Lee Ling v. Chu Wai Fong

CACV000006/1983

BETWEEN

Coram: Sir Alan Huggins, V.-P., Leonard, V.-P. and Fuad, J. A.

Date of Judgment: 1st March 1983

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REASONS FOR JUDGMENT

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Sir Alan Huggins, V.-P. :

1. We said we would give our reasons later. The following statement has been agreed by all three members of the court.

2. Before considering the appeal we must refer to a matter of practice which has caused difficulty. The decision against which this appeal is sought to be brought is one of the Lands Tribunal upon an application under the Landlord & Tenant (Consolidation) Ordinance and our jurisdiction stems from s.68A(1) which reads:

"Any party to proceedings before the court or the Tribunal may appeal to the Court of Appeal against a determination or order other than a conviction of the court or the Tribunal on the ground that such determination or order is erroneous in point of law."

As to the procedure to be followed sub. s. (2) provides:

"An appeal under this section shall be -

Power to make rules is conferred by s.10(3)(c) of the Lands Tribunal Ordinance, but so far no rules have been made under that paragraph. The question therefore arises, What is the procedure governing appeals from the Tribunal? It is unfortunate that we have not had the advantage of argument on both sides, but Mr. Patrick Chan has very helpfully taken us through the appeal provisions contained in these Ordinances and also referred us to 0.59 r.1 of the Rules of the Supreme Court. His submission is that, by virtue of the contrast between paragraphs (a) and (b) of s.68A(2) of the Landlord & Tenant (Consolidation) Ordinance, the Rules of the Supreme Court can have no application in the present case, but he points out that there is then no provision prescribing the procedure for the hearing of appeals other than those from the High Court and the District Court. In these circumstances, he says, no leave is required to bring an appeal, and the court, being Master of its own procedure, must decide for itself what procedure it will follow. We think that is right.

3. It should not be overlooked that if 0.59 does not apply there is not even a limit imposed on the time within which an appeal may be brought, and this is something which, we think, calls for immediate rectification. In the present case the Order appealed from was made on 12th October 1982, but it was not perfected until 8th December 1982. The Notice of Appeal was filed on 17th January 1983. It is, perhaps, undesirable that in the District Court and in the Lands Tribunal it should be necessary to perfect an order by the entry of a formal order in the registry. Many successful parties will have appeared in person and been unaware that they had to perfect their order, so that, if time were made to run from the perfection of an order, they would be at a disadvantage. This also seems to require consideration by the rule-making authority.

4. The appellant Applicant took out a writ against the Respondent on 19th April 1982 in the District Court under s. 53(2)(b) of the landlord & Tenant (Consolidation) Ordinance. The cause did not come on for trial until after the Lands Tribunal (Amendment) Ordinance 1982 had come into effect, and the trial thereafter proceeded in the Tribunal. No question was raised as to the jurisdiction of the Tribunal. Judge Downey, who was the presiding officer at the trial, dismissed the claim on the ground that the Appellant had not proved that she reasonably required possession of the premises for occupation as a residence for herself. He went on to say that if such a requirement had been proved he would have made an order for possession, because the Tenant had not shown that it would be manifestly unjust to do so.

5. On behalf of the Appellant Mr. Chan has contended that the judge came to his decision on the reasonable requirement issue upon erroneous findings of fact, namely that the Appellant's eldest son married in May 1980 and that, with his wife, he lived with the Appellant from that date until May 1982. From these findings and the fact that the Appellant did not institute proceedings until April 1982 the judge went on to deduce that the Appellant had not in the mean time felt any pressing need to recover the suit premises and then to conclude that her requirement of the premises at the date of the trial could not be reasonable.

6. We are not persuaded that the fact that the Appellant had been willing to tolerate for two years the conditions which existed in the but where she was then living was of such importance as the judge apparently thought, although there could be circumstances in which delay in issuing proceedings would be indicative of an absence of need. Even then we are not sure that great weight could properly be attached to any delay.

7. Be that as it may, it seems to us that the judge misunderstood the evidence of the Appellant as to the date of the son's marriage. The first time the marriage was directly mentioned was in reply to a question by the judge himself. The Appellant had been asked "Who else lives in wooden hug?", meaning, presumably, in addition to herself. Her reply was:

Later the witness said that the son and daughter-in-law were living "apart", whereupon the judge reasonably pointed out the contradiction. The Appellant then said:

8. "He got married in May this year - he moved out".

It is then common ground that "this year" must have meant 1982.In  cross-examination the following passages appear:

As the writ was issued by the solicitors in April 1982 it is obvious that in the second of these three passages the witness made a slip as to the year. The matter was not pursued further.

9. It was in the face of that evidence that the judge, without analysing it, asserted that the son got married in May 1980. If he was thereby deliberately disbelieving the Appellant's corrected evidence, in spite of the Tenant's solicitor's having apparently accepted it as true, one would have expected him to say so expressly. Instead he observes:

"I do not know anything about [the family's] general living conditions between 1980 and 1982, when the daughter-in-law was also living in the 'family home' ".

With respect to him the explanation seems clearly to be that the daughter-in-law was never living in the family home and that the Appellant was confused when she said at first that both the married son and the daughter-in-law were living in the family home at the date of the trial. She was never asked why she had said that they were living with the family. The confusion could have arisen in interpretation, but it is unnecessary to conjecture as to the reason. No evidence was given by the Tenant - as obviously it could have been - as to the date of the marriage, and it has not been suggested by her before us that the judge's assertion of a marriage in 1980 was correct.

10. The findings of the judge which are accepted are as follows. The Appellant lives with her husband (who is aged 61, who is in poor health and who has been out of work for 6 years), her 5 daughters (aged 25, 23, 19, 15 and 14) and her youngest son (aged 21). The Appellant has a wooden but consisting of three bedrooms, a sitting room, kitchen and toilet. The only evidence as to the size of the rooms is the evidence that each room could accommodate one bed, and the judge assumed that this would be a 2 tier bunk bed. The Appellant and her husband share one bed room with the youngest daughter. Three of the other girls share the second bedroom and the son has the third. The remaining daughter sleeps on a folding bed in the sitting room. The suit premises consist of two bed rooms and a sitting room, the total area being 400 square feet.

11. It was certainly suggested that if an order for possession were made the eldest son and the daughter-in-law would live with the rest of the family. The proposed re-distribution is that the four older girls would continue to live in the wooden hut, while the Appellant and her husband with one daughter would go to the suit premises and be joined there by the eldest son and daughter-in-law. This would, it is true, give two of the daughters a bedroom to herself, but that is not unreasonable. The only anxiety we have had is that the judge made no finding whether the married son and daughter-in-law would move in with the family. The Appellant's evidence was that she had discussed the possibility with the son and that they were "willing". The judge merely commented that neither the son nor the daughter-in-law was called as a witness: he did not say that he disbelieved the Appellant. On the other hand, willingness to go is a different thing from having a fixed intention to go. For the purposes of this appeal we are prepared to assume that the married son and daughter-in-law would not join the family. That would give the youngest daughter a room of her own. Even then, as it seems to us, no one could fairly say that the Appellant did not reasonably require the suit premises.

12. The judge mentioned repeatedly that the son's marriage took place in 1980, and this finding clearly constituted a cornerstone of his decision. Once that finding was shown to be unsupportable, his conclusion was undermined. In our view, therefore, the appeal had to succeed. No useful purpose would have been served by a new trial and we entered judgment for the Appellant for possession.

1st March 1983.