Lam Chuk-ying v. Chan Kwok-kwan
Read the full judgment text of CACV 97/1981 on BabelCite. This Court of Appeal judgment.
1. This is yet another appeal on the vexed question of the application of section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance. That section formerly read -
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CACV000097/1981 Section 53(2)(b) Landlord and Tenant (Consolidation) Ordinance onus on tenant to show an order for possession unjust - nature of test - all circumstances to be considered - not least rights of ownership. IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CIVIL APPEAL NO. 97 OF 1981 -----------------
----------------- Coram: Leonard, V-P., Cons & Zimmern, JJ.A. Date of Judgment: 14th October, 1981 ----------------- JUDGMENT ----------------- Leonard, V-P.: 1. This is yet another appeal on the vexed question of the application of section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance. That section formerly read -
The relevant parts of the present section read -
2. The second proviso of sub-section is not relevant to these proceedings and I do not propose to set it out. 3. Clearly in making the change the legislature intended to make it easier for the owner of the premises to recover possession of them if he genuinely and reasonably needed them for himself. Once that is established, as it was in this case, the onus, which has been dubbed a heavy one, passes to the tenant to show that it would be unjust to make an order. 4. In dealing with the interpretation of the sub-section in Chow Wing v. Yuen Chi Hung and anr. (1) we commended the approach of Judge de Basto in Lusher v. Hillard (2) and suggested that the test to be adopted in considering whether or not the onus had been discharged by the tenant, was whether if one would expect, an ordinary person apprised of all the circumstances of the case, to throw up his hands in dismay and exclaim: 'That cannot be right', if an order for possession was made. 5. To simplify the test this Court suggested that the question to be asked was whether it would be "thoroughly unjust" to make an order emphasizing both words. There is, then, no longer a question of greater hardship. That test has, in so far as, a premises in the ownership of the landlord are concerned, been abandoned by the legislature. Yet it is one to which, we notice, District Judges constantly tend to hark back. Extreme hardship to the tenant may be a dominant factor in refusing possession. But in my view hardship of itself seldom can be, for the overriding factor will almost inevitably be the right of an owner to exercise the privileges of ownership. Clearly the legislature wishes that right to be interfered with as little as possible. 6. In this case the trial judge finally considered whether the hardship incurred by the tenant was of sufficient degree to establish that it would manifestly not be just and equitable to require the defendant to vacate. That is not the test. The question is whether the tenant has satisfied the Court that in all the circumstances of the case it would manifestly not be just and equitable to make an order. One of the circumstances which must be considered is the wish by the landlord to exercise his rights of ownership. This was a circumstance which does not appear to have been considered by the trial judge. When I consider all the circumstances here as found by the trial judge I have no doubt but that an order for possession would not cause anything approaching dismay in the mind of an ordinary person for on the facts found a considerable degree of hardship rests upon both sides and when one adds the consideration that what the landlord is seeking to do is to enjoy his own property it is not manifestly unjust that he should be allowed to do so. In my view the test as imposed by the legislature has not been applied. I would therefore allow this appeal and make an order for recovery of possession in favour of the appellant. Cons, J.A.: 7. I agree with the judgment of my Lord Vice-President. I would only add these few words. 8. It is apparent from several cases which have come recently before this Court that some of the learned judges of the District Court are failing to give proper recognition to the changes introduced last year under section 53(2). While ostensibly acknowledging the correct test of manifest injustice laid down by this Court in Chow Wing's case, they continue in fact to apply the earlier test of greater hardship. That is what the learned trial judge has done in the present case. He arrived at the wrong conclusion. If he had asked himself the right question he would have seen immediately that there was only one answer. There will undoubtedly be financial disadvantage to the tenant. But the circumstances are nowhere near such that the ordinary man would throw up his hands in dismay. 9. For these reasons I would also allow the appeal, set aside the judgment recorded below and enter judgment for possession in favour of the plaintiff. Zimmern, J.A.: 10. I also agree with the judgments of my Lord the Vice-President and my brother Cons. 11. By the amendment to section 53(2)(b) of the Ordinance the legislature intended to give a plaintiff owner a right to live in his own premises once he satisfies the Court that he genuinely requires them for that purpose, only subject to the tenant being able to prove that in all the circumstances of the case it will be manifestly unjust and unfair that he should be evicted. In this case the plaintiff has satisfied the Court that he genuinely requires the premises. In weighing up a defendant's case whether it would be manifestly unjust and unfair to evict him a Court must taken into consideration the right of the plaintiff to live in his own premises which right is not easily defeated, toppled or overreached by the tenant. It is a weighty right. 12. In this case the learned judge did not take into consideration the right of the plaintiff to live in his premises at all but decided merely on a comparison of hardship which is not the test. He was wrong in law. The plaintiff is entitled to his order for possession.
Representation: Mr. Patrick Woo (Arthur Au & Co.) for appellant (1) C.A. 145 of 1980 (2) V.D.C. C.A. 1910 of 1980 |
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