Yim Kam-to v. Chin Chun-chor

HCA002175/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 2175 OF 1973

-----------------

-----------------

Coram: Li, J.

Date of Judgment: 21st November, 1973 at 11.00 a.m.

-----------------

JUDGMENT

-----------------

1. This is an action for possession of the premises known as No.174, Yee Kuk Street, ground floor, Kowloon (hereinafter referred to as the 'suit premises') and for mesne profits at the rate of $1,200 per month from the 9th July, 1973 to the date of vacant possession and for costs.

2. The plaintiff's case is that he is the landlord of the suit premises which was let to the defendant on monthly tenancy at the rent of $1,200 per month payable in advance on the 9th day of each calendar month. The suit premises were let to the defendant for the sole purpose of business user and were at all material times used by the defendant for business purposes.

3. On the 19th December, 1972 notice of termination of the tenancy was served on the defendant to expire on the 8th July, 1973 a copy of the said notice was also posted in compliance with the Ordinance for three consecutive days on the 19th, 20th and 21st December. The defendant failed to render vacant possession.

4. The defence, first of all, admit paragraphs 1 and 2 of the plaintiff's claim. It is significant to observe that paragraph 2 of the statement of claim alleges that that the premises were let to the defendant solely for business purposes. However, the defence goes on to allege that "in answer to paragraph 4, the defendant denies the defendant rent the said premises for residential purposes ever since" and the "nearly 90 per cent of the said premises is used for residential purposes". There is no tenancy agreement made between the plaintiff and the defendant but the plaintiff also allowed the defendant to sub-let a portion of the said premises to other people as his legal sub-tenant. Therefore, they claimed protection under the 1970 Landlord and Tenant Ordinance.

5. The sole issue is whether the premises was let and indeed, used as business premises or domestic premises; and alternatively, whether the primary use of the premises is one for domestic premises or business premises.

6. The plaintiff's evidence is this: that when the building was completed an occupation permit was granted to the landlord specifying that the suit premises was for non-domestic uses. That is in exhibit 1. The landlord further applied under the Rent Increases (Domestic Premises) Control Ordinance 1970, which is now consolidated into the Landlord and Tenant (Consolidated) Ordinance, Chapter 7, for a certificate from the Rating and Valuation Department as to the primary user of the premises, A certificate was issued on the 10th August this year, exhibit 2, stating that the surveyor of the Rating and Valuation Department certified that, in his opinion, the primary user of the suit premises on that particular day was non domestic.

7. The plaintiff also produces two business registration certificates, one of which relates to a shop by the name of Yik Wo Shop occupying the front portion of the suit premises and another relates to a Hop Tak Electrieal Metal Works which also occupies the suit premises.

8. Both parties produce a rough plan of the premises. On the part of the plaintiff, they allege that more than two-thirds of the premises are used as business premises; on the part of the defendant, it is alleged that there are so many tenants, sub-tenants living there and that at the most, only one-third of the suit premises is used for business purposes.

9. The defendant appears in person and for this reason I allow him to adduced evidence and to cross-examine on a lot of irrelevant matters. I shall not enumerate them. Some of the questions put and some of the evidence adduced have very little to do with the issue of whether the premises are, in fact, business premises or domestic premises. Be that as it may, I accept the evidence that the defendant and his family live in the premises and sub-let part of the premises to others. The sub-tenants, use the suit premises as shops and for business purposes. Having regard to the certificate in exhibit 2 and the occupation permit in exhibit 1, I, on the balance of probability, have come to the conclusion that the premises have been used for business purposes. However, I am not satisfied with such primary evidence or prima facie evidence. Therefore I accepted suggestion by counsel for the plaintiff to have a site inspection. I went there to have a look. My observation confirmed what was certified in exhibit 2. My impression is that as one entered the suit premises the front portion is occupied by the shop and the people of the Yik Wo Shop. The sub-tenant is Mr. MA. That shop and its living quarters occupied about one-third of the length of the suit premises, which is approximately 70 feet long. Half of that one-third, namely one-sixth of the total length of the suit premises is used for business purposes and used as a shop. Another half of the one-third, namely the other one-sixth is used as a cubicle. There are beds inside and no doubt it is used as a living quarter. Then on the right hand side there is one small bed space with a small ladder leading up to a front cockloft which no doubt is used as living quarters. The remaining two-thirds of the whole length of the suit premises is practically occupied by the Hop Tak Metal Shop. Half of this two third is an empty space in which machinery, stores, iron plates and working materials are placed. I can describe it only as a workshop. On the right hand side there is a certain alcove built between the ceiling and the wall so as to accommodate roughly about two to three persons. Their bed spaces, overlook the workshop part of the Hop Tak.

10. Then I come to the last one-third of the suit premises which is mainly divided into the following spaces: there is one small office in which all the things are stacked; above the office about one-sixth of the length of the suit premises is used for storage of various office equipments. The other one-sixth of the suit premises consists of a passage to the backyard which again is stacked with the iron plates and various goods of the Hop Tak Store. On the right hand side, as one faces the backyard, there is a bed space of a double bunk. Beside the double bunk there is a ladder leading up to yet another cockloft which is used as living quarters, possibly by the defendant's family. At the very back of the suit premises there was a small kitchen and a small bath. Having regard to such lay-out, I have no doubt that the primary user of the suit premises is that of non domestic. For these reasons I have come to the conclusion that the premises were originally let as business premises. What decides the issue is the occupation permit, exhibit 1; the certificate issued by the Rating and Valuation Department, exhibit 2; and my own observation. I find - which has not been challenged - that notice to terminate the tenancy of the suit premises to expire on the 8th July, 1973, was served on the 19th December, 1972 which gives a proper six months notice as it is required by the Landlord and Tenants (Consolidation) Ordinance and that the formality of posting the notice of termination on the suit premises for three consecutive days had been complied with and that the landlord is entitled to possession on the expiration of the six months period. Unfortunate as it may seem, I have no alternative but to give judgment to the plaintiff for possession and for mesne profit as claimed in the statement of claim and the defendant will have to pay costs for this action.

11. I would have stopped here but for the fact that I feel sorry for the defendant in that he was completely misguided not defending this action instead of looking for somewhere to accommodate himself and his family. I am certain that had he obtained proper legal advice, he would have done better. This court is not a Social Welfare Agency. There is another branch of the Government which takes care of that. I can only adjudicate according to law and evidence. The Social Welfare Department will look after people who are less fortunate in circumstances. The problem between landlords and tenants is a perpetual problem. I shall say no more on this except that it is unfortunate and I can only hope that the landlord would, despite this action, see fit to extend some time so as to enable the defendant to find alternative accommodation.

MR. WOO: Some money has been paid for the arrears for profits since the 8th day of July, 1973 and I would ask your Lordship for payment out of this money.

COURT: Yes, the sum of money paid into court will be paid out to the plaintiff's solicitors in part satisfaction of the mesne profits that has been awarded.

MR. WOO: Much obliged.

Representation: