Wong Chi-shing v. Cheung Choi-lee

DCCJ005109/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 5109 OF 1981

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Between :

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Coram: His Honour Judge Downey

Date: 29 June 1982

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JUDGMENT

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1. On the 11th June, 1982, I delivered an oral judgment, dis-missing the plaintiff's claim. Because of certain unusual features of these proceedings, I indicated that I would supply the parties with a fuller judgment in writing at a later date. This I now do.

2. The plaintiff seeks to recover possession of Flat A, 3rd floor, 249 Shaukiwan Road, Shaukiwan, Hong Kong ("the premises"), on the ground that he reasonably requires the same for occupation as a residence for himself. To this end, he issued a Writ on the 8th July, 1981, naming LIU Poon as the defendant and alleging that the premises had been let to him by the plaintiff's predecessor in title under a tenancy agreement in Chinese, for a term of three years commencing on the 1st July, 1978, at a rent of $660 per month.

3. On the 14th July,1981, the Director of legal kid gave notice that CHEUNG Choi-lee (the Widow of LIU Poon) had applied for legal aid to be joined as a defendant. A Legal Aid Certificate for that purpose was issued on the 27th August 1981. On the 27th August, 1981, she issued a summons, returnable on the 21st September, 1981, seeking lease to be joined as a defendant. In her affirmation in support, she stated that LIU Poon was her husband, that he died on the 3rd February 1980, and that she had been living at the premises since 1965 On the 8th September 1981, another summons, bearing the consent of the plaintiff's solicitors and the Director of Legal Aid, was issued, asking for the summons dated the 27th August 1981 $o be withdrawn and seeking leave to join CHEUNG Choi-lee "as a 2nd defendant in this action", and for her to file a defence within 14 days. This summons bears an impression, made by a rubber stamp, in the form of a rectangle surrounding the words "ORDER IN TERMS. District Judge. 11 SEP 1981" and the signature of a District Judge. Presumably in pursuance of this order of the Court, CHEUNG Choi-lee filed a Defence, on the 17th September 1981, describing herself as ''The Second Defendant". On the 2nd October 1981, the plaintiff's solicitors applied for a date to be fixed for the trial of this action, and on the 14th October 1981 it was set down for trial in the Running List.

4. Until this case was listed for hearing before me on the 11th May 1982, it would seem that nobody considered what, if any, steps were necessary or desirable to deal with the fact that LIU Poon had died before the writ was issued. Indeed, as recently as April of this year, the bailiff was asked to arrange for notice of the hearing to be served on LIU Poon !  Having regard to the fact that the commencement of proceedings against a person already deceased is not now a nullity, and the events which happened before I began the trial of this case, I did not consider that the death of LIU Poon materially or procedurally prevented these proceedings from continuing. Nevertheless, I venture to suggest that it would be quite wrong for parties to litigation, or their legal advisors, to readily assume that the death of an actual or potential party to legal proceedings is not a matter which calls for special consideration. The interests of those who are properly parties to the litigation in question may not always coincide with the interests of the deceased's legal personal representatives or the beneficiaries under the deceased's will or intestacy.

5. Any defects arising from the death of LIU Poon affecting these proceedings were removed by a course agreed upon by the parties advocates at the outset of the trial. Mr. Yam sought leave to amend the Writ and Particulars of Claim by deleting LIU Poon as a party and alleging that Madam CHEUNG Choi-lee became the tenant by virtue of section 50(4) of Cap. 7. Mr. Stables made similar amendments to the Defence. I allowed these amendments, so that the action could proceed against Madam Cheung as the only defendant.

6. The premises consist of three bedrooms and a sitting room on the third floor of a building which was brand new in 1965, when the defendant first moved in. According to the scale plan annexed to Exh.P3, the area is approximately 570 square feet. There are now 13 persons living in the premises, namely, the defendant and her two sons, aged 18 and 17 years; a Mr. Au and his family, comprising three persons; a Mr. Lee's family, comprising four persons; and three other gentlemen, Mr. Ho, Mr. Yu and Mr. Tsoi, who occupy bedspaces in the corridor. Mr. Ho is a friend of the defendant. Unlike the others, he takes meals with the defendant and her sons, and pays the defendant $200 a month for his board and lodging. The other two pay $60 a month for their bedspaces. Mr. Au pays $150 a month. Mr. Lee pays $300 a month. The defendant and her sons occupy one bedroom and the sitting room. The other bedrooms are occupied by the Au and Lee families. The defendant, thus, receives a total of $770 per month from the other occupants. She earns, on average, $1000 per month as a metal worker. Her elder son attends school in Taikooshing - three tramstops distant from his home. The other attends school in Wanchai. Their school fees come to about $400 per month. The defendant's husband was a construction worker. I was told, and I accept, that she inherited nothing (other than the premises) upon his death. She has no savings.

