Chen Cheung Pui Huen v. Tang Tak Kwan

Case No.HCA 2594/1972

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA002594/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO.2594 OF 1972

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BETWEEN
	CHEN CHEUNG Pui Huen	Plaintiff
	and
	TANG Tak Kwan	Defendant

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Coram: Li, J.

Date of Judgment: 4th April, 1973

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JUDGMENT

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1. This is an action for the recovery of possession of a flat known as Flat B1, 13th Floor, Tsimshatsui Mansion, No. 93-95 Nathan Road, in Kowloon.

2. At the outset of the proceedings, the defendant informs me that she has applied for Legal Aid yesterday, and that she will rely entirely on Legal Aid. Such information appeared to be a complete nonsense to me. After due inquiry in the process, I have come to the conclusion that the defendant's conduct is, from beginning to end, an attempt to delay the proceedings and, accordingly, I order that the trial should proceed forthwith. I have recorded my reasons for this order and I shall not repeat it.

3. The issue in this case is very simple. There is no dispute that the plaintiff is the landlady and registered owner of the suit premises in question and that the defendant is the tenant as from the 1st day of July 1969, by virtue of a Tenancy Agreement dated the 3rd of July 1969 - Exhibit 1. It has not been challenged that the tenancy, on expiration in 1970, was renewed on exactly the same terms of that Tenancy Agreement except for an increase in rent. It was similarly renewed upon the same conditions in 1971, upon a further increase in rent. Thus, at all times, apart from the difference in rent, the terms of the Tenancy Agreement are exactly the same as in 1969.

4. Although the defendant denies generally everything in the Statement of Claim, yet in the course of the hearing, it is abundantly clear that the defendant sublet the premises some time in 1971/1972. The only defence by the defendant is this - that in August 1971 the plaintiff was informed of such subletting and that the rent collecting agent of the plaintiff knew of the subletting and yet continued to receive rent and accepted rent from the defendant. Thus, as I understand it, the defendant's defence is one of waiver of the covenant on the part of the plaintiff. That appears to me to be the only issue.

5. Perhaps at this stage, I may refer to some of the terms in the Tenancy Agreement. Clause 2(k) of the Tenancy Agreement provides that:

"	Not to assign, underlet or part with the possession of the said premises or any part thereof nor to enter into, permit or suffer any arrangement whereby any person who is not a party to this agreement obtains the use or possession of the said premises or any part there of irrespective of whether any rental or other consideration is given for such use or possession."
	Clause 4(a) of the Tenancy Agreement provides, inter alia, that:
"	..... if the Tenant shall fail or neglect to observe or perform any of the agreements, stipulations or conditions herein contained and on the Tenant's part to be observed and performed ..... it shall be lawful for the Landlords at any time thereafter to re-enter on the said premises or any part thereof in the name of the whole whereupon this Agreement shall absolutely cease and determine but without prejudice to any right of action by the Landlords in respect of any outstanding breach or non-observance or non-performance of any of the agreements, stipulations and conditions herein contained..... "
	Clause 4(c) provides that:
"	Acceptance of rent by the Landlords shall not be deemed to operate as a waiver by the Landlords of any right to proceed against the Tenant in respect of any breach non-observance or non-performance by the Tenant of any of the agreements, stipulations and conditions herein contained and on the Tenant's part to be observed and performed."

6. Without going deeply into the legal effect of these provisions, it seems that the case is foregone conclusion. The plaintiff's evidence is that at no time did she have knowledge of the subletting. She freely admits that in August 1971 she went with a relative to inspect the suit premises occupied by the defendant. She found one of the rooms was locked. She was told by the defendant that the defendant's relative lived there and happened to be out. On that occasion, she told the defendant in no uncertain terms that she intended to sell the premises to her relative with vacant possession. However, the sale did not materialize and she left the premises. In August, 1972 - a year later - she had information that the defendant had been subletting the premises. She immediately informed her agent, the Shing Yip Co. Ltd., and she went to inspect the premises herself. On arrival, she found that the defendant was absent and some strangers refused her entry. As a result of further information, she located the defendant in Flat A1 of the same building and spoke to the defendant. The defendant frankly admitted to her that the premises were sublet. Thereupon, she informed her agent and took action to recover the possession. Rent had not been accepted since September 1972 to date. Her rent collector, Mr. CHAN, says that he discovered the subletting roughly about the same time. It has been put to Mr. CHAN that as long ago as 1971 he knew of one Mr. HUI living in the premises. Mr. HUI was his friend and he should have known that Mr. HUI was a sub-tenant in the suit premises. Mr. CHAN emphatically denied that he was that familiar with Mr. HUI; that he had no idea whether Mr. HUI lived there until August 1972 when he located the defendant under similar circumstances as the plaintiff located the defendant and obtained such information from the defendant. Since then, no rent had been accepted.

