Wong Tsun v. Cheung Yan Loi

DCCJ001077/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1077 OF 1981

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Coram: H.H. Judge Bokhary in Court

Date of Judgment: 28th August, 1981.

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JUDGMENT

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1. The Plaintiff is the registered owner of Flat C on the 8th floor of Lee Shun Building at 157A Lockhart Road in Wanchai. He seeks possession of this flat, to which I will refer as the suit premises, under Section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7. It is his case that he reasonably requires the suit premises for occupation as a residence for his mother. The Defendant denies this and also invokes the just and equitable provision contained in the proviso to Section 53(2)(b).

2. There is little or no despite as to the primary facts in this case. As I find them, they are as I am about to state.

3. The Plaintiff and his wife are both journalists. He earns about $2,600 per month, while she earns about $1,800 per month. The flat in North Point in which they now live with their 3 sons is about 800 square feet in area. It has 3 bedrooms. The Plaintiff sleeps in one, because he has a lot of papers in it and works in it until quite late at night. His wife and younger son, who is 16, share the second room. The two elder sons, who are 21 and 23, share the third room. This flat is owned by the Plaintiff's wife. Apart from this flat and the suit premises, neither party own any premises. Their sons are all students: the youngest is in secondary school; the second one hopes to pursue a course leading to a diploma in mechanical engineering; the eldest one is pursuing a course leading to a diploma in Commerce.

4. The Defendant does not dispute what the Plaintiff says he told him when he let the suit premises to him in October 1978. It was this. The Plaintiff's mother was in China. She was applying to come to Hong Kong. If she arrived during the two year term for which the suit premises were let, the Plaintiff would naturally abide by his agreement. But he would certainly want the suit premises back for her use if she was here when the two year term was up. The term expired by effluxion of time, I should note, on October 14, 1980.

5. The Plaintiff's mother arrived here from China in early 1979, which was sconer than expected. It is not disputed by the Defendant that soon after her arrival the Plaintiff informed him thereof and told him to make sure that he found premises to move to when the contractual term was up.

6. Meanwhile, the Plaintiff's mother, who is now 76, went to live with the Plaintiff and his family at the flat in which they still reside. She had a little boy with her, the son of one of her other sons, who lives in China. This little boy is named WONG Doi. He was then under 2 years of age. He accompanied the old lady to the Plaintiff's home.

7. This arrangement did not work out. It was very cramped and the old lady did not get on with the Plaintiff's wife and sons. Apart from anything else, there was a language barrier. She spoke only Chiu Chow and they spoke only punti and, I suppose, some English. Within a few days, things became so bad that the old lady and the little boy moved out.

8. They went to stay with an elder sister of the Plaintiff. They only remained there for about 10 days because conditions were even more cramped than at the Plaintiff's home.

9. The old lady and the little boy then moved to a stone hut in Diamond Hill. The hut is very small, having an area of a little over 100 square feet. It is also only accessible by a rather precarious flight of steps. One of the Plaintiff's brother's, a metal-worker who only earns about $1,000 per month, lives with her there. The little boy has been sent back to Swatow in China. He was sent back at the end of this year, but is due to return by the end of the year.

10. The stone hut, photographs of which have been produced by consent, is far from satisfactory for an old lady or a young boy.

11. Furthermore, the owner of the hut is planning to recover possession; and, on the facts before me, her own condition is such that any proceedings she may bring cannot be ruled out as hopeless.

12. I accept that it would cause intolerable tension if any of the old lady's relatives in Hong Kong took her in.

13. If the suit premises were available the old lady could move in and the little boy would join her upon his return at the end of this year. The Plaintiff's brother who also lives in the stone hut would also move in.

14. The Defendant lives in the suit premises with his father, who is 73 and his mother who is 66. He is 30. His salary used to be $4,370. per month and he used to receive a monthly allowance of $400. Thus, the total was $4,730. He used to spend about $4,000 per month and save about $700 per month. Since June this year, his total monthly income (including allowance) has gone up to $5,900. Now he saves, he says, about $1,000 per month. Mr. Kut, who appears for the Plaintiff, suggests that the figure is likely to be closer to $2,000. Doing the best I can on the available material, I would say that he ought to be able to save something close to half-way between those two figures on the basis of his present income and probable expenditure at present.

15. He told me that he has about $20,000 in savings. This was not challenged; and I accept that such are his savings.

16. Neither of his parents work. Neither of them have any savings.

17. The suit premises are but a little over 300 square feet in area. It has one bedroom. The Defendant's parents use it. He sleeps in the living/dining room.

18. The suit premises are very convenient to the Defendant and his parents. It is convenient to him for his work; he can come home for lunch, and that saves money. Its proximity to his place of work also saves transportation expenses. His parents find it convenient to live near the Tang Shiu Kin Hospital where they often go for medical advice or treatment.

19. Additionally, the Defendant helps a sister in Shanghai.

20. These facts show that somebody will suffer and suffer substantially however I decide.

21. At the end of the day, I find myself satisfied that the Plaintiff does reasonably require the suit premises.

22. Would it in all the circumstances of this case manifestly not be just and equitable to make an order for possession? I find that the Defendant has failed to discharge the burden of showing that it would manifestly not be just and equitable to make such an order. He is a good son and much to be admired. He is an intelligent man. He said in cross-examination that he has not considered moving to other areas where rents would be lower than where he now is but that he could turn his mind to such matters if he lost. He must consider these matters now. I make an order for possession in the Plaintiff's favour. I will now hear argument as to mesne profits, costs and a stay of execution.

[Such Argument]

23. I order mesne profits as claimed. But I note that the Plaintiff's solicitors hold cheques for the rent up to August 14, 1981, and assuming those cheques are honoured upon presentation, they will go towards mesne profits up to that time.

24. I raised the possibility of the Plaintiff not asking for costs in light of the Defendