Jung Jing (or Jin) Wan v. Yip Lee Sang and Others

HCMP000515/1980

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Coram: Zimmern, J.

Date of Judgment: 19th January, 1981.

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DECISION

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1. This is an appeal by the 4th Defendant against the decision of the learned Registrar of the 22nd December 1980. On the 9th day of June 1980 the Plaintiff herein issued an originating summons under Order 113 against twelve defendants for orders that the Plaintiff do recover possession of the roof of the building or buildings situate at and known as 99, 101 and 103 Nam Cheong Street on the ground that the Plaintiff is entitled to possession and that the persons in occupation are in occupation without licence or consent. Let it be noted that by the originating summons the Plaintiff does not say that the parties might have been there by the consent of somebody else. Two affidavits were filed in support of the application on behalf of the Plaintiff. The first one is by the Plaintiff's husband who said that the Plaintiff purchased the properties in 1955 and 1962 respectively. That on the 8th day of January 1980 applications were made to a Tenancy Tribunal for a recommendation that the buildings be exempted from Part I of the Landlord & Tenant Ordinance so that the buildings may be demolished for redevelopment. None of the Defendants was a party to those proceedings. He deposed that one of the occupiers of the roof did appear at the hearing of the Tenancy Tribunal and was paid off. He said that on the 24th March he instructed a Mr. Chiu Wai Choi to inspect the roof of the said building to find out the names of the persons occupying the roof, and he refers to the said Chiu Wai Choi's affidavit. He further said that neither he himself nor the Plaintiff nor any person on their behalf had ever given any consent or licence expressed or implied to any person to enter onto or occupy the roof and he therefore prayed for an order in terms of the originating summons.

2. Chiu Wai Choi in his affidavit affirmed that he was a relative of the Plaintiff and her husband and that he was a rent collector for the Plaintiff and had been since the properties were purchased. He said he had never visited the roof of the buildings and he had no knowledge that the roof was occupied by trespassers till 1980. He confirmed that on the 24th March 1980 he went to the roof of the said buildings and found ten sheds on the roof. Anyone who knows the procedure for an appliation to a Tenancy Tribunal for a recommendation that the premises be excluded from Part I of the Landlord & Tenant (Consolidation) Ordinance would know it is impossible for an applicant not to know that somebody is living on top on the roof. Be that as it may the case of the Plaintiff is that these defendants are trespassers. The Plaintiff bought the buildings in 1955 and 1962 and they did not know until March 1980 that they were there.

3. The 4th Defendant by his affirmation put up a very simple line of defence. He says he has been there since 1956 without the consent of anybody, built himself a but on the roof therefore he has been in continuous occupation neo vie neo clam neo preoario for well over 20 years and has established a right. This is a matter which has not been argued and has to be tried. The next matter which happened was the hearing before Mr. Commissioner Gittins on the 17th July 1980 where the matter was adjourned, a new date to be fixed by Clerk of the Court in consultation with counsel. The adjournment no doubt was adjournment to a judge for directions. This adjournment as far as I can see has not yet been restored because the Plaintiff took out a summons for directions before the learned Registrar. This was heard as I said on 22nd December. Prior to the hearing the Plaintiff filed two more affidavits in support of her application. The summons sought orders for mutual discovery on oath and affidavits within seven days inspection of documents and then within seven days thereafter each party to serve on the other and to lodge with the registry a list of those deponents whom he intends to cross-examine on the affidavits at the trial. The originating summons was set down for hearing on the 20th, 21st and 22nd January 1981.

4. The 4th Defendant filed a cross summons asking for orders that the proceedings be continued as if the proceedings had commenced by writ of summons and then the Plaintiff do file a statement of claim and the Defendants do file a defence in 14 days and other relevant directions when action is started by a writ of summons. The matter was argued before the learned Registrar who dismissed the 4th Defendant's summons. As I said the 4th Defendant has appealed therefrom and I accept the argument of Mr. Mok that once paragraphs 2 and 3 of the affidavit of Chiu Wai Choi is before the court without him having a right to ask for further and better particulars his client is put to a great disadvantage in so much as he would not know what case the Plaintiff is trying to put up.

Paragraph 3 reads:

"Ever since the respective dates of purchase of the suit properties the whole of the ground 1st 2nd and 3rd floors of the building had been let out to various tenancies aforesaid up to the date of the exclusion order. The roof of the building has never been reserved to the landlord as something separate and distinct from the 3rd top floor or from the building as a whole. Every tenant by virtue of this tenancy has right of access not only to those parts allocated to his exclusive possession but also to the roof or other common parts. If which is denied that is any of those claim that is a claim not against the landlord but against the tenants of the building."

5. Mr. Mok says he does not know the terms of the tenancy agreement between the Plaintiff and the tenants in the building, he does not know about the reservation of the roof or a tenant's right of access to the roof, and the right of granting a licence thereon. He has no right to ask for further and better particulars of an affidavit. I accept his arguments and furthermore add this: it is the foundation of an action started by originating summons under Order 113 that the Plaintiff's claim against those in occupation as trespassers. It seems to me that the Plaintiff finding herself facing the 4th Defendant's particular alaim has now done a complete about turn, and is now saying: "You are no longer trespassers you are licensees of my former tenants". The 4th Defendant has a right to know where he stands.

I allow the appeal and order that there ought to be pleadings in this case. The first point is who is going to be the Plaintiff. The burden of proof is on the 4th Defendant because he is the one who asserts over 20 years' occupation but it is the Plaintiff who is claiming possession. I would like to hear counsel on this point. The Plaintiff in the originating summons will become the Plaintiff in the action. I appreciate that this is matter of urgency as far as the plaintiff is concerned, and I want to cut the time down as short as possible. Statement of Claim 7 days, Defence 7 days, Reply if any 7 days. There has really been an order for discovery by the Registrar (and that is) as if ordered by me to stand. There will be liberty to apply. Appellant's costs of the appeal and the cross summons in the court below. The date fixed for the hearing before Mr. Justice Barker tomorrow vis-a-vis the 4th Defendant is vacated.

Representation:

David Yam (J.S.M.) for the Plaintiff

John Leigh of Fairbairn & Kwok for 1st, 6th, 9th & 10th Defendants

Y.C. Mok (Cheng & Lam) for 4th Defendant

2nd, 3rd, 5th, 7th, 8th & 11th Defendants in person.