Wong Peng Kuen v. Chung King Pui and Another

DCMP000005/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

Tenancy Tribunal Appeal No. 5 of 1975

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Coram: Addison, D.J. in Court.

Date of Judgment: 13 January 1976

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JUDGMENT

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1. This is an appeal from a decision of the learned President of the Tenancy Tribunal given on the 25th October, 1975 when he refused to make an order in favour of the landlord granting him possession of the suit premises situate at 8, Hennessy Road, 3rd Floor, Hong Kong.

2. The application for possession was brought by the landlord, the appellant in these proceedings, under section 36 of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, on the ground that the tenant a Mrs. Chung had assigned, sub-let or parted with the possession of those premises without his written consent.

3. The landlord's case was that the tenant had moved out of the suit premises along with other members of her family who were then residing with her and that she installed her fourth son in the premises in her stead.

4. This transference of possession was alleged by the landlord to have been precisely in accordance with her earlier declaration of intention and, moreover, contrary to his express wishes.

5. The tenant denied that she had parted with the possession of the premises or any part thereof to her fourth son, Chung Hung Kee, who was the second opponent to the application. She claimed that he was not a sub-tenant and it was her case at the hearing that he had moved into the premises simply to keep her company.

6. The learned President found as a fact that no rent was paid by him for his occupancy of the premises.

7. The tenant and her fourth son were the only persons to give evidence for the defence before the tenancy tribunal.

8. The issue which was fairly and squarely before the President was whether or not the tenant had deprived herself of the statutory protection she had enjoyed for many years in her possession of the suit premises and this she would have done if the landlord showed a parting with the legal possession on her part.

9. There was no misconception at the hearing of the meaning of the words, "parted with the possession of such premises or any part thereof" appearing in section 36 of the Ordinance: hence it is unnecessary to refer to the decision of In re an Appeal from the Tenancy Tribunal [1972] DCLR 48 and to the cases therein cited.

10. The learned President was alive to the point in issue in the case. Also he was aware of the law applicable to "non-occupying" tenants, as so described in this branch of the law.

11. He held that the tenant retained a sufficient animus revertendi and corpus possessionis so as not to forfeit protection and it was for that reason he dismissed the landlord's application for possession.

12. Implicit in his reasons for decision is the fact that the 1st opponent had left the suit premises.

13. Mr. Niamatullah, who appears for the appellant landlord, has argued in this appeal that the case, as presented by him, did not embrace consideration of animus revertendi and corpus possessionis; he claims that there was ample evidence of a change in the occupancy of the premises sufficient to raise the presumption of a parting with possession and that the facts of the landlord's case admitted no conclusion other than there had been a taking over of the 1st opponent's tenancy by the 2nd opponent.

14. In my opinion it was perfectly correct for the learned President to consider the tenant's state of mind in relation to the suit premises. In fact the defence was such that, inescapably, these considerations were part of its clock-work mechanism.

15. The principal theme of the various grounds of appeal filed is that the evidence adduced by the applicant and accepted by the learned President could not admit the conclusion he reached.

16. It thus becomes necessary in this appeal to consider whether the learned President erred in holding that the opponents had successfully rebutted the prima facie case established by the landlord.

17. Before doing so I should refer chronologically to certain events pertaining to the making of this application and its hearing.

18. The applicant first observed signs of the tenant and her family moving out in November and December, 1974. His wife had discussions with the tenant and members of her family in January, 1975 and these were followed by further discussions between the landlord and the tenant and her family in February, 1975. The landlord's application was filed on the 25th March and the tenant's opposition was filed on the 29th April, 1975. Knowing that she would be absent from Hong Kong between the 30th May and the 26th September, 1975, the tenant applied for a late hearing and a day was fixed in October, on the 25th day of which the decision of the learned President was given.

19. The evidence shows that from December 1974 or January 1975 until the hearing the tenant never told the landlord, categorically, that it was her intention to return to the suit premises.

20. The learned President said,

"The facts of this case show that the Applicant and his wife wanted to ascertain whether or not the1st Opponent had in fact decided to give up possession of the premises in question at the end of December, 1974. The monthly rental for the month of January, 1975 was accepted by the Applicant on the 2nd January, 1975. It was not until the middle of January and the 5th February, 1975 the Applicant had full knowledge of the fact that the 1st Opponent would only surrender the possession of the suit premises in consideration of $18,000".

21. In fact, as will be seen, the case for the applicant was much stronger than this.

22. Mr. Ming Huang referred this court to various answers given during the cross-examination of the applicant's wife and it is only fair that these should be recorded in this appeal. The record reads:-

and later,

23. These answers were contradictory to numerous earlier assertions made positively by the witness to the effect that the tenant did not intend staying in the suit premises. I do not think she did justice to her case by these replies and it was this which probably led the learned President to infer that the applicant and his wife were still seeking to ascertain the tenant's intentions.

24. I mention this matter because it could not be said there was no evidence to support the conclusion the President reached. What is contended in this appeal is that, taking the evidence as a whole, the first opponent could not reasonably be said to have rebutted the prima facie case of parting with possession of the premises.

25. I now turn to the facts of the case.

26. The tenant has been a widow since 1966. She has lived in the suit premises since just after the conclusion of the Second World War. Her family comprises of 5 sons and 2 daughters, one of whom is unmarried. They all grew up in the premises and, apart from the 5th son and her unmarried daughter, each left in turn on marriage.

27. The 4th son, who is the second opponent, left the premises 10 years ago. He is married and has 2 children. He owns a flat at 5 Tai Hang Drive, Block H, 19th Floor, Hong Kong which he is buying on instalments of $800 per month. In another year he will complete his purchase of that flat which, since his return to the suit premises, has been left vacant.

28. The 5th son, who is a doctor, married six years ago and he and his wife (referred to at the hearing as "the daughter-in-law"), together with his unmarried sister lived with their mother in the suit premises until December, 1974.

29. It is a united family with the mother visiting her sons both in Hong Kong and Canada as opportunity arises.

30. She said in evidence that she has always looked on the suit premises as her home and that it was always her intention to return there.

31. The landlord's wife, Mrs. Lo Mei-yee, has been on friendly terms with the tenant for many years. They each attend the same church.

32. Her evidence was that in November and December 1974 she noticed luggage was being moved from the tenant's flat and so she spoke to the tenant, who is advanced in years, and asked her what was happening. Together they awaited the return home of the daughter-in-law when, according to Mrs. Lo, in her presence, the tenant told her that she intended to move out and allow one of her sons to come to live in the premises. Mrs. Lo was not agreeable to this latter idea and she said so. A few days later, the daughter-in-law spoke to Mrs. Lo and said that since she, Mrs. Lo, would not permit the son to move in he would not do so.

33. At this same time the daughter-in-law told her that they would surrender the premises to her once they had disposed of the old furniture and she handed her a piece of paper on which was written their new address.

34. Mrs. Lo enquired specifically of the daughter-in-law if her mother-in-law, the tenant, would be moving with them and she was informed that such was the case.

35. The record reads:

"The wife of the 5th son told me that that was the new address to where they would move. I also asked her whether or not she would move with her mother-in-law. She said, 'Yes'. I also asked about the daughter living there with the old lady. She said the daughter would also move out with them. I also told them that if they did not want the old furnitures I did not mind to leave them in the premises. I also told her that if she wanted the old furniture back she might do so at any time. I also told her that I was willing to give $5,000 for their moving out. She replied, 'We will consider and I shall talk to my mother-in-law.' At the time of this conversation she was still living on the 3rd floor, the premises in question. Then, I have no contact with her again".

36. At about Christmas time Mrs. Lo visited the flat several times with a view to giving Mrs. Chung a present but no-one was ever there. Then in early January she saw the 4th son and his family going in and his family going in and out of the premises. She saw them moving in luggage even. A week later she went to the flat and there saw the 4th son who told her that Mrs. Chung was in the 5th son's flat. She said she asked the 4th son if he intended living in the suit premises and his reply, a highly significant answer, was:-

"Just for a few days".

