Hung Ying Estates Ltd v. Michaels Marianne Nannette

LDPD 1452/2025

[2026] HKLdT 5

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 1452 OF 2025

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DECISIONS

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1.I delivered my judgment orally on 6 January 2026 (“the Judgment”) in which I made an order (“the Order”) as follows:

(1)  Subject to paragraph (4) below, the Respondent do deliver vacant possession of the suit premises known as “Flat F on 27/F of Block 5, Marina Garden, No 280 Wu Chui Road, Tuen Mun, New Territories” to the Applicant;

(2)  The Respondent do pay the Applicant arrears of rent/mesne profits as follows:

(i)  Balance of arrears of rent from 1 October 2025 to 31 December 2025 in the sum of $16,800;

(ii)  Arrears of rent/mesne profits at the rate of $11,800 per month from 1 January 2026 until delivery up of vacant possession;

(3)  There be no order as to costs;

(4)  If the Respondent should on or before 14 January 2026 (“Relief Expiration Date”) pay into the Tribunal all the arrears of rent/mesne profits as stated in paragraph 2 above (including all arrears of rent/mesne profits due on or before the date of payment), the Respondent be relieved from the forfeiture incurred herein, and the lease of the suit premises be reinstated; and

(5)  Unless otherwise ordered, all sums ordered to be paid under this judgment shall be paid into the Tribunal in cash, by EPS transfer, by cashier orders issued by banks in Hong Kong or by cheques drawn by firms of solicitors in Hong Kong, and such sums when received by the Tribunal shall be released to the Applicant.

2.The Respondent then on 13 January 2026 applied for a review of the Judgment pursuant to section 11A of the Lands Tribunal Ordinance (“Application for Review”). Indeed, the Respondent stated it was her intention to seek the Tribunal to set aside the Order because she was denied the opportunity to present a counterclaim and arguments in full. Her grounds in support of the Application for Review as stated in her affirmation of even date are summarised as follows:

(a)  I repeatedly interrupted her statement of alleged breaches of tenancy agreement by the Applicant on the ground that the Lands Tribunal (“the Tribunal”) had no jurisdiction to entertain her counterclaim but referring her to initiate her counterclaim in District Court, for instance - Ground 1;

(b)  The Tribunal, in her opinion, had jurisdiction over counterclaims related to rent abatement, landlord’s breach of contract, and breach of quiet enjoyment in tenancy disputes as these can serve as defences or set-offs in possession proceedings and rent abatement under the Landlord and Tenant (Consolidation) Ordinance, Cap 7 – Ground 2;

(c)  I failed to fully hear her evidence regarding the alleged breaches of tenancy by the Applicant as well as the uninhabitability of the suit premises – Ground 3;

(d)  I refused to hear that she had sought mediation via government channels such as the Rating and Valuation Department (“RVD”) – Ground 4;

(e)  I did not hear or listen to her witness, ie her mother, despite repeated requests for her to speak but on the other hand, the Applicant’s witness, ie the property agent who handled the tenancy agreement, was sworn in and heard – Ground 5;

(f)  I then did not want to hear more about the Property Agent whom she alleged had committed misconduct or wrongdoing despite her repeated efforts to raise such issues – Ground 6;

(g)  I failed to consider the admission by the Applicant that he had got confused when reviewing his e-banking statements because there were only cash deposits with no name attached – Ground 7.

3.In addition, the Respondent filed an Interlocutory Application also on 13 January 2026, seeking a stay of execution of possession of the Judgment on the same grounds.

Background

4.By a tenancy agreement (“the Tenancy Agreement”) which was dated 15 July 2025, the Applicant as Landlord let the suit premises to the Respondent as Tenant for a term of 2 years from 1 August 2025 to 31 July 2027 (“the Term”) for domestic purpose only (“The Tenancy”).

5.The Term is however subject to a break clause whereby “(t)he Tenant and the Landlord of this Agreement shall have the right to determine the Agreement on or after the first months of the Term by giving to the other party of this Agreement 11 month’s written notice of its intention to do so. (The tenant and the Landlord must complete above tenancy of first 1 months. Any advance termination before the fixed 12 months should be compensated by the tenant to the total remaining sum of the rented to the Landlord.)”

6.The rent reserved in the Tenancy Agreement is $11,800 per month (“the Rent”) inclusive of management fee, Government rates and Government rent. Subject to a rent free period from 15 July 2025 to 31 July 2025, “the Tenant shall pay the Rent in advance on the 1^st day of each and every calendar month during the Term of Tenancy. If the Tenant shall fail to pay the Rent after 7 days from the due date, the Landlord shall have the right to institute appropriate action to recover the rent and all costs, expenses and other outgoing so incurred by the Landlord in relation to such action shall be a debt owed by the Tenant to the Landlord and shall be recoverable in full by the Landlord.”[1]

7.On 10 November 2025, the Applicant (signed by a Mr Cheung Kwok Leung (“Mr Cheung”) as Director of the Applicant on its behalf with the company chop) filed a Notice of Application (“the Application”) to the Tribunal for recovery of possession of the suit premises on the ground that the Respondent had failed to pay rent from 1 October 2025 and applying for order for mesne profits to the date of delivery of vacant possession of the suit premises and costs.

8.On 18 November 2025, the Respondent filed a Notice of Opposition, stating inter alia, that the Respondent had reached out to the Rating and Valuation Department (“RVD”) for their free mediation services[2] due to the unresolved plumbing problems, ie no hot, running water[3]) and other required repairs in the suit premises. The Respondent accused Mr Cheung of abruptly ending the mediation but commencing the Application.

9.Secondly, the Respondent complained that Mr Cheung, being only one of the 7 directors of the Applicant, had no right to initiate the Application on behalf of the Applicant.

10.Thirdly, the Respondent alleged that the Rent was due only by the 7^th day of each month instead of on the 1^st day. The Respondent further alleged that in Hong Kong, the landlord could generally initiate legal action for rental in arrears within 15 days. In addition, the Respondent alleged that she had paid the rental for September 2025 on 3 September 2025 but Mr Cheung, through the property agent, Ms Sandra Chan (“Ms Chan”) sent multiple WhatsApp messages claiming that she had not got the rental for September 2025.

11.The following set out the WhatsApp messages attached by the Respondent in her Notice of Opposition:[4]

Date	Sender		WhatsApp Message
3 September 2025	Ms Chan		Please deposit the rent for this month in September with the Landlord’s account of this HSBC Bank Thank you 10:22 PM
4 September 2025	Ms Chan		Hello Mari[5] 7:00 PM
		Respondent	Mum did already pay the rent. This is the same account number he provided us (with copy of bank deposit slip attached). 7:23 PM
	Ms Chan		Hi, Mari, I forwarded to the landlord, Thank you 7:37 PM
October 2025[6]	Ms Chan		Please let me know when is the appointment with RVD and the RVD officer Me Fung called me last week and told me still waiting your confirmation of the date. Let me remind you again that we had not received your rental of HK$11800 from you in Sept and the rental of Oct is also due. At last, I need to know out meeting date and time with the RVD urgently. 4:45 PM
5 November 2025	Ms Chan		Hey, Mr Fung of RVD has been calling you for our appointment many times since last week but he told me this afternoon that you are not picking up his call. Please fix our mediating meeting urgently per your request to settle your so called problems or concerns with us (your landlord). Again, we have not yet received your rental payment of HK$11800 for Oct and Nov. Please don’t keep saying the landlord is not responding your problems, if fact we are pushing you to fix the mediating appointment with RVD two weeks ago and you promised to reply on us very soon. 6:30 PM

12.Fourthly, the Respondent alleged that Mr Cheung had made several unannounced visits to the suit premises as disclosed through Mr Cheung’s WhatsApp messages on 14 and 18 October 2025. The Respondent alleged further that the above, in addition to the multiple WhatsApp messages, phone calls, and his property agent, Ms Chan, following her onto the light rail, constituted harassment and the implied landlord’s covenant to give quiet enjoyment to the tenant had been breached.

13.Fifthly, the Respondent alleged there is also an implied covenant of the landlord for fitness for habitation of the suit premises. The Respondent alleged that this implied covenant was breached because both Mr Cheung and Ms Chan had been fully aware of the major plumbing problems since 8 July 2025 when they all previewed the suit premises together for the first time. Then Mr Cheung himself turned on the hot water faucet in the bathroom and no hot running water came out. Again, no hot, running water came out on 7 August 2025 from the faucets in bathroom and kitchen and these problems had not been resolved.