7. I have set cut my findings as to the circumstances relating to the defendant and the other occupants of the premises, at this stage, solely because of one ,aspect of Mr. Stables' final submission, to which I will refer later. In doing so, I have not overlooked the fact that it is more logical to first consider whether the plaintiff has proved that he reasonably requires the premises for occupation as a residence for himself, of MA Hon v. Andy Mahtani⁽¹⁾.  I will now deal with the plaintiff's circumstances.

8. He is a single mar, aged 41 years, and now works in a garment factory, earning about $1800 per month.  He has been receiving that rate of wages for about a year, i.e. since about May or the summer of 1981. He came to Hong Kong from China in February 1979. By a so-called "indenture" dated the 29th March 1979, the premises were assigned to him by way of gift by an aunt, WONG Ah-meng, who lives in Kuala Lumpur, Malaysia. Since that date, the plaintiff has been receiving the additional sum of $660 per month in the form of rent for the premises.

9. At the present time, he lives on the mezzanine floor of 52, Kwong Wah Street, Mongkok, Kowloon, which are premises rented by the plaintiff's uncle, WONG Chi-yun, for the purposes of his business as a coffee-grinder. To be more precise, and fair to the plaintiff, he uses part of these premises as little more than a bed-space.  He sleeps there, after returning from his work at the garment factory, in common with four other persons: a "foki" of his uncle, a nephew of his uncle; the principal tenant of these premises; and his uncle's aged mother. The total area of these business premises, which become "bed places" after business hours, is about 500 square feet. The plaintiff sleeps on a canvas bed, which is folded up during the daytime, and he keeps his simple personal belongings, in the form of clothing, in a box at the end of his grandmother's bed. He pays nothing for this very rudimentary arrangement, which he has enjoyed since he came to Hong Kong: almost continuously, according to the evidence of his uncle, or since July 1980, according to the evidence of the plaintiff. (I will return to this evidence later.) Until the end of 1981, the plaintiff's uncle lived in a wooden hut in the New Territories. He and his immediate family now live on an estate in, or near to, Tsuen Wan. I accept that the conditions governing the occupation of his domestic premises do not allow him to offer accommodation there for the plaintiff.

10. Upon these facts, which I have no difficulty in finding on the evidence before me, Mr. Stables posed the following question: is it reasonable for the plaintiff, a single man with an income of $2460 per month, to require premises, which are larger than his actual needs and are occupied by 13 persons, from a tenant who has lived there for some 17 years? I consider that, on the evidence in this case, the answer to that question would be "No !"  But, having regard to authorities which I should generally follow, and others which I am bound to follow, I do not think that it is the correct question which I should ask myself when considering whether the plaintiff has established that he "reasonably requires" the premises, within the context of section 53(2)(b) of Cap.

11. The courts in England, when construing and applying the same words in the context of similar legislation, have given them a less than completely objective meaning. They have been narrowly construed as being limited to what is reasonable from the landlord's point of view, and not as including that of the tenant, or others. As Stephenson L.J. observed in Kenneally v. Dunne⁽²⁾, that has no doubt come about because of the protection afforded to tenants by the English courts' statutory obligation to consider whether the making of an order is reasonable in all the circumstances, although the landlord has proved one of the' statutory grounds for obtaining an order, and the further safeguard that the balance of hardship must be in the landlord's favour. The fact that the Hong Kong legislation does not require the court to consider whether it is reasonable to make an order, and the additional' fact that the "greater hardship" test has been replaced by the more onerous obligation on a tenant to show that it would manifestly not be just and equitable to make an order, are, in my view, significant differences which, perhaps, would entitle courts in Hong Kong to distinguish the English authorities on the meaning of "reasonably requires" and allow them to favour a somewhat wider construction of those words in the context of Cap. 7.

12. Some slender support for the view that the English authorities should not be followed literally or rigidly is, perhaps, to be found in the judgment of the Court of Appeal in LUK Chor-sang and another v. KWOK Lui-kit ⁽³⁾, where it was said that the fact that a landlord seeks more space than he actually needs is 'clearly something which is material to the question whether he reasonably requires the premises, but once that has been decided in his favour it cannot be held against him on the issue of manifest injustice." That seems to indicate a departure from the view expressed in Kelley v. Goodwin ⁽⁴⁾ as to the relevance of a landlord's "excessive" requirement. Nevertheless, on the 17th June 1981 a differently constituted division of the Court of Appeal in MA Hon v. Andy Mahtani⁽¹⁾ adopted the comments of Stephenson L.J. in Kenneally v. Dunne⁽²⁾. It does not seem that there was full argument on the relevance of the English authorities, and it may be that these comments were adopted merely to deal with a particular factual issue in that case, and not for the purpose of laying down a general principle governing the construction of the statutory words in all cases. But, although I consider that there is considerable merit in the suggestion that these words should receive a different and wider construction in the context of the other provisions of Cap.7, I consider that I should regard this decision as binding on me, and as an indication that at least for the time being, the courts in Hong Kong should apply the narrower construction, especially as such construction is being applied regularly by other judges in the District Court. See also CHAN Lan v. WONG Sui-mai⁽⁵⁾.

13. I must now deal with the evidence relating to the plaintiff's residence in Hong Kong since he arrived from China. In examination-in chief, he was only asked about his present living conditions. In cross-examination, he stated that he had stayed in the factory where he worked, but had moved to his present address on the instructions of members of his family, who were afraid that he "would go wrong by going here, there and everywhere." Goaded, and perhaps taunted, by Mr. Stables' suggestions that he had done nothing to look for accommodation and had lived rent-free since he came to Hong Kong, he revealed that he had rented a room, very near to his place of work, and which he shared with another person, from April to July 1981. In answers to questions from the Court and further cross-examination he appeared to maintain that he shared this rented room in 1981, and denied suggestions that he had moved therefrom simply to enhance his prospects of success in these proceedings, which were quite clearly prepared and launched during this period in 1981. However, in re-examination he stated that he rented this room in 1980.

14. Evidence tending to show that a plaintiff has deliberately worsened his living conditions with a view to enhancing his prospects of obtaining an order for possession under section 53(2)(b) of Cap.7  is material to the question whether he "reasonably requires" the premises as a residence for himself. Cf. WONG Pak-shu v. OR Chun-nam⁽⁶⁾ It goes to the genuineness of his claim and the practical reality of his need for the premises, although they belong to him in law.

15. Taken at its face value, this evidence might not be sufficient to establish the plaintiff's claim to possession, in view of the apparent contradictions and discrepancies. Although Mr. Yam did not suggest how they might be reconciled in the plaintiff's favour, or at all, I must attempt to evaluate this evidence. My task is not made any easier by the evidence of Mr. WONG Chi-yun, the plaintiff's uncle. He said that the plaintiff had lived continuously at his present address since about March 1979, apart from a visit to his home town in China.

16. The plaintiff struck me as a somewhat unintelligent person, likely to fall in with any suggestions made by members of his family in Hong Kong. Having considered carefully the totality of his evidence and his demeanour, I think that it is more probable that he was mistaken and confused when he said, in effect, that he occupied the rented room in 1981. He showed some lack of understanding of some of the questions put to him. But, in general, he was clear that, at first, he stayed in the factory for about a year, then in the rented room, before moving to his present address. That indicates that he occupied the rented room between April and July 1980. This sequence of events is also consistent with the apparent concern of his relatives to bring him within their protective gaze, after he had tasted some freedom of movement in his new environment.

17. Although I am able to arrive at conclusions which, perhaps, resolve the apparent discrepancies in the plaintiff's evidence in his favour, I am unable to come to similar conclusions with regard to the evidence of his uncle, which was flatly contradictory of that of the plaintiff. It may be the case that, when asked about the residential history of the plaintiff since he came to Hong Kong, Mr. Wong was prepared to say whatever he thought would best advance his nephew's case. He may simply have given these answers carelessly and in an unguarded moment. whatever may be the true explanation, his evidence does not really assist me in determining whether the plaintiff occupied the rented room in 1980 or 1981. Its significance, if any, is more closely related to the overall question of the plaintiff's alleged genuine present need to reside in the premises, rather than to a particular factor to be taken into account in assessing that alleged need.

18. Having regard to my views on this aspect of the evidence in support of the plaintiff's claim, I dismiss from my mind any suggestion that the plaintiff moved to his present accommodation simply to enhance his prospects of success in these proceedings, and I direct my attention to the question whether he has established a genuine present need for the premises.

