Siu Yue v. Kwan Yam Tong

HCA001199/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1199 OF 1969

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Coram: McMullin, J.

Date of Judgment: 11 March 1970

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JUDGMENT

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1. The plaintiff in this action is the registered proprietor of the premises known as Flat A, 7th floor, 72, Waterloo Road, Kowloon. The building is also known as The Liberty Mansion. She claims possession of the premises together with arrears of rent, and mesne profits costs against the defendant who is named in the action Kwan Yam Tong alias Kwan Chin Pang. The case falls to be decided upon one simple issue of fact, viz: is the person who has entered an appearance in the action and who admits his name is Kwan Chin Pang also a person who at the time of the letting held himself out to be Kwan Yam Tong. The defendant maintains that he is not Kwan Yam Tong. His name he says is Kwan Chin Pang and the person known as Kwan Yam Tong is his nephew and the rightful tenant of the premises. He admits that he is in occupation of the premises and that he has been there since 1966 when the lease was first granted, as he maintains, to his nephew. He holds by virtue of a sub-tenancy from his nephew and there is. he says, a further sub-tenancy in the same premises a room thereof having been sub-let to his wife. His own letting is not a personal letting but was made, he says, by his nephew to the company of which the present defendant is the managing director. The company is a secretarial and translation agency known as Popular Secretarial Services Ltd. The Memorandum and Articles of Association of this company (which were produced in evidence) show the defendant described as a director by the name of Kwan Chin Pang and there is a second director therein referred to by the name Kwan Yam Tong. Two identity cards were produced one bearing a photograph of the present defendant and ascribing to him the name Kwan Hon Wing which, he maintains, is his regular alias. The other card shows the photograph of a much younger man and the name appearing thereon is Kwan Yam Tong. In the extract from the Register of Companies which appears as annexure as Y.1 to the affidavit of the plaintiff, sworn in this action on the 11th of December 1969, there appear the names of four persons listed as shareholders in the Popular Secretarial Services Ltd. One of the names is Kwan Chin Pang and another Kwan Yam Tong.

2. There is therefore some evidence of the existence of a person called Kwan Yam Tong and that he is not the person appearing in court and calling himself Kwan Chin Pang. However no person admitting to the name Kwan Yam Tong appeared to give evidence at the trial of this action nor did any such person, it appears, turn up to support the opposition of the present defendant to distraint proceedings taken against Kwan Yam Tong in the District Court in September 1969. It is not disputed by Kwan Chin Pang that distraint proceedings were taken to recover rent outstanding from the tenant of the premises to the present plaintiff; nor does he dispute that since the rent first fell into arrears in February, 1969 no further rent has been recovered by the plaintiff from anyone in connection with the tenancy of the flat in question. His only defence is that the action is misconceived because it has been brought agains the wrong person. He makes no attempt to dispute the proposition that if he is the tenant the landlord has lawfully exercised her right of the entry and forfeiture by the issue of her writ.

3. I do not propose to review the evidence in detail. The plaintiff's story is that his nephew Kwan Yam Tong was looking for premises in 1966 and that in June of that year he was introduced to the present plaintiff who in the presence of the defendant's wife let the premises to him at a monthly rent of $550. Thereafter Kwan Yam Tong let the "teng" of the premises to the company in which they were both concerned Popular Secretarial Services, and a single room in the premises to the wife of Kwan Chin Pang. It would appear from the defendant's story that Kwan Yam Tong originally had a job of his own but that at some time after 1966 he also helped this defendant with the work of Popular Secretarial Services Ltd. Then at the beginning of 1969 Kwan Yam Tong, who is said to be a qualified radio operator, took a job with a shipping company and commenced a new career of sea-going in the pursuit of that profession.

4. The plaintiff says that the premises were let to the person who appears in court calling himself Kwan Chin Pang. That in 1966 he was introduced to her by the caretaker of the building and that he identified himself as Kwan Yam Tong. She says that she has collected rent regularly from the premises from the defendant and has never seen nor been introduced to any young man purporting to be the nephew of this defendant nor to any person, other than this defendant, using the name Kwan Yam Tong.

5. I have no hesitation in accepting the plaintiff's version of this affair. I think the defendant, who, I regret to say, worked for some thirty years as an interpreter to a well known solicitors' firm, 0 as it were, with the materials for an alibi should difficulties later arise in relation to the tenancy. There are several contradictions in the evidence given by the defendant and his wife. There are also some discrepancies which Mr. Mills-Owens pointed out between the evidence given by the defendant in the proceedings before the District Court upon the distraint (the file of which was tendered in evidence and became Ex.P1 in this action) I pass over the minor discrepancies arising between husband and wife in the separate accounts given by them as to the commencement of the tenancy. The following appear to be the major differences: the defendant's wife D.W.3 says that the initial meeting to discuss the tenancy took place between the plaintiff, the plaintiff's husband and Kwan Yam Tong and herself at the premises of a friend of hers in Liberty Mansion one by the name Chu Ming. At this meeting (which is completely denied by both the plaintiff and her husband) the rent was discussed and agreed finally at a figure of $550 per month. A deposit of one month's rent was also discussed and on this occasion the sum of $100 was paid by Kwan Yam Tong to the plaintiff against the agreed deposit. The defendant on the other hand states that when he was in the suit premises on the 8th of July which his wife and the plaintiff and her husband and Kwan Yam Tong the rent was then discussed between the plaintiff and Kwan Yam Tong and agreed at $550. He states that the deposit was also discussed although he adds that a receipt for $100.00 was given by Kwan Yam Tong to the plaintiff together with the sum of $1,000 bein the rent and deposit agreed. If matters had been finalized at the first meeting it seems strange that the parties should have covered the same ground a second time.

6. His wife also referred to this meeting of the 8th of July. The plaintiff and her husband agreed that there were two meetings both in July 1966 but maintained that the first meeting was between the defendant's wife and the plaintiff alone. Also it is said that this meeting took place at the suit premises after the previous tenant had moved out.

7. A major discrepancy between the evidence of husband and wife is to be found in the fact that whereas the wife maintained that she and her husband, the defendant, moved into the premises on the 6th of July 1966 as tenants of Kwan Yam Tong her husband told the Court that he, in the person of the Popular Secrstarial Services Company, did not move into the premises as tenant of the "teng" until the 10th of September 1966. He has never maintained that he occupied that premises in a solely personal capacity but only that he occupied it for business purposes and lived there as well. He made what appears to be a somewhat revealing slip in his evidence when at the very commencement of cross-examination he volunteered the information that the registered office of Popular Secretarial Services Ltd. was No.9 Gilman's Bazaar 1st floor, This is the address shown for that business on the extract from the business registry taken out on the 1st of September 1969. It was pointed out to him that in the interrogatories he was recorded as saying that the business of the company was the suit premises. He sought to recover the position by saying that whereas the business premises had originally been in Gilman's Bazaar it had moved to the "teng" of the flat and that this alteration had also been registered.

8. It is to be noted that the entire episode concerning the meeting at Chu Ming's premises was described in evidence only when the wife and Chu Ming came to the witness box. Nothing concerning this alleged meeting was ever put to the plaintiff in cross-examination by the defendant. It was further pointed out by Mr. Mills-Owens that on the distraint proceedings the defendant had alleged to the Court that his nephew Kwan Yam Tong had been introduced to the plaintiff as a prospective tenant by his, the defendant's wife, whereas in this action he maintained that the introducer was Chu Ming. He made an endeavour to explain this discrepancy, a note of which appears upon the record in the following terms "It was because Chu Ming knew my wife and my wife introduced Kwan Yam Tong to Chu Ming so I thought it was my wife who introduced Kwan Yam Tong to rent the place." He went on to say later that he thought that his answer in the District Court may have been mistaken as he doesn't hear very well.

9. His wife in giving evidence contradicted herself in several particulars. She said that she used sometimes pay the rent to the plaintiff on behalf of Kwan Yam Tong whenever Kwan Yam Tong was out at work. This was because the plaintiff would sometimes come at an early hour. She did not explain how it came to pass that she would anticipate the plaintiff's being late in this way and procure the rent from Kwan Yam Tong to pay in his absence. Again she went on to say that when Kwan Yam Tong went to sea at beginning of 1966, she, (D.?.3) would then collect the rent from Popular Secretarial Services Ltd. and add it to her own rent, the two sums together amounting to $550, and pay this to the plaintiff. She said that she had done this about 10 times in all. It was then pointed out to her that on her evidence Kwan Yam Tong had gone to sea only in February 1969 and that since that date, no rent had been paid to the landlord. She perceived the difficulty into which she got herself and made several rather desperate endeavours to extricate herself. These appear upon the record plain to see and I don't propose to refer to them except to say that they carry in my mind no conviction whatsoever.

10. Mr. Mills-Owens has rightly pointed out that if this nephew exists and if the tenancy was truly given to him it would profit the plaintiff nothing to bring the action against his uncle in the knowledge that the uncle was not the true tenant. Such a proceeding could at best have a doubtful outcome and would put her in a position of having to lie to obtain the right she could, without endangering herself in the witness box, have achieved by suing the right party. He points out that if the action proceeded against the nephew assuming him to have been the tenant, substituted service could have readily been obtained since it appears according to the story of the defendant that Kwan Yam Tong is frequently out of the Colony, and if he did not defend the action as appear to defend in court, on judgment being given against him the judgment would have operated to oust the sub-tenancies also if such existed. This seems to me a telling point. On the other hand, there is some rationality in the story that the defendant has misrepresented his identity. Such a device at the very worst could have the effect of confusing the proceedings underlaying the result. In the upshot I am satisfied that this is precisely the device which the defendant adopted. I therefore give judgment for the plaintiff as claimed with the stay of execution under the order for possession for the period of 1 month.

11 MAR 1970

Representation:

R. Mills-Owens (H.H. Lau & Co.) for Plaintiff.

Defendant