Wong Chi Shing v. Cheung Choi Lee

CACV000095/1982

Landlord and Tenant (Consolidation) Ordinance (Cap.7) - subsections (2), (6) and (6A) of Section 53, as amended by Ord. 76 of 1981 - where a landlord seeks to recover possession, under s.53(2)(b), on the grounds that he reasonably requires only that part of the premises occupied by his tenant, nothing in s.53(6)(a) prevents a court from granting an order for possession of that part so that the tenant's lawful sub-tenants are not affected - a true construction of the statutory provisions against the facts showed that the tenant had not discharged the onus cast upon him by proviso (i) to para. (b) of subsection (2) of section 53.

BETWEEN

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

Date: 5 November 1982

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JUDGMENT

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Leonard, V-P. :

1. The writ in this action was issued on the 8th July 1981 and was for recovery of premises described as 249 Shaukiwan Road, Flat A, 3rd floor. The defendant named in the writ was one Liu Poon who had in fact died before the writ was issued. Nothing turns on this as his widow applied to be joined as defendant and by consent of the parties her name was substituted for that of Liu Poon as defendant.

2. On the pleadings the issues for decision were, firstly, whether the premises were reasonably required by the plaintiff for occupation as a residence for himself and, secondly, whether, if they were so required, the defendant had established that it would be manifestly unjust that an order for possession should he made. The trial judge decided both these issues in favour of the tenants.

3. As to the first issue it is clear that the test to be applied is that outlined in Aitken v. Shaw⁽¹⁾ approved by Stephenson L.J. in Kenneely v. Dunne⁽²⁾ and applied by this Court in Ma Hon v. Andy Mahtani.⁽³⁾ A reasonable requirement is "something more than desire, although at the same time something much less than absolute necessity will do." The appellant, aged 41, a garment worker earning about $1,800 per month, came to Hong Kong in 1979 when his aunt assigned the suit premises to him as a gift for his own use. He sleeps rent free in business premises belonging to his uncle on a canvas bed which he is unable to unfold until his uncle has finished business for the day. He has no belongings other than his clothes which he keeps in a small paper box at the foot of his mother-in-law's bed. He has no other accommodation immediately available to him. Can it he doubted that he reasonably requires his own premises so that he may have a place which he can call a home? The trial judge thought it could. Before arriving at this conclusion he examined minutely evidence as to other accommodation the appellant had "enjoyed" (or suffered) since he came to Hong Kong, dismissed from his mind any suggestion that the plaintiff moved to his present accommodation to enhance his prospects of success in these proceedings and directed his "attention to the question whether he has established a genuine present need for the premises". He regarded it as clear that the plaintiff is seeking more than he presently needs. "He is, at least, asking for one bed room and a sitting room when all he really needs is a place to sleep and keep his few personal belongings. I do not dismiss, as irrelevant, the fact that the plaintiff may wish to enjoy better or more comfortable living conditions than those he presently enjoys. In general that is a perfectly understandable and reasonable expectation," Because the plaintiff did not find his present temporary accommodation "so intolerable that he has felt it necessary to look for other accommodation" because there is no evidence that he is unwanted there, because the journey from the premises to his work place would take about an hour while that from his uncle's premises "cannot involve much time or expense" and because he is not anxious to get away from his family the trial judge is "not satisfied that he reasonably requires the premises as a residence for himself."

4. I have no hesitation in deciding that this is wrong. The trial judge has failed to apply Ma Hon v. Andy Mahtani⁽³⁾ although he correctly regarded the decision as binding upon him.

5. It was argued in the Court below that the appellant was seeking more than he needed and that consequently he had not established a genuine present need for the premises. The appellant had clearly indicated that the portion of the premises occupied by the respondent as distinct from that portion occupied by subtenants, would be sufficient for him. Such an argument found disfavour in Kelley v. Goodwin.⁽⁴⁾ It was observed, obiter, in Luk Chor Sang & Another v. Kwok Lui Kit⁽⁵⁾ that if a landlord "seeks more space than he actually needs" that is clearly something which is material to the question whether he reasonably requires the premises. Insofar as by his writ he sought possession of the entirety it was necessary and therefore reasonable for him to do so for he could not as against the respondent get an order for possession of part of the premises. It might have been better if he had, in the writ, made it clear that he sought an order for possession against the respondent but not against her sub-tenants.

6. It was when considering whether or not the proviso to Section 53(2)(b) applied that counsel for the appellant argued' that any order made would not be binding on the sub-tenants. He said that he did not claim the entirety of the premises but only those parts occupied by the respondent.

7. I turn then to that question. The sole respondent before us was Madam Cheung Choi Lee who became the sole defendant in the Court below by a consent order made at the outset of the proceedings. I think it would he as well if I outlined in some detail the course which the proceedings took in the Court below.

8. Firstly, Madam Cheung Choi Lee became the sole defendant and some consequential amendments were made in the pleadings. The appellant then gave evidence, he was cross-examined, there was no re-examination but thereafter he was questioned at some length by the judge and further cross-examination and re-examination was permitted. He called one witness. Madam Cheung then gave evidence to the effect that she lived in the premises with her two sons aged 17 and 18 respectively, that there were 10 others living in the flat including two families one surnamed Au and one surnamed Lee and three single men one of whom appears to have been a lodger rather than a sub-tenant. The case for the defence was then closed, counsel addressed the Court and on the 11th May 1982 judgment was reserved. On the 3rd June 1982 counsel were called before the judge who made the following order :

"Adjourned to 11th June 1982 at 2.30. Plaintiff to serve by ordinary post all sub-tenants with notice of these proceedings and notice of the adjourned date of hearing."

9. The case was resumed on the 11th June 1982 when the only sub-tenant interested enough to send a representative to Court was joined as the second defendant. None of the other sub-tenants appeared; nor did the "lodger". The trial judge explains the unusual course taken in the following way :

"In the course of preparing my reserved judgment in this case, I had occasion to examine more closely the documents on the Court's file. The original writ did not bear any endorsement as to service, as required by Rule 20(2A) of the District Court Civil Procedure (General) Rules. There was no affidavit of service, or other indication, to show that the writ had been served in accordance with the Rules, especially Rule 18. I, therefore, caused the case to be re-listed and invited Mr. Yam and Mr. Stables to address me on this basic procedural defect. On the 3rd June 1982, Mr. Yam produced an affidavit, dated the 2nd June 1982, in which the deponent affirmed that a copy of the writ had been posted at the premises on the 9th July 1981. This affidavit did not indicate that the writ had also been served in the normal way. Having regard to the unusual circumstances whereby Madam CHEUNG Choi-lee became a party to the proceedings, I was not wholly satisfied that the sub-tenants had had sufficient notice to enable them to consider whether they wished to apply to the Court to be added as parties. Accordingly, I directed that they be served with notice of the present proceedings, and adjourned the case to the 11th June 1982 to give them an opportunity of being heard before I came to any findings on the alternative question whether it would be thoroughly unjust to make an order in this case.

In the end, only Mr. Au expressed a wish to be joined as a party. He did not attend, but sent his wife, Madam LEUNG Pong, to court. With the agreement of Mr. Yam and Mr. Stables, I heard evidence from her regarding the circumstances of her family. Although this further evidence could not be relevant to the question whether the plaintiff had proved that he reasonably required the premises as a residence for himself, on which issue I had already reached the conclusions I have set out earlier in this judgment, I adopted this exceptional course in order to enable me to express my views on .the alternative issue in a manner which would enable the Court of Appeal, in the event that my conclusions on the first issue are reversed, to dispose of the case, without the necessity for a re-trial or further hearing."

Having heard the evidence of the wife of the sub-tenant who appeared, the trial judge decided that it would be manifestly unjust to make an order in favour of the appellant. His note of the evidence and submissions made to him is both careful and full. One authority was cited to him in argument. The note of the proceedings runs to 17 pages loosely typed. Hence one notes with some surprise that the judgment runs to 23 pages in the course of which 10 authorities are examined in some depth. One might be pardoned for suspecting that a number of the authorities are mentioned by the judge to express regret that he is bound by them.

10. Mr. Yam in his attack on the trial judge's decision that it would be manifestly unjust and inequitable to make an order commenced with an argument based on his first and second grounds of appeal which read :

"1. The learned trial judge erred in law in taking the view that the Court should or must make an order against a "lawful" sub-tenant when it makes an order against the principal tenant under Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance.

2. The learned trial judge erred in law in failing to hold that when the Court makes an order for possession against the principal tenant but does not make an order for possession against a sub-tenant, the sub-tenant shall become the tenant of the landlord on the same terms, subject to Part II of the said Ordinance, as the sub-tenant held from the principal tenant according to Section 53(6A) of the said Ordinance."

He said firstly that his client was willing to undertake not to execute against the sub-tenants but such an undertaking was not given to the trial judge and I therefore think I must ignore it. If Mr. Yam is correct in his interpretation of Subsec. 6A it is unnecessary. For his suggestion was that since his client had elected not to join the sub-tenants and did not allege that any subletting was unlawful the effect of Subsec. 6A was that the sub-tenants would, if he succeeded against the principal tenant, become protected tenants. In discussing a similar submission made to him the trial judge had this to say :

"Whether an order can be made against a sub-tenant who has not been joined as a party is in my view, not entirely clear. Where the subletting is in breach of tenancy, section 53(5) of Cap. 7 provides that "an order for possession of the premises under subsection (2) against the tenant shall also operate against the sub-tenant." I would be reluctant to regard that as entitling a court to make an order against a person who is not a party or who has not had an opportunity of being heard. One of the objects of Rule 63 of the District Court Civil Procedure (General) Rules and Order 15 r.10 of the Rules of the Supreme Court is to prevent collusion between landlord and tenant, and to enable other persons in possession of land to join in the proceedings and justify their possession. Natural justice surely requires a sub-tenant to be given an opportunity to show that he is in possession lawfully or that the landlord has waived the alleged breach by the tenant.

Where the subletting is not in breach of the contractual tenancy, the Court's power to make an order against a sub-tenant is governed by section 53(6), which is expressed in different terms from subsection (5), and is somewhat more restrictive. It provides that the Court :-

"Shall not make an order for possession under subsection 2 against the sub-tenant unless -

This reasoning apparently did not commend itself to Mr. Mok who sought rather to refute Mr. Yam's contentions by referring us to Section 53(1)(c) and subsections (5), (6) and (6A). He suggested that the legislature intended Subsection (6A) to have effect only in cases where sub-tenants were joined and the Court deliberately refrains from making an order against them. Otherwise he suggests its operation would result in a conflict with Subsection (5); it was, he suggested, limited to cases dealt with by Subsection (6) and would be unnecessary if Subsection (6) were not to be found and therefore only arises if a Court refuses an order under Subsection (6). Furthermore he suggested that the proviso to Subsection (6A) could not apply unless the landlord was seeking possession as against the sub-tenants whom he had made parties and against whom he had sought an order.

11. For easy reference I set out the relevant provisions :

12. I think the intention leading to the enactment of (5), (6) and (6A) was to the following effect:-

"A landlord who is entitled to an order against his tenant on the ground that the tenant has sublet in breach of the contractual tenancy may obtain an order effective against both tenant and subtenants. If the landlord is not entitled to an order on that ground but the tenant has sublet the landlord may obtain an order effective against the tenant and the sub-tenants if the landlord is entitled to an order on either of the grounds mentioned in paragraph (b) or paragraph (c) of Subsec.(2) or if the tenant would succeed if the tenant sought possession against his sub-tenant on any ground in subsec.(2). If the landlord cannot get an order effective against the sub-tenants for any of the reasons given above but does nevertheless get an order effective against the tenant the blameless sub-tenants shall remain but hold directly from the landlord. If such sub-tenants remain holding directly from the landlord but the tenant is nevertheless ejected, e.g. for using that part of the premises the tenant had retained in his own possession for illegal purposes, then the landlord may apply to the Tribunal which must order the sub-tenant if there is only one or the sub-tenants jointly if there are more than one to accept a tenancy of the whole on the same terms as the tenant held them or make an order for possession of the whole effective against the sub-tenants."

13. This paraphrase does not take account of the precise wording of the subsections or of the proviso to 6A but I believe it represents, albeit loosely for I am no draftsman, the thinking behind them. If it is accepted Subsection 6A of itself does not assist Mr. Yam for the landlord could have got an order effective against the sub-tenants since his claim was under subsection (2)(b). My paraphrase does not cover the case where a landlord could get an order effective against sub-tenants but does not seek one. However, Subsection (6) is phrased in the "permissive negative". Cons, J.A. pointed out in Lo Wah's case that it "would be difficult to see on what ground a judge could refuse an order once a landlord has brought himself within the Section" (Sec;53(2)). The same may apply to Subsection 6 but that is not to say that a judge must make an order where one is not sought or where the sub-tenants are not made parties by the plaintiff landlord. The wording of Subsec.6A is wide and its effect is to make sub-tenants hold directly from the landlord in all cases where an order is made against a tenant but not against a sub-tenant.

14. I have had the advantage of reading in draft the judgment to be delivered by Fuad, J.A. and respectfully agree with his reasons for reaching this conclusion.

15. Once it is realized that the appellant does not seek any order against the sub-tenants and that they can be and are to be unaffected by an order for possession against the tenant the judge's conclusion that she has discharged the onus imposed on her by the proviso to Section 53(2)(b) must be re-examined.

16. The "social cost" (if social cost be a relevant consideration which I doubt) is no longer "the social cost of obliging 13 other persons to find other accommodation" but becomes the cost of obliging 3 other persons to do so. While the respondent might have satisfied the former test of "greater hardship" I do not think she can be said to satisfy the more stringent test now imposed.

17. I would therefore allow this appeal.

(1) (1933) S.L.T. 21.

(2) (1977) 1 Q.B. 837 at page 844F.

(3) (1981) H.K.L.R. 570.

(4) (1947) All E.R. 810 at 812.

(5) (C.A. 140 of 1981).

Cons, J.A. :

18. I have had the advantage of reading in draft the judgment just delivered by my Lord the Vice-President and that about to be delivered by my Lord Fuad, J.A. I agree with them that the appeal should be allowed and it is only because we differ from the judge below on a matter of fundamental importance that I think it necessary to express for myself the reasons that have led me to the same conclusion.

19. The corner stones of the landlord's argument are Section 53(6) and (6A) of the Landlord and Tenant (Consolidation) Ordinance. These, and the judge's comments on them, have already been set out.

20. With every respect to him, his conclusion that the landlord's "reliance on subsection (6A) is ......... misconceived" seems to me to be based on two misconceptions of his own. Firstly, a landlord may "reasonably require" premises for occupation as a residence for himself even though he is content to let part of those premises continue in the occupation of others. Kelley v. Goodwin⁽¹⁾, a case to which the judge himself drew attention is a good illustration. Secondly, the words of subsection (6)(a) do not suggest that an order must be made against all lawful sub-tenants whenever an order is made in the specified circumstances against a principal tenant. Although there is a superficial similarity with the wording of sub-section (2), once dubbed "the permissive negative", sub-section (6), does not, as I read it, provide the landlord with grounds on which he may recover possession. I take the subsection, together with (6A), to be intended to reinstate the protection which, until the case of Lo Wah v. Choi Fun⁽²⁾, was generally thought to be afforded to sub-tenants of protected tenancies by the earlier subsections (5) & (6) : see e.g. Yim Mui-fai v. Annie Chan⁽³⁾. Paragraphs (b) & (c) are there to exclude those situations where protection would be inappropriate.

21. Where that kind of protection applies an order made against the tenant has no effect upon the sub-tenant, who needs to join or to be joined in the action only if it is necessary to establish that he is in fact a lawful sub-tenant. Otherwise it is sufficient to proceed against the tenant alone. If the tenant is not himself in possession of any part of the premises there would usually be no point in bringing the action at all. But if on the other hand the tenant is in partial possession, the landlord's claim will, for practical purposes, be a claim for recovery of part only of the premises.

22. That is the position in the present instance, although here the sub-tenants are protected not by the law, but by the fact that the landlord does not wish to evict them. Is that a material distinction? Mr. Mok, who appears for the principal tenant in these proceedings, argues that a landlord cannot make a partial claim of this kind when his application is based on Section 53(2)(b).

23. At first I was attracted to that argument. There seemed to me to be an analogy with the settled principle that notice to quit cannot be served in respect of part only of a tenancy. However, on further consideration, I find the analogy to be false, for the Court order will as a matter of law terminate the whole of the original tenancy. The new tenancies will arise quite independently.

24. Mr. Mok further argues that subsection (6A) can only apply in respect of subtenants who have actually been made parties to the action, that the words "the Tribunal ....... does not make an order" are to be taken in the sense that the Tribunal actually refuses an order. He raises two objections to the landlords contention. He suggests firstly that there may be occasions when the sum total of the tenant's and sub-tenants' circumstances will amount to manifest injustice, although taken individually they could not be put that high. The landlord then, by proceeding against them piecemeal might wrongfully obtain possession. Secondly he points to the proviso to (6A), which in any event requires the intervention of the Court. I find it difficult to see the relevance of the second argument. The proviso to my mind does no more than to put into statutory form the principles of relief that the Court would apply in appropriate circumstances : see e.g. Sylvia SzeTo v. Kowloon Shopping Centre⁽⁴⁾. I doubt if it has any application to cases where the landlord seeks to recover specifically for his own occupation. As to the first objection, I cannot see the situation obtaining in practice without its being brought in some way to the Court's attention.

25. For my part I know of no authority which requires a landlord to join us defendants persons against whom he seeks no relief and fail to see what would be gained thereby. I would take the words of (6A) exactly as they stand. In that way, when the circumstances are appropriate, a landlord may recover what he reasonably requires with as little disturbance to others as possible. What to my mind is eminently good sense in the difficult conditions of Hong Kong is also good law.

26. I agree with my Lord the Vice-President that when a landlord wishes to proceed in this manner he would perhaps be wise to make that fact clear in his Particulars of Claim. Not only would he thus make his position immediately clear to the trial judge but also, and from the very beginning, to the sub-tenants.

27. This conclusion puts a fresh complexion on the question of manifest injustice. Shorn of the sub-tenants and the other irrelevant factors, to which my Lord Fuad J.A. is about to refer, the circumstances of Mrs. Cheung, sad though they are, come nowhere within reach of the standard postulated. I am also in full agreement with what my Lord is about to say with regard to the landlord's "reasonable requirement".

(1) [1947] 1 A.E.R. 810

(2) (1980) H.K.L.R. 844

(3) (1976) H.K.L.R. 1040

(4) (1980) H.K.L.R. 717

Fuad, J.A. :

28. The appellant claimed possession of certain premises controlled under Part II of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) on the grounds permitted by s. 52(2)(b) that the premises were reasonably required by him, as landlord, for occupation as a residence for himself. His claim was dismissed by the District Court on the 11th June this year and he now appeals to this Court, having obtained leave so to do.

29. The trial Judge found that the flat in question, on the third floor of a building erected in 1965, is approximately 570 square feet in area and comprises three bedrooms and a sitting room, and that at the date of the hearing it was occupied by 13 persons. The man named as the original and sole defendant had, died before the writ was issued and his widow Madam Cheung Choi-lee was allowed to be substituted before the hearing began. Later, in circumstances that I will presently relate, a Mr. Au was joined as 2nd defendant.

30. There was evidence, which was accepted, that Madam Cheung, who is 53 years of age, and her two sons (aged 17 and 18) occupied one of the bedrooms and the sitting room. Mr. Au, aged 72, and his wife, live in another of the bedrooms, with their 20 year old daughter. A Mr. Lee occupies the third bedroom with three members of his family. Three other men, Mr. Ho, Mr. Yu and Mr Tsoi have bedspaces in the corridor. Madam Cheung receives a total of $770 per month from her sub-tenants and pays $660 per month to the plaintiff. The Cheung and Au families have been living on the premises for many years.

31. The evidence showed that the plaintiff's aunt assigned the premises to him by way of gift in March 1979. He had arrived in Hong Kong from China one month before. He is a single man aged 41 and is employed as a garment worker at $1,800 a month. There was some confusion in the plaintiff's evidence (whom the trial judge found "unintelligent") about the length of time he lived in various places after his arrival in Hong Kong but the Judge dismissed from his mind any suggestion that he had moved into his present accommodation simply to enhance his prospects of success in his claim to possession. The Judge accepted that the plaintiff lives in business premises occupied by his uncle who is a coffee grinder. He sleeps there with three other persons when he returns from his day's work. The Judge described his use of part of the premises as occupying "little more than a bed-speace". The Judge went on to say: "The plaintiff sleeps on a canvas bed, which is folded up during the daytime, and he keeps his simple personal belongings, in the form of clothing, in a box at the end of his grandmother's bed. He pays nothing for this very rudimentary arrangement ...............".

32. Although the writ sought possession of the whole premises, it became clear during the course of evidence that the plaintiff agreed that the portion of the premises occupied by Madam Cheung and her sons would suffice for his needs. The Judge found that the plaintiff was seeking more than he presently needed and cited an authority for the proposition that this was material to the question whether the plaintiff reasonably required the premises. This is what the Judge said on the matter -

"On the evidence before me, it is, in my view, clear that the plaintiff is seeking more than he presently needs. He is, at least, asking for one bedroom and a sitting room, when all he really needs is a place to sleep and keep his few personal belongings. I do not dismiss, as irrelevant, the fact that the plaintiff may wish to enjoy better or more comfortable living conditions than those he presently enjoys. In general, that is a perfectly understandable and reasonable expectation. I must also take into account the fact that the present legislation, perhaps, obliges a landlord, seeking to reside in his own premises, to seek more than he actually needs, in the sense that orders of the Court terminate the tenancy, and thus release the entirety of the premises comprised therein, subject to sub-sections (6) and (6A) of section 53 of Cap. 7. But, allowing for these facts which may explain his "excessive" requirements, I do not think that he has established a genuine present need for the premises. He has been living at his present address since July 1980. Although it is basically a "dormitory" and not entirely satisfactory, he has not found it so intolerable that he has felt it necessary to look for other accommodation, which he could more easily afford, now that he is earning higher wages than he was in 1980, and receives rent of $660 per month from the defendant. There is no evidence that he is unwanted at that address by the other occupants or members of his family. Indeed, although his decision to move out of his rented room in July 1980 may have been motivated by fears of an impending increase in the rent therefor, which I do not accept, I find that he did so willingly and at the suggestion of members of his family. Although his rented room in Tai Nam Street was just around the corner from his place of work, his present address cannot involve much time or expense in getting to and from work each day, whereas the journey from the premises to his place of work would take about an hour. There is absolutely no evidence that he is anxious to get away from the company of his family or that he finds their protective concern in any way restrictive of his freedom to enjoy his new life. In all the circumstances, I am not satisfied that he reasonably requires the premises for occupation as a residence for himself Accordingly, this action must be dismissed."

