Shirlien Light v. Wan Bing Wong

HCA001393/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1393 OF 1970

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Coram: Mills-Owens J. in Court.

Date of Judgment: 28th April, 1971.

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JUDGMENT

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1. This is an action for possession of the post-war premises No. 24 Flower Market Road, ground floor; it is agreed that the only point in dispute is whether the primary user of the premises at the material time or times was for business purposes or for domestic purposes. If domestic, the tenant defendant is protected from eviction by virtue of the provisions of the Rent Increases (Domestic Premises) Control Ordinance, 1970 (No. 56 of 1970) which applies to "every domestic tenancy or sub-tenancy existing at the date of the commencement of this Ordinance in a post-war building ...." (sec. 3(1)). The date of commencement of the Ordinance was the 5th June 1970. Subsection (4) of section 3 provides, generally, that tenancies and sub-tenancies to which the Ordinance applies shall not, so long as the Ordinance continues to affect them, be subject to the Tenancy (Notice of Termination) Ordinance (Cap. 335). The Ordinance No. 56 of 1970 is due to expire on the 31st May, 1972.

2. The meaning of 'domestic tenancy' (and of 'domestic sub-tenancy') is dealt with by section 5 of the Ordinance No. 56 of 1970 in some detail. In particular, subsection (1) of the section provides that 'domestic tenancy' means premises let as a dwelling subsection (2)(b) and (c), however, provide -

Provided etc.

Subsection (3) of the section provides that in determining whether the premises were let, or are being used, as a dwelling, certain matters may be taken into account, including any occupation permit given by the Building Authority under the Buildings Ordinance, and -

Under subsections (5) and (6) of the section a certificate of the Commissioner of Rating and Valuation is prima facie evidence of the primary user of the premises - on the day of inspection by the Commissioner.

3. In this case the occupation permit issued in 1948 was a domestic Permit'. The certificate of the Commissioner, however, certificates that in his opinion the primary user of the premised on the 23rd June 1970 was 'non-domestic'. No application was made to the District Court for a review of that certificate under section 5(7) and (8). The defendant acknowledges that he signed an application form under the Business Registration Regulations for the registration of the 'Ching Yin Garment Factory' at the premises in 1964; the application is, however, endorsed as cancelled in May 1965 on account of the business having ceased on the 6th of that month. The defendant acknowledges his signature on that application form but appeared genuinely puzzled by it, as, according to him, he had no recollection whatsoever of applying for registration of that business at the premises in dispute. He agreed that he had carried on a tailoring business under that name, but elsewhere, namely at No. 174 Prince Edward Road, until 1964 when that building was demolished; it was then that he moved into the premises in dispute which are immediately to the rear of the demolished premises No.174 Prince 'Edward Road.

4. Coming to the evidence of the plaintiff landlord and of the defendant, who were the only witnesses, there was a considerable area of agreement between them. It is common ground that there was a dispute between them in 1966 owing to the defendant being in occupation of the premises in dispute without the knowledge of the plaintiff; this was followed by a compromise in 1967 where by the plaintiff accepted the defendant as his monthly tenant at a rent of $460 per month, and where by the defendant paid arrears of rent as from a date in 1966. The rent was subsequently increased to its present level of $525 per month. The tenancy is accepted to be an oral one without express agreement as to user. It is agreed also that in November, 1969 the plaintiff gave the defendant due notice under the Tenancy (Notice of Termination) Ordinance (Cap.335), such notice being expressed to expire on the 31st May, 1970. As mentioned above, the Ordinance No. 56 of 1970 came into force on the 5th of the following month (i.e. 5th June 1970) and applies to domestic tenancies (and sub-tenancies) 'existing' at that date. But for other statutory provision, therefore, the tenancy would not have been existing at the date of the commencement of the Ordinance No. 56 of 1970, and so would not have enjoyed protection thereunder. Other statutory provision was in force however, namely the Security of Tenure (Domestic Premises) Ordinance (No. 8 of 1970) which was repealed by, and simultaneously with the commencement of, the Ordinance No. 56 of 1970 (vide section 25). The repealed Ordinance No. 8 of 1970 came into force on the 30th January, 1970, that is to say during the currency of the notice of termination (given in November 1969 and due to expire 31st May 1970). It contained provisions similar to those of the later Ordinance No. 56 of 1970; in particular that it applied to domestic tenancies existing at the commencement thereof, and that 'Tenancies and subtenancies to which this Ordinance applies shall not, so long as this Ordinance continues to affect them, be subject to the Tenancy (Notice of Termination) Ordinance' (section 3(4)). It therefore becomes material to determine whether the tenancy in question in this case was saved from expiry on the 31st May 1970, pursuant to the notice of termination, as being a tenancy which was a domestic tenancy on the 30th January 1970. Thus there may be two relevant dates, in this case, for the determination of primary user, the 30th January 1970 and the 5th June 1970; if the primary user was not domestic on the 30th January 1970 the notice of termination took due effect on the 31st May 1970 and there was then no tenancy to be protected by the later 1970 Ordinance when it came into effect on the 5th June 1970; if, however, the primary user was domestic on the 30th January 1970, so that the tenancy continued, then unless the primary user was domestic on the 5th June 1970 the later 1970 Ordinance provides no protection against eviction.

