Sien Youi Chong William v. Lai Miu Han Alice

DCCJ008969/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 8969 OF 1980

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Coram: Judge D'Almada Remedios in Court.

Date of Judgment: 27 July, 1981

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JUDGMENT

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1. This is an action by the Plaintiff for possession under Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance.

2. In the particulars of claim, it is alleged that the premises are required by the Plaintiff as a "residence for himself and his family".

3. The premises concerned is the front room of Flat E, on the 16th floor of No. 23 Shu Kuk Street, North Point. The Defendant occupies that room as tenant of the Plaintiff. It was let to the Defendant in 1978 and she stays there with her husband.

4. Save for that room (the suit premises) the rest of the flat is occupied as a residence by the Plaintiff and his family. The Plaintiff's family consists of his wife and two infant children, aged 4½ and 2 years. The Plaintiff and his wife occupy the rear room which has an adjoining bathroom. There is another room (the middle room) occupied by the two children of the Plaintiff. A maid who looks after the children sleeps in the room with them. Apart from the rear room occupied by the plaintiff and his wife, the middle room by the children and the front room (suit premises) by the Defendant, there is a combination sitting/dining-room.

5. The Plaintiff's evidence is that he requires the suit premises for the occupation of his elder son who is now aged 4½ years old. The reason given is that he needs more space for the child as a playing area and for him to do his homework. When asked, in cross-examination, whether it is reasonable to require the Defendant's room for the child to do homework, the answer given was that the child would move into the suit premises with his bed, toys and writing table so that it is not just for his homework. The middle room will then be occupied by the youngest child with the maid and the Plaintiff and his wife will continue to reside in the room which they are now occupying.

6. What I have to decide, on the evidence, is whether the Plaintiff had discharged the burden of establishing that the suit premises are reasonably required for the occupation as a residence for himself.

7. It is submitted by the solicitor for the Plaintiff that when a landlord resides in a flat and lets out a room to a tenant, the Court is entitled to take a pragmatic view of the situation by treating the requirement of the room for the occupation of a child of the family, albeit if the child is under 18, as a requirement for occupation by the landlord.

8. I regret that I am unable to go along with that view. To do so would require some legislative sanction whereby a Court can by process of dichotomy say that if the suit premises are situated on the same floor as where the Plaintiff resides, it can make an order for possession if the premises are required for a son or daughter under the age of 18 years but if the suit premises are situated elsewhere, the son or daughter must be above the age of 18 years.

9. Section 53(2)(e) is quite clear. The burden to be discharged by a landlord does not disappear but remains unaltered irrespective of where the suit premises are located. The words "occupation as a residence for himself" in the section cannotes the presence of two ingredients: (a) that he will be occupying it; and(b) that his occupation will be a residence for himself, which, in the context of the section, means as a 'dwelling' for himself.

10. In the case before me the Plaintiff will not be occupying the suit premises as a dwelling for himself. Indeed, he will be continuing to occupy the premises where he is at present residing and will not be moving out of it. Factually, what he wants to do is to stay where he is and recover possession of the suit premises for his child aged 4½ years. Unfortunately, that is not a ground upon which I can make an order for possession.

11. In the circumstances, the Plaintiff's claim is dismissed with costs for the Defendant.

12. If I am found to be wrong in the view I have taken on which my decision is based, I would have come to a finding that the congestion of the premises as such that the suit premises are reasonably required by the Plaintiff and that on the evidence it would not be manifestly unjust or inequitable to make an order for possession.

Representation: