Ngai Hop-muk v. Lee See-ching and Another

HCA003612/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 3612 OF 1973

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Coram: Leonard J. in Court

Date of Judgment: 3rd July, 1974.

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JUDGMENT

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1. In May 1969 the plaintiff and the first defendant entered into a tenancy agreement in respect of the premises on the 3rd Floor of No. 20, Peacock Road, Ming Yuen Terrace, Hong Kong for a period of twelve months commencing from the 4th June 1969. This agreement was in writing and was signed by both parties, the plaintiff and the first defendant. In it the rent was stated to be $420.00 per month payable in advance and under Clause 4 of it there was a prohibition against transfer of the premises. On the expiry of the term of one year created by this document, the first defendant held over and the first defendant continues to be the tenant of the premises. It is quite clear that part of the premises is occupied by the first defendant or by the second defendant on his behalf.

2. The plaintiff claims possession on the basis that the premises were let for domestic purposes and that under the terms of rent receipts given by him to the defendant it is provided that the premises should not be sub-let or transferred to any person. In point of fact, there was no prohibition against sub-letting in the tenancy for one year of which I have spoken and the defendants held over under that document. The only breach of the terms of the tenancy alleged is a sub-letting; since the first defendant was not prohibited from sub-letting the plaintiff cannot succeed on this basis.

3. It is clear moreover that this is not the first time the plaintiff has been before the courts in respect of these premises. In Civil Distraint No. 470 of 1973 the plaintiff sought to distrain the first defendant's goods. However, on the 3rd of June 1974 an order was made by consent the plaintiff, on confirmation by the Causeway Bay Branch of the Hang Seng Bank Ltd. that cheque No. CB 125147 had been presented for payment became liable to pay the first defendant the sum of $483.00 and in the same document that the plaintiff acknowledged and confirmed that all rental for the premises in question had been paid by the first defendant up to and including the 3rd of July 1974, that is to say, up to today. Since this is a censent order the parties are bound by its terms and this court cannot go behind it. Hence even if there had been a prohibition against sub-letting the plaintiff could scarcely succeed since he has acknowledged the receipt of all the sums by way of rental due by the defendant and this would almost certainly be a waiver of his rights. I have no doubt that the parties realised that as recently as the 3rd of June 1974. Accordingly the plaintiff's claim is dismissed with costs.

4. The plaintiff however has good reason to feel annoyed for the defendants are receiving from their sub- ...(illegible) almost twice as much as they are paying by way of rent so that the defendant is occupying portion of the premises for nothing and making a large profit out of the premises. However reprehensible this may be there is nothing in law to prevent him from so doing.

5. The defendants' counterclaim for breach of the implied condition for quiet enjoyment as the plaintiff caused the water and electricity to be cut off from the premises. I am quite satisfied on the evidence that the plaintiff did cause the water and electricity to be cut off. The person who is primarily affected by this was unfortunately not the defendants but innocent third party, the sub-tenant. The sub-tenant was without both water and light for some period of time as a result of the wrongful act of the plaintiff. Furthermore, the defendants were at the expense of having the water and light restored. In respect of the wrongful act of the plaintiff in having the water and light cut off, they are entitled to damages. The second defendant tells me and I believe him that he paid the Water Authority $20.00 to re-fix the water meter that he paid Mr. Wong $290.00 for re-fixing the electricity. Of this $290.00, however, $90.00 was only for a deposit. So the defendants are entitled to recover $220.00 for the cost of re-supplying the water and the electricity. He tells me he paid Mr. Wong, a sub-tenant, $600 for re-imbursement in connection with the electricity. I have had no receipt for that although Mr. Wong has confirmed that he was re-imbursed he does not say in what amount. On his counterclaim, therefore, the defendant is entitled to re-cover $220.00. The plaintiff's claim is dismissed with costs. The counterclaim is allowed in the sum of $220.00 with District Court costs.

6. At the very end of the trial, the plaintiff applied for an adjournment to enable him to employ counsel. This was after his case had been closed and after the defendant had given his evidence. I saw no reason whatsoever to accede to this request.

Representation:

Plaintiff in person.

First and second defendants both in person.

(first defendant not in the Colony).