclusive in proving that the premises were non-domestic. However, I form the view that they are of significance in influencing a court or a tribunal in challenging the correctness of the Certificate that the premises were primarily used for domestic purposes when the staff of the Rating and Valuation Department visited the premises on 30 November 2000. In my judgment, therefore, the second condition in Ladd v Marshall is satisfied.

The third condition - the fresh evidence being apparently credible

57.Without going into details regarding each of the items of the fresh evidence, the three specific items of evidence I refer to above are plainly credible. First, the area of the land and of the three sheds, if need be, can be easily verified by simple measurement. The existence or otherwise and the number of the fruit trees can also be ascertained and counted by a visit to the site. Whether the fruit trees are mature or recently planted can be readily seen by the eye. Secondly, the allegation of the tenant having since 1992 been living at one flat after another, as opposed to on the premises, as well as the electricity charges, are supported by documentary evidence that did not originate from the tenant himself. I therefore come to the conclusion that the fresh evidence is credible and satisfies the third condition in Ladd v Marshall.

58.The affirmation of the landlord's agent Madam Ching Tsui-han affirmed on 17 March 2003, filed on behalf of the landlord, refers to an application made by two persons to the Lands Tribunal after the judge's decision of 6 March 2001. The judge heard these two persons' application 23 April 2001. They told the judge that one of them had purchased one of the three sheds on the premises from a Madam Lo Chin, who allegedly was the person who had constructed the shed, and that the purchase had taken place before the tenant's occupation of the premises in 1995. The other applicant alleged to have been living in the shed rent-free as a friend of the purchaser of the shed. The judge dismissed their application on the ground that Madam Lo Chin, the alleged predecessor-in-title of the shed, was not registered as an owner of the premises.

59.The landlord relies on the allegations of these two persons to say that the tenant's fresh evidence of the primary user of the premises for agricultural purposes is incredible. I do not agree. My reasons can be derived from what I have said above regarding the three items of evidence and in paras 56 and 57 above. I do not consider the allegations made or evidence given by these two persons before the Tribunal as sufficient to change my view. As far as I am concerned, I would only say, without intending it to be binding, that the evidence of these two persons before the Tribunal is not quite credible.

60.It appears from the transcript of the 23 April 2001 proceedings that the tenant was present in the Tribunal when the judge dealt with the two persons' application. The tenant denies that he was present. Be that as it may, there is no record throughout the transcript that the tenant had uttered a sound. Had the judge thought that his evidence was required, he would have told him to affirm and answer the questions that would be put to him. But that did not happen. The tenant was again unrepresented, and he might well not have appreciated the evidence given by these two persons might affect his own case that the premises were used for agricultural purposes. I do not think that the tenant's presence, if at all, at the hearing on 23 April 2001 would have the suggested effect of making the fresh evidence that he intends to adduce incredible.

The landlord's objections

61.Apart from the arguments that the Ladd v Marshall conditions are not fulfilled, which I have dealt with above, the only objection of the landlord is that he would be deprived of the right or opportunity to challenge the fresh evidence if admitted. In order to eradicate such prejudice, Mr Ho suggests that a retrial should be order, which will be the proper arena for the tenant to adduce the fresh evidence. I agree. While I have held that the three conditions under Ladd v Marshall are satisfied, which inevitably necessitates my assessment of the importance and credibility of the fresh evidence of the pre-trial events, it is not the same as my finding that such evidence is irrefutable and conclusive on the issue of the primary user of the premises. Moreover, just accepting the fresh evidence of the pre-trial events without affording the landlord the opportunity of cross-examination would be most unfair to him.

Conclusion on fresh evidence

62.For the above reasons, I would allow the application to adduce fresh evidence with costs.

Conclusion on the appeal

63.The fresh evidence on the user of the premises having been admitted by this Court, it is clear that had the judge treated the user of the premises as a live issue before him on 6 March 2001, such fresh evidence or at least part of it would have been received by him in his consideration for making a finding whether the primary user was domestic or otherwise, whether the prima facie evidence contained in the Certificate about user had been rebutted, and whether Part IV of the Ordinance applied to the premises. Such fresh evidence would have to be weighed by him and the credibility of the witnesses would have to be decided by him.

64.The appropriate order for this Court to make, in my judgment, is to set aside the Order under appeal and remit the case to the Tribunal for a new trial before another judge, so that the fresh evidence regarding user of the premises and such evidence as the landlord will adduce regarding user will be heard and determined by the Tribunal.

65.I would also make an order nisi that costs of the application to adduce fresh evidence, as well as of this appeal, be paid by the landlord to the tenant, with the costs of the tenant to be taxed in accordance with the Legal Aid Regulations, while the costs of the proceedings below be in the cause of the new trial.

Hon Cheung JA:

66.I agree with Woo JA that the appeal should be allowed and to the costs order that he proposes. In my view the same conclusion can be reached even without considering the new evidence.

67.The judge based his decision on the content of the certificate of primary user. It is apparent that he had regarded it as conclusive evidence of the user of the land. As a matter of law, the certificate only provides prima facie evidence of the user of the land: section 115A(9) of the Landlord and Tenant (Consolidation) Ordinance.

68.If the judge took the initiative of inviting the landlord to obtain the certificate, in my view, he should further inform the parties that the certificate would provide the prima facie evidence only and could be rebutted by other evidence. Instead of asking the tenant if he had any submissions, he should specifically draw the tenant's attention to the need to call rebutting evidence if he disagreed with the certificate. This he had not done and this led to the situation that the judgment was given without considering the tenant's case.

69.Further, at the first hearing the tenant had already given some evidence on the agricultural nature of the land. The judge would in any event have to consider and adjudicate on this evidence before he could accept the finding contained in the certificate. This again was not done.

70.Hence the judgment was reached without considering some essential evidence. The case has to be retried.

Hon Yuen JA:

71.In a tribunal hearing where both sides are not legally represented, the presiding officer has the unenviable task of, amongst other things, (1) defining the issues sought to be raised by the parties, (2) ascertaining the relevance of those issues to the law applicable in the case, and (3) ensuring that the evidence the parties seek to present has been properly adduced, before he can make a determination on the case and deliver judgment.

72.Where a party does not articulate his case clearly, the task of the presiding officer is made more difficult, especially in the informal atmosphere in which tribunal hearings are carried out which may not be conducive to the orderly presentation of the parties' respective cases.

73.Further, one of the risks of employing an "inquisitorial" procedure is that the presiding officer may not be aware what evidence a party wishes to adduce, e.g. unless the presiding officer were to pose the question whether there are other witnesses, he may not know that a party wishes to call a witness, and an inexperienced litigant may not realize how and when he could do so.

74.In the present case, the tenant had at the earlier hearing in September 2000 raised the issue of the user of the land. Although he had failed to articulate it in the Form 7 which was filed after the hearing, it is clear that it was nevertheless a live issue which was relevant to (and indeed very important to) the tribunal's decision at the resumed hearing. If the presiding officer had thought that it was not a live issue (by reason of the fact that it was not in the Form 7), he would not have referred to it with the emphasis that he did at the commencement of the resumed hearing.

75.At the commencement of the resumed hearing in March 2001, the presiding officer referred to the Certificate produced by the Landlord and said to the Tenant: "即係所以你嗰個單位就係住宅用途嚟嘅，所以就係第IV部份適用，知道未?" ("That means therefore your unit is for domestic use, therefore Part IV applies, do you know that?")

76.One possible interpretation of that statement is that the presiding officer took the Certificate to be conclusive, contrary to s.115A(9). If that were so, in misdirecting himself as to the law, he also misdirected the Tenant.

77.That is of significance, as an unrepresented litigant would be guided by the law as pronounced by the tribunal, especially in this case at the commencement of the resumed hearing. If, after the presiding officer introduced the Certificate, it had been explained to the Tenant that it was only prima facie evidence of the primary user of the land, he might have given more detailed oral evidence than he did about the land, or he might have sought to support his own evidence by calling the evidence of Liu Siu, or he might even have asked for an adjournment to gather such documentary evidence as he could find (and as can be seen from the bundle, he did find a number of documents in support of his case).

78.Another possible interpretation of the presiding officer's statement is that he was not making a statement about the law, but was simply articulating the Landlord's case. However, if that were so, he should then have ascertained from the Tenant whether he agreed to it, or if not, whether he was adducing evidence to rebut it. That was not done. The more valuable the tribunal considered the evidence of the Certificate to be, the clearer the tribunal should be in ascertaining from the Tenant whether the evidence was agreed or challenged, and if the latter, the tribunal would have to ensure that evidence intended to rebut it is properly presented, for the benefit of not only the Tenant but also the Landlord who might have evidence in reply.

79.In the present case, it is more likely that the presiding officer had erred in assuming the conclusiveness of the Certificate. This is shown when he said at the middle of the hearing, whilst the Tenant was still giving evidence: "答辯人，個情況就係咁樣，你嗰個單位，由於而家係第IV部份所管制..." ("Respondent, the situation is like this. Your unit, as a result now of being governed by Part IV..."). This would be a surprising statement if he had thought that the primary user of the land was still to be determined by him for the purposes of his judgment.

80.I would therefore agree with Cheung JA that the appeal should be allowed without this court having to consider the fresh evidence that the Tenant is seeking to adduce, and without having to consider whether the conditions in Ladd v Marshall have been met. The fresh evidence is relevant only in demonstrating to this court the type of evidence that might have been adduced at the hearing (or after an adjournment if such be granted) had the tribunal not fallen into error.

81.I therefore agree that the appeal should be allowed and that the case should be remitted to the Lands Tribunal for re-trial before a different presiding officer. I agree to the costs order proposed by Woo JA.

Representation:

Mr Tommy K K Ho, instructed by Messrs Fairbairn Catley Low & Kong, for the Applicant (Respondent/landlord).

Mrs Dora K H Chan, instructed by Messrs Liu, Chan and Lam, for the Respondent (Appellant/tenant).