Bernard Wong Fook Kun v. L.T. Daswani

HCA003643/1978

Coram: Mr. Commissioner do Basto, Q.C.

Date of Judgment: 10th January, 1980.

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JUDGMENT

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1. I heard the above case on the 10th January 1980 and late that afternoon I delivered an oral judgment and the reasons therefor. I added I would reduce my reasons into writing and I now do so.

2. In this case the Plaintiff sues for possession and mesne profits.

3. The Plaintiff is the registered owner of Flat D on the second floor of Lyton Building, 36 Mody Road in Kowloon. The Plaintiff leased the suit premises to the Defendant for domestic purposes but the Plaintiff alleges that the Defendant has been running an Indian restaurant in the suit premises.

4. It is not in dispute that the suit premises form part of an entirely new building. Indeed, the occupation permit in respect of the building was issued in December 1962 and the Defendant became the Plaintiff's tenant in 1963. When the Defendant became a tenant in respect of the suit premises he also leased the first floor of the same building for business purposes, namely the "Moonlight Restaurant". The Defendant testified that in 1975 he 'suspended' his restaurant business on the first floor and moved, for storage purposes only, the furniture of the restaurant into the suit premises where he lived with his family.

5. In August 1963 when the Defendant commenced his restaurant business on the first floor he took out a business registration certificate. In cross-examination he admitted he renewed that registration in 1977, 1978 and 1979. When asked why he did this if he had discontinued running a restaurant, he said that this was done to preserve the name "Moonlight Restaurant".

6. When the Defendant was running the restaurant on the first floor he had a business telephone the rental of which, he conceded, cost more than a domestic telephone. The Defendant testified that when he suspended his restaurant business in 1975 he caused his business telephone to be transferred upstairs into the suit premises where it has remained ever since. He said he did this because many former customers and friends only knew the telephone number of his business line.

7. On the 22nd July 1977 and again on the 7th September 1978 an inspector from the Department of Rating and Valuation pursuant to Section 51(5) of the Landlord and Tenant (Consolidation) Ordinance visited the suit premises and in respect of both visits the inspectors certified the primary user of the suit premises as being non-domestic. The Defendant admitted the visits by the inspectors but said they were wrong in classifying the suit premises as non-domestic. He said both inspectors had made wrong "presumptions". The two certificates are documents 8 in the Agreed Bundle. In the bottom right hand corner of each there is a note that an application may be made within one month from the service of the certificate to the District Court for a review. The Defendant conceded no such application was made. The Defendant said in respect of the first certificate that as 'nothing happened' he did not seek a review, and in respect of the second certificate he said he received the certificate more than a month after it was issued. In my opinion, even if I believed the Defendant on this point (which I do not) the argument is without merit for an application for review may be made one month after service of the certificate not one month after the date thereof.

8. There were interlocutory proceedings before the trial and in respect of these the Defendant exhibited, inter alia, photographs of the suit premises. In my view, photographs LTD4 and LTD5 do not support the Defendant's contention that the suit premises are primarily domestic in nature - indeed, they appear to indicate otherwise. Of course, it is for the Plaintiff to show that the user of the suit premises, at the relevant times, was primarily non-domestic.

9. The father of the Plaintiff gave evidence. He testified that he collected the rent each month from the Defendant usually between 10 a.m. and 2 p.m. He said that on the occasions he went at lunch time the suit premises were being used as an Indian restaurant. He saw Indian customers at the tables shown in the photographs I have referred to. The Defendant was serving Indian food. There was a cash register and he saw customers pay the Defendant. In the summer months he also saw the two airconditioners shown in the photographs in operation. The Plaintiff's father struck me as an honest witness. I have no doubt he was telling the truth. The Defendant, on the other hand, struck me as devious. He appeared to me to have little regard for the truth. Indeed, I have no doubt whatever that the Defendant lied on the real issue in this case. The evidence against him was overwhelming. I have not the slightest doubt that the suit premises was used, at the material times, as an Indian restaurant.

10. I ordered that the Plaintiff do have possession of the suit premises and made orders consequential thereto.

Representation:

Mr. Sammy Lee, instructed by Tsang & Chau for the Plaintiff.

Defendant in person.