19. Being a single man, a relative stranger to life in Hong Kong, and a person having simple or modest requirements - evidenced by the fact that, in answer to questions about his efforts to find other accommodation for himself, he said that he was looking for a "bedspace" - the fact that he is seeking to recover more space than he really needs is, on the authority of LUK Chor-sang v. KWOK Lui-kit, supra, a material consideration to be taken into account when considering whether he reasonably requires his own premises as a residence for himself. Whether an order for possession would result in the plaintiff having the use of the entire premises, or merely that part presently occupied by the defendant and her sons, is a matter which I must consider later, in view of Mr. Yam's final submissions on what I am entitled to take into account when deciding whether the defendant has discharged the burden on her of resisting an order by resort to the proviso to section 53(2)(b) of Cap. 7.

20. On the evidence before me, it is, in my view, clear that the plaintiff is seeking more than he presently needs. He is, at least, asking for one bedroom and a sitting room, when all he really needs is a place to sleep and keep his few personal belongings. I do not dismiss, as irrelevant, the fact that the plaintiff may wish to enjoy better or more comfortable living conditions than those he presently enjoys. In general, that is a perfectly understandable and reasonable expectation. I must also take into account the fact that the present legislation, perhaps, obliges a landlord, seeking to reside in his own premises, to seek more than he actually needs, in the sense that orders of the Court terminate the tenancy, and thus release the entirety of the premises comprised therein, subject to sub-sections (6) and (6A) of section 53 of Cap. 7. But, allowing for these factors which may explain his "excessive" requirements, I do not think that he has established a genuine present need for the premises. He has been living at his present address since July 1980. Although it is basically a "dormitory" and not entirely satisfactory, he has not found it so intolerable that he has felt it necessary to look for other accommodation, which he could more easily afford, now that he is earning higher wages than he was in 1980, and receives rent of $660 per month from the defendant. There is no evidence that he is unwanted at that address by the other occupants or members of his family. Indeed, although his decision to move out of his rented room in July 1980 may have been motivated by fears of an impending increase in the rent therefor, which I do not accept, I find that he did so willingly and at the suggestion of members of his family. Although his rented room in Tai Nam Street was just around the corner from his place of work, his present address cannot involve much time or expense in getting to and from work each day, whereas the journey from the premises to his place of work would take about an hour. There is absolutely no evidence that he is anxious to get away from the company of his family or that he finds their protective concern in any way restrictive of his freedom to enjoy his new life. In all the circumstances, I am not satisfied that he reasonably requires the premises for occupation as a residence for himself. Accordingly, this action must be dismissed.

21. In case this matter is taken to a higher court, and out of deference to Mr. Yam's submissions on the defendant's alternative plea that it would manifestly not be just and equitable to make an order in all the circumstances of this case, I will indicate my findings of fact and conclusions on this aspect of the case. In addition to the findings of fact referred to earlier, it is only necessary to come to findings of fact and conclusions relating to the position or status of the occupants of the premises, other than the defendant and her two sons. I accept the defendant's evidence that ever since she moved into the premises, parts thereof have been occupied by persons other than in embers of her family.  I also find that such persons have paid money to the defendant and her late husband for their occupation of the same. The defendant's reluctance to describe them as sub-tenants, or professed ignorance of their precise legal status, is, in my view, perfectly understandable., Mr. Ho, Mr. Yu and Mr. Choi are probably no more than licensees. But, for the purposes of this case, I propose to regard them and the other occupants as sub-tenants.

22. By the terms of the tenancy agreement, dated the 1st July 1978 (Exh.P1) the tenant agreed not to sublet the premises or any part thereof "without first obtaining the plaintiff's (SIC) consent in writing." Whether this agreement governs the defendant's duties as the tenant of the premises is, perhaps, questionable, having regard to the defendant's long occupation of the premises and the effect of the decision in Capital Land Investment ^Co. Ltd. v. SE Mong-kai⁽⁷⁾. There is no evidence before me that the plaintiff or his aunt ever gave written consent to any sub-letting of the premises or part thereof. But, apart from the fact that, on the evidence before me, I can and do infer that the plaintiff's aunt acquiesced in sub-lettings in the past, the plaintiff has not suggested that such sub-lettings provide him with a separate ground for possession of the premises. Accordingly, I approach this aspect of the case on the basis that such sub-lettings are not in breach of the contractual tenancy. Cf. subsection (2)(e), (5) and (6) of section 53 of Cap. 7.

23. Nevertheless, Mr. Yam submitted that, in considering whether the defendant had discharged the burden imposed upon her by the proviso to section 53(2)(b) of Cap. 7, I should totally disregard her sub-tenants. If I have correctly understood his submissions, I must disregard their position or circumstances because of the provisions of section 53(6A) and the fact that they are not parties to the present proceedings. As I understand Mr. Yam's contentions, an order for possession in these proceedings would not be effective to give possession to the plaintiff of these parts of the premises occupied by the sub-tenants. Yet, he invited me to make an order in respect of the whole of the premises.

24. I must confess that I experienced considerable difficulty in understanding these submissions. Having given further consideration to the provisions of Cap. 7 relating to sub-tenants (cf. section 53(2), (5), (6) and (6A)), I had grave doubts about the wisdom of giving my blessing to the course of action agreed upon at the outset of the hearing. At that time, I was not aware that there were any sub-tenants. This fact only emerged in the plaintiff's evidence in chief.

25. Whether an order can be made against a sub-tenant who has not been joined as a party is, in my view, not entirely clear. Where the subletting is in breach of the contractual tenancy, section 53(5) of Cap. 7 provides that "an order for possession of the premises under subsection (2) against the tenant shall also operate against the subtenant." I would be reluctant to regard that as entitling a court to make an order against a person who is not a party or who has not had an opportunity of being heard. One of the objects of Rule 63 of the District Court Civil Procedure (General) Rules and Order 15 r. 10 of the Rules of the Supreme Court is to prevent collusion between landlord and tenant, and to enable other persons in possession of land to join in the proceedings and justify their possession. Natural justice surely requires a sub-tenant to be given an opportunity to show that he is in possession lawfully or that the landlord has waived the alleged breach by the tenant.

26. Where the subletting is not in breach of the contractual tenancy, the Court's power to make an order against a sub-tenant is governed by section 53(6), which is expressed in different terms from subsection (5), and is somewhat more restrictive. It provides that the Court: -

"Shall not make an order for possession against the sub-tenant unless -

(Paragraph (b) is not material to the case before me.") In my view, this suggests that the Court should or must make an order against a "lawful" sub-tenant, when it makes an order under section 53(2)(b). Indeed, if a landlord has satisfied the Court that he reasonably requires the premises his genuine present need could not be satisfied if the whole or parts of the premises can be retained by lawful sub-tenants. Section 53(6A) can only operate in cases where the Court does not make an order against a sub-tenant. In my view, it cannot apply to cases where an order is made under section 53(2)(b). Accordingly, Mr. Yam's reliance on subsection (6A) is, in my respectful view, misconceived.

27. In terms of the power of the Court to make orders affecting sub-tenants, it is, in my view, clear that the sub-tenants in this case would be affected by an order of possession, if the plaintiff had satisfied me that he reasonably required the premises for occupation as a residence for himself. Before making an order on this ground, the Court must consider whether "in all the circumstances of the case" it would manifestly not be just and equitable to do so. In CHOW Wing v. YUEN Chi-hung ⁽⁸⁾, the Court of Appeal indicated that the position of subtenants is a matter properly to be considered by the Court because it is one of the relevant "circumstances of the case." For my part, I do not see how the Court can properly and fairly conclude that an order for possession under section 53(2)(b) should be made, unless it is satisfied that rules of procedure, designed to protect the rights of other interested parties, have been strictly observed.

28. To the extent that it must take into account the effect of an order for possession upon sub-tenants, how can it do so justly, if they are neither parties to the action nor given adequate notice of the proceedings? If, as Mr. Yam appears to contend, I must disregard the circumstances relating to the sub-tenants, because they are not parties to the present proceedings, a relevant factor which should be taken into account would be withdrawn from the Court's consideration by a mere procedural device. I do not think that that can be correct. In my view the position of the sub-tenants must be considered. The fact that they are not parties or do not give evidence may result in the defendant not being able to discharge the burden upon her due to insufficient evidence. In a civil case it is for the parties to decide what evidence to adduce and which persons to call as witnesses. If, in cases of this kind, the sub-tenants do not apply to be joined as parties and are not called as witnesses, the court must proceed on the footing that there are no special circumstances which they and the parties wish the court to take into consideration.

