Fan Kwong v. Sze Ping Fong

HCA001534/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Commissioner M. Morley-John in Chambers.

Date of Judgment:

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JUDGMENT

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1. This is an appeal in accordance with the provisions of Order 58, Rule 1 of the Rules of the Supreme Court against the decision of a Registrar whereby the learned Registrar adjudged that vacant possession of premises known as Flat D, 3/F., Coronet Court, No. 321-D, King's Road, Hong Kong be given to the Plaintiff together with mesne profits at the rate of $500 per month from 1st day of June 1973 to the date of obtaining possession of the said premises, and taxed costs.

2. By writ of summons dated 1st of June 1973 the Plaintiff claimed possession of the above-mentioned premises together with mesne profits at the rate of $500 per month from 1st of June 1973 until the delivery of vacant possession of the said premises.

3. By an inter partes summons dated 11th of June 1973 the Plaintiff applied for final judgment in the action in accordance with the provisions of Order 14, Rule 1 of the Rules of the Supreme Court, which summons was heard before the Registrar on the 1st of August, 1973.

4. In support of his application, the Plaintiff by way of affidavit produced evidence inter alia to show that the premises in question formed part of an entirely new building within the meaning of the Landlord and Tenant Ordinance. He produced a copy of the occupation permit in relation to the said premises which designated that they be used for domestic purposes. In order to show that the provisions of the Rent Increases (Domestic Premises) Control Ordinance do not apply to the said premises, he also produced a copy of the Defendant's Business Registration Certificate in relation to the said premises dated the 19th of March 1972 together with the Certificate of Primary User dated the 7th of December 1972 certifying that the primary user of the said premises was non-domestic.

5. The Defendant was not represented at the hearing and he had not filed an affidavit to show cause against the application. I do not know if he ever opened his mouth at the hearing of the application which I notice only took 5 minutes. On the evidence before him, the learned Registrar gave judgment for the Plaintiff as claimed and it is against this judgment that the Defendant now appeals.

6. The Supreme Court Practice lays down that an appeal such as this is dealt with by way of an actual re-hearing of the original application and in the appeal before me the Defendant was represented by Counsel and he had filed an affirmation in which he affirmed inter alia, that the Certificate of Primary User was only prima facie evidence which can be rebutted by actual evidence in open court. He also affirmed that he had sublet a small portion of the said premises to a person who used such portion to carry on a small family business of wig making and that the Business Registration Certificate produced by the Plaintiff was in relation to that business. That further the major portion of the premises is occupied by himself, his family and his sub-tenants as a place of residence and that there are at times no less than 16 persons sleeping and eating in the said premises and that the primary user of the premises is residential. In reply to the Defendant's affirmation, the Plaintiff has filed a further affidavit stating inter alia that more than 60% of the premises has been let to the Wig Company, and that the remaining area of the premises are used by the Defendant to carry on the business of garment making.

7. I had briefly considered inspecting the said premises in order to ascertain for myself what was the condition of the premises, but at once I realized that I should be undertaking the functions of a trial judge, in that it would then be necessary to call evidence as to whether there had been any changes made to the said premises since the service of the original notice to quit. This I think clearly shows that on the evidence that has been adduced before me, to quote the provisions of Order 14, Rule 3, that there is an issue which ought to be tried.

8. Counsel for the Plaintiff has said that if the evidence adduced before me had been before the Registrar, then this appeal may not have been necessary, and even taking into account the fact that the Defendant was not represented before the Registrar, he asked that if I granted the Defendant leave to defend, under all the circumstances it should be conditional upon the Defendant paying into Court mesne profits at the rate of $500 per month from the 1st of June 1973 until the conclusion of the trial of the action and that the arrears of rent or mesne profits as the case may be be paid into Court within 7 days.

9. Accordingly I allow this appeal and the decision of the learned Registrar dated the 1st of August 1973 is set aside and the Defendant is granted leave to defend conditional upon his paying into Court, rent or mesne profits as the case may be, at the rate of $500 per month from the 1st of June 1973 until the conclusion of the trial of the action herein and that the arrears of such rent, or mesne profits be paid into Court within one week.

10. Costs of this appeal to be in the cause.

Representation:

Denis Chang (S.C. Mok & Co.) for Plaintiff.

H.H. Leung (Clayton Wong & Co.) for Defendant.