14.The Respondent also referred to Clause 9 of the Tenancy Agreement which states as follows:

“The Landlord shall keep and maintain the structural parts of the Premises and the main drains, pipes and cables and all appliances (including air-conditioners, ventilation fan, gas cooker, ventilation hood and water heater) in proper state of repair provided that the Landlord’s liability shall not be incurred unless and until written notice of any defect or want of repair has been given by the Tenant to the Landlord and the Landlords has confirmed that such defect is not caused by any intentional behaviours of negligence of the Tenant and the Landlord shall have failed to take reasonable steps to repair and remedy the same after the lapse of a reasonable time from the date of service of such notice.”

15.In regard of the above, the Respondent had reported to Ms Chan on 7 August 2025 through WhatsApp alleging the following:

-  Non-functioning ventilation hood;

-  Non-functioning front door lock;

-  Multiple scratches on the front door, around the door locks;

-  Rainwater seeping from the window in living room and both bathrooms;

-  Water leakage under the sink in bathroom;

-  No drain stopper to plug the bathroom sink.

16.The Respondent also cited what she considered as section 117(3) of the Landlord and Tenant (Consolidation) Ordinance, Cap 7 which states “tenant is not to make or suffer or permit any structural alteration to the premises without the prior written consent of the landlord” and therefore the Respondent alleged she was still awaiting the landlord’s approval four months later.

17.Finally, the Respondent complained in her Notice of Opposition that Ms Chan had been withholding the original signed Tenancy Agreement from her.

Director’s Authority

18.When the hearing of the Application was conducted on 6 January 2026, I firstly dismissed the ungrounded allegation by the Respondent that Mr Cheung, being a director of the Applicant, had no authority to initiate the Application on behalf of the Applicant.

19.The Respondent alleged that she had talked to RVD who advised her that

(1)  because Madam Kwan Sau Ying (“Madam Kwan”), ie Mr Cheung’s mother signed the Tenancy Agreement on 15 July 2025, it would appear that only Madam Kwan was authorised by the Applicant to administer the Tenancy; or otherwise,

(2)  all the directors had to agree that Mr Cheung was authorised to administer the suit premises on behalf of the Applicant.

20.The Respondent alleged that it was erroneous for Mr Cheung to initiate the Application. The Respondent complained that she had not received an authorisation letter from the Applicant signed by all the directors or a resolution of the Applicant despite Mr Cheung could only produce an authorization letter dated 14 October 2025 signed by Madam Kwan on behalf of the Applicant.

21.With respect, either the Respondent or whoever advised her had misconceived. Under section 117(1) of the Companies Ordinance, Cap 622, “… in favour of a person dealing with a company in good faith, the power of the company’s directors to bind the company, or authorize others to do so, is to be regarded as free of any limitation under any relevant document of the company.”[7]

Rent Becoming Due

22.Then I also corrected the misconception of the Respondent that the Rent payable under the Tenancy Agreement was only due by the 7^th day of each month. Obviously, by clause 1 of the Tenancy Agreement, “the Tenant shall pay the Rent in advance on the 1^st day of each and every calendar month during the Term of Tenancy.”  It is only when “the Tenant shall fail to pay the Rent after 7 days from the due date, the Landlord shall have the right to institute appropriate action to recover the rent.”

23.Insofar as the Respondent suggested that the Landlord could generally initiate legal action for rental in arrears within 15 days, she should have mis-read the provisions of the Landlord and Tenant (Consolidation) Ordinance.

24.Under section 117(3)(b) of this Ordinance, only if the Tenancy –

(i)  does contain a covenant to pay the rent on the due date; but

(ii)  does not contain a condition for forfeiture if that covenant is broken by virtue of non-payment of the rent,

then there shall be implied in the tenancy a condition for forfeiture if that covenant is broken by virtue of non-payment of the rent within 15 days of the due date. However, the Tenancy Agreement does provide that “(i)f the Tenant shall fail to pay the Rent after 7 days from the due date, the Landlord shall have the right to institute appropriate action to recover the rent.”  Therefore, the 15-day provision is not applicable in the present case.

Jurisdiction of Lands Tribunal

25.I then continued to explain several times during the hearing, the jurisdiction of the Tribunal is limited by section 8 of the Lands Tribunal Ordinance, Cap 17, which provides, inter alia:

“(6) The Tribunal shall have jurisdiction to make an order for the recovery of possession of any premises or for the ejectment of a tenant from those premises, whether under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise.

…

(8) The Tribunal shall have jurisdiction, in any application for possession or for ejectment, under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise, and in any application for a new tenancy under Part IV of that Ordinance, whether or not it grants any such application, to make one or more of the following orders—

(a) an order for the payment of rent and mesne profits (including interim payments of rent and mesne profits);

(b) an order for the payment of any other money which is due under the tenancy or sub-tenancy;

(c) an order for the disposal of any property left in the premises concerned by the tenant or sub-tenant;

(d) an order for the payment of damages in respect of any breach of a condition of the tenancy or sub-tenancy;”

26.However, all the alleged complaints by the Respondent are counter-claims where the Tribunal had no jurisdiction.

27.In 黃英對譚炳新, HCMP 2049/2000 (unreported, dated 1 August 2000), the Court of Appeal ruled at §19 that the Tribunal had no jurisdiction to deal with other monetary disputes between the landlord and tenant involving a counter-claim. The tenant who alleged to have suffered damages resulting from the disrepair the rented premises should commence action in the Small Claims Tribunal, the District Court or even the High Court to seek compensation, depending on the amount he was intending to claim.

28.In Charmway Development Ltd v Long China Engineering Ltd [2001] 3 HKC 515 at p.519D-I, Chu J (as she then was) recited the common law principle that the covenant to pay rent is independent of the other covenants or obligations under a lease. It is generally of no defence in saying that the tenant is not obliged to pay rent or the landlord is not entitled to rent by reason of alleged breach of the tenancy agreement on the landlord’s part.

29.In Chan Yin Kwan v Wong Kam Hoi, CACV 223/2007 (unreported, dated 21 December 2007), the tenant who had the rental fallen into arrears had all along been residing in or occupying the property in question. Despite the tenant’s allegation in his counterclaim in the District Court that the property was not fit for habitation due to water seepage, leakage and stripping of cement plaster, the tenant had never evinced an intention to terminate the tenancy or deliver possession of the property back to the landlord. The Court of Appeal remarked therefore at §37 (and later at §46) that the tenant should have no arguable defence to the landlord’s claim because as a matter of general legal principle above, the tenant, having leased or occupied the property, was under an obligation to pay rent or mesne profits to the landlord.

30.The Court of Appeal continued at §40 that although the tenant in that case had brought his claim for damages and compensation before the District Court (while in the present case, the Respondent had sought mediation from RVD), “the Lands Tribunal only had to deal with the Applicant’s application for the recovery of rent in arrears and repossession of the Property. In considering the Applicant’s application, the Tribunal was not bound to consider and should not have considered the question of deducting part of the rent in arrears.”

31.Even when section 8 of the Lands Tribunal Ordinance was amended in 2008 to award damages solely, as well as in addition to rent and mesne profits, it was explained to the Legislative Council that the amendment did not seek to empower the Lands Tribunal to award damages that may go beyond its jurisdictional limit on the types of cases it can entertain[8]. The Judiciary has pointed out that section 8(9) of the Lands Tribunal Ordinance was not broad enough to encompass the making of an order for possession on acceptance of repudiation of tenancy agreement by reason of the tenant’s breach(es) and consequential award of damages. Therefore, section 8(8) was stated expressly to empower the Lands Tribunal to deal with this additional ground of possession and to make the consequential order.

32.Then in Ngai Ngok Pang & Another v Lee Syn Yuk, Michelle, LDPD 3030/2012 (unreported, dated 10 May 2013), His Honour Judge Ko was of the following view:

“15. The Lands Tribunal may only, in an application for possession or ejectment, make an order for the payment of damages in respect of breach of a condition of the tenancy (see section 8(8) of the Lands Tribunal Ordinance, Cap 17). A counterclaim is generally treated as an independent action (see Hong Kong Civil Procedure 2013, paragraph 15/2/4). Since the respondent is not also counterclaiming for possession or ejection, the Lands Tribunal does not have jurisdiction to entertain her claim for damages.” (underline added)

33.Similarly in Ramadour Industries Limited v Bullen Christian Anthony, LDPD 2025/2016 (unreported, 22 November 2016), the tenant also alleged to have suffered damages (albeit unliquidated damages) due to a landlord’s breach of his obligation to repair. This notwithstanding, he and his family had continued to reside at the premises despite the so many problems he alleged. There were no particulars of any relevant loss or damage apart from his own estimates or hear-say quotes. The Tribunal took the view that there would be no defence of set-off to the claims for arrears of rent and mesne profits.

34.When the tenant applied for leave to appeal against the decisions, the Court of Appeal in HCMP 171/2017 (which has been reported as [2018] 5 HKLRD 733) further affirmed the decisions of the Tribunal.

35.More recently, in Worldwide Flight Services Holdings S A Royal Caribbean Cruises & Another v Kai Tak Cruise Plaza Limited [2019] 4 HKLRD 56, the Court of Appeal repeated that:

“21. …, it is trite law that a tenant’s covenant to pay rent is regarded as independent of all other covenants or obligations under a lease. A tenant’s obligation to pay rent therefore does not depend on the landlord’s compliance with its obligations under the lease: Golden Sunrise Ltd v Lee Kwok Hung [2005] 1 HKC 466 at [37] - [39] and [41] per Chu J (as she then was).

22. In the premises, the defendant simply has no defence in law for not paying rent under the Sub-Lease even if it is triable as to whether the plaintiffs have themselves been in breach of clause 8.01(a) (and even if, without deciding, that amounts to derogation from grant) or a collateral agreement or an implied condition.

23. …

24. …

25. …

26. In the premises, even if the defendants’ various allegations of the plaintiffs’ breaches do raise triable disputes of fact, they cannot seek to set off the outstanding rents by way of a right of set-off or the pleaded counterclaim. Hence, there is simply no defence in law against the plaintiffs’ claim for the outstanding rent and rate and other outgoings under the Sub-Lease and vacant possession ...

27. The Judge is therefore correct in concluding that the defendants failed to raise any triable defence to the plaintiffs’ claim and in granting summary judgment (subject to the questions of relief against forfeiture and the award of mesne profit without trial) …” (underline added)

36.In light of the precedents above, I tried to interrupt when the Respondent kept on referring to the alleged breaches by the Applicant in various aspects.[9]

Frustration of Tenancy

37.During the hearing, the Respondent also suggested that the Tenancy had been frustrated by the alleged breaches by the Applicant though, she and her mother had continued to reside at the suit premises.

38.Again, I explained to her that the contractual doctrine of frustration seldom applied to any type of leases.[10] For the doctrine to apply there must have occurred an event such that no substantial use of the demised premises as would have been permitted by the lease. In my opinion, the plumbing problems of having no hot water coming out from the hot water faucets could never amount to a fundamental breach of the Tenancy so that there could not be any substantial use of the suit premises. In any event, as stated above, the Respondent and her mother had continued to reside at the suit premises. The Respondent is therefore bound to perform her obligation to pay rent on time under the Tenancy Agreement.

39.A nineteenth century example of the principle's operation can be found in Rede v. Farr (1817) 6 M&S 121, Lord Ellenborough CJ stated at p 124 as follows:

“In this case, …, it would be contrary to an universal principle of law, that a party shall never take advantage of his own wrong, if we were to hold that a lease, which in terms is a lease for twelve years, should be a lease determinable at the will and pleasure of the lessee; and that a lessee by not paying his rent should be at liberty to say that the lease is void. On this principle, even if it were not borne out so strongly as it is by the current of authorities, it would be sufficient to hold that the lease was only void as against the lessee, not against the lessor."

Premises Becoming Uninhabitable

40.To the extent that the Respondent alleged that the suit premises were uninhabitable, Halsbury’s Laws of Hong Kong, Volume 36, 2^nd Edition, 2025, [235.224] explains as follows:

“Unless the lease contains provision to the contrary, the tenant takes the demised premises subject to any defects existing in them at the time of the letting, and to any events which subsequently affect their value. Hence, it has been the general rule that the rent continues to be payable notwithstanding that, in the case of a dwelling house or flat, it is at the time of letting, or subsequently becomes, unfit for habitation … or that, by the landlord’s neglect of an obligation to repair, the premises have become useless to the tenant, although the tenant may have an action against the landlord for breach of the landlord’s covenant …” (underline added)

41.Here, again, despite the Respondent’s allegation that the suit premises was not fit for habitation, the Respondent and her mother had continued to reside at the suit premises. I interrupted therefore when the Respondent kept on saying that by reasons of the Applicant’s breach of the Tenancy, the suit premises was uninhabitable.

Harassment

42.Notwithstanding the enactment of the tort of harassment in other jurisdictions elsewhere, there is no statutory definition of harassment in Hong Kong. However, in Sir Elly Kadoorie & Sons Limited v Samantha Jane Bradley [2024] 4 HKLRD 428, Chow JA, giving the judgment of the Court of Appeal, gave a definition of harassment at §32 in the following terms:

“In summary, in the present state of the development of the tort of harassment in Hong Kong, in order to make out a cause of action in this tort, the victim of harassment has to show that:

(1) the harasser, directly or through third parties, has, by a course of sufficiently repetitive, unreasonable and oppressive conduct, caused, and which he ought reasonably to know would cause, worry, alarm, emotional distress or annoyance to the victim;

(2) the conduct complained of must, objectively, amount to harassment (in the ordinary sense of that word);

(3) the harasser either intends to cause harm or injury to the victim by his harassing conduct, or is reckless as to whether the victim would suffer harm or injury as a result of the harassing conduct; and

(4) to complete the tort, the victim must have suffered actual damage caused by the harassment. For this purpose, physical harm, including anxiety, distress, (a fortiori) recognised psychiatric illness, and financial loss would suffice.”

43.Section 119V of the Landlord and Tenant (Consolidation) Ordinance however comes under the heading of “harassment”. Its subsection 2 provides that:

“Subject to subsection (3), any person who, in relation to any premises—

(a) either—

(i) does any act calculated to interfere with the peace or comfort of the tenant or sub-tenant or members of his household; or

(ii) …

(b) knows, or has reasonable cause to believe, that that conduct is likely to cause the tenant or sub-tenant—

(i) to give up occupation of the premises; or

(ii) to refrain from exercising any right or pursuing any remedy in respect of the premises,

commits an offence and is liable on conviction on indictment by the court”

44.Then subsection (3) states that:

“A person does not commit an offence under subsection (2) if he proves that he had reasonable grounds for doing the act, or withdrawing or withholding the services, concerned.”

45.Indeed, clause 8 of the Tenancy Agreement provides as follows:

“Provided the Tenant shall have paid the Rent and other outgoings on the days and in the manner herein provided and observe and perform the terms and conditions herein contained and on the Tenant’s part to be observed and performed, the Tenant shall peacefully hold and enjoy the Premises during the Term of Tenancy without any interruption by the Landlord.”

46.In addition to the above, the tort requires a degree of repetition on the part of the defendant. There are also other circumstances where such act of the defendant may be excused. Borrowing, for instance, from section 60B of the Personal Data (Privacy) Ordinance, Cap 486, the defendant’s conduct complained of may be reprieved if it is carried out for establishing, exercising or defending legal rights in Hong Kong. Also, in Pacific Ace Finance Limited v Delay, Gilda H & Others, DCCJ 3298/2018 & DCCJ 3299/2018 (unreported, dated 10 July 2025), the court accepted at §§30-36 that money lenders and/or debt collector can try to recover debts from the borrowers as well as allowing money lender and his debt collectors to locate the whereabouts of the debtors but not through any improper or unlawful practices.

47.On the other hand, harassment, if established, is a criminal offence and “court” as defined under Landlord and Tenant (Consolidation) Ordinance means the District Court. Thus, the Tribunal has no jurisdiction in deciding on harassment though the Respondent tried to relate harassment to the covenant by landlord to provide quiet enjoyment by the tenant in demised premises.

48.In any event, a tenant’s covenant to pay rent is separate and independent from the landlord’s covenants under the lease including a covenant for quiet enjoyment. A tenant cannot refuse to pay rent on the ground that the landlord has breached his covenants or obligations under the lease. In Charmway Development Limited v Long China Engineering Limited, supra, Chu J (as she then was) held as follows:

“18. Under the common law, the covenant to pay rent has been regarded as independent of the other covenants or obligations under a lease, including, for example, the covenant for quiet enjoyment : Edge v Boileau and Others [1885] 16 QB 117, see also Taylor v Webb [1937] 2 KB 283. A tenant's obligation to pay rent is not dependent upon the compliance by the landlord of its obligations under the lease.

19. There is therefore no room for the defence asserted by the plaintiff to the counterclaim, namely, it is not obliged to pay rent or the defendant is not entitled to rent by reason of the alleged breaches of the Tenancy Agreement on the defendant's part.”

49.A fortiori, in Kensland Realty Ltd v Whale View Investment Ltd & Another (2001) 4 HKCFAR 381, [2002] 1 HKLRD 87, it was held by the Court of Final Appeal at §91 that a person is not permitted to take advantage of his own wrong. Here, in the present case, the Respondent and her mother had continued to reside at the suit premises without paying the full rental since October 2025.

Structural Alteration

50.It was pity that the Respondent cited what she considered as section 117(3) of the Landlord and Tenant (Consolidation) Ordinance, Cap 7 regarding structural alteration of the suit premises as the reason for her “still awaiting the landlord’s approval four months later”. In fact, section 117(3)(h) of the Landlord and Tenant (Consolidation) Ordinance provides as follows:

“if the tenancy—

(i) does contain a covenant substantially to the effect that the tenant not make any structural alteration to, or suffer or permit any structural alteration to, the premises without the prior written consent of the landlord[11]; but

(ii) does not contain a condition for forfeiture if that covenant is broken,

then there shall be implied in the tenancy a condition for forfeiture if that covenant is broken.”

51.In Bickmore v Dimmer [1903] 1 Ch 158, there was a covenant under a lease not to make any "alteration" to the demised premises without prior written consent. The question which arose for consideration was whether the affixing of a clock to the exterior of wall by means of bolts driven into it was a breach of the covenant. Both Vaughan Williams and Cozens-Hardy LLJ were of the view that "alteration" was limited to something which "alters the form or structure of the building." The affixing of the clock did not have that effect: all it amounted to was the abstraction of a few cubic inches from the wall of the house and that was not an alteration within the meaning of the covenant.

52.In Incorporated Owners of Tuen Mun Hung Cheung Industrial Centre (Phase 1) v. United Hong Kong Ltd, HCMP 2991/ 1998 (unreported, dated 22 November 1999), it was remarked at §9 that “structural alteration clearly means alteration to the structure of the Building”. In Incorporated Owners of Elite Garden v. Profit More Co. Ltd [2002] 2 HKLRD 518, the Court of Appeal, while having referred to Bickmore v Dimmer, supra, further ruled at §19 that “structural alteration must include permanent physical alteration to the fabric of the building ...”

53.When Incorporated Owners of Elite Garden v. Profit More Co Ltd was followed later in The Incorporated Owners of Hong Yuen Court v Lee Keong Ae & Others, LDBM 89 & 90/2012 (unreported, 30 June 2015), the Tribunal remarked at §42 that when the word “structural” was added, it seemed only to concern more with the alteration to or interference with the framework or fabric of the building.

54.In the above regard, those so-alleged plumbing problems as regards hot water, non-functioning ventilation hood, non-functioning front door locks, multiple damages to the front door, water seepage from the window in living room and both bathrooms, water leakage under the sink in bathroom, drain stopper to plug the bathroom sink etc could be readily fixed without coming within the definition of “structural alteration” or “alteration”. The Respondent, if she wishes, needs not require the consent from the Applicant in carrying out the remedial works and claims for damages (or reimbursements), if any, in due course.

Responding to Respondent’s Accusation by Ms Chan

55.Then the Respondent made it a case that Ms Chan failed to provide her with an original copy of the Tenancy Agreement which was signed in duplicate[12]. The Respondent wanted the Tribunal to grant an order compelling Ms Chan to do so.

56.For the reason of clarifying the issue, I granted leave for Ms Chan who happened to sit in the hearing to respond. Ms Chan said all along she had been telling the Respondent till January 2026 to get an original copy of the Tenancy Agreement at her office after it was stamped. But the Respondent asked her to send it to her by courier instead.

57.The Respondent then admitted that Ms Chan did provide her with a copy via WhatsApp but she was not satisfied as she was advised by the Estate Agents Authority to have the original copy. The Respondent added that she did not want to meet Ms Chan again because she had a confrontation with Ms Chan on an occasion when she found Ms Chan was following her on the Light Rail.

58.On the other hand, Ms Chan responded that the Respondent had not yet paid the agency commission as agreed but she was willing to meet the Respondent face to face, giving her an original copy of the Tenancy Agreement and a receipt for the agency fee upon collection. According to Ms Chan, the Respondent replied that she was blackmailing her and withholding the original copy of the Tenancy Agreement.

59.Having heard the above, I told the parties that this dispute between the Respondent and Ms Chan was outside the jurisdiction of the Tribunal and I stopped Ms Chan from giving further statement[13].

60.Most unfortunately, the Respondent’s mother who was sitting at the back had tried to interrupt by shouting loudly on several occasions when Ms Chan was responding[14]. I also told her to stop anyway.

Rental in Arrears

61.During the hearing, Mr Cheung did not shy away from admitting that he was confused by the payment of rental, if any, from the Respondent because she did not inform him when the payment was made initially. According to Schedule I to the Tenancy Agreement, however, the Respondent was only requested to deposit the monthly rental into Madam Kwan’s bank account but without more. Perhaps for this reason, when Mr Cheung only took over the role of supervising the Tenancy matter in September 2025 after the death of his father, he failed to realise that the Respondent paid the rental for that month on 3 September 2025 and kept on chasing the Respondent for payment through Ms Chan.

62.Then, as it turned out during the hearing, the Respondent just deposit $6,200 per month since 3 October 2025, ie approximately only half of monthly rental reserved in the Tenancy Agreement. That is, the Respondent had unilaterally applied an abatement of rent without acceptance by the Applicant. In such regard, the Respondent tried to defend that her dispute or allegation of breaches by the Applicant is undergoing a prospective mediation by RVD[15].

63.With respect, such a defence is not acceptable in view of the ruling of the Court of Appeal in Chan Yin Kwan v Wong Kam Hoi, supra.

64.As explained above, the Tribunal had only the jurisdiction to determine whether or not the rental payable by the Respondent was in arrears when the Applicant filed the Application on 10 November 2025, I made the Order as stated in the beginning of these decisions.

Grounds for Review

65.The Respondent’s Ground 1 and Ground 3 for review have no merit. As explained above, a tenant’s covenant to pay rent is independent of the other covenants or obligations under a lease. While those so-alleged plumbing problems as regards hot water, non-functioning ventilation hood, non-functioning front door locks, multiple damages to the front door, water seepage from the window in living room and both bathrooms, water leakage under the sink in bathroom, drain stopper to plug the bathroom sink etc could be readily fixed, there could not be a frustration of the Tenancy Agreement. More particularly, the Respondent and her mother have been residing at the suit premises but had unilaterally applied an abatement of rent without acceptance by the Applicant. Following Chan Yin Kwan v Wong Kam Hoi, supra, and more recently, Worldwide Flight Services Holdings S A Royal Caribbean Cruises & Another v Kai Tak Cruise Plaza Limited, supra, I needed not hear the particulars of the breaches alleged by the Respondent.

66.Again, the Respondent’s Ground 2 for review is misconceived. The Tribunal has no jurisdiction to entertain her counter-claim.

67.The Respondent’s Ground 4 for review has no merit. Whereas the intending mediation by RVD did not proceed, following the ruling of the Court of Appeal in Chan Yin Kwan v Wong Kam Hoi, supra, at §40, the Tribunal only had to deal with the Applicant’s application for the recovery of rent in arrears and repossession of the suit premises. In considering the Application, the Tribunal was not bound to consider and should not have considered the question of deducting part of the rent in arrears.

68.Similar to the above, the Respondent’s Ground 5 for review has no merit as I needed not hear the particulars of the breaches alleged by the Respondent or her mother who shouted to speak during the hearing. Leave was only granted to Ms Chan to respond on the allegation by the Respondent that Ms Chan failed to provide her with an original copy of the Tenancy Agreement and not more.

69.For Ground 6, the Tribunal does not have jurisdiction to adjudicate on the Ms Chan’s misconduct or wrongdoing as alleged by the Respondent. The Respondent, if she wishes, may commence an action in the District Court or file a complaint to the Estate Agents Authority. Neither could the Tribunal grant an order compelling Ms Chan to provide the Respondent with an original copy of the Tenancy Agreement as insisted by the Respondent.

70.As regards the Respondent’s Ground 7 for review which consists of the admission of confusion or mistake by Mr Cheung on the issue whether there existed any rental payment in arrears, the Respondent herself had conceded during the hearing on 6 January 2026 that she only made a monthly payment of $6,200 for October, November and December 2025. As this issue has been sought out, I have the jurisdiction to make the Order.

Conclusion

71.In view of the above, I dismiss the Application for Review by the Respondent.

72.To the extent that the Respondent relied on the same grounds in the application for stay of execution of possession of the Judgment, as a result of the above thereof, there is no merit in granting a stay. Therefore, I hereby order to dismiss the interlocutory application filed by the Respondent on 13 January 2026 and the date scheduled for hearing this ie 6 February 2026 be vacated.

Costs

73.As these decisions are made on papers without a hearing pursuant to the Practice Directions issued by the President of the Tribunal: Review No 1/2009, I make no order as to costs.