33. I now turn to a matter which concerns the joinder of an additional party. The Judge explained that in the course of preparing his reserved judgment he had occasion to examine more closely the documents on the Court's file. He noted that the original writ did not bear an endorsement of service, as required by Rule 20(2A) of the District Court Civil Procedure (General) Rules. There was no affidavit of service, or other indication, to show that the writ had been served in accordance with the Rules, especially Rule 18. He had, therefore, caused the case to be re-listed and invited Counsel to address him on the procedural defect. Later, Counsel for the plaintiff had produced an affidavit in which the deponent affirmed that a copy of the writ had been posted at the premises on the 9th July 1981. The affidavit did not indicate that the writ had also been served in the normal way. Having regard to the unusual way in which Madam Cheung had become a party he had not been satisfied that the sub-tenants had had sufficient notice to enable them to consider whether they wished to apply to be joined as parties themselves. He had therefore adjourned the case to enable them to have the opportunity of being heard, on due notice. In the event only Mr. Au expressed a wish to be added as a party and this was how he came to be the 2nd Defendant.

34. It is plain that the Judge acted as he did in a commendable desire to ensure that nobody was prejudiced. I would only comment that 0.15 r.10 of the Rules of the Supreme Court [made applicable by rule 9(l).of the District Court Civil Procedure (General) Rules] is expressly designed to safeguard the rights of any person who is not made a party but who is in possession of part or all of the premises sought to be recovered; and an application can be made even after judgment.

35. The Judge discussed at considerable length, the effect of subsections (5), (6) and (6A) of Section 53 of the Ordinance. We are not concerned with subsection (5) because the case proceeded on the basis that the sub-tenancies were lawful. About subsections (6) and (6A) he had, inter alia, this to say -

"In my view, this suggests that the Court should or must make an order against a "lawful sub-tenant, when it makes an order under section 53(2)(b). Indeed, if a landlord has satisfied the Court that he reasonably requires the premises his genuine present need could not be satisfied if the whole or parts of the premises can be retained by lawful sub-tenants. Section 53(6A) can only operate in cases where the Court does not make an order against a sub-tenant. In my view, it cannot apply to cases where an order is made under section 53(2)(b). Accordingly, Mr. Yam's reliance on subsection (6A) is, in my respectful view, misconceived."

36. In my judgment the Judge misunderstood the effect of s.53(6), the relevant part of which reads -

"(6) Where the tenant has, without breach of the contractual tenancy; sublet the whole or any part of the premises, the Tribunal shall not make any order for possession under subsection (2) against the subtenant unless -

(a) the Tribunal makes the order on the ground mentioned in paragraph (b) or (c) of sub-section (2); or ........"

The subsection is clearly designed to protect the rights of "lawful" sub-tenants. It does not oblige a court to make an order against a sub-tenant when an order is made under paragraph (b) or (c) of subsection (2) against the tenant. What subsection (6) does say is that in the case of a "lawful" sub-tenant, whether he is in possession of all or part of the premises, the only grounds upon which an order for possession can be made against him are where the conditions set out in either paragraph (b) or (c) of subsection (2) are met. That is to say the Court must have regard to the position of the sub-tenant and decide whether the statutory provisions have been satisfied as against him. I would note here that subsection (6)(a) speaks of "the order", and in the context of the words which precede the paragraph, this is a reference to an order for possession against the sub-tenant and not, as the Judge thought, a reference to an order made against the tenant. The Judge read the subsection as if it provided: "where a tenant has, without breach of the contractual tenancy, sublet the whole or any part of the premises, the Tribunal shall make an order for possession under subsection (2) against the sub-tenant whenever it makes an order against the tenant under paragraph (b) or (c) of that subsection".

37. It is subsection (6) which effectively protects the right to possession of "lawful" sub-tenants; subsection (6A) does no more than indicate the position of sub-tenants who continue in possession by virtue of subsection (6).

