Chan Nan Fong v. Chan Tak Wah

DCMP000003/1969

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

TENANCY TRIBUNAL APPEAL NO. 3 OF 1969

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Coram: Morley-John, D.J.

Date of Judgment: 7 April 1970

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JUDGMENT

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1. This is an appeal against an order of a tenancy tribunal made on 10th October, 1969 whereby the appellant, hereinafter referred to as the "tenant", consented to deliver up vacant possession within thirty days to the respondent, hereinafter referred to as the "landlord", premises known as No.4, Norfolk Road, ground floor, Kowloon, and also to pay to the landlord the sum of $3,410, being eleven months arrears of rent for the period from the 16th day of July, 1968 to the 15th day of June, 1969, at the rate of $310 per month together with mesne profits at the same rate as from 16th day of June 1969 up to the date of delivery of vacant possession of the said premises. The claim was made in accordance with the provisions of section 22(1)(c) of the Landlord and Tenant Ordinance, on the ground that the tenant had failed to pay the rent due within thirty days, after demand. The tenant filed an answer the substance of which was that the last demand had been for arrears of rent amounting to the sum of $1,860 being six months' rent, upon receipt of which the tenant had handed to the landlord a post-dated cheque for the sum of $2,480, which amounted to the payment of 8 months' rent, but that the cheque had been returned although the tenant had occupied the premises since July 1951 and on previous occasions had made payment of rent by way of post-dated cheques.

2. The grounds on which the appeal is besed are twofold, a third ground having been abandoned. Firstly that the learned President misdirected himself or alternatively erred when he recorded judgment in favour of the respondent in the following terms :-"By consent. Vacant possession within 30 days. Arrears of rent and mesne profits as claimed", in that the tenant did not by his daughter Miss Susan Chan, who appeared before the learned President on behalf of the tenant, consent to judgment for vacant possession or for mesne profits. Secondly that the learned President failed to consider those paragraphs of the answer (grounds of opposition) which raised the matters I have already referred to, the tender of the post-dated cheque, and previous payment by post-dated cheque, which matters were a cause sufficient to entitle the tenant to the continued protection within the meaning of section 22(1)(c) of the Landlord and Tenant Ordinance.

3. In accordance with rule 48 of the Tenancy Tribunal Rules the tenant applied for a signed copy of the notes of the proceedings before the Tenancy Tribunal and in his letter of application it was also stated that the tenant intended to challenge the accuracy of the notes of the proceedings on the grounds that Miss Susan Chan did not give any consent to the order made and he therefore enquired whether the learned President of the Tribunal intended to amend his notes of the proceedings or not. As a result of this application on signed copies of the notes were provided, but no reply was given to the query as to whether the learned President intended to amend his notes of proceedings, the notes were provided unamended, and both parties before me have assumed that the learned President declined to amend his notes.

4. The notes of the proceedings were very short and read as follows :

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By consent. Vacant possession within 30 days. Arrears of rent and mesne profits as claimed."

From the notes of the proceedings it would appear quite unequivocably that Miss Chan consented to an order for recovery being made, and although I agree as was said in the Tenancy Tribunal Appeal No.1 of 1960. Lam Tung Hung and Pun Wong Yiu Yuk⁽¹⁾ that it can be only in a very rare case that this Court will go behind the notes of proceedings singed by the President, such is the substance of the grounds of appeal that it appeared to me to be imperative to enquire into what took place at the hearing before the Tenancy Tribunal and therefore under the provisions of section 33(5) of the landlord and Tenant Ordinance I heard evidence from Miss Susan Chan, and also from Mr. Joseph Wat, the learned solicitor who represented the landlord at the hearing before the tribunal, and from his partner Mr. James Fu, who was also present and who took a note during the proceedings.

5. Miss Susan Chan, whose evidence at times was somewhat confused, stated that the learned President first asked the landlord's solicitor why the cheque (i.e. the post-dated cheque tendered after receipt of the letter demanding payment of arrears of rent) had been returned, and that the solicitor replied that he was afraid that the money could not be collected. She then stated that the learned President had asked her if she had brought any money with her and that she had replied that he had brought a cheque, but that he had said that a cheque would not do and the arrears of rent must be paid in cash. That she said that she only had $1,000 in cash with her, but that the learned President said that $1,000 was not sufficient. Miss Chan then said that the learned President said that if the arrears of rent was paid within 30 days nothing would happen, that she must pay within 30 days or else she would have to move out. Miss Chan then said that this was not interpreted to her, but that she understood that this was to be so as the learned President said this to her in English. Miss Chan who had been giving her evidence in the Cantonese dialect, then said to me in English that the learned President had said "Vacant within 30 days or unless pay arrears of rent".

6. Reverting to the Cantonese dialect she stated that she had understood that this meant that payment of arrears was to be made within 30 days and if payment was made within that time she would not have to move out, that she would only have to move out if payment of the arrears was not made within the 30 days. She stated that after the hearing she tendered a cheque to the landlord's solicitor for the sum of $5,580 being for eighteen months' rent including three months in advance and she produce this cheque, which she said that the solicitor had refused to accept, but that he asked for a cashier order for the sum of $4,960 which she acquired from her bank, and which he accepted, (This latter piece of evidence was not disputed). Miss Chan stated that when she paid this money she had no idea that she had given up possession, as she had paid the rent. She stated that she had only consented to possession if she failed to pay the arrears of rent in thirty days but that she had paid the arrears to the landlord's solicitor within that time. She stated that on a previous occasion she had appeared before a tenancy tribunal, and that on that occasion she had paid the arrears of rent and had been allowed to retain possession. She maintained that she had tried to pay the rent when it was demanded, but the cheque was returned to her. She stated that everything that was said before the Tribunal was not interpreted to her, as she gave part of her evidence in English. Miss Chan also stated that she did not hear any submission that she had no defence to the application.

7. Mr. Joseph Wat who acted for the landlord before the Tenancy Tribunal, stated that after he had informed the learned President that he was applying for an order of possession on the grounds of non-payment of rent for thirty days, Miss Chan told the learned President that she had given a cheque to a servant of the landlord and that that purported to be payment of the rent demanded together with two extra months' rent. That he told the learned President that the cheque was returned because it was post-dated to a date thirty days beyond the date of the demand, that Miss Chan then produced the cheque but that the learned President after looking at the cheque said that this was not tantamount to payment of rent within thirty days and he asked Miss Chan what else she had to say. That Miss Chan said that she had $1,000 but that the learned President said that the only material question was whether there had been any payment of rent within thirty days of demand. Mr. Wat then stated that Miss Chan then referred to a previous application by the landlord, but in that application she had been allowed to remain in possession if she cleared all back rent within seven days and she asked to be given the same indulgence in the present application. That the learned President said that he was aware of the former application and the order made but he said that the tenant had been granted enough indulgence in the previous application and that he couldn't see how the same indulgence could be granted in the present application, and Mr. Wat then stated that so far as he could remember Miss Chan thereupon asked if she could be given thirty days in which to move out, whereupon the learned President made the order as recorded in his notes. Mr. Wat said that everything was interpreted to Miss Chan, especially the order for possession which was interpreted twice, and that Miss Chan raised no objections. With regard to the interpretation before the Tribunal Mr. Wat stated that at times Miss Chan would reply to the learned President in English in the middle of the interpretation, however that the interpreter would try to finish the interpretation even when he was interrupted. Mr. Wat stated that it was only after Miss Chan had been refused further indulgence that she asked for thirty days in which to move out.

8. Mr. James Fu also stated that the proceedings were interpreted to Miss Chan and he added that he had made a note to the effect no evidence on oath had been adduced.

9. From the evidence adduced before me it is clear that the notes of proceedings did not cover all that transpired before the Tribunal on 10th October 1969. From those notes it would appear that Miss Chan attended before the Tribunal, admitted owing rent as from 16th July 1968, and thereupon agreed to recovery of possession with a stay of execution for 30 days, thus abandoning the tenant's grounds of opposition, but from the evidence adduced before me this would not appear to be the case. To me it would appear that Miss Chan having been told that no indulgence would be granted to her, was faced with the only alternative of asking for time in which to vacate the premises. The tenant did not have professional representation, and no evidence was heard in support of his grounds of opposition that a post-dated cheque for more than the outstanding rent had been tendered and that in the past post-dated cheques had been accepted in settlement of outstanding rent. There is nothing in the notes of proceedings to indicate that these grounds were ever considered as to constitute a sufficient cause to entitle the tenant to the continued protection of the Landlord and Tenant Ordinance. Also as was said in the case of Chandless-Chandless v. Nicholson⁽²⁾ a proviso for re-entry on nonpayment of rent is regarded in equity as merely a security for the rent. I have had the opportunity of observing Miss Chan in the witness box, and scrutinised the letters she and the tenant wrote to the Tenancy Tribunal, after the order was made, and I am satisfied that at the proceedings before the tribunal on 10th October 1969, Miss Chan on behalf of the tenant did not intentionally consent to the order that was made by the learned President. It may have been because of difficulties of interpretation in that instead of listening to the interpreter Miss Chan tried to speak English. However I am satisfied with reluctance that under all the circumstances the hearing before the tribunal was unsatisfactory.

10. This appeal must be allowed and the case remitted for a new hearing by a tribunal.

11. Costs of this appeal to successful party at re-hearing of Tenancy Tribunal Application.

7 APR 1970

Representation:

Robert W.W. Wei (instructed by Wilkinson & Grist) for appellant.

Richard Mills-Owens (instructed by Wat & Fu) for respondent.

(1) 1960 D.C.L.R. 101

(2) (1942) 2 K.B. 321