29. In the course of preparing my reserved judgment in this case, I had occasion to examine more closely the documents on the court's file. The original writ did not bear any endorsement as to service, as required by Rule 20(2A) of the District court civil Procedure (General) Rules. There was no affidavit of service, or other indication, to show that the writ had been served in accordance with the Rules, especially Rule 18. I, therefore, caused the case to be re-listed and invited Mr. Yam and Mr. Stables to address me on this basic procedural defect. On the 3rd June 1982, Mr. Yam produced an affidavit, dated the 2nd June 1982, in which the deponent affirmed that a copy of the writ had been posted at the premises on the 9th July 1981. This affidavit did not indicate that the writ had also been served in the normal way. Having regard to the unusual circumstances whereby Madam CHEUNG Choi-lee became a party to the proceedings, I was not wholly satisfied that the sub-tenants had had sufficient notice to enable them to consider whether they wished to apply to the Court to be added as parties. Accordingly, I directed that they be served with notice of the present proceedings, and adjourned the case to the 11th June 1982 to give them an opportunity of being heard before I came to any findings on the alternative question whether it would be thoroughly unjust to make an order in this case.

30. In the end, only Mr. Au expressed a wish to be joined as a party. He did not attend, but sent his wife, Madam LEUNG Pong to court. With, the agreement of Mr. Yam and Mr. Stables, I heard evidence from her regarding the circumstances of her family. Although this further evidence could not be relevant to the question whether the plaintiff had proved that he reasonably required the premises as a residence for himself, on which issue I had already reached the conclusions I have set out earlier in this judgment, I adopted this exceptional course in order to enable me to express my views on the alternative issue in a manner which would enable the Court of Appeal, in the event that my conclusions on the first issue are reversed, to dispose of the case, without the necessity for a re-trial or further hearing. In my view, it is desirable that "all the circumstances" of the case should be explored and considered, as far as possible, at the same time as the Court considers whether a landlord has established his need for the premises, and not several months later, by which time the circumstances might have altered substantially. A landlord seeking to recover possession of his own premises for occupation as a residence for himself is likely to be gravely prejudiced by the inevitable delays and potential alterations to the circumstances of the occupants, which would arise if they fell to be considered at different times and after long intervals. In my view, in cases where it is known that there are sub-tenants, a landlord should join them as defendants at the outset. If their names are not known, particulars thereof can invariably be obtained by resort to section 66 of Cap. 7.

31. For the purpose of expressing my conclusions on the question whether Madam Cheung has discharged the burden cast upon her by the proviso to section 53(2)(b) of Cap. 7, I must first indicate the additional findings of fact I have reached as a result of the additional evidence regarding Mr. Au's occupation of part of the premises. I find the following additional facts. She and her husband, Mr. Au, have lived in one room at the premises since madam Cheung moved to the premises, more than 10 years ago. They have a daughter, now aged 20 and employed as a clerk at a salary of $1000 or more per month, who also lives in that room. Mr. Au is now aged 72, and has been unemployed for the past 2 years or so. Madam Leung is 53, and works in a factory at an average daily wage of $30. With what she earns and receives from her daughter - about $500 per month - she manages to make ends meet for the three of them.

32. For the purpose of considering "ail the circumstances" of this case, I must add these findings to those I have already made in respect of the circumstances of the plaintiff and Madam Cheung. In addition to these primary facts, I must also assume that the plaintiff has established that he reasonably requires the premises as a residence for himself.

33. On this aspect of the case, the leading authority is, in my view CHOW Wing v. YUEN Chi-hung ⁽⁸⁾Where the Court of Appeal suggested two alternative tests: (i) would it be thoroughly unjust to make an order ? or (ii) if an order were made would an ordinary person, apprised of all the circumstances of the case, throw up his hands in dismay and exclaim "That cannot be right! " To avoid loving sight of what the legislature really intended when it adopted the new test of manifestly not just and equitable, I consider that I should endeavour to apply the second, and more picturesque test. (Cf. LAM Cheung-kam v. CHUNG Chun-tak ⁽⁹⁾). In CHOW Wing v. YUEN Chi-hung, supra, it was also said (at p. 790):-

"We do not consider that it would be helpful to attempt to lay down those matters which are relevant in deciding whether or not it is just and equitable to make an order. This is a matter that is best left to the trial judge to decide, in the light of the facts of the case before him. Similarly it is very much a matter fore him to assess the weight which he should attribute to the various relevant factors which he has taken into consideration."

Notwithstanding these observations, differently constituted divisions of the Court of Appeal have, in later cases, indicated some of the matters which are or are not relevant, and the weight which should be given to relevant considerations. Recognising that the relevant factors, and the weight to be given to them, must vary from case to case, I consider that those that are relevant in the circumstances of this particular case are as follows:-

34. The legislature has not indicated that any particular "circumstance of the case" is to be given any exceptional or overriding weight or consideration. Whether it would manifestly not be just and equitable to make an order must depend upon the Court's consideration of all the circumstances of the case, which necessarily involves balancing competing claims and interests in the context of a complex problem, i. e., the shortage of housing, about which the legislature has clearly shown itself to be concerned, and for which it has provided solutions in the form of Cap 7.  It's overall purpose, as expressed in Part II of Cap. 7, is to give security of tenure to tenants and subtenants, and to control the scale and frequency of rental increases. At the same time, it has endeavoured to recognize the legitimate expectations of landlords to enjoy their privileges and rights of ownership by specifying the grounds on which they can recover possession of their premises. In general, these depend upon some breach or misconduct on the part of the tenant. But, by paragraphs (b) and (c) of section 53(2), the legislature has given exceptional recognition to such rights of ownership by enabling landlords to recover their premises so that they (or specified relatives) can reside therein, or profit from their redevelopment. The latter interest is now subject to the Court being satisfied that tenants and sub-tenants are reasonably compensated, that the proposed redevelopment is in the public interest, and will result in an increase in available accommodation. (Cf. section 53A). By imposing these requirements the legislature has, in my view, expressed a clear intention that its overall policy of coping with existing shortages will be implemented by eventual alleviation of such shortages and, in the meantime, by reasonable safeguards for tenants and sub-tenants necessarily dispossessed by such redevelopment.

35. It is true that the legislature has not imposed similar specific limitations on landlords seeking to live in their own premises. It has clearly made a distinction between landlords who are beneficial owners and those who are merely "principal tenants", by a clear indication that greater hardship caused to a sub-tenant vis-a-vis his immediate landlord is not per se sufficient to deprive a beneficial owner of his right to enjoy his premises, as against his tenant. However, by enacting the proviso to section 53(2)(b)(i), I do not think that the legislature has expressed a clear intention that a landlord's wish to reside in his own property must always be regarded as an "overriding factor " by the Court when considering whether an ordinary person would regard the making of an order for possession as "thoroughly unjust". On the contrary, I consider that it intended that such undeniably "strong moral claim"(of. CHAN Lau v. WONG Sui-mai⁽⁵⁾) should still be evenly and fairly considered in the light of the rights, benefits or privileges which the legislature intends tenants and sub-tenants to enjoy in general, and only be given effect to, in the shape of an order for possession, in circumstances which are in harmony with its overall policy for dealing with an acute and difficult social problem. In the context of the legislation in question, the contest is not, in my view between the proprietary rights of landlord/owners on the one hand, and the statutory privileges of tenants (or sub-tenants) on the other hand. It is a somewhat more sophisticated and complex matter, involving the question of when, in the public interest, such proprietary rights or "strong moral claims" should be recognised, having regard to the legislature's clear intention to afford protection to tenants, despite the fact that their contractual rights may have disappeared by effluxion of time or other events. I accept, of course, that the legislature has clearly imposed on the tenant a heavy burden of satisfying the Court that his "rights, etc." should prevail over his landlord's rights and wishes to enjoy his privileges of ownership. But, I do not think that it necessarily follows that the legislature intended such rights of ownership to be treated in every case, as "overriding factors" or "weighty" rights "not easily defeated, toppled or overreached by" tenants. (Cf. LAM Chuk-yang v. CHAN Kwok-kwan⁽¹⁰⁾.) If it did, proviso (i) to section 53(2)(b) would be robbed of any effect.

36. In the vast majority of cases, a landlord's wish to live in his own property will be an extremely weighty factor, because it will be supported by the additional circumstance that he has established a genuine present need for doing so. The weight which an ordinary person would attach to this need must, in my view, vary from case to case. The needs of a landlord who is about to be evicted from his present home are surely greater than those of a landlord who is looking for a more congenial residential environment. The needs of a landlord with a family living in cramped conditions are surely greater than those of a landlord or a tenant, who has no immediate family in need of better housing. In my view, the ordinary person in Hong Kong would probably attach more weight to the needs of a landlord, who has, by prudence and ardour over several years, managed to acquire a place to live in upon his or her eventual retirement, than to those of a landlord who has acquired a residence, without such sweat and toil, by pure luck or inheritance. Insofar as the positions of the tenant, and any sub-tenants, have to be taken into consideration, the fact that they have occupied the premises for many years, and thereby contributed to their efficient management and enabled the landlord to discharge his financial obligations to his mortgagee to the point that the landlord beneficially enjoys the premises free from any encumbrances, is, in my view, a factor which the ordinary person would regard as relevant, especially if the effect of making an order for possession will result in such tenants or sub-tenants being cast adrift, and rendered "homeless", by current market forces, which they cannot meet, because of their limited financial resources. Although these various factors or considerations may carry different weight, I recognise that in the circumstances of a particular case, those which favour the landlord's desire to live, in his own property might be of such overwhelming weight that even exceptional hardship to the tenant and others would not render it thoroughly unjust to make an order.

