Bullstock Ltd v. Yeung Kam Fook

HCA009090/1982

BETWEEN

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Coram: Hon. Liu J.

Date: 20th May, 1983.

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JUDGMENT

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1. This is an action for possession against the defendant in respect to the ground floor of No. 85, Ha Heung Road together with its cockloft. There is little dispute between the plaintiff and the defendant save for the issue of primary user of the premises, naturally in its entirety.

2. The defendant became a monthly tenant of the premises in suit holding under divers predecessors-in-title of the plaintiff. The tenancy was a monthly tenancy, and the defendant testified to the permitted user as at the time of the original oral letting.

3. The plaintiff is the current registered owner of the premises and as such entitled to the receipt of rent and profits thereof. A notice of termination has been served pursuant to the provisions of Part V of the Landlord and Tenant (Consolidation) Ordinance. In addition, a copy of the same was duly posted on three successive days at a conspicuous place at the entrance to the suit premises. None of these matters including jurisdiction based on annual rental or rateable value was disputed.

4. On the controversy between the parties, the plaintiff led evidence, called an officer of the Rating and Valuation Department and produced photographs. The defendant testified in person and called three sub-tenants.

5. From the evidence of the sub-tenant, Mr. Luk, Mr. Cheung and Mr. Fung, it is reasonably clear that immediately prior to probably August last year, the entire ground floor was being used exclusively for business purposes and that the cockloft of the suit premises is and has throughout been used for domestic purposes.

6. The defendant himself admitted running, presently and in the past, no less than three businesses on the ground floor of these premises. Some dispute as to actual user was directed at what has been described as the middle room on the ground floor previously occupied by Jumbo. Jumbo probably moved out in August 1982. By that time, a notice of termination had been served and posted, and the cubicle was thereafter kept vacant by the defendant. This middle cubicle has since been, from time to time if not throughout, used for living accommodation by his eldest son. During the day it is often taken over by the defendant's grandchildren for school-work. But there cannot be any shadow of doubt that prior to the vacation of Jumbo in August 1982, the ground floor had wholly been used for non-domestic purposes. That was the state of affairs as at the time of the notice of termination. Evidence also had it that such non-domestic user of the ground floor had never ceased ever since at least March 1981 when Mr. Luk, the last of these sub-tenants moved into his portion in the premises in suit: Mr. Cheung having moved into the premises in July 1972 and Mr. Fung in 1977.

7. We are also aided by the Certificate of Primary User dated the 31st of May 1982 certifying primary user of the suit premises as at the 27th April as being none other than business. Bearing in mind the evidence of consistent user of the respective portions throughout by Mr. Luk, Mr. Cheung, Mr. Fung, Jumbo and the plaintiff, the Certificate of Primary User must reflect the official evaluation of the status of the premises as at the date of the notice of termination, which has remained constant as from the time of the department's visits.

8. We have the benefit of the photographs taken of the shop front at the end of April, which was then no different from that existing today or at the time of the service of the notice. Thus the photographs in exhibit "P4" are more telling than just depicting the conditions as at the end of April. Furthermore, we have virtually a concession made by the defendant in his final submission that he was prepared to surrender the possession of the ground floor but desirous of retaining the cockloft for his domestic use.

9. It was further contended by the defendant, whether or not it was open to him to do so, that the letting of the ground floor and the cockloft of the premises was quite separate. He relied on certain rent receipts which Mr. Fung conceded as bearing a reference only to the ground floor without specifying also the cockloft. This was no part of the case of the defendant. Moreover, as far as legal principles are concerned, an omission to mention specifically a portion of the entire premises let would not have the effect of creating two separate tenancies.

10. I have borne in mind the evidence of the alleged original permitted user on the first letting and the subsequent activities of the defendant at the various stages of his occupancy. Suffice it for me to say that none of these matters has in any way weakened the cogent evidence of primary user of the suit premises at the material time. I find that at the date when the plaintiff company sought to recover possession from the defendant under the provisions of Part V of the Landlord and Tenant (Consolidation) ordinance, the suit premises were used primarily for business purposes. Hence, the notice of termination was properly served under the appropriate provisions of Part V and upon its expiration the same as served and posted had the effect of terminating the tenancy of the defendant in respect to the suit premises.

11. The notice of termination duly expired on the 30th September 1982. Although there was no specific evidence of non-payment of mesne profits, it is to be fairly inferred from the silence in the defence that the plaintiff company has at no time received any of the mesne profits from the defendant after such expiration. Evidence on this particular aspect was certainly not direct, but as a result of the state of the pleadings, the nature of the allegations therein raised and the defendant's lack of reply to the claim for mesne profits as from the 1st October 1982, I find upon the balance of probabilities that indeed none has been so received by the plaintiff.

12. In the circumstances, having found the issue of primarily user in favour of the plaintiff and held that the notice of termination did effectually terminate the tenancy of the defendant upon its expiration, it remains for me to give judgment for possession and mesne profits at $2,100 per month as claimed with costs against the defendant.

Representation:

Mr. Daniel Fung, instructed by Messrs. Woo, Kwan, Lee & Lo for the Plaintiff. Yeung Kam Fook, the Defendant, in person.