Tang Wai Chee and Another v. Chan Sik Hong and Another

LDPE000795/1999

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NOS.LDPE 794 of 1999 & LDPE 795 of 1999

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(Consolidated Pursuant to the Order of Deputy Judge TONG dated the 26th day of October 2000)

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Coram: Deputy Judge Tong

Dates of Hearing: 26 October 2000, 2 & 4 November 2000

Date of Judgment : 15 November 2000

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Ruling on Jurisdiction

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Background

1. The Applicants were sons of the late Tang Chiu Chap the previous owner of the land described as Lot 284. As early as Mr. Tang Chiu Chap's time, the two respondents had already been tenants of different parts of the land in the lot and they had built structures on their leased land. Several land resumption exercises were carried out by the government and part of Lot 284 were resumed. The portion of land still owned by the late Mr TANG thus become 284RP. As a result, part of each of the applicants' structures stood on the government's resumed land while another part of each of those structures remained in the land held by Mr. TANG Chiu chap. The two Respondent's remain tenants to the late Mr. TANG for the parts of their structures which were still on Mr. TANG's land. Later on Mr. TANG assigned his interest to his two sons, the two Applicants in this case. According to the Applicants, the 1st Respondent had entered into a new lease with Mr TANG Wai Chee in 1982 for that part of the 1st Respondent's structure still on the Applicant's land. The Applicants had caused notices to quit to be issued to the two Respondents in 1988 and 1998. In their applications, the Applicants sought an order for repossession of their land still held by the Respondents and rent or mesne profit at the rate of the tenancies previously held by the Respondents. In their notices of opposition (Form 7), the first and the second respondent respectively alleged that they had ceased to be tenant to the two applicants in 1982 and 1988 after each of them had returned the structure and the land they had rented from the Applicants or their father. Also for this reason, the two Respondents had ceased to pay rent ever since.

Evidence in the Applicants' case

2. At the end of the Applicants' case, I have heard evidence given by two witnesses for the Applicants. They were Mr. TANG Wai-chee---one of the two landlords of the land concerned and the surveyor Mr. Wootten. Mr. TANG gave evidence to the effect that in 1988 after he had caused notices to quit to be served on the first and the second respondent (respectively Exhibits A4(a) and A8), the two respondents each constructed a back wall within their structures along the "so called" government boundary. After that, the two respondents "returned" the land and those parts of the structure beyond the wall to the Applicant. Thereafter, Mr. TANG no longer regarded them as tenants to him and for this reason did not collect any more rent from them. However, Mr. TANG said he had a suspicion over the accuracy of the government's boundary in dividing his plot of land and the government land. Mr. Wootten gave evidence to the effect that the government's plan had not been accurate in defining the boundaries of the Applicant's land. As a result of his survey, the correct boundary of the Applicants' land as well as the government's mistaken boundaries of the same could be seen on page 64 of the Applicant's bundle. It could be seen from Mr. Wootten plan on that page that the structures at this moment infringed in to Mr. TANG's land as defined by the corrected boundaries were built more or less along the boundary of the government plans. This observation was supported by the content of a letter from the Rating and Valuation Department to the Applicants' family as exhibited in A19. The letter related that as a result of site inspections carried out by the Department on 10th October, 1988 and September, 1989, the two Respondents were found only holding government land and had ceased to be in occupation of the private land held by the Applicants. The Applicants' stance of not treating the Respondents as their tenants was still clear as late as 26th February, 1998. On such date, the Applicants had caused their solicitor to issue letters to the Respondents alleging them to be unauthorized trespassers rather than tenants holding over their previous leasehold land (see exhibits A4(b) and A9).

My Ruling on Jurisdiction

3. On the evidence, I was of the view that even taking the Applicant's case to its highest, what the Applicant could prove was that his tenancy with the two Respondents had been terminated by way of surrender in 1988. The land so surrendered was measured by reference to the government's plan, the only official reference in existence at the time. Even if Mr. Wootten's evidence was to take its full effect, it could only be shown that the two Respondents were infringing the Applicants' land as a result of their mistaken belief that they were holding that part of the land as tenants of the Government or tolerated occupiers on government land. Such mistaken belief held by the two Respondents existed even before the surrender was effected in 1988. Hence, the Respondents were holding the infringing land not in their capacity as former tenants to the Applicant but as, albeit mistakenly, tenants or tolerated occupiers of the government.

4. In my judgment, Section 8(7) of the Lands Tribunal Ordinance only confers jurisdictions on the Lands Tribunal to grant orders for possession for premises or tenancy to which the various parts of the Landlord and Tenant (Consolidation) Ordinance (Cap.7) applies where "the contractual period of a tenancy or sub-tenancy has been terminated by forfeiture, by surrender, ...(etc)". The condition precedent for the Tribunal to invoke its jurisdiction under the subsection was a pre-existing landlord and tenant relationship through which the tenant came to hold the land in question. The subsection hence envisages a situation where the land subject to the repossession order to be the land held over by a former tenant in his position as a former tenant. In other words, the held over land must have been previously held by the tenant as tenant to the landlord and not in some other capacities not related to landlord and tenant relationship. This is clearly not the case here. In my view, the decision of the English Court of Appeal in Holme v Brunskill 1878 3 QBD 495 has no application here for the landlord and tenant in that case knew full well that their relationship of landlord and tenant still continued after the partial surrender of the tenancy. In this case, both the landlords and tenants had treated their relationship as having come to an end after the relevant lands were surrendered. For this reason, I hold that I have no jurisdiction to hear the case and grant the relief sought by the Applicants.

5. I have considered Mr. Harris' suggestion of my hearing all the evidence in this case and make finding of facts thereon before I make an order to transfer this case to the District Court. However, I do not think it is appropriate for me to continue to hear this case once I have formed the view that I have no jurisdiction over it. To continue with the trial and make finding there on before making the transfer would greatly affect the judge in the District Court in the process of forming his own independent judgment on this case. I therefore order that this case be forthwith transferred to the District Court.

6. As for the cost incurred so far in the Lands Tribunal, I am aware that the Respondents are appearing in person. On the other hand, it was the Applicants' choice in instituting the present proceedings in the Lands Tribunal and this decision turned out to be a faulty one by virtue of my present ruling. Under such circumstances, I order that each party is to bear his own cost.

Representation:

Mr Paul Harris, Counsel instructed by M/S Barnes & Daly for the Applicants

Mr. CHAN Sik-hong, the 1st Respondent in person

Mr. CHUNG Chuen-chup, the 2nd Respondent in person