37. Accordingly, references to a landlord's wish to enjoy his own property as an "overriding" factor, or one not easily defeated by a tenant, should, in my respectful view, be considered in the context of the facts of those particular cases, and not be regarded as laying down principles of law to be applied in the same way in every case. If I am wrong in my interpretation of these decisions of the Court of Appeal, it seems to me, with the utmost respect, that they are, or may be, in conflict with the approach clearly stated in CHOW Wing v. YUEN Chi-hung⁽⁸⁾. For the reasons I have given, I do not think that they are in conflict.

38. With these considerations in mind, I have to ask myself whether an ordinary person, apprised of what are, in my view, the relevant circumstances of this case, would throw up his hands in dismay and declare that it cannot be right to make an order in favour of the plaintiff. After the most anxious consideration of all the facts in this case, I have come to the conclusion that the hypothetical ordinary person would react in that way. I think that he (or she), whilst envying the plaintiff's good fortune at acquiring a flat so soon after his arrival in Hong Kong but not wishing to deny his rights to enjoy the same, would experience a real sense of shock or outrage at the prospect of the Court giving effect to these rights at the social cost of obliging 13 other persons to find other accommodation.

I acknowledge that, with the exception of Madam Cheung and the Au-family, I have little evidence as to the effect of an order upon the other seven occupants. I can only infer that they would be put to some inconvenience and some additional expense by having to move to other accommodation. But in the case of Madam Cheung, she would be deprived of her small profit as "principal tenant" of the premises, and faced with the almost impossible task of providing a home and "living" for herself and her two teenaged sons, who are still at school, out of her meagre earnings as a metalworker. Being recently widowed, she has no other present source of income. The Au family is marginally better off. Whilst it may be reasonable to expect the daughter's earnings to increase in the future, having regard to the age and condition of her parents the total income of the family is unlikely to change to the extent that they could afford to rent other accommodation. Even if they continued to share a single room in other premises, I consider that I can take judicial notice that it would cost them substantially more than their present rent of $150 per month. Neither they nor Madam Cheung have any relatives who are able to provide them with even temporary shelter.

39. When one remembers that the plaintiff is a single man, presently enjoying a monthly income of approximately $c,500, out of which he can easily obtain other accommodation adequate to his present needs, and has relatives willing to provide him with a sufficient, albeit rough and rudimentary, shelter, I consider that the ordinary person in Hong Kong would regard a decision, giving him the right to enjoy 3 bedrooms and a sitting-room, as wholly outrageous and unjust, and completely out of touch with the reality of current problems regarding the housing of the inhabitants of Hong Kong, and the legislature's policy as expressed in Cap. 7. That policy clearly recognises the right of an owner to live in his own premises, but not in absolute terms. The position of others must also be considered. But, realising that landlords were also feeling the pinch of market forces in respect of housing, in 1979 it decided to impose a greater burden upon tenants seeking to resist an order in favour of landlords who wished to recover their premises in order to live in them. Apart from a few months in 1980, when he paid $200 to share a room near his place of work, the plaintiff has never been exposed to such conditions, nor is he now. In all the circumstances, I consider that Madam Cheung has discharged the heavy burden upon her of showing that it would manifestly not be just and equitable to make an order in this case.

(1)    [1981] H.K.L.R. 570 at 571

(2)    [1977] 1Q.B. 837(at 844)

(3)    [1981] Civil Appeal No.140 (8th January 1982)

(4)    [1947] 1 All E.R. 810 (at 812)

(1)    [1981] H.K.L.R. 570 at 572

(2)    [1977] 1 Q. B. 837 at 844

(5)    [1982] Civil Appeal No. 36; 14th May 1982.

(6)    [1981] Civil App. No. 135; 9th December, 1981.)

(7)    [1973] H.K.L.R. 371

(8)    [1980] H.K.L.R. 788, 791

(8) [1980] H.K.L.R. 788

(9)   [1981] 7 Civil App. No. 93; 21st December, 1981

(10)    [1981] Civ. App. No. 97; 14th October 1981

(8)    [1980] H.K.L.R. 788 (at 790)

Representation:

Mr. David Yam, counsel instructed by Messrs. P. H. Sin & Co., for the plaintiff.

Mr. Stables, Legal Aid Officer for the defendant.