Lau Shuet Ming v. Lam Chi Kwan

DCCJ012260/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 12260 OF 1981

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Coram: H.H. Judge Li

Date: 30 July 1982

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JUDGMENT

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1. The only issue in this case is whether the Plaintiff has established that she reasonably requires the suit premises for herself and her family. If that is established, the Defendant does not contend that the making of an order would be manifestly unjust and inequitable and has called no evidence on that issue.

2. I find the Plaintiff to be a truthful witness. Mr. Lam for the Defendant sought to impugn her credibility in two ways. First by pointing to her failure to give her residential address in the writ but giving instead the address of the Chinese medicine shop of her father where she assisted prior to February 1982. I accept the explanation she gave for this and find that there was nothing sinister in that failure. Secondly Mr. Lam relied on the discrepancy between her evidence and that of Mr. Wai of Schindler Lifts on the frequency of the occasions on which the No. 2 lift at the Plaintiff's present premises broke down recently. Mr. Wai said that between March and June it was once a month except that it broke down twice in May and that it took between a few hours to overnight for the repairs to be carried out depending on the nature of the defect. He also said there would be a routine check once a fortnight when service would stop for a few hours. The Plaintiff however said that it was about once a week and would take usually a day to repair. I find that this was a matter on which the Plaintiff probably made a genuine mistake; perhaps she attributed the stoppages occasioned by the routine checks also to breakdowns.

3. Having regard to the Plaintiff's evidence which I accept and the evidence of Mr. Wai (the only witness for the Defendant whose evidence was not challenged, has the Plaintiff established that she reasonably requires the suit premises for herself and her family?

4. Reasonable requirement connotes something more than desire but something much less than absolute necessity - see the Court of Appeal decision in Ma Hon v Andy Mahtans (1981) HKLR 570. It has sometimes been put that the Landlord must establish a genuine and reasonable need for the premises - see court of Appeal decision in Lam Chuk Ying v Chan Kwok-kwan CA 97 of 1981 at p.2. The word "need" would appropriately express the something which is more than desire but much less than absolute necessity. But it must not only genuine but also reasonable. Reasonableness must of course be determined objectively.

5. The Plaintiff at present resides at rented premises at Sai Yee Street with her husband, her mother-in-law, a 3½ year old daughter and a son aged 1 year and 3 months. The usable area is about 400 sq. ft. and has 2 bedrooms. It is within walking distance from her Chinese herb shop at Fa Yuen St. which she runs and has been running since February 1982 with her husband's assistance. There are 4 apartment houses operating in the building, two on 2nd and 5th floors below her flat on 11th floor and two on 12th and 14th floors above her flat. One lift which serves her premises and other odd number floors has broken down completely for some months. The other lift servicing even number floors has been breaking down occasionally. But this will soon be rectified. Mr. Wai's evidence is that the gear for the odd number lift has to be changed and that gear has been ordered from Switzerland and will arrive in November. After this lift is repaired, the No. 2 lift serving even number floors will have less load and would function more smoothly. The security in the block is not good. Burglaries have occurred. The unsatisfactory security is partly because the main entrance on the ground floor is not locked. The proprietors of the apartment houses objected to this as they fear it would affect their business at night.

6. The suit premises are in a residential development known as Whampoa Estate. The living environment is much better. There is open space between blocks in the development with benches and trees and fresh air. The Plaintiff's brother is residing at the flat next door on the same floor. His wife who is a full-time housewife can assist the Plaintiff's mother-in-law to take care of the Plaintiff's young children while she is at work. The Plaintiff's brother has two young sons.

7. But and these are matters on which Mr. Lam for the Defendant has placed heavy reliance in contending that the Plaintiff has failed to establish reasonable requirement, the suit premises are smaller, only 300 sq. ft. with 1 bedroom. The Plaintiff would have to carve out a bedroom from the living area. This bedroom would have windows but the remaining living room would not and would only have an area of about 50 sq. ft. half the size of the Plaintiff's present living room of a bit more than 100 sq. ft. Further they would be further away from the Plaintiff's shop; it would take a 10 minutes ride by mini-bus costing $2 per trip.

8. In my judgment the Plaintiff has on the evidence established reasonable requirement. The two matters referred to above are certainly very relevant. But they could not be considered in isolation. They must be considered in context; that the environment of the suit premises situated in a nice residential development are much better compared to her present premises and that the Plaintiff would have the benefit of living next to her brother and his family. In this context they do not persuade me that the Plaintiff has failed to establish reasonable requirement. To take a hypothetical contrast if the suit premises were situated in a block similar to that of the Plaintiff's present premises and the Plaintiff will not have the benefit of her brother's family living next door, my conclusion would probably have been different.

9. Mr. Lam as placed no reliance on the Plaintiff's financial circumstances. Even if they were relevant they would not have affected my conclusion in favour of the Plaintiff.

Representation:

Mr. Andrew Wang of Robert W. H. Wong & Co. for plaintiff.

Mr. Alex Lam of Messrs. Shum & Yeung for defendant.