Leung Hau v. Chan Chun Leung

CACV000054/1983

BETWEEN

________

Coram: Hon. Leonard, V.-P., Cons & Fuad, JJ.A.

Date: 26th July, 1983.

___________

JUDGMENT

__________

Cons, J.A. :

1. This is an appeal from the Lands Tribunal which refused an application for possession brought under Sec. 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance Cap. 7. The writ alleged that the premises were required for the plaintiff's daughter, being then over the age of 18 years.

2. Before we deal with the merits of the appeal we have to refer to the record of the trial which was placed before us. Clearly the transcript had not been checked or revised in any way before delivery to the plaintiff's solicitors. We appreciate of course that however much care is taken transcripts will inevitably be found to contain the odd typing error . We do not complain of that. What has disturbed us here are words and phrases in the judgment which simply do not make sense. Again we appreciate that a busy judge may not have the time to check the papers himself, but if that is the case, we suggest that the person doing the checking should bring to his notice those portions which are incomprehensible. Applications for possession may only be small fry in the entire judicial pond, but to the parties themselves they are of supreme importance, concerning as they must, the very homes in which the parties live. We feel that when they come to this court they are entitled to at least an accurate record of the reasons for the judge's decision.

3. In the present instance that decision came early on in the proceedings. At the end of the mother's case the Presiding Officer indicated that, subject to argument, he was not satisfied that "reasonable requirement" had been made out. The ground for this was immediately apparent in the brief oral decision that he gave after hearing the submission of the solicitor who was then appearing. It commenced with these words: -

4. Seven days later the Presiding Officer recorded a judgment which he introduced as being an "amplification of oral reasons given at the conclusion of the case". In the course of that he said:-

"I formed the positive view on the evidence and the way it came from (the mother) and (the daughter) that the reason the respondent was wanted out of the suit premises was simply and solely because he declined to have his rent increased to the same figures as the applicant is receiving from her other three properties."

5. There was no direct evidence to support that "positive view". It was apparently derived by inference from evidence given by the relative, or sworn brother, who managed the plaintiff's properties on her behalf, she being too busy with her fish stall. We do not think with respect however, that we would have drawn the same inference. The increase in rent suggested was from $720 to $2,000 so that, in a sense, the plaintiff was losing $1,280 per month. But that sense was purely theoretical. On the other hand, if she had succeeded in the action there would have been an actual loss of $720 each month, apart from the costs of the action. Sec. 53(7) would have prevented her for at least 24 months from obtaining any financial benefit by way of reletting, unless perhaps she were able to obtain permission under subsec. (7A). Even then the rent could not be increased. It was in February 1982 that the increase to $2,000 had been suggested to the tenant and although in our view his refusal may have to some extent influenced her decision to issue the writ in the following May, it seems unlikely to us that at the time of the hearing almost a year later she would have been willing to cut off her nose, in effect "simply and solely" to spite her face. There seems on the evidence to have been other and ample reason why the daughter should then have wished to move into the mother's flat.

6. However in proceedings, such as these, which fall within Part II of the Landlord & Tenant Ordinance what inferences are to be drawn are matters within the exclusive jurisdiction of the Presiding Officer. He is the ultimate arbiter of fact, appeal lying only upon a point of law : Sec. 68(vii) and 68A.  That could be, for example, that there was no evidence at all from which to deduce the disputed inference or that it was an inference which in the circumstances no reasonable judge could reasonably have drawn. But the Presiding Officer had the advantage of seeing both the mother and the daughter give their evidence and we are unable to say that either of those situations existed here.

7. Counsel for the mother put forward two points, both with regard to the daughter's position. He suggested that the Presiding Officer had judged her "requirement" by a standard of "absolute necessity"; alternatively that the Presiding Officer had ignored her present accommodation altogether. With respect to counsel we do not think the first point can be justified. As to the second the Presiding Officer said this : "the evidence such as it was on the present living place of (the daughter) did not establish just what the conditions were at that place". Yet the evidence of the daughter, (at pages 10 and 11 of the original notes), unless that too was disbelieved, shows that the living place consisted of two rooms totalling together only 220 sq. ft. and housing five adults and two children. The plan was to move the daughter, her husband and the two children to the mother's flat, leaving the three adults behind. However, in view of the Presiding Officer's primary decision the present position of the daughter is not relevant. This can easily be seen by applying the test proposed in Aitken v. Shaw⁽l).   It is usually precied as "genuine present need". The full text however is as follows :

"Whether the pursuer required the house reasonably in the sense that she had a genuine present need for the house for her own occupation, or had been moved by considerations of preference and convenience merely."

8. The Presiding Officer found that the daughter did not have a genuine present need for her own occupation, she and her mother were moved instead by considerations of pique.

9. This is an appeal which has altogether given us considerable cause for concern, but for the reasons we have given we find we are unable to intervene. The appeal must be dismissed.

Representation:

Y.C. Mok (M/S Hastings & Co.) for the Plaintiff.

CHAN Chun-leung, Defendant in person.

(1)     (1933) Scots L.T.R. 21 at 22