So Ho v. Chan Chui-yip
Read the full judgment text of DCCJ 8284/1979 on BabelCite. This District Court judgment.
1. In this action the plaintiff seeks an order for possession of the flat on the 7th floor of No. 506, Chatham Road, on the ground that the defendant, without his written consent, sublet the whole or part of the flat after December 14th, 1973, and that he reasonably requires the flat for occupation as a residence for himself and his daughter who is over 18 years of age.
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DCCJ008284/1979 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION ACTION NO. 8284 OF 1979 -----------------
----------------- Coram: A.L. Leathlean, D.J. Date of Judgment: 18th September, 1980 ----------------- JUDGMENT ----------------- 1. In this action the plaintiff seeks an order for possession of the flat on the 7th floor of No. 506, Chatham Road, on the ground that the defendant, without his written consent, sublet the whole or part of the flat after December 14th, 1973, and that he reasonably requires the flat for occupation as a residence for himself and his daughter who is over 18 years of age. 2. I deal first with the allegation that the defendant sublet without the plaintiff's written permission. There is no suggestion that the plaintiff did give the defendant such or any permission to sublet the flat. No enquiry whatever has been made by counsel of the plaintiff himself on the subject of subletting. According to the plaintiff's wife, she saw a strange man at the suit premises when she visited them in February last year, and was told by the defendant that he was her nephew, one LEUNG Kwai-lun. The plaintiff's wife says that she had no personal knowledge of the composition of the defendant's house hold at the time at which the flat was let to the defendant. She says that her husband, the plaintiff, negotiated the letting. According to the plaintiff's youngest son, he came by 2 envelopes addressed in English to a Mr. LEUNG Kwai-lun at the suit premises, which, at his sister's behest, he caused to be photocopied. All this, it seems to me, while it may perhaps tend to establish that the plaintiff was unaware of Mr. Leung's existence until February last year, scarcely suffices to establish an apparent change in the occupancy of the suit premises, since, for all the plaintiff knows, he may have moved into them at the same time as the defendant and her family (which, of course, is what they say) so as to cast the burden of proving that the suit premises had not been sublet upon the defendant by virtue of the provisions of sub-section (3) of section 53 of the Landlord and Tenant (Consolidation) Ordinance, but for present purposes I will assume that it does. 3. The defendant maintains that Mr. Leung is in fact her nephew, and has, to the plaintiff's knowledge, lived with her at the suit premises since she and her family moved into them on January 15th, 1976. Mr. Leung himself and the defendant's daughter say much the same. However, they gave evidence after an overnight adjournment prior to which the defendant had testified that Mr. Leung had been paying her $300 a month "rent". The defendant, her husband and her daughter say that the suit premises were obviously occupied by the plaintiff and his family when they inspected them immediately before taking the tenancy. According to Mr. Leung, however, they were unoccupied at that time. Mr. Leung and the defendant's husband and daughter deny that they discussed the matter during the overnight adjournment, but, not to mince the matters, I do not believe them. I am not persuaded that the plaintiff was aware that Mr. Leung was living at the suit premises prior to her visit to them in February, 1979. It transpires that all mail addressed in English which was delivered at the suit premises was more or less automatically forwarded to the plaintiff, sometimes by the defendant's children. I have no doubt that the two letters addressed in English to Mr. Leung at the suit premises were forwarded to the plaintiff by accident. I do not believe that had it been known that Mr. Leung was residing at the suit premises the plaintiff's daughter would have caused the envelopes to be photocopied. Nor does it make any kind of sense that the plaintiff would have asked the defendant who Mr. Leung was when she visited the suit premises in February, 1979, had she already been aware that he was living there. 4. It is true that the writ did not issue until October 1979, and Mrs. Tong for the defendant urges waiver on that account. Waiver, however, must be specially pleaded. It has not been, and it is therefore not open to me to consider it. 5. As I have said, I believe that Mr. Leung and the defendant's daughter have told less than the truth, the whole truth and nothing but the truth in some respects, but it does not follow from that that they have lied in every respect. The defendant and Mr. Leung say that Mr. Leung came to Hong Kong alone prior to 1975 in which year the defendant came to Hong Kong. Apparently Mr. Leung's mother in China urged them to meet, which they did, and agreed that Mr. Leung should go and live with the defendant and her family at the suit premises so that she could look after him. I accept all that. It is not in dispute that the defendant cooked for Mr. Leung and did his heavy washing for him, and that Mr. Leung shared a cubicle at the suit premises with one of the defendant's sons. Mr. Leung says that the money which he gave the defendant every month was for food only, but I do not believe that. 6. The question is was there a subletting of the suit premises to Mr. Leung? 7. Subletting, like letting, of course, presupposes the relationship of landlord and tenant which is generally determined by what is called the "exclusive possession" test. Although Mr. Lau for the plaintiff suggests that Mr. Leung had exclusive possession of his bunk in the cubicle which he shared with the defendant's younger son, I am unaware of any case in which any less unit than a room has been contemplated, and in my view to hold that Mr. Leung was a sub-tenant merely because he had exclusive possession of his bunk would be altogether unreal even in the context of Hong Kong. Moreover, while the "exclusive possession" test, though not decisive, is always a consideration of the first importance (Addiscombe Garden Estates v. Crabbe(1); Radaich v. Smith(2)), the modern tenancy is not to infer the creation of a tenancy from the payment and acceptance of rent for a limited period unless it is clear that that was the intention with which the rent was accepted (Clarke v. Grant(3)). There appear to have been cases where an occupier has been held to be a licensee though in fact he had exclusive possession where there has been something in the circumstances, such as a family arrangement, to negative any intention to create a tenancy (c.f. Facchini v. Bryson(4)). 8. It is clear that a licensee (or a lodger, who is a licensee) is not a tenant. It does not necessarily follow that a tenant has sublet merely because he allows another the use of his premises for reward. In Abbeyfield (Harpenden) Society Ltd. v. Woods(5) Lord Denning, M.R., said (at page 376):
9. As I have said, in my judgment, the defendant's nephew in the instant case had not exclusive possession of anything, save perhaps the bed in which he slept, but even if he had, looking at the arrangement between the defendant and her nephew as a whole in order to see whether a sub-tenancy really was intended I am in no doubt whatever that the arrangement was so personal in nature that the proper inference is that the defendant's nephew was a licensee or lodger (who is a licensee) and not a sub-tenant. The defendant has satisfied me that there was no subletting by her to her nephew. In paragraph 6 of his particulars of claim the plaintiff pleads that the defendant assigned and/or parted with possession of the suit premises, but it is only subletting which is contemplated by paragraph (e) of sub-section (2) of section 63 of the Ordinance. I need not, therefore, go into the question whether there is a parting with possession in the case of a licensee or lodger. However, I apprehend that there is not. In Noblett & Mansfield v. Manley(6) Mayo, J. said (at pages 157-158):
10. I deal secondly with the plaintiff's claim that the suit premises are reasonably required by him for occupation as a residence for himself and his daughter. 11. The plaintiff himself resided at the suit premises with his family from 1967 when he purchased them until 1975 when, according to him, his eldest son bought the flat in which they are presently residing and have resided since the beginning of 1976. It is said that the plaintiff's eldest son intends to marry at some unspecified future date. The son himself says that he wants his parents to leave as he anticipates that he and his wife will not get along with his parents because of the difference in their ages. I find that impossible to reconcile with a proposal that his mother-in-law to be, who is almost as old as his parents, should live together with him and his bride to be. The plaintiff says that his daughter, son-in-law and grandchild will also reside at the suit premises if I make an order for possession. Ever since they married three years ago they have been residing in a cubicle on the 4th floor of 8, Ha Heung Road. The child is now 2. At all material times the child has resided with his grandparents. According to the plaintiff's daughter, the reason for that is that there is no room for the child in their cubicle. That, however, is palpably untrue because the daughter herself has spoken of upwards of ten occasions during the past two years when the child has stayed with them in their cubicle. I believe that the real reason for the grandchild staying with his grandparents is that the daughter and her husband are themselves unable to look after him as they both go out to work and that the child cries a good deal at night disturbing everyone in the flat. According to the plaintiff's wife, her daughter is about to be evicted. However, the daughter herself said nothing to this effect. 12. At the end of the day I am not persuaded that the plaintiff bona fide requires the suit premises for occupation as a residence for himself and his daughter. Quite apart from that, he and his family are at present adequately housed in accommodation which they have been occupying since the beginning of 1976, and the daughter is presently adequately housed in accommodation which she and her husband have been occupying for the past three years. Having said that, I do not see how I could possibly properly find that the suit premises are reasonably required by the plaintiff for occupation as a residence for himself and his daughter. The circumstances to be considered are those existing at the time of the hearing: Bumstead v. Wood(7): Sims v. Wilson(8). As things stand at the moment the plaintiff's eldest son is not married and his daughter has not been evicted. 13. I am not satisfied that the suit premises are bona fide or reasonably required by the plaintiff for occupation as a residence for himself and his daughter. Having said that it is not encumbent upon me to decide whether the defendant has satisfied me that in all the circumstances of the case it would manifestly not be just and equitable to make an order for possession. 14. The claim is therefore dismissed with costs to be taxed under the Legal Aid Regulations on the upper scale. 15. Dated this 18th day of September, 1980.
Representation: (1) (1958) 1 Q.B. 513 at p.528 (2) (1959) 101 C.L.R. 209 (3) (1950) K.B. 104 (4) (1952) 1 T.L.R. 1386 (5) (1968) 1 W.L.R. 374 (6) (1952) S.A.S.R. 155 (7) (1946) 175 LT 149 CA (8) (1946) 2 All E.R. 261 CA |