Lau Wing Ho v. Wong Hon Yin

HCMP001463/1983

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

BETWEEN

_______

Coram: Mr. Commissioner Chang Q.C.

Date: 3rd August, 1983.

__________

JUDGMENT

__________

1. The Plaintiffs are the registered owners of certain post-war premises know as No. 481 Jaffe Road, 2nd Floor, Hong Kong and are seeking an order for recovery of possession of the said premises under order 113 R.S.C. One Wong Hon Yin is named as Defendant.

2. Now this is a very special procedure, a summary process which can only be invoked where the applicant alleges that the land of which he is claiming possession is "occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his......." (Order 113, r.1, emphasis supplied). Quite clearly it does not extend to a claim for possession of land against a tenant holding over after the termination of tenancy; equally clearly, in my view, so long as the ex-tenant continues in occupation the landlord cannot by-pass the ordinary procedure by singling out and naming as the sole Defendant an officer or representative of the ex-tenant and saying that he never was a tenant and has no right to remain in occupation after the termination of the tenancy granted to the ex-tenant. It matters not if the Defendant named is sued in his own personal capacity or if he, when sued, attempts to assert an independant right because so long as the landlord knows that the ex-tenant has not ceased occupation of the land he cannot honestly say that the land is occupied solely by a person or persons who are not a tenant or tenants holding over after the termination of the tenancy.

3. On the Plaintiffs' case, the Defendant "was and still is" the Honorary Secretary of Hong Kong and Kowloon Restaurant and Cafe Workers General Union (hereinafter called "the Union"). This is a trade Union duly registered under the Trade Unions Ordinance Cap. 312 and has under Section 113 thereof corporate existence with full legal capacity to hold land, to sue or be sued, etc. According to the Plaintiffs the Union became a tenant of the said premises under or pursuant to an oral agreement for a fixed term of 5 years commencing 1st May 1973 and ending 30th April 1983 at an agreed rent of $10,000.00 per month exclusive of rates for the first 3 years and an agreed. rent of $12,000.00 per month exclusive of rates for the remaining 2 years. The Union defaulted in paying its monthly rent in February 1983 and from that date "up to date hereof, the Plaintiffs still have not received any rent from the Union in respect of the months of February, March and April 1983". (para. 7 of the affidavit of Sung Kwan Leung, the attorney of the Plaintiffs, filed on 1st July 1983). The affidavit did not say that the Union vacated the said premises at the end of April 1983 or at any other time. Indeed we are told in the same affidavit (1) that the said premises were "rented by the union for the purpose of providing recreation, entertainment and catering services for its members" (2) that the amusement game centre licence and tombola licence granted in respect of the said premises "were held by the Defendant as representative of the Union" (3) that the services referred to "were provided for and on behalf of the Union by a partnership entered into between the Defendant and the 1st named Plaintiff" and that "the business was mainly looked after or run by the Defendant" (4) that despite the expiry of the Union's tenancy the Defendant "chose to remain on the said premises and continued to operate the said services" and (5) that "the only keys to the said premises were held by Defendant and/or his employees, servants or agents. I infer from all this that the Defendant is running the place or operating services therein in very much the same way as he was doing before the end of April 1983 and that the Union is no less in occupation of the said premises than it was before the alleged expiry of tenancy. In any event there is no evidence that the Union if it was the tenant as alleged by the Plaintiffs has vacated the premises or that the nature of the occupancy has changed; what evidence there is clearly points the other way and on this ground alone I should refuse to make an order for possession under Order 113.

4. Mr. Tong, who appears for the Plaintiffs, strenuously argues that I cannot infer from the affidavit evidence that the Union is still in occupation and he points to the fact that the Union has defaulted in paying rent, that the keys are said to be held by the Defendant (as distinguished from the Union, if I understand him correctly) and that in any event, it is not the Defendant's case that the Union is still in occupation; the Defendant's case is that the partnership referred to above (not the Union) is still the tenant, holding the premises on a periodic tenancy not yet terminated by notice or otherwise. Mr. Tong says that because of the stand taken by the Defendant, Counsel for the Defendant cannot properly invite the Court to look at what the legal position is on the Plaintiff's case that the Union was the tenant. With great respect I disagree. In particular I cannot see why, on the one hand, I can be urged to reject totally the Defendant's case as not being worthy of credence and on the other hand I cannot be invited to consider whether, on the Plaintiff's own case, they are or are not entitled to an order under Order 113.

5. On the substantive defence raised I am satisfied that there is an issue to be tried and this is so despite the various points raised by Counsel for the Plaintiffs calculated to throw doubt on the bona fides of the defence put forward e.g. the failure to pay rent since February, the absence of rent receipts, the reference in the Union's accounts to payment of rental and other items of expenditure, the failure on the part of the Defendant in previous distraint proceedings brought against the Union to assert that the partnership and not the Union was the tenant. I note however it is not in dispute that a partnership did exist and, apparently, still exists between the Defendant and the 1st named Plaintiffs; that the partnership supplied, and apparently still supplies, services at the said premises; that the Amusement Game Centre Licence and the Tombola Licence were issued in the Defendant's name as licensee; that there is documentary evidence of an arrangement between the Defendant and the Union (Exhibit WHY -1 and translation) which, as between the two of them, put all the responsibility of paying the rental and other expenses on the Defendant; and that the tenancy alleged by the Plaintiff is an oral one.

6. For all the above reasons I refuse to make the order prayed for in the Summons. I am, further, not persuaded that I should give only conditional leave to defend as if this were an Order 14 application. I doubt whether I have the power to do so in proceedings commenced under Order 113 and in any event I do not think it is right that I should do so in all the circumstances. I also bear in mind two things (1) that an applicant under Order 113 can claim for possession but not mesne profits or other monetary relief (2) that under order 29 r.18 there is machinery in an appropriate case for an order for interim payment.

7. It is a glaring fact that rent has not been paid for a considerable time and the Defendant is conspicuously silent as to this aspect of the case even though he asserts a continuing tenancy on the part of the partnership. Mr. Tong has submitted that if I should refuse to make an order for possession, I should at least give directions for a speedy trial of the matter, including if necessary directions under Order 28 r.8 R.S.C. and an order for interim payment under Order 29 r.18. I give the following directions:

Representation:

Mr. Ronny Tong instructed by Hwang & Co. for Plaintiffs.

Miss E. Eu instructed by Tsang, Chau & Shuen for Defendant.