Tang Wai Chi v. Ng Fat Shing

DCCJ005998/1979

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 5998 OF 1979

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Coram: Judge Jones

Date of Judgment: 17th March 1980

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JUDGMENT

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1. This is an action under Section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance for possession of premises situate at 207-209 Jaffe Road, Flat C, 1st Floor, Hong Kong of which the plaintiff is the registered owner.

2. The plaintiff is a widow aged 64. She worked as an amah until six years ago when she retired due to ill health. Since that time she has continued to live at the premises of her former employer at 160, Nga Tsin Wai Road, Ground Floor, Kowloon rent free.

3. The plaintiff has one son who lives with his wife and two young children in a small cubicle in Aberdeen.

4. A medical certificate states that the plaintiff has been suffering from hypertension for many years and that her health has deteriorated slowly since an abdominal operation six years ago. The plaintiff claims that as a result of her health she has been asked by her former employer to leave.

5. The defendant has lived at the suit premises since January 1970. The original lease for two years was renewed on three subsequent occasions for the same period. Since 1978 the defendant has held over as a monthly tenant at a rental of $790.

6. The suit premises has an area of about 300 Square feet. It is divided into two cubicles, a verandah, kitchen, toilet and a sitting room which is used as a corridor. Ten people are living at the suit premises. They are the defendant who is a bachelor, his mother a widow aged 53, a brother aged 24, a nephew aged 6, a sister and her husband and their four children aged 12, 10, 9 and 8. The defendant, his mother, younger brother and brother-in-law are working with a total income in the region of about $5,000 per month. The defendant is employed as a baker in Kowloon and the brother-in-law works as a public light bus driver in Taipo. The mother works as a dish washer at the Peak Restaurant where she has been employed for ten years. The brother works in a restaurant in Wanchai. The five children attend schools in Wanchai.

7. The defendant has made attempts to find alternative accommodation in Wanchai, but the rent demanded for similar premises was $1,800 per month. The defendant has not looked elsewhere for accommodation because all the children are at school in Wanchai.

8. Under the new legislation the plaintiff has to establish that the premises are reasonably required for her own use or for her son. There is no doubt that the son's accommodation in Aberdeen is overcrowded and unsatisfactory. However, although the plaintiff has been suffering from ill health for over six years no steps were taken to obtain possession until these proceedings were instituted in November 1979. It is evident that the plaintiff is on very friendly terms with the former employer who has treated her most generously over the past years. The former employer did not give evidence, but I doubt whether he has any intention to force the plaintiff to leave his premises as she claimed. Nevertheless I find that the plaintiff has proved that she reasonably requires the suit premises for her son.

9. The burden therefore shifts to the defendant to satisfy the Court that it would manifestly not be just and equitable to make an order. If an order is made it would undoubtedly benefit the plaintiff's son and his family, a total of four persons. However, I am quite satisfied that the plaintiff would be happy to stay at her present home. On the other hand five adults and five children would be made homeless. The five children have settled schools in Wanchai whilst the defendant's brother works in the same area. Although the mother could no doubt obtain employment elsewhere the terms and conditions may not be so beneficial as those provided by the Peak Restaurant. Only the defendant and his brother-in-law work on the other side of the harbour.

10. On the facts of this case I am satisfied that it would manifestly not be just and equitable to make an order for possession against the defendant. The action will therefore be dismissed.

Representation: