Tom Soong Chor and Another v. Leung Ho Ching
Read the full judgment text of HCA 2766/1973 on BabelCite. This High Court CFI judgment.
1. Before I come to the judgment I would like to make certain remarks on the conduct of the solicitors for the defence. This is a case where the defendant has been granted Legal Aid. The trial has lasted two full days and the instructing solicitors for the defence have not put in an appearance for one second. As a result defence counsel was left entirely on his own without adequate instructions. It was not until this morning when a matter concerning a document was in issue and certain urgent ame
|
HCA002766/1973 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 2766 OF 1973 -----------------
----------------- Coram: Li, J. Date of Judgment: 13th June, 1974 at 4.25 p.m. Present: Martin Lee (C.Y. Kwan & Co.) for plaintiffs D. Goodbody (Eairbairn & Kwok) for defendant ----------------- JUDGMENT ----------------- 1. Before I come to the judgment I would like to make certain remarks on the conduct of the solicitors for the defence. This is a case where the defendant has been granted Legal Aid. The trial has lasted two full days and the instructing solicitors for the defence have not put in an appearance for one second. As a result defence counsel was left entirely on his own without adequate instructions. It was not until this morning when a matter concerning a document was in issue and certain urgent amendment to the defence had to be made that a clerk of the instructing solicitors who had the conduct of these proceedings was sent to instruct counsel. For the rest of the time the solicitor concerned only sent a clerk who knew nothing about this case in order to assist to take notes. The explanation, as given through defence counsel, was that the solicitor concerned was engaged in a part-heard case in Western Magistracy. I do not wish to be harsh on him but the least I can say is that it is a matter of regret that the solicitor conducted himself in such a manner. If he was not free to attend court to instruct counsel, he should have sent somebody who knew something about the case in order to assist counsel for the defence. That is not all. There is another matter concerning the very document which is considered to be vital and important, namely the document that is subsequently admitted as Exhibit 12A. According to the clerk of the solicitor concerned, this document was delivered to the solicitor's firm about March approximately a week or fortnight after the defence had been filed. Had that vital document been properly perused and considered an amendment would have been made a long time ago and not this morning. It is obvious that the document, if it was handed to the solcitor, was never even considered. I do not doubt the words of learned counsel for the defence that that doucment was handed to him only the day before the trial - that was day before yesterday. As a result there is an inconsistency in the defence because the document alleges an oral agreement on the 3rd of June 1973 whereas the pleadings, as it stands, even after amendment, is that the oral agreement took place on the 10th of May. 2. I hope these observations will be duly conveyed to the Director of Legal Aid for the guidance of his instructions in future. 3. Coming to the judgment, this is an action for possession of a flat known as 21 Prat Avenue, ground floor (he reinafter referred to as the 'said premises') of which the plaintiffs are registered owners. 4. It is common ground that the 'said premises' was let to the defendant, LEUNG Ho Ching by a Tenancy Agreement dated 20th July, 1970 to take effect as from 1st June, 1970 for a term of three years. On the day of expiration the defendant refused to render vacant possession to the landlord. For this reason action is taken to recover 'the said premises', with mesne profits at the rate of $4,000 per month and costs. 5. To this action the defence and counterclaim may be summarised as two-fold-one is that there had been an oral agreement on the 10th of May, 1973 between the plaintiffs and the defendant, that the defendant should have another term of three years starting from the 1st of June, 1973 on the same terms and an increased rental namely $1,820 and that a frest lease should be executed including the new term or terms within a reasonable time from the date of the said letter, that is the 17th of June, 1973 and the other is that the premises although let for business purposes has been used for a long time by the defendant as domestic premises, or at least part of the premises had been used as domestic premises. As such the Landlord and Tenant (Consolidation) Ordinance, Chapter 7 should apply so as to protect the defendant from any claim by the Plaintiffs for possession. 6. I have heard the evidence of the Plaintiffs and the Defendant. The issue in this case, therefore is only (1) whether there was an oral agreement either in June or May 1973 between the parties; or (2) whether in fact the premises were used as domestic premises. 