38. I find nothing in Part II of the Ordinance (nor do I know of any authority) that disentitles a Court from granting a landlord an order for possession under s.53(2)(b) of the part of his premises occupied by his tenant and not of other parts occupied by "lawful" sub-tenants. In the circumstances of Hong Kong, with its serious housing problems, it seems to me to be highly desirable that the Court should be able to make orders of that kind and I entertain no doubt that this is what the Legislature intended, and made provision for.

39. If the Judge had realised that he could make an order for possession in favour of the landlord under s.53(2)(b) limited to the rooms occupied by his tenant, Madam Cheung and her family, his whole approach to the case must have been very different. It is true that Mr. Yam was asking for an order for possession of the whole premises but he was maintaining that the order would not in any event affect the sub-tenants. For my part I see no reason why the plaintiff should not have sought notional possession of the whole premises for only thus, perhaps, would he have achieved the result of terminating Madam Cheung's interest in the whole of the flat. He should, in normal circumstances, have joined the sub-tenants when he instituted his proceedings, if he knew of them, but only if he sought order for possession against them.

40. I think it is necessary to notice that it was in examination-in-chief, in answer to his own Counsel, that the plaintiff said "yes" to the question "Will the portion occupied by the tenant be sufficient for you?" Coupled with Mr. Yam's submissions on the law, his case was, in effect, as follows: "although I only need Madam Cheung's rooms, I am asking for possession of the whole premises as against her, but recognise that the order will not affect her sub-tenants accepting, as I do, that they are 'lawful' sub-tenants."

41. And so, in my judgment, the cane should have been decided on that basis. In describing the plaintiff's reasonable needs (of course against the background of the law as he understood it) the Judge said "all he really needs is a place to sleep and keep his few personal belongings." It seems to me that a 41 year old man who lives in the miserable conditions revealed by the evidence, sharing what are business premises with, amongst others am old woman; where his bed has to remain folded up until he uses it, sometimes until 10 p.m.; when all he has to keen his things in is a cardboard box, must surely reasonably require the rooms he said would suffice for him. In my view he should not have been required to show that he had found his present conditions intolerable so that he had felt it necessary to seek accommodation other than in his own flat. They certainly were intolerable. Nor, to my mind, was it relevant that he had not shown he was unwanted in the melancholy place he is presently living. He did not need to establish that he was "anxious to get away from the company of his family or that he finds their protective concern in any way restrictive to enjoy his mew life." I have only mentioned some of the Judge's conclusions on this issue. He tried the case with anxious care but I feel bound to say that I found his assessment of the plaintiff's needs (quite unwittingly) to be a denial of his dignity as a human being. I have no hesitation in concluding that the plaintiff had amply satisfied that part of the burden which lay on him.

42. I now turn to consider the proviso to s.53(2)(b) against the evidence. I say at once that in my judgment the Judge should not have taken into account (as being matter which seem to me to be irrelevant) -

(a) that the plaintiff had not acquired the flat by "sweat and toil" but by way of gift;

(b) that an order would result in "the social cost of obliging 13 other persons to find other accommodation" (I have given my reasons why this need not have been so);

(c) that the plaintiff has "never been exposed to [the pinch of market forces in respect of housing".

43. When these matter are disregarded, as I think they must be, there can be no doubt whatever that Madam Cheung did not come within measurable distance of satisfying the Court that it would manifestly not be just and equitable to make an order against her, within the meaning of the proviso to paragraph (b) of s.53(2) of the Ordinance, as interpreted and explained by the many authorities by which the Court was bound.

44. I would therefore allow the appeal, malting it clear that although the order would give the appellant possession of the whole premises as against Madam Cheung, it would have no effect on the rights to possession, by her sub-tenants, of those parts of the premises occupied by them

Representation:

David Y.K. Yam (M/s. P.H. Sin & Co.) for Appellant.

Mok Yeuk Chi (D.L.A.) for Respondent.