5. Returning to the evidence, it is agreed that the premises consist of a sitting-room, a kitchen, a toilet, a small bedroom and a cockloft. Further it is evident that this was the home of the defendant and his family; he and his wife sleeping in the bedroom, his parents sleeping in the sitting-room, and the children sleeping in the cockloft; none of this was seriously disputed. The plaintiff accepted that the defendant's family was some 10 in number. It is also common ground that, at least until the notice of termination was given in November 1969, the sitting-room was regularly used for the doing of work on ladies' brassieres - the plaintiff says making them and the defendant says merely fixing clasps on them. The defendant says that this was the work of his wife and family, in which he had no part or profit, and that it was in the nature of piece work performed by the wife and family on materials supplied to them by an outside factory. There is little to contradict him in this respect and I have no reason to reject his evidence that he did not participate in or profit by the work, and that the persons engaged in the work were his wife and family. It is not contested that the work was done by means of four portable, electrically operated, sewing machines - not machines of a factory type but portable machines which could be easily put away when the sitting-room was required for living purposes. The defendant says they were in fact usually removed in the evening and I see no reason to disbelieve him. Electric sockets were, and remain, available on a cross-beam, but I do not find any structural alterations to have been carried out for the purpose of the sewing 'business'. I have no evidence as to the piece rates paid, nor as to the exact floor area of the sitting-room as compared with the area of the premises as a whole, but it appears to be agreed that the sitting-room was large by comparison with the kitchen, toilet and small bedroom; probably the sitting-room comprises more than fifty per cent of the total floor area of the entire premises. As to the persons engaged in the sewing 'business' the evidence of the defendant, which the plaintiff is unable to contradict, is to the effect that they were four women, including the wife. According to the defendant, each worked for herself, but the wife charged the others $100 per month each for supplying them with meals, and they also made some small payments monthly on account of the consumption of electricity by their sewing machines. According to the defendant the three other women were his two sisters and his sister-in-law, who continued to attend, taking part in the sewing 'business', even after their respective marriages. The gist of his evidence is that it all ceased at about the time the notice of termination was served (November 1969), which I would have thought to be likely but for the Commissioner's certificate to the effect that on the 23rd June 1970 the user was 'non-domestic'. Prima facie, according to the certificate, there was a business user as at that date but I do not know its nature or extent and I have no reason to think that it was any different from the sewing 'business' carried on in November 1969, that is to say a family 'business' on piece work, carried on by the wife and other members of the defendant's family. The certificate is, of course, with respect to a date some 18 days after the material date the 5th June 1970, but I think I must take it that the defendant would have been more likely to be continuing a pre-existing business than re-commencing on the 23rd June a business in protected domestic premises. My conclusion, on somewhat scant evidence, is that a similar family 'business' to that of November 1969 continued throughout up to and including the 5th June 1970.

6. It was also asserted by the plaintiff in his evidence that a desk placed in the corridor of the premises was used by the defendant for a lorry-hire business which he carries on, the desk bearing files and having placed on it a black-board on which the registration number of lorries used in that business were written. The defendant denied this. However I accept the evidence of the plaintiff, who was, in my view, a truthful and fair witness throughout, that the desk was so used. But this matter has very little significance in my opinion.

7. The critical matter is the family sewing 'business', which the plaintiff agrees is the usual form of work so often done in dwellinghouses in Hong Kong - 'the Chinese way of operating a small industry' as he said; where part of the premises in which the family cook, eat, sleep and live are used by day for doing piece work at piece rates for outside interests. It is clear in this case, as I find, that the premises were originally constructed as a dwellinghouse and have never been structurally adapted for any other purpose. There is no evidence that any part of the premises except the sitting-room has been used for business - except the insignificant use of the desk in the corridor. It is clear that the defendant and his family cook, eat, sleep and live in the premises, using the small bed-room, toilet and cockloft simply for those purposes. The sitting-room, however, was used for both purposes, as I find, at the material dates. Does this make the primary user of the premises other than 'domestic'? Can it properly be said that the use of the premises for living purposes as I have described became a subsidiary or ancillary purpose once the family began to take in piece work for some part of the 24 hours? Did the premises become any the less their home on that account? In circumstances such as these it seems virtually impossible to hold that the primary user was for business purposes at the material times. There was a regular work done, for profit, in part of the home, during part of the 24 hours; out no more. That, as it appears to me, is a user - in the terms of section 5(3)(c) of the Ordinance No. 56 of 1970 - consistent with the domestic nature of the tenancy. Accordingly I hold the defendant to be entitled to the protection of that Ordinance.

Representation: