Chiu Sum Chuen and Another v. Chan Si Mui

DCCJ000044/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 44 OF 1981

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Coram: H.H. Judge Bokhary

Date of Judgment: 29 August, 1981

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JUDGMENT

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1. I wish to say at the outset that having watched and listened to them giving evidence and having carefully considered such evidence, I am satisfied that the witnesses on both sides were honest. As quite often happens, there was a certain amount of confusion and some lapse of memory on the part of some of the witnesses, particularly the Plaintiffs who are rather elderly. I am satisfied, however, that the salient facts have emerged. As I find them proved if not admitted, the facts are as I am about to state.

2. The Plaintiffs are husband and wife. They are the registered owners of Flat D on the 11th floor of Po Wing Building at 114 Percival St. in Causeway Bay. The suit premises, as I will refer to this flat, had been let to the Defendant for domestic purposes for a term of 3 years which expired by effluxion of time on December 30, last year. Part II of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 applies. The Defendant remains in occupation under its protection.

3. On January 6, this year these proceedings for possession of the suit premises under Section 53(2)(b) of the Ordinance were commenced.

4. The Plaintiffs' case is that they reasonably require the suit premises for occupation as a residence for 3 of their sons, each of whom is over the age of 18.

5. The Defendant denies that the Plaintiffs genuinely so require the suit premises. She also denies that such requirement would be reasonable even if genuine. Finally, she contends that even if the requirement asserted by the Plaintiffs was genuine and reasonable, in all the circumstances of the case it would manifestly not be just and equitable to make an order for possession.

6. The Plaintiffs are, as I have indicated, an elderly couple. He is a retired horse trainer.

7. At one time they owned 3 flats: the suit premises and another two flats on the same floor, namely, Flats E and F. They used to stay in Flat E. About 5 years ago, they moved to the outlying island of Peng Chau. Flat F was sold. There is no evidence before me of the price at which it was sold. Flat E was let to one HO Siu Lun.

8. When they first moved to Peng Chau they stayed in a flat at 14A Kiu King Street, Ground Floor. About 2 years ago, they sold this flat and bought another one also in Peng Chau at 61 Lam Wan Sun Chuen, 2nd Floor. They have lived there since.

9. HO Siu Lun, the tenant of Flat E delivered vacant possession thereof on December 31, 1979. Flat E has been sold. The assignment is dated April 10, 1980. There is no evidence before me as to the date of the agreement for sale and purchase. There is no dispute, however, that there was a period of some months in early 1980 when Flat E was available to the Plaintiffs with vacant possession and was not the subject of any agreement to sell.

10. The Price at which Flat E was sold was $345,000.

11. It is the Plaintiffs' case and I accept that apart from the flat in which they now stay and the suit premises, they have no assets of any substance save for a sum in the wife's savings account which corresponds roughly to what Flat E was sold for, the purchase money having been paid into that account.

12. If one accepts, as I do, that the Plaintiffs had little other than the 3 flats in Percival Street at the time when they owned all 3 of them, this financial picture makes sound sense. The price of Flat F was largely applied to the purchase of the first flat in Peng Chau (which was in turn sold to have its price applied to the purchase of the present flat in Peng Chau). The price of Flat E is reflected in what is in the wife's savings account. The remaining flat out of the 3 flats in Percival Street is, of course, the one possession of which is now sought.

13. Not knowing what other horse trainers in Hong Kong make, I do not know if the first-named Plaintiff's wife is right in thinking that he is the poorest among persons who are or have been of that occupation. In any event, I am satisfied that he is no wealthier than he and his wife say he is.

14. The Plaintiffs' style of life is certainly not that of wealthy persons.

15. Their present flat is about 700 sq. ft. in area. It consists of two cubicles, a sitting/dining area, a kitchen and a bathroom.

16. Normally, 6 persons live there. They are the two Plaintiffs, their younger daughter and 3 sons. These 3 sons are all well over the age of 18. The younger daughter is still in school. I do not know her age. I imagine that as her father is now 75 years of age, she is at least well into her teens. However, her age is of little or no consequence to this case.

17. The Plaintiffs have, I should mention in passing, two other children: a married daughter who lives with her husband and a married son who normally lives in Africa. He is in Hong Kong with his wife and their 3 sons on holiday at the present time. They also live with the Plaintiffs on a temporary basis, but will return to Africa in due course. Quite rightly, the Plaintiffs do not seek to place reliance on their presence.

18. The 3 sons who normally reside with their parents are, in ascending order of age: Chiu Hoi Yuen, Chiu Hoi Lee and Chiu Hoi Shing. Whenever I refer to 3 sons, I mean these 3 sons.

19. Chiu Hoi Yuen returned to Hong Kong from America quite suddenly on September 18, 1980. He works in an investment company in Tsimshatsui. There is no evidence before me as to what he earns. Looking at his style of life, I am not inclined to suppose that it is very much.

20. Chiu Hoi Lee was a seaman. He returned to Hong Kong, on November 19, 1980. After discussing his future with his family following his return, he decided to remain here rather than to go back to sea. He is now a partner of his brother, Chiu Hoi Shing in a business which supplies, installs, services and repairs airconditioners. There is no evidence before me as to what he earns. I do not suppose his earnings exceed those of his brother and partner, Chiu Hoi Shing.

21. Chiu Hoi Shing has always lived with his parents. His monthly earnings come to about $2,000. He owns the business together with Chiu Hoi Lee. They started it with $40,000 quite recently. They employ 6 workers. I daresay they expect to do better and better as time passes. His business premises are in Hung Hom.

22. All these 3 men keep fairly usual working hours and even these require them to get up at about 6.30 a.m. and involves their not getting home until about 7.30 p.m. Sometimes they get home considerably later; and sometimes, because of work or social engagements, they cannot catch the last ferry and have to spend the night out. This happens once or twice a week on average with Chiu Hoi Yuen and two or three times a week on average with Chiu Hoi Lee and Chiu Hoi Shing.

23. This used to be less inconvenient than it now is. Until very recently, a matter of days or weeks, they had the use of a flat in Pearl City Mansion. It is a small flat of about 300 sq. ft. belonging to a couple named Sum. The Sums are old friends of the family. They used to work in Japan. In return for paying the maintenance fee and some other charges in respect of the flat, the 3 sons were permitted to use the flat when they could not get back to Peng Chau. This arrangement has its advantages for the Sums when compared to letting out the flat: they were able to live there during their annual visits and they do not have any difficulty getting the flat back for their own use now that they have retired and returned to Hong Kong. Whether for these reasons or for reasons of friendship or for both, I accept that they did allow their flat to be so used. It is a very small flat; and I accept that it would be impracticable for the flat to be so used now that the Sums are back in Hong Kong and in occupation of the flat.

24. It was towards the end of last year that the Plaintiffs and the 3 sons came to know that the Sums would be returning to Hong Kong at about this time.

25. Although the 3 sons sometimes stayed with friends or in apartment houses overnight when they could not make it home to Peng Chau, it was generally at Mr. and Mrs. Sum's flat that they stayed on such occassions.

26. I am satisfied that the loss of the use of this flat is an important part of the Plaintiffs' and their sons' thinking in deciding to seek possession of the suit premises. Quite apart from anything else, we have the Defendant's evidence, which I accept, that while the second-named Plaintiff was in November 1980 talking about a possible increase in rent, by January this year she was adamant that she wanted the suit premises back for her sons. I infer that she had in mind the then recent news that the Sums would be returning at about this time.

27. Still on the conversations between the second-named Plaintiff and the Defendant, I accept the Defendant's evidence that the second-named Plaintiff mentioned the possibility of recovering possession of a flat in Taikooshing owned by a relative of hers. The son who normally lives in Africa owns a flat in Taikooshing. It is let. Obviously, the second-named Plaintiff thought an application under Section 53(2)(b) can be made by a brother for his brothers. That is, of course, wrong. But there is nothing sinister about the reference to Taikooshing.

28. I turn now to consider the Defendant's situation in detail. She is a spinster aged 26. By occupation she is a salesgirl. Her monthly salary is $1,300 per month.

29. Living with her in the suit premises is her grandmother, who is 71. Despite her age, this old lady works. She minds a little child on a part-time basis, earning about $700 per month. Additionally, she receives a total of $600 per month from her son and daughter, who each give her $300 per month towards her upkeep. The daughter is in Hong Kong; but her husband refuses to take the old lady in.

30. So between them two ladies only have $2,600 per month. Possibly, this could be boosted up to $2,800 by an additional $100 per month each from the aunt and uncle.

31. The rent is $1,000 per month. The Defendant's estimate of their other monthly expenses, which I accept, is this: $900 for food; $80 for electricity; $30 for the telephone; $100 for the old lady's medicine; and $200 for miscellaneous expenses. There total $1,300. Added to the rent, one has a total monthly expenditure of $2,300.

32. The Defendant has considered and made enquiries as to alternative accommodation. The suit premises are about 400 sq.ft. in size. They consist of two cubicles, a living/dining area, a kitchen and a bathroom. Similar accommodation in the same area now cost, the Defendant says her enquiries reveal and I accept, between $3,000 to $4,000 per month. These ladies cannot afford that sort of rent. The Defendant's savings come to about $3,000 only.

33. The Defendant has also looked for smaller premises in the same area. She has found none except rooms where she and her grandmother could live albeit in very cramped circumstances. Even such a room costs, She has discovered and I accept, $1,200 per month. They could afford that, although just barely. But these rooms have no cooking facilities. Furthermore, such rooms, which are really no more than cubicles, are unsuitable for minding children.

34. Still in her quest for alternative accommodation, the Defendant has applied her mind to living in some other area where rents are lower. The difficulty here is that the child which the old lady minds for $700 per month stays close by the suit premises, and this job would be lost to her if she moved to another area. It might be difficult to get another job of this sort because of her age. Living further away from her work would also add to transportation expenses. The Defendant also feels, reasonably in my view, that in light of her grandmother's age, she would prefer the old lady to stay near her, i.e. the Defendant's place of work in case she suddenly took ill.

35. Having set out the salient facts as I find them, I will now consider the genuiness and reasonableness of the Plaintiffs' requirement and then go on to consider the just and equitable provision.

36. I am satisfied that the Plaintiffs' requirement is genuine and reasonable. The 3 sons would be far better off in the suit premises. It is reasonable for them to want to stay there. That is, of course, not the end of the case. The question now arises whether or not 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. I am concerned with the actual position in this case. I am not concerned with what would happen if, for example, the Plaintiffs' 3 sons or one or more of them were married and had children. The Defendant does not have to show that she would be able to repel all boarders, so to speak. She has only to make out her case on the proviso in its application to the present circumstances. When I look at such circumstances what do I find? Facing 3 young and able-bodied men with respectable incomes, reasonable prospects and the backing of parents of substantial means, I find a young salesgirl and her elderly grandmother who brought her up when she was orphaned at a tender age, both of them living frugally but close to the full extent of their means and with little or nothing against a rainy day.

37. If the Plaintiffs fail, the sons would be greatly inconvenienced. I daresay they will feel some bitterness. But if the Defendant loses, she and her grandmother would find themselves in a very grim situation, to say the least of it.

38. In my judgment, an ordinary person would be dismayed at the prospect of an order for possession in all the circumstances of this case. He would say that such a thing cannot be right. I have come to the conclusion that it would be thoroughly unjust to make such an order. 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.

39. Accordingly, I dismiss the Plaintiffs claim for possession. I will now hear argument on mesne profits and costs.

[Argument thereon]

40. Rent has been paid up to date; so I make no order as to mesne profits. I award costs to the Defendant to be taxed on the Upper Scale and in accordance with the Legal Aid Regulations.

Representation:

Geoffrey Hui (of Della Chan & Geoffrey Hui) for Plaintiff

Peter Fan (of Alfred Lau & Co.) for Defendant