Ho Kee Chun v. Yeung Chong Kin
Read the full judgment text of HCA 2282/1980 on BabelCite. This High Court CFI judgment.
1. This is an action for possession of post war premises known as 19 Cheung Fat Street, Ground Floor, Shamshuipo, Kowloon of which the plaintiff is the registered owner.
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HCA002282/1980 IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION NO. 2282 OF 1980 -----------------
Coram: Hon. Mr. Commissioner Jones Date of Judgment: 30th April 1981 ----------------- JUDGMENT ----------------- 1. This is an action for possession of post war premises known as 19 Cheung Fat Street, Ground Floor, Shamshuipo, Kowloon of which the plaintiff is the registered owner. 2. The only issue in dispute is whether the premises have been used primarily for business purposes or for domestic purposes. The occupation permit issued on the 8th October 1952 by the Building Authority granted permission for the premises to be used for domestic purposes. 3. The defendant has occupied the premises since March 1953 as a monthly tenant. The agreement was oral. The plaintiff became the registered owner of the premises under an assignment dated the 9th October 1979 subject to the monthly tenancy of the defendant. 4. The present rent is $2600 per month. A notice to quit dated the 22nd October 1979 under the provisions of Part V of the Landlord and Tenant (Consolidation) Ordinance was served upon the defendant terminating the tenancy on the 30th April 1980. 5. Two certificates of primary user issued by the Commissioner of Rating and Valuation on the 16th June 1980 and the 1st September 1980 state that on the dates of inspection the 9th June 1980 and the 26th August 1980 the primary user was not domestic. 6. However, these certificates only provide prime facie evidence of the facts therein set out. 7. The defendant contends that he is a protected tenant under Part II of the Landlord and Tenant (Consolidation) Ordinance on the grounds that the premises have been used primarily for domestic purposes. 8. The area of the premises is about 900 square feet. The front portion with an area of about 290 square feet is used as a shop for the sale of general provisions. These include beer, brandy, soft drinks, biscuits, sweets and toys. The rear part of the premises which the defendant claims, is for domestic use, consists of a dining room, children's room, a room occupied by the defendant and his wife, a sitting room, kitchen and toilet. 9. The sketch plan ex: D1 sets out the lay out of the premises. 10. There is no doubt that a part of this space is used for the storage of goods for sale in the business. 11. The defendant carries on the business with the assistance of his wife and a married daughter Yeung Ying Fan who does not live at the premises. Apart from the defendant and his wife, two sons aged 28 and 24, and two daughters aged 25 and 20 live at the suit premises. Each of the four children is employed, but not in the defendant's shop. They sleep on double bunks in the children's room. 12. The defendant's income from the business is between $4800 to $5000 per month. He also receives contributions of a few $100 per month from his children. 13. In order to determine the primary user of the premises the Court will have regard to the following matters provided by Section 51(3) of the Landlord and Tenant (Consolidation) Ordinance: Any occupation permit given by the Building Authority under the Buildings Ordinance and:-
14. The evidence given by the plaintiff was of no assistance in determining the primary user for he only visited the premises once prior to his purchase of the property when he did not go into the rear portion. The plaintiff's witness Mr. Lee testified that when he visited the premises on the 8th January 1981 he saw no evidence of anyone living there. I do not consider that he was an impartial witness and I reject his evidence on this issue. 15. I have no hesitation in accepting the evidence of the defendant and his son Mr. YEUNG Kai-wah that they have lived at the suit premises since 1953. I also accept the evidence that the defendant lives at the premises with his wife and the four children to whom I have referred. 16. The area at the rear clearly exceeds that in the front, but Mr. Lane for the plaintiff submits that by virtue of the space used for storage it is an appendage to the shop. I do not agree. 17. The part of the premises used for domestic purposes contains normal household furnishings including a television set. There is no doubt that the defendant relies substantially upon the income from the shop for his support, but there are four other wage earners in the family living at the premises who have nothing to do with the business. The defendant's wife also receives rent from a flat she owns. 18. In this case the non-domestic and domestic user is evenly balanced. Whilst the certificates of the Commissioner of Rating and Valuation affords prima facie evidence of primary user the evidence adduced to the contrary on behalf of the defendant which I accept results in the certificates carrying little if any weight R v National Insurance Commissioner exparte Richardson (1958) 2ALL E.R. 689. 19. I do not consider that the storage of goods in the rear portion renders the domestic user subsidiary or ancillary to the business. The business in the shop is consistent with the domestic nature of the tenancy. 20. I am satisfied upon a balance of probabilities that the domestic user of the suit premises is more important to the defendant. 21. Accordingly I find that the primary user of the premises is domestic. 22. The plaintiff's action is therefore dismissed with costs.
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