Ng Yuk Yuen v. Wai Lan Wing and Another

CACV000089/1983

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Cons & Fuad, JJ.A.

Date: 9th November 1983.

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an appeal against an order of a Sands Tribunal dismissing an application for possession brought on the ground that the Landlord requires the premises as a residence for her two sons who are over the age of 18.

2. The learned judge concluded that the Landlord had a reasonable requirement of the premises, but further decided that to make an order for possession would amount to manifest injustice or inequity on the Tenant. Four grounds of appeal have been argued before us but in the event we think it necessary to refer only to one of them.

3. It is suggested that the judge made two errors and in my view the Appellant is correct and that the judgment cannot stand. The whole question of injustice on the Tenant turned upon the financial position in which she would be left if an order for possession were made. The first error was that the learned judge did not take into consideration the amount of a pension which the Tenant's husband was receiving from the Royal Hong Kong Police Force. The amount of that pension, we do not know. There was evidence that the husband is an alcoholic and that the whole of his pension was spent on drink and the Tenant saw nothing of it. At the same time there was some evidence that, when she asked for money, he would give it to her - $200 or $300 at a time. In my view it was wrong to omit this matter of the pension from the calculation. Secondly, the judge has, as I read his judgment, taken into account the earning potential of the two sons of the Plaintiff. He correctly indicated earlier in his judgment that the prosperity or otherwise of the Landlord was immaterial but at the end of his judgment he observed that the Applicant's sons are young and have greater earning potential - greater, that is, than the Tenant. The only possible reason for having mentioned that fact seems to me to be that the judge was comparing the hardship to the Landlord's sons with the hardship to the Tenant's family, so that, whatever he may have said about his approach, he was in fact having regard to the comparative hardship.

4. What then are we to do? I would be reluctant to substitute our assessment for that of the Tribunal to which this jurisdiction has been committed. This is not strictly a matter for judges at all: it is a political matter, but the Tribunal is the arbiter in such matters. Unless we were able to say that no judge, taking all proper matters into consideration, could have decided one way or the other, then I think the only proper course is for us to send the matter back for retrial on the issue whether the making of an order for possession would result in manifest injustice or inequity to the Tenant, and I would order that the matter to go to another judge.

Cons, J.A.:

5. I agree with the reasons given by My Lord and I would concur in the order that he has proposed.

Fuad, J.A.:

6. I agree that the appeal should be allowed and with the order proposed by My Lord.

9th November 1983.