Ng Tim v. Li Chik Loi and Others
Read the full judgment text of DCCJ 3/1972 on BabelCite. This District Court judgment.
1. This is a subtenant's appeal from the decision of the Tenancy Tribunal giving possession of the premises known as No. 20 Tai Po Road, Kowloon, to the respondent landlords (hereafter referred to as "the landlords") under Section 24 of the Landlord and Tenant Ordinance.
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DCCJ000003/1972 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION T.T. APPEAL NO. 3 OF 1972 -----------------
----------------- Coram: T.L. Yang, D.J. Date of Judgment: 27th January 1973 ----------------- JUDGMENT ----------------- 1. This is a subtenant's appeal from the decision of the Tenancy Tribunal giving possession of the premises known as No. 20 Tai Po Road, Kowloon, to the respondent landlords (hereafter referred to as "the landlords") under Section 24 of the Landlord and Tenant Ordinance. 2. For the sake of convenience, the gist of the case for the landlords at the trial may be divided into two parts. First, they said that their original statutory tenant having died, his son became their statutory tenant by transmission within the meaning of Section 2(c) of the Landlord and Tenant Ordinance. Secondly, they said that the son (hereafter referred to as "the principal tenant") had sublet the premises in question to the appellant subtenant (hereafter referred to as "the subtenant") and three other subtenants without the landlords' consent in writing. On those allegations, and others not relevant for the purpose of this appeal, the landlords applied for recovery of possession under Section 24 of the Landlord and Tenant Ordinance. In the Grounds of Opposition filed in the Tenancy Tribunal, the subtenant made no admission as to the first part of the landlords' case, and apart from conceding that he was the subtenant of the principal tenant, he also made no admission as to the second part of the landlords' case. 3. In this appeal we are concerned only with the first part of the landlords' case. It is not at all clear what precisely were the findings of the President of the Tenancy Tribunal on this particular aspect. He began his decision by saying:
He went on to say,
I am unable to find any other passages in the decision which are relevant to the problem now under consideration. 4. The opening sentence of the President's decision was not, I suppose, intended to be a finding of facts, for the "facts" mentioned by him were clearly matters in issue. The other portion of his decision shows a misunderstanding of Section 2(c) of the Landlord and Tenant Ordinance. That part of his decision was nothing more than an attempt to explain the section and no finding of facts was made as to whether the landlords had exercised their "right to attorn" and if so who their new statutory tenant was. 5. The Grounds of Appeal advanced before this Court are as follows :
6. Grounds 1 and 3 may be taken together as being on a question of substantive law. Ground 2 is on burden of proof, and Grounds 4 and 5 are on questions of fact. 7. Grounds 1 and 3 relate to the President's purported explanation of Section 2(c) of the Landlord and Tenant Ordinance. The explanation was wrong. As I understand the section, it means simply that if the tenant leaves a widow residing with him at the time of his death, then the widow becomes the statutory tenant, in which case the landlord does not have the right to choose a statutory tenant amongst the survivors of the tenant's family, whether there was a dispute or not. If the tenant leaves no widow, or if the tenant is a woman, then a statutory tenant may be chosen by agreement from such members of the tenant's family residing with the tenant at the time of his or her death. In default of agreement, the Tenancy Tribunal decides who the statutory tenant should be. On this interpretation of the section, the subtenant must succeed on Grounds 1 and 3 of this appeal. 8. Ground 2 is, I assume, directed at the first two sentences of the second passage of the President's decision quoted above. The President did not seem to agree with the argument of counsel for the subtenant that it was for the landlords to prove the principal tenant was a statutory tenant, however, he did not expressly say who in fact had the burden of proof. In my opinion, as the landlords based their claim on a statutory tenancy which they alleged to have existed between themselves and the principal tenant, clearly the burden was upon them to prove such a tenancy. The subtenant was not obliged to prove the negative. Also, the existence of a statutory tenancy being a matter within the landlords' knowledge, there was an additional reason for them to prove this fact. 9. Grounds 4 and 5 are perhaps premature as the President did not make any specific finding of facts relating to statutory tenancy. As has been noted, the basis of the landlords' case before the Tenancy Tribunal was that the principal tenant was their statutory tenant and that he had sublet without their consent in writing. The landlords' right to recovery of possession under Section 24 of the Landlord and Tenant Ordinance was therefore based on the relationship of a statutory tenancy between themselves and the principal tenant. If they had failed to establish this statutory tenancy, then they could not have succeeded in their application before the Tenancy Tribunal on the cause of action so framed. It might well be that they could recover possession if they had proceeded on another cause of action, e.g., breach of a contractual tenancy or trespass, but this should be the subject matter of some other proceedings altogether. The President did not consider, and consequently did not find, whether the deceased statutory tenant had left a widow residing with the deceased at the time of his death. He did not consider, and consequently did not find, whether the principal tenant had been residing with his father at the time of his death, nor did he consider or find whether there had been an agreement within the meaning of Section 2(c) of the Landlord and Tenant Ordinance. Evidence on these issues were completely lacking. Whilst it was not the President's duty to complete a party's case when a serious hiatus existed, particularly if that party was legally represented, it was clearly his duty to consider these matters and state his findings thereon. If he had considered these matters, he could have come to only one conclusion, and that was the landlords had failed to prove their case. In my judgment, there was no evidence before the President which could have led him to come to a conclusion that the principal tenant was a statutory tenant. The principal tenant might well have been a tenant under a contractual tenancy, and that tenancy might or might not have come under the Landlord and Tenant Ordinance, or the principal tenant might not have been a tenant at all but only a licencee (see Marcroft Wagons Ltd. v. Smith (1951) 2 KB 496), or a mere trespasser. 10. There is yet another observation in the President's decision which has taxed my mind. It reads :
11. Though the President took the view referred to above, he did not appear to have made any ruling on it. In the course of considering this appeal I have at one stage though that the parties might be concerned with the problem arising from a tenant's denial of his landlord's title (see Woodfall on Landlord and Tenant, 27th ed., Vol. 1, para. 29, at page 18), I therefore invited further submissions on this issue. I have since been informed that the parties are not concerned with this problem, accordingly I shall not make any comments thereon, save to say that the President's view is contrary to Lord Denning's dictum in Warner v Sampeon (1959) 1 ALL E.R. 120. 12. For the foregoing reasons I reverse the President's decision and allow this appeal with costs. Certificate for Counsel.
Certified true copy
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