Mabel Investment Co Ltd v. Lam Siu Kan

HCA001664/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1664 OF 1970

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Coram: Briggs J. in Court

Date of Judgment: 24th September, 1971.

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JUDGMENT

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1. This is a claim for possession of premises described as Rooms 1203 and 1204, Mabel House, 591 Nathan Road and for mesne profits and charges at the rate of $568 per month from October 1st, 1970 until today.

2. The sole point for the decision of the Court is whether or not the premises are "domestic premises" as defined in the Rent Increases (Domestic Premises) Control Ordinance, Chapter 338, (hereinafter called 'the Ordinance').

3. The Plaintiff landlord served a notice to quit on the Defendant tenant which expired on the 30th September 1970, if the premises are "domestic premises" for the purposes of the Ordinance the tenancy is protected and the tenant may ignore the notice to quit. If the premises are not domestic premises, then the Plaintiff is entitled to possession.

4. Both parties called evidence and certain photographs of the interior of the premises were exhibited.

5. The expression "domestic tenancy" is defined in Section 5 of the Ordinance. It is a long section and I do not propose to set it out in full in this judgment. It describes the matters which the Court may take into consideration when deciding whether premises are "domestic premises" or not. For our present purposes it must be noted that the following matters are included for consideration:-

6. The Plaintiff's case is that the premises were let orally for business purposes in May 1968 on a month to month basis; and that the premises are now and have been since the tenancy was created the registered office of the Yick Fung Trading Co. Photographs were exhibited showing that a sign bearing these words in English with its equivalent in Chinese is prominently displayed on the outside of the premises and on the notice board inside the entrance of the building. And that therefore they are not "domestic premises" but business premises.

7. The photographs of the inside of the premises show that immediately opposite the only entrance to the premises is a small kitchen which I was told was constructed out of a corridor leading to the back stairs. This was intended to be the fire escape though it cannot be used as such now. Next to the kitchen is a lavatory and bathroom. Then comes the main room of the premises which is fitted up as an office. It has office desks, two telephones and is unmistakably an office. There is a sitting room beyond and two bedrooms one of which must be very small indeed.

8. It is part of the Plaintiff's case that when the premises were let there was no kitchen and no bathing facilities. There was a lavatory, a shower and a wash basin but nothing more. And, as I have said, the premises were let for business purposes, as an office. However the manageress of the Building for the Plaintiff did say that she was told at the time of the letting that part of the premises would be used as domestic premises.

9. The Defendant's case is that the premises were originally let for business and domestic purposes and that the primary user of the premises is and has always been domestic. The Defendant's family lives there: this consists of the Defendant, her husband and their three children. The Defendant and her husband occupy one bedroom, two of the children share the second small room, and the third child sleeps in the sitting room. There is also an amah who sleeps in a sort of cupboard next to the kitchen. The Defendant said that she intended to run an import, export firm, the Yick Fung Trading Co. But though it has been registered it has not done any business. It has been a failure. I find this difficult to believe for Mrs. Kwong, the house manageress, said she saw samples of toys on the shelves of the room furnished as an office. And that room bears all the appearance of being used as an office now and only as an office: for example, though there are 3 children there there is no sign of it having been used as a playroom.

10. I find as a fact that this room, the largest room in the premises, is and was used as an office i.e. for business purposes, whether the business in question was successful or not.

11. The Defendant's husband said that he negotiated the lease. It was agreed that the lease was for domestic purposes. He was shown where to put the kitchen i.e. in the fire escape space, and the landlord installed a sink there with running water before he the Defendant's husband, completed the transaction. He then installed a bath, changed the shower and partitioned the premises into their present accommodation.

12. The Defendant's case is that the kitchen was made at the direction of the Plaintiff's employees. They decided where the kitchen was to be and installed the sink, the Defendant completing the furnishing of the kitchen. The Secretary to the Plaintiff Company gave evidence. I found him an evasive witness particularly when questioned about the Occupation Permit, which most clearly shows that the whole of the floor of which these premises form part are intended for domestic purposes. This witness said that his Company had not constructed the kitchen but admitted that two other tenants had made the same alteration also blocking up their fire escape spaces.

13. It is very obvious that the Plaintiff Company must have been fully aware that the kitchen had been made. The manageress said she saw it there when she collected the rent which she habitually did. Indeed she could not fail to have seen it and to know that the whole family was living there. They have been there since 1968. I believe the Defendant's husband when he says that the landlord installed the kitchen sink. This would have necessitated a connexion to the water system and only the landlord would do that.

14. After the commencement of these proceedings in November 1970, the Defendant applied to the Commissioner of Rating & Valuation for a certificate as to the primary user of the premises, under section 5(4) of the Ordinance. An inspection was made and a certificate granted on December 12 1970. This states that the primary user of the premises on December 2 1970 was domestic.

15. Finally the Occupation Permit for the building states that the premises are part of a floor which is for domestic purposes.

16. Returning to the matters which are for consideration in deciding this issue and which I have set out above I accept the evidence of the parties that the premises were let for business and domestic purposes. The question is therefore what is the primary user. I am firmly of the opinion that the primary user is domestic. It is true that the premises contain a business office but this is secondary. The premises are the home of a family who have lived there for some considerable time and who are living there now. There is a kitchen, a bathroom and two bedrooms, the office is of secondary consideration to this. I also rely upon the wording of the Building Permit and of course on the certificate provided by the Commissioner.

17. I hold therefore that the Rent Increases (Domestic Premises) Ordinance applies to this tenancy which is a domestic tenancy.

18. The most disturbing feature of this case is that the kitchen as presently constructed forms a real fire hazard to the inhabitants of the flat, who include three young children. The kitchen is so situated that if a fire were to occur there the flat would be a death trap. There is only one exit and that is immediately opposite the kitchen. And from the photographs it appears that the cooking is done by gas. The kitchen forms part of the premises let to the Defendant and I should have thought that both the tenant as well as the landlord had a duty to rectify the position, and at once.

19. There will be judgment for the Defendant with costs.

20. Liberty to apply in chambers to either party on the question of mesne profits.

Representation:

Ming Huang (Peter Mark & Co.) for Plaintiff

H.Y. Leung (H.M. So & Co.) for Defendant

Judgment read in Court