Cheng Dip Chau v. Chow Chi Liang

HCA001906/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1906/72

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Coram: Trainor J. in Court

Date of Judgment: 8 February 1973

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JUDGMENT

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1. These are proceedings in ejectment instituted by the plaintiff to obtain possession of the rear portion of the first floor, No. 6 Observatory Road, Kowloon. The premises were held by the defendant on a verbal tenancy from month to month at the monthly rent of $510. It was common case that the premises formed part of an entirely new building, the Occupation Permit of which was issued subsequently to the 16th August, 1945 and, therefore, the Landlord & Tenant Ordinance does not apply. It was also common case that the Tenancy (Prolonged Duration) Ordinance does not apply.

2. The only issue between the parties was as to whether a Notice to quit, served in accordance with the provisions of the Tenancy (Notice of Termination) Ordinance, 1962 was effective to terminate the defendant's tenancy on the 30th April, 1972. The plaintiff maintained it was, because the primary user of the premises was as business premises; the defendant maintained the contrary to be the case as the primary user of the premises was as domestic premises.

3. The plaintiff in support of her claim produced a certificate issued pursuant to S. 5(5) of the Rent Increase (Domestic Premises) Control Ordinance (hereafter referred to as the Rent Ordinance) by the Commissioner of Rating and Valuation on the 30th September, 1971 to the effect that on the 23rd September, 1971 the primary user of the premises was non-domestic. This was prima facie evidence that the premises were not primarily used as domestic premises and that, therefore, the Rent Ordinance did not apply.

4. The plaintiff said that the defendant became her tenant in 1966 paying a monthly rent of $510. She said that she let the premises for domestic purposes but that the user changed. She said that she personally collected the rent on occasions and that on her visits she saw the sitting room had been converted into an office. She said there were indications that business was being carried on in the premises. A business sign was hanging on the wall outside the building and there were similar signs on the wall inside her premises. The signs inside were on the wall on the first floor and an arrow indicated the way to the premises let to the defendant. These signs advertised: the defendant as a doctor practising acupuncture massage and as an instructer in Tai Chi boxing; another doctor named Chan Tai Fu; a travel agency, the Miami Travel Agency whose primary business, the sign reads, is Escort Service. The sign for the Miami Travel Agency invited people to come in. The plaintiff also produced a certified copy of an application for registration dated the 17th September 1966 of the Miami Travel Service made pursuant to the Business Registration Ordinance. The address of the principal place of this business is given as Flat F 5th floor Alpha House, but on the 16th November, 1971 the business name was changed to Miami Escort Service and the business address to 6, Observatory Road, 1/F. Another certified copy of a similar application for registration was produced by the plaintiff. This application was made on the 2nd April, 1971 by a Mr. Jan Kei Man Peter whose residential address was given as Flat 12, Bowring Building, 6/F, Bowring Street, Kowloon. He applied for the registration of the Golden International Trading Co., Tours and Travel Service. The address of its principal place of business was given as "6, Observatory Road, 1st floor, Kowloon" and the nature of the business was set out as "Import, Export and Tours Service". The plaintiff also produced a business card given to her by the defendant setting out that he was a doctor carrying on practice in the plaintiff's premises. She further produced two newspapers in which the doctor whose name appeared on one of the signs on the wall in the plaintiff's premises advertised for patients.

5. The defendant gave evidence. He made very little effort to contradict the evidence of the plaintiff. His opening statement is somewhat vague but would suggest that when he took the premises originally it was to carry on his practice as a doctor or herbalist. He said: "When I rented the premises she asked my business. I said I was a Chinese doctor (herbalist). I also said I would use the premises for domestic purposes". The defendant went on to tell about increases in the rent and certain negotiations for a new lease after the service of the notice terminating the tenancy. I do not propose to traverse this part of the evidence as it is of little value to the defendant's case. However, although these negotiations went so far as a lease being executed by the plaintiff and a deposit by way of rent and security being made by the defendant, the defendant refused to sign the lease. He said he did so because the terms in the lease were hard, and he was told by someone in the plaintiff's solicitor's office that he could get a certificate of domestic user from the Commissioner for Rating and Valuation. I assumed him to mean that with that certificate he would be protected by the Rent Ordinance and could not be ejected. He produced a certified copy of such a certificate dated the 17th July, 1972 to the effect that the primary user of the premises on the 30th June, 1972 was domestic.

6. In cross examination the defendant agreed that there were others apart from himself carrying on business in the premises, but said they only occupied 10% of the area. He was shown a business card of one George Leung Managing Director of (inter alia) the Miami Travel Service and admitted he was carrying on business in the premises. He added: "If this person is a problem I can ask him to leave," but then went on to say he only used the premises as a business address and to use the telephone. The defendant admitted that there is another doctor practising in the premises but added that he is about to leave for Taiwan. He also admitted saying on one occasion that if the Court said he should stop carrying on business in the premises he would. The cross examination produced more which tended to establish that the primary user of these premises is most certainly for business purposes.

7. The certificate produced by the defendant refers to a date, the 30th June, 1972, which is subsequent to the date of the purported termination of the tenancy and is, therefore, of no avail to the defendant. The certificate of the plaintiff referred to a date, the 23rd September, 1971, which is shortly prior to the service of the Notice of Termination. This established, prima facie, that the premises were business premises, and the evidence of the plaintiff and also, indeed, the cross-examination of the defendant has amply confirmed this. I have no hesitation in holding that at all relevant times the primary user of these premises was for business purposes.

8. The only point raised by the defendant with regard to the notice of Termination of the tenancy was that it had not been posted three times upon the door of the premises so that it might affect any sub-tenancies. So far as the defendant is concerned the point is of no avail to him. I am, however, satisfied from the evidence of the first witness, hesitant though he was at the beginning of the defendant's cross-examination of him, that the notice of termination was properly served. I find that the plaintiff is entitled to possession.

9. I have heard the parties on that part of the plaintiff's claim whereby he claims mesne profits at a rate to be fixed by the Registrar. I do not think this is a matter to send back to the Registrar. Counsel for the plaintiff has suggested that the plaintiff's claim for mesne profits should be on the basis of $510 per month and having heard the defendant I agree with that. I find for the plaintiff on his statement of claim with mesne profits fixed at $510 per month.

10. It is agreed between the parties that there is an amount of $4,590 due by the defendant at the date of the hearing and that the plaintiff is in possession of $980 held by way of security for rent. It is ordered by agreement between the parties that on the defendant paying the balance of $3,610 due, and continuing to pay mesne profits at the rate of $510 per month there be a stay of execution for three months from the date hereof.

Representation:

Mr. Patrick Woo (Gunston & Chow) for Plaintiff

Defendant in person.