Lam Cheuk Ki v. Lau Pui Cheung
Read the full judgment text of DCCJ 9373/1981 on BabelCite. This District Court judgment was delivered on 20 April 1982.
1. Plaintiff seeks possession of the premises known as 19th floor of No. 277 Lockhart Road, Hong kong for his own occupation.
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DCCJ009373/1981 Landlord and Tenant - Writ issued prior to expiry of tenancy agreement and before Amendment No. 76/81 - whether (a) Plaintiff can bring an action for possession of suit premises for self Occupation & (b) provisions of Parts II and IV of the Landlord and Tenant Ordination (Consolidation) apply - Held : (i) Part II applies, (ii) Notice to quit is not required, (iii) Part IV is not applicable and (iv) Plaintiff has the right to institute proceedings under Section 53(2)(b) of the Ordinance during the currency of the agreement provided than an order, if granted, should not be made to make effect until after expiry of the agreed term. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 9373 of 1981 ___________________
________________ Coram: H. Wong, D. J. in Court. Date: 20 April 1982 -------------------------- JUDGMENT -------------------------- 1. Plaintiff seeks possession of the premises known as 19th floor of No. 277 Lockhart Road, Hong kong for his own occupation. 2. It is common ground that plaintiff is the registered owner of the suit premises which are exempt from the provisions of Part I of Landlord and Tenant (Consolidation) Ordinance, Cap. 7. However, in the defence defendant, among other things:
3. Plaintiff purchased the suit premises in April 1979 and shortly thereafter entered into a tenancy agreement with defendant whereby he let those premises to defendant for domestic use for a term of 3 years from 10th May 1979 to 9th May 1982. That document shows that, by mutual consent, the clause dealing with notice to terminate the tenancy was cancelled. There was no payment of key or construction money or premium to plaintiff or his predecessor in title by defendant in relation to the suit premises. Plaintiff was married in 1977 and his wife gave birth to a daughter in 1978. At first nothing went wrong with them when they lived with plaintiff's mother and elder brother. However, it so happened that plaintiff's elder brother subsequently suffered from mental derangement and had on occasions beaten up plaintiff's daughter. As a result of that situation plaintiff and his family moved out of his mother's home in 1981 and rented a rear cubicle of a flat at No. 186 Hennessy Road, 11th floor, Hong Kong. The remaining part of that flat, consisting of two rooms are being occupied by the principal tenant and her husband as their bedroom and tailoring workshop respectively. Plaintiff now pays a monthly rental of`$800,00 for his 76 square-foot cubicle which contains a double bed, a chest of drawers, a small desk, a small dining table and a small refrigerator. There is no spare space to accommodate a cot for his four years old daughter, so that she has to sleep in the same bed with her parents. Plaintiff's wife is in an advanced stage of pregnancy and expects a second child in June 1982. According to plaintiff, that inconvenient sleeping arrangement, the need for more room for his children, the obnoxious smell coming from the kitchen and toilet which face the window of his cubicle and the warning by his principal tenant that she would take back plaintiff's cubicle for occupation by her three children on their forthcoming return to Hong Kong from Brazil in September 1982, led plaintiff to institute these proceedings to recover possession of the suit premises for his self use. Plaintiff has no assets other than the suit premises and his sole source of income - his wife is not in gainful employment - is derived from his job as a steward of a restaurant at an average of $2,450.00 a month, which includes basic pay and tips, Plaintiff's testimony was not challenged and there is no mason for me not to accept it as being truthful. 4. Although defendant raised the aforesaid points of law in his pleading, he did not pursue them at the hearing as he acted in person. Nevertheless I feel it necessary to consider and deal with them as well as other legal aspects so far as they are relevant to the case. 5. First of all, the writ was issued on 5th December 1981 whereas the tenancy agreement will not come to an end until 9th May 1982. In the Particulars of Claim plaintiff says that he "requires possession of the suit premises after the date of expiry of the term cheated by the said tenancy agreement". Under the former Section 50(6)(j) of the principal Ordinance Part II did not apply to a tenancy agreement created after December 1975 if it was for a fixed term of three years. This section was, however, deleted by the Amendment No.6 of 1980 which had the effect of bringing all domestic tenancies, irrespective of their terms within the ambit of Part II, retrospectively to 19th December 1979. The consequence of this legislation is well illustrated in "LAM Wai v. MAK Yok-jan" (1980) HKLR 236. Thus, although the present tenancy agreement was made in May 1979, Mr. C.Y. Lee, for plaintiff, conceded, and I agree with him, that defendant would, by virtue of that Amendment, become a protected tenant upon the expiry of the agreed term if he held over the tenancy. In those circumstances Part II of the principal Ordinance would be applicable to this case as from 10th May 1982, i.e., the day following that expiry. Section 52(1), inter alia, now provides that even though a tenancy agreement has been terminated by effluxion of time or by the landlord otherwise than by forfeiture, it shall nevertheless not come to an end except pursuant to an application under Section 53(2). Further, Section 53(1) says that WHERE a tenancy continues under Section 52(1) it shall, inter alia, come to an end when an order is made in favour of the landlord under Section 53(2). Thus, the landlord's statutory rights to terminate the tenancy under Section 53(2) only arise during the period of statutory extension or continuance of the tenancy after the contractual term has ended. 6. Another aspect of the application of Part II is that it was held in "LO Wah & Another v. CHUI Fun" (1980) HKLR 844 that
7. It is therefore well settled that a contractual tenancy cannot be terminated during its currency except on account of a breach of its conditions or covenants. This standpoint previously found support from Section 74A(aa) which says:
8. In the present case there is no question of forfeiture. Although Section 74A(aa) was deleted by Amendment No.76 of 10th December 1981, Section 116(1 of that Amendment went on to say that:
9. In view of the finding (supra) that the instant case comes within Part II, the provisions of Part IV, as spelt out in the above mentioned Section 116(1), do not apply. This means that the requirement under Section 119 of the said Amendment concerning notice of termination of tenancy by the landlord is likewise not applicable. In this connection I hold that in the case of a fixed tenancy the necessity to serve notice to quit does not arise, because such notice could not affect the contractual rights of the parties during the agreed term. I would add that, under the old law, that is, before the Amendment No.76/81 came into operation, Part IV did not apply to a case, like the present, where no key or construction money or premium had been paid. 10. Lastly, regarding the time a landlord can bring an action for recovery of possession of his rented domestic premises it is now well recognised, following the decision of "LAM Chuen Kuen v. WAN Suet-ying", Civil Appeal No.47 of 1981, that a landlord can institute proceedings in that respect before the end of the agreed term, subject to the condition that no order can be made to take effect until that term has expired. 11. The legal position of the present case can be summarised as follows:
12. From the foregoing and on facts I am satisfied that plaintiff has established a genuine and reasonable requirement of the sit premises. Under the law the onus is consequently shifted to defendant to prove that it would manifestly be unjust and inequitable to make an order. 13. Defendant, a musician, resides at the suit premises with his wife and her brother and sister, aged 14 and 20. He succinctly described his side of the story, including these words "I know that after the expiry of the tenancy I ought to return the suit premises to plaintiff buts in view of the prevailing high rent, cannot afford to live elsewhere". Defendant earns about $3,000.00 a month and feels that, not being under contract, he is liable to have his service terminated by his employer simply with 10 days' notice. His sister-in-law is in employment as a cashier and draws a monthly salary of $1,000.00. The total earnings of defendant's household thus come to $4,000.00 from which defendant pays monthly rental of the suit premises of $1,400.00 and sometimes contributes $300.00 to his mother. There is no evidence that defendant has endeavoured to look for alternative accommodation, either for all four members of his household or at least for his wife and himself. 14. I do not doubt the veracity of defendant's testimony, scanty as it may be. In my view, his brother-in-law and sister-in-law are not regarded as his legal dependants, so that his monthly salary of $3,000.00 can be said to be for the use of himself and his wife. This amount favourably compares with plaintiff's aggregate income of $3,850.00 from his wages of $2,450.00 and rent of the suit premises of $1,400,00 for the maintenance of three and, very soon, four persons. Another important factor that I should bear in mind is the intention of the legislature to make it easier for the owner of premises to recover possession of them if he genuinely and reasonably needed them for himself. It was said in "LAM Chuk-ying v. CHAN Kwok-kwan", Civil Appeal No. 97 of 1981 that
15. Having considered all facts of the case and the circumstances of the parties I find that the odds weigh heavily in plaintiff's favour and that defendant has not proved on balance of probabilities that it would manifestly be not just and equitable to make an order. There will therefore be judgment to plaintiff for possession of the suit premises, subject to the condition that the order should not take effect until after the expiry of the agreed term.
Representation: Mr. C.Y. Lee, instructed by S.H. Leung & Co. for Plaintiff. Defendant acted in person. |