7. The defendant gives evidence herself that she told the plaintiff on her visit in August 1971 that she had sublet the premises to one Mr. HUI. But she admits that the plaintiff told her that she (the plaintiff) intended to sell the premises with vacant possession. The defendant's assertion is that she was not in a position to render vacant possession because she had sublet to one Mr. HUI, and the plaintiff left without taking any further action. But rent was accepted from month to month.

8. The defendant called her husband, Mr. YAU to give evidence corroboration. Mr. YAU, in his evidence, said that he himself told plaintiff of the subtenancy on that particular occasion. The plaintiff took no action whatever and continued to accept rent. He also said that the rent collector, Mr. CHAN, knew of the circumstances all the time.

9. There are other evidence given on various extraneous matters, something like financial difficulty, various other sub-tenants living there from time to time. These are not relevant to the proceedings. My one and only concern, as indeed it is the issue in this case, is whether the plaintiff, knowing fully that there had been a subletting as long ago as 1971, waived the breach of covenant, continued to accept rent and took no action to recover possession. If the plaintiff did that, the defence will succeed. If the plaintiff did not know in 1971 but knew only in 1972, then she did not waive any breach of covenant and she is entitled to take action to recover possession for breach of covenant.

10. Considering the evidence before me, I have come to the conclusion that the defendant has told me nothing but a pack of lies. One thing is abundantly clear: The defendant's family cannot be described as an uneducated family. The husband operates a school and he says that he is a headmaster of a school. She signed a Tenancy Agreement and that Agreement contained certain terms prohibiting subletting. According to the defendant's own evidence, she was told in August 1971 that the plaintiff wanted to sell the flat with vacant possession. Unless the defendant or her husband were fools, it would never be in their own interest to disclose to the plaintiff that they had sublet the premises, because there was a term in the Agreement prohibiting subletting. If there had been any subletting, it would enable the plaintiff to re-enter. Their information tendered to the plaintiff at that time would enable the plaintiff to sue for vacant possession. Alternatively the plaintiff would be a complete fool, if she did not enforce the terms of this Tenancy Agreement. Even so, they could not discount the fact that the plaintiff might obtain legal advice there and then and take action to recover possession. In other words, I find that their story of telling the plaintiff of the subletting in 1971 is not worthy of any credit whatsoever.

11. The defendant's husband advanced the evidence that in signing the Tenancy Agreement, the defendant was not aware of the terms prohibiting subletting. This, to my mind, might well happen to an uneducated family or to someone who is totally ignorant of relationship between landlords and tenants. However, ...(illegible) of his own month, Mr. YAU, told me that he used to own properties. He let properties to others from time to time, although not on a big scale. He is the type of person, to my mind, that cannot be described as unsophisticated. It will be a farce to ...(illegible) that neither he nor his wife would acquaint themselves of the contents of the Tenancy Agreement before signing it. And even if they did sign it without knowing it, I doubt very much that any tenant with any commonsense would inform any landlord of a subletting as a reason for inability to render vacant possession. That is not all. By their evidence they do not only label themselves as fools, but they also credit the plaintiff with the same foolishness that having heard of a breach of covenant or having heard of the subletting, the plaintiff did not take any action whatever in 1971, but waited until 1972 for a further breach before she took any action.

12. For these reasons, I have no hesitation to accept the plaintiff's evidence that she knew nothing of the breach until August 1972 and from that time onwards, refused to accept any rent when tendered by the defendant. Perhaps I should add that because the defendant appeared in person and put in a defence which amounted to a general denial. I ordered that the plaintiff should start the case. Had it been otherwise, having regard to the pleadings, I would have asked the defendant to elect as to which defence she is relying and if she should rely on the defence of waiver on the part of the plaintiff, then I would rule that the burden of proof of waiver lies on the defendant. Then the defendant should begin the case. Be that as it may, having regard to the pleadings and the evidence together, I have no doubt that the burden of proof should lie on the defendant to prove waiver.

13. One way or the other, I find that the defendant failed to discharge the burden of proof of waiver and alternatively, I find that the plaintiff has proved her ignorance of the subletting in 1971 and when she found that there was a subletting in 1972, she took immediate action. Thus there was no waiver.

14. Under the circumstances, I have no option but to order that judgment be given in favour of the plaintiff, namely, that there shall be possession of the premises; mesne profit at the rate of $682.50 per month as from the 1st day of September until vacant possession is delivered to the plaintiff; and costs of this action.

	(Simon F.S. Li)
	Puisne Judge

Representation:

Denis Chang (Peter Mo & Co.) for plaintiff

Defendant in person

Oral judgment reduced into writing.