7. I shall deal with the second point first. There is evidence on the part of the Plaintiffs that the whole of 'the said premises' was used for business purposes, except a very small room at the back of the kitchen and which was used by the defendant, her husband and son as living quarters. The floor area of 'the said premises' was nearly 1,800 sq.ft., out of which only a small room and the kitchen were used for domestic purposes. 8. There is in an agreed bundle of documents before me, Exhibit 8, which is a certificate issued by the Rating and Valuation Department Surveyor, to the effect that the primary user of the 'said premises' is non-domestic. That is dated 12th December, 1973. Again another certificate was issued on the 18th of April, 1973 to the effect that the primary user of 'the said premises' was non-domestic. 9. Mr. Good body contends that in another case before Judge LIU, it was possible in that case to segregate the business portion of the premises and the domestic portion of the premises, and possession was granted only on the business portion of the premises. But that is a case, as pointed out to me, of rent increase application where a landlord applied for possession against the principal tenant as well as a series of sub-tenants for possession. When it was found that as comparison in matters of hardship no order was made against the sub-tenants. An order was made against the principal tenant, and that is why a partial relief was granted in that application. These proceedings are of a completely different nature, in that the plaintiffs are asking for possession of the whole of 'the said premises' on the ground that the Tenancy had expired by effluxion of time and that the primary user of the premises is non-domestic. I do not feel that I have any jurisdiction to segregate the premises into two portions and say that the very little part that was used for domestic purposes should be retained by the defendant. In this case I rule that the premises were used for non-domestic purposes in the sense that, first of all, the letting was for business purposes. Of course that is not conclusive. The certificates issued by the Rating and Valuation show that the primary user was non-domestic. That again is not conclusive. What is conclusive is that, from the evidence, the primary user of the premises is non-domestic. There are a photographic exhibits showing that a great portion of 'the said premises' was used for storage of goods or for business. The defendant admits that a great part of 'the said premises' was used for non-domestic purposes. In fact the front portion was sublet to a firm by the name of LUEN Yick for business purposes. There might be people staying in the middle two rooms, evidence has shown that they are mainly used for the storage of goods. 10. For these reasons, I must rule that the ground that the premises were used for domestic purposes must fail. I cannot separate and segregate the business portion from the small domestic portion, having regard to the fact that the primary user of the whole of the premises was non-domestic. 11. I now come to the part about the oral agreement. On the plaintiffs' evidence the defendant went to see him on the 10th of May, 1973 - about three weeks before the expiration of the Tenancy. On that occasion the defendant tendered rent for the month of May and asked the plaintiffs whether they could stay on for another term of three years. The plaintiffs flatly refused. But by the end of May the defendant refused to move. They came back to see the plaintiffs again on or about early June, 1973, asking for time because they found that they did not have sufficient time to obtain alternative accommodation. To this the plaintiffs agreed that they could stay for a few more days so that they would move out as soon as they found accommodation. Instead of moving out the defendant insisted on remaining in possession and tendered rent to the plaintiffs on or about the 20th of June. The plaintiffs received an envelope containing a money or a cashier order in the sum of $1,400. The plaintiff immediately took it to his solicitors, C.Y. Kwan & Co. and asked then to take action on his behalf. As a result Exhibit 5 was written and the money order was returned to the defendant in the following terms:-
12. Such is the sum total of the plaintiffs' evidence. 13. The defence evidence is this. In the month of May, on the 10th, she and her husband went to see the plaintiffs whereupon the plaintiff agreed that they could have another lease for the term of three years, subject to a variation in rent by an increase of 30%, namely from $1,400 to $1,820 per month. 14. The defendant's husband also gives evidence. He says that on the 10th of May, when he tendered rent, there was already an understanding and promise by the plaintiffs to grant another Tenancy of three years, but the plaintiffs wanted time to think over the increase of rent. On the 3rd of June they saw the plaintiffs again and the plaintiffs there and then agreed to another three years' term subject to a rent increase of 30%. He then had to consult his sub-tenant, the Luen Yick people as regards the rent increase, Having obtained the agreement of the Luen Yick people he then sent a Money Order, that is the Money Order. He said that the plaintiffs asked the defendant to confirm by letter that such increase was acceptable. Thus he sent the Money Order together with a covering letter, which I referred to at the beginning of this judgment. In this letter they referred to the agreement to grant a new lease subject to a 30% increase and sent a Money Order in the sum of $1,400. 