Kwong Wing Hong v. Colonial Trfasurer Incorporated

DCCJ009481/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 9481 OF 1981

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Coram: H.H. Judge Li

Date: 10 August 1982

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JUDGMENT

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1. The only issue is whether the Plaintiff has established that he reasonably requires the suit premises for himself and his family, the Defendant having abandoned at the commencement of the hearing the plea that the making of an order would manifestly not be just and equitable.

2. I find the Plaintiff and his son to be truthful witnesses. Criticisms were made of the Plaintiff's evidence. It was said that he was evasive on various answers. In my judgment those criticisms are not justified. Has the Plaintiff established reasonable requirement on the evidence?

3. Reasonable requirement connotes something more than desire but something less than absolute necessity - see the Court of Appeal decision on Ma Hon v Andy Mahtani (1981) HKLR 510. It has sometimes been put that the Landlord must establish a genuine and reasonable need for the premises - see the Court of Appeal decision in Lam Chuk Ying v Chan Kwok Kwan CA 97 of 1981 at page 2. The word "need" would appropriately express the something which is more than desire but much less than absolute necessity. But it must not only be genuine. It must also be reasonable determined objectively. Whether the plaintiff reasonably requires the premises for himself and his family must be determined on the facts at the date of hearing.

4. For many years in fact since 1972 the Plaintiff has lived with his family at a flat on the 12th Floor of Tin Sing Building in Kwun Tong. Its area is about 400 square feet. In 1975 the plaintiff erected a structure on the roof. Its area is about 300 square feet. Although it is an illegal structure, no notice has ever been received from Public Works Department requiring its demolition. The flat consists of one bedroom, a living room and the usual amenities and the roof structure of two bedrooms. Up until June or July 1981, the plaintiff has lived in this area of about 700 square feet with his wife, his eldest son aged 43, Kwong Hung Fei, his wife and daughter i.e. the Plaintiff's daughter-in-law and grandchild and the plaintiff's youngest son aged 33. Hung Fei's wife recently gave birth to a son. They lived happily together as one household taking meals together for 9 years or so.

5. In June or July 1981 however two grandchildren of the plaintiff, children of his son Kwong Wai Kwong started to come to stay at the Plaintiff's premises. This was because Kwong Wai Kwong was having matrimonial difficulties with his wife. At first they stayed with the Plaintiff on and off, but after a few months they lived there all the time. This is the position today. Kwong Wai Kwong has agreed with his wife that he will have custody of the children but the plaintiff will take care of them. Although no petition for divorce has yet been presented, there is no hope of reconciliation and the two grandchildren will therefore be living with the Plaintiff permanently.

6. With these 2 grandchildren there, there was insufficient room. At first they slept in the living room with beds made up for the night. In September 1981, Hung Fei and his family moved out to rented premises at Ngau Tau Kok at $2,600 a month. The tenancy agreement was for a term of two years.

7. The Plaintiff and Kwong Hung Fei both gave evidence to the effect that the suit premises are needed so that they could continue to live as one household with the Plaintiff's Younger son and the two children of Wai Kwong. I accept that evidence as I accept the rest of their evidence. It is true that by the letter dated 11/2/81 (Exh. 50) the Plaintiff's solicitor stated to the Crown that the suit premises are only required for five persons; Hung Fei end his family was not mentioned. The Plaintiff's explanation for this was that there were only 5 persons living at his present premises at that time and if possession is recovered, Hung Fei and his family would move back. This explanation may not be entirely satisfactory. But whatever the position then I accept the evidence of the Plaintiff and Hung Fei that they need the premises so that they could live together again in one household.

8. On the plaintiff's evidence I find that the Plaintiff has made out that he reasonably requires the premises for himself and his family. The plaintiff said that the main reason was to have bigger space. This would accommodate all eight persons. The suit premises are significantly (about 300 square feet) larger than the Plaintiff's present premises. After partitioning one more bedroom in the living and dining area there would be 4 bedrooms. There are other reasons. Braemar Hill is situated in a much better living environment than Kwun Tong. It is in a higher class district. It has amenities such as swimming pool and tennis courts which would be handy for the grandchildren.

9. In the circumstances of this case, the fact that Hung Fei and his family has rented accommodation does not, in my judgment, render the requirement unreasoualle Hung Fei has ascertained from his landlord that he is willing to accept surrender upon one month's notice. I consider his moving back to his father's household to be entirely reasonable. After all they lived happily together under one roof for the best part of a decade.

Representation:

Mr. P. Hon of Messrs Hon & Co. for plaintiff.

Mrs. L. Yeu of Legal Department for defendant.