37. She did not see on the premises any of the former occupants, including the tenant's amah who had been her faithful retainer for many years. Instead there was the 4th son's family and his own amah.

38. Her evidence then reads:-

"After a few days I made a telephone call to the new address which was written on Ex.A, where I located the old lady, Mrs. Chung. I said to her on the telephone: 'You are not now living on the premises and do not surrender the premises to us. You do not keep your promises and now you ask one of your sons to live in the premises. I went up to the 3rd floor and found your son and daughter-in-law living there'. I also said, 'Since you don't stay there you should surrender the premises back to us. It is not fair. We belong to the same church.' I also asked her if she were in my shoes what would she do. She said nothing in reply. Then I said to her, 'since you are an old lady you should make your decision. If you can't you may consult the 5th son.' She said 'Alright'. Then she hung up the phone. After that I had no occasion to talk to her until this morning outside this court-room".

39. It will be recalled that proceedings were instituted in March 1975 and the hearing was delayed until October due to the tenant's visit to Canada.

40. In cross-examination Mrs. Lo repeatedly confirmed that the tenant told her she would move out with her 5th son, with whom she was going to live. Mrs. Lo said she would never have made an offer of $5,000 if she believed the tenant would remain.

41. In short, it was her evidence that the tenant left the premises for good and planted her 4th son in the premises in her stead.

42. Her husband, the landlord, gave evidence. He was a school-friend of the tenant's eldest son and has a shop on the ground floor. He too witnessed the removal of luggage from the premises and added that such removals were always carried out late in the evening.

43. Mr. Niamatullah suggests that this was done furtively. There was evidence to support such an inference.

44. The significant aspect of the landlord's evidence related to two meetings of which the first took place in the middle of January, 1975 and at which were present the tenant Mrs. Chung, the 5th son's wife and the 2nd son. This meeting, held in the suit premises, had been arranged by the 2nd son and, according to the landlord, its object was to discuss the disposal of the furniture.

45. The landlord's evidence was as follows:-

"When I got into the house we sat down and tea was offered. I went to inspect the furniture. Mr. Chung, the 2nd son, asked for $18,000 for all the furniture including the vacancy of the premises. For $18,000 one could have the furniture and the vacant possession of the premises. The old lady was present and we talked in Cantonese. To this I refused and I offered $5,000. We were sitting and talking together in the presence of the old lady and the 5th son's wife. The 2nd son then told me that the furniture was worth a lot of money and cost a lot of money to make at the beginning and these furniture may be of use to you later. I do not need such furniture. There was no agreement at this meeting. When I went to the place I did not notice any sign of people living there".

46. There was a subsequent meeting on the 5th February, 1975. At this meeting there were present besides the landlord, the 2nd son and the 3rd son. This was held in the landlord's office. At this meeting the 2nd son said

"that $18,000 was very reasonable because it would cost you much more and many time folds if you take this house down for re-development".

47. There is no evidence that the premises are scheduled for re-development.

48. In cross-examination the landlord was asked about the first meeting in January. The record reads:-

49. This then, in substance, was the appellant's case.

50. Of their case the learned President said:-

"It is not in dispute that the 1st Opponent was absent for several months and the 2nd Opponent and his family moved into the suit premises in or about December, 1974. On facts I accept the evidence of the Applicant and his wife relating to the meetings, telephone conversation and negotiations for the surrendering of the possession of the suit premises in consideration of $5,000 and $18,000. On the basis of the above facts and findings, the sum total compelled the prima facie inference of a cesser of possession or occupation or sub-letting on the part of the 1st Opponent. This was by no means conclusive but put the onus on the two Opponents to show the contrary."

51. It has not been contended in this appeal that a prima facie case was not made out.

52. Mr. Niamatullah argues that the learned President must have accepted all the evidence given by the applicant and his wife, including the assertions by the tenant of her having moved out of the premises.

53. The words of the President indicate he accepted their evidence relating to negotiations for the surrendering of possession. It is noted that Mrs. Lo was never present at any of the two meetings.