15. Having heard the defence witnesses, I am not impressed by the evidence that was given by the defence witnesses, particularly the defendant's husband, who does not, first of all, appear to me to be a reliable witness in the witness box. He tried to avoid giving direct answers to the various questions put to him. But that is not all. According to him, he gave all the letters to his solicitors all the documents. But he said he gave this document, Exhibit 12A, to his solicitors some time in February. But the clerk of the defence solicitors said that he gave this document to them in the month of March. First of all, if the letter was genuine, and was written on the 17th of June, 1973, it would contradicting the facts as given by the defence witness. The letter only referred to a meeting on the 3rd of June and mentioned nothing about an oral conversation on the 10th of May. It is also at variance with the pleadings. It reads as follows:-
That is a letter which appears to me not to have been written by some one who had had a verbal conversation, coming to certain arrangements and certain agreement. But that is not all. It was agreed, according to the defendant, that the rent as from the month of June should be $1,820. But the defendant only tendered rent at the rate of $1,400. There is also another aspect. It will be recalled that the document, according to the defendant, is a very vital and a very important document to him. He did not see fit to show this letter to his solicitors until March of this year or even February of this year which was long after he had seen the solicitors for the defence. Further it is quite clear in the letter of the 26th of June, Exhibit 5, from C.Y. Kwan & Co. to the defendant that the plaintiff was not interested in rent. The plaintiffs simply refused the rent because they considered that the tenancy had been terminated. The defendant then went to see another solicitor, George Liang & Company, who is not connected with these proceedings. He went there to seek legal advice and show a clerk in that firm Exhibit 5. On such instructions George Liang & Company wrote for the defendant in these terms in Exhibit 6:-
16. Well if there had been an agreement in May or June one would have expected the defendant to tell his solicitors and the solicitor's to reply in the letter would raise this oral agreement. Yet not a word of the agreement was raised. The defendant's husband, second defence witness, tried to explain that it was entirely a matter of legal advice. He was told that the oral agreement and the letter Exhibit 12A, were of no significance at that stage and that it was only important at the stage of litigation. My observation is that any solicitor who is worth his salt would have taken up the matter right at the beginning and would have written a very different letter from that as shown in Exhibit 6. However, up to then, not a word was raised about the oral agreement, not a word was raised about this formal letter, Exhibit 12A. These are elements of doubt. On the balance of probability I find that this document, Exhibit 12A, could be manufactured by the defendant himself. That is why he did not show it to his solicitor for the defence until as late as in March even though he placed such great importance on it. 17. I also find that there was no oral agreement at all. Had there been any agreement the defendant would have told his solicitors, George Liang & Company straightaway. 18. Having decided on these points, I have no option but to give judgment to the plaintiffs for possession. 19. As far as Mesne profits are concerned although there is some evidence that the market rental of such premises would be in the vicinity of four to five thousand dollars per month. But the rent for the said premises was only $1,400 per month. The defendant, on his own evidence, was prepared to pay up to $1,820. That is neither here nor there. In the circumstances I award Mesne Profits only at the rate of $1,400 per month. Perhaps I should add that one other factor which leads me to believe, that there was no oral agreement was that if the market rental of the said premises was as high as about four thousand, it would be very unlikely that the plaintiff would agree to renew a Tenancy for another three years at a rental of only $1,820. 20. In short I give judgment for the plaintiffs for possession, Mesne Profits at the rate of $1,400 per month up to the date of possession, and Costs to be taxed according to Legal Aid Scheme. The counterclaim will be dismissed with Costs. All the Mesne Profits paid in court should be paid out forthwith.
Representation: Martin Lee (C.Y. Kwan & Co.) for plaintiffs D. Goodbody (Eairbairn & Kwok) for defendant |