54. The learned President then went on to say:

"Mr. Niamatullah for the Applicant invited the Tribunal to attach much weight to the negotiations for surrendering vacant possession in consideration of $5,000 and $18,000. I have made the finding that there were such meetings of negotiation. But, this was not conclusive as by itself it only proved that the 1st Opponent had the intention of delivery of vacant possession and selling her furniture for a sum of $18,000. It did not conclusively prove that the 1st Opponent had already given up possession or sub-let the premises in question to the 2nd Opponent. It was open to the 1st Opponent to prove on the balance of probability that she had an animus revertendi together with corpus possessions and had not sub-let the suit premises to the 2nd Opponent."

55. It is fair to say of the applicant's case that it was not strictly confined to proving a sub-letting.

56. Mr. Niamatullah relied also on the presumption of a parting with the possession of premises, contained in section 38 of the Ordinance, by reason of the change in the occupancy. In his grounds of appeal he complained that the learned President had misunderstood this fact.

57. Inasmuch as the President found a prima facie case it can not be said that the landlord's case was detrimentally affected. The road reached by the learned President was the same as if he had applied the presumption.

58. In considering the foregoing extracts from the reasons for the decision it seems to me that two facts emerge:-

59. The question which arises in this appeal is whether the tenant did have an animus revertendi coupled with a corpus possessionis.

60. The declaration of her intention to move out made at a time while she was still in possession would simply be evidence of her intention at that time.

61. There is no room for doubt that she did in fact leave, and, as I have already said, this is implicit from the legal considerations applied to the case by the President.

62. The learned President was reluctant to state his conclusions as to the credibility of the respective witnesses on points where they materially clashed. He never said he did not believe the applicant and his wife on their assertions that the tenant alleged she was going to live or had moved to live with the 5th son elsewhere. Likewise the learned President did not indicate which aspect or aspects, if any, of the opponents' evidence he found unacceptable. Complaint of this was made on the appeal.

63. Mrs. Chung's evidence was a denial of having moved to her 5th son's premises. She agreed that her unmarried daughter had left the suit premises but she could not say where she was living save it was somewhere in Happy Valley.

64. Of her servant, who has accompanied her for many years, she first said she was still living in the suit premises but she later retracted this and said she was staying at her 5th son's flat, "for a short while".

65. She said she told Mrs. Lo that her 5th son only was moving out. She denied mentioning that she too was leaving.

66. She said that although she could remember the meeting with the landlord and her second son she could not recall anything of the discussion relating to $18,000. She said she never instructed her daughter-in-law to negotiate on her behalf.

67. It was her case that she asked the 4th son to come and live with her because she was lonely. Mr. Niamatullah commented that this was not specifically pleaded.

68. There was no real evidence given that they actually resided together in the suit premises either before she left to go to Canada or after her return.

69. Her son's evidence for his occupying the premises was very material. It was, I think, unconvincing.

70. The record of his evidence on an aspect of this reads:-

71. This evidence was never specifically weighed nor was it tested against the earlier evidence of Mrs. Lo that he told her he would be staying "just for a few days".

72. He said he knew nothing of the discussions relating to the sum of $18,000.

73. It is true there was evidence that he was not present at any meeting but the 2nd and 3rd sons knew of this and the whole re-arrangement disturbed his domestic tranquillity and not theirs.

74. I am quite confident that the learned President did not overlook the significance of all these facts. Most probably he found it undesirable to express any opinion as to the credibility of the mother and her son because he considered the ultimate issue to be one of her animus revertendi. What he said was - and I quote from his reasons for the decision:-

"The 1st Opponent gave sworn evidence to explain her prolonged absence between May 1975 to September, 1975 as she had made visits to her 2 sons in Canada. She also visited her sons in Hong Kong from time to time. Whenever she did not make such visits, she returned to and regarded the suit premises as her home. It is not in dispute that her furniture still remains in the premises in question. The 1st Opponent stated that she had not sub-let the premises to the 2nd Opponent and she requested the 2nd Opponent (her 4th son) and family to move back to the suit premises to keep her company. I accept the facts that the 1st Opponent returned to and regarded the suit premises as her home and the 2nd Opponent paid no rent to the 1st Opponent. I also accept the fact that the 2nd Opponent moved back to the suit premises at the request of the 1st Opponent to keep her company. On the balance of probability I find on facts that the 1st Opponent had the sufficient animus revertendi together with sufficient corpus possessionis to show that her statutory tenancy nevertheless continued."

75. The fact that her furniture remained in the premises did not, ipso facto, mean she had an animus revertendi.

76. The burden of establishing that fell on the shoulders of the opponents. What was required was genuine evidence to show that it was left there because she treated the premises as her home. The evidence in this case was that the furniture was the subject of negotiations for sale. There was no evidence given as to what it was really worth.

77. The question can now be raised whether the learned President was correct in finding that the respondent had an animus revertendi coupled with a corpus possessionis sufficient to rebut the prima facie case.

78. In determining this, firstly it is important to bear in mind the status of the statutory tenant and the object of legislation creating protected tenancies.

79. Megarry in the 10th Edition of the Rent Acts at p.197 states

"It has been said 'time and time again' that 'the statutory tenant has no estate or property as tenant at all, but has a purely personal right to retain possession of the property. The tenancy has been called 'nothing more than a status of irremovability' or 'a permanency of tenure' and it has been said that the tenant, who has been described with some degree of vituperation is 'not a tenant at all in the sense that he has an estate'. He has ...... a merely personal right of occupation."

(See also Ho Yin-sham v. Chong Chi-yan [1962] D.C.L.R. 12, 20)

80. The object of the legislation, so far as this respondent is concerned is to protect her in her home as her home. It is not to protect her in premises which had previously been her home but which is now sheltering furniture to be sold in the future.

81. Nor is it the object of such legislation to confer upon statutory tenants a power, as a condition of their relinguishing a protected tenancy, to put pressure on their landlords. The coin of this legislation is not two headed in favour of the tenant and it is not to be so debased.

82. In my opinion the learned President did not, when assessing the tenant's state of mind and corpus possessionis attach sufficient weight to the chronology of events and to the bargaining by the tenant, through her second son, for the sale of her furniture.

83. The appellant's case was that she had resolved to leave, did in fact leave and then installed her own son in the premises.

84. The 1st Opponent's case was that she never intended to leave her home.

85. Why then were there the negotiations for the sale of the furniture? Was it really worth $18,000? If it were, then she was determined to be shot of it. If it was not, then why was an inflated price being asked for it? Was it that figure to produce a stalemate so that the second opponent could not be ousted from possession? Was she, in other words, utilising the existence of the furniture as a means of compelling the landlord to accept her son in the premises, willy-nilly, she having achieved her purpose in moving away and installing him?

86. Once she had moved out with no intention of returning that was the end of her protection. The critical period was in or about December 1974. Leaving her furniture behind for it later to be disposed of, either at a price to be negotiated with the ex-landlord or with anyone else would not restore any "abandoned" protected tenancy.

87. She had not lived with her fourth son for ten years. He had his own flat and home. She told Mrs. Lo she intended to leave and that she wanted the flat for her son. Mrs. Lo alleged, and this cannot be gainsaid, that she would never have offered $5,000 in the first place had she believed the tenant would have remained.

88. The learned President clearly regarded the tenant, and in my opinion rightly so, as a non-occupying tenant.

89. In Brown v. Brash (1948) 1 All E.R. 922, Asquith L.J. at page 925 said,

90. A further case, decided also by the Court of Appeal, is that of Hallwood Estates Ltd. v. Flack [1950] W.N. 268. In that case the trial court accepted the tenant's statement that he intended selling his second home and returning to the premises where he held a statutory tenancy. The Court of Appeal refused to set aside the judgment.

91. Whilst an appeal court will most reluctantly set aside the decision of a tenancy tribunal, especially on matters of fact, nevertheless the powers of this court on appeal are wider than those of a court in England. Suffice it to say that in the case of Hallwood Estates Ltd. there was no question of any discussion between the parties of payment of money.

92. In Dixon v. Tommis [1952] 1 All E.R. 725 Sir Raymond Evershed, M.R. said, at page 727,

"It is, perhaps, worth emphasising that the formula used by Asquith, L.J., was animus possidendi and corpus possessionis. In other words, the tenant, though physically absent, must still in the eye of the law retain his possession of the first house. If he gives it up, an intention, however truthfully and sincerely entertained, to return there at some future date will not, as I understand the law, suffice. The learned judge accepted the evidence of the first defendant that his departure to the house over the erection of which he had taken such a very long time was temporary and only intended to last until he had to retire from his profession when he would be unable to afford to continue to live there. In addition, he left in his original home his furniture and his son. I think the learned judge, having treated the matter properly as a matter of degree, had evidence which justified him in concluding as he did that there was no abandonment by the first defendant of his possession of No. 75 Abbey Road, but I venture to repeat that judges ought to look somewhat critically at cases which, if repeatedly extended, would soon go far to defeat one of the main purposes of these Acts, which is to make the best use of the unfortunately limited housing resources."

93. A further case also decided by the Court of Appeal and which is not irrelevant to this appeal is that of Bushford v. Falco [1954] 1 All E.R. 957, the headnote of which reads as follows:-

94. In this application there was also evidence of a permanent stalemate being created by the tenant. This arose over the question of the furniture. Additionally there was the statement to the landlord's wife that she was leaving the premises to go and live with her 5th son. There was nothing done by the tenant pursuant to the telephone call made by the landlord's wife to counteract that earlier assertion; in fact the meetings between the landlord and members of her family strengthened the evidence of her departure.

95. In Tickner v. Hearn [1961] 1 All E.R. 65 Upjohn, L.J. at p.72 remarked:-

96. I would refer also to the cases of Maida Vale Estates v. Peedle [1952] C.L.Y. 3011, C.A. and Beck v. Scholz [1953] 1 Q.B. 570, C.A.

97. Each case must be considered on its own facts.

98. Whether "non-occupation" has gone on for a long time or not, the issue is precisely the same, namely, whether the tenant has retained a sufficient animus revertendi together with the required corpus possessionis. Where, as in this case, the tenant has been out of possession for a relatively short time, a tribunal will undoubtedly require less firmer evidence of an intention to return but there still remains proof by the tenant of some outward and visible manifestation of that intention showing that the premises are still treated as a home.

99. Bearing in mind that the burden shifted on to the respondent what then were the outward and visible signs of the tenant's intention to return?

100. Was it the presence of her 4th son in the premises? I think not. His presence was decidedly suspect having regard, inter alia, to

101. Was it then the presence in the suit premises of her furniture? Again I think not. There was evidence that some furniture, albeit that of her 5th son and of her daughter, had been taken away and although this did not prejudice the tenant's position nevertheless there was overwhelming evidence that her furniture on the premises was sought to be sold. Her furniture was the means by which a transference of her tenancy was manipulated.

102. Further, having regard to the overall evidence in this case it would not, in my opinion, have been an unreasonable inference to conclude that the figure of $18,000 was the price the tenant was seeking to force the landlord to pay for acquiring a smooth handing over of the already abandoned statutory tenancy.

103. I am of the opinion that the tenant did not retain an animus revertendi sufficient for the purpose of the Ordinance. I am firmly of the view that she relinquished her statutory tenancy when she moved out with her 5th son at the end of December 1974 or thereabouts and before the arrival of her 4th son in the premises.

104. I am persuaded that this appeal should be allowed.

105. There will be an order for ejectment against the 1st & 2nd respondents under section 36 of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, stayed for 4 weeks together with an order for mesne profits against the 1st respondent at the rate of $155 per month from the 1st February, 1975 until vacant possession is delivered up.

106. Costs of the appeal to the appellant.

107. Certificate for counsel for both sides.

Judgment delivered in 13.1.76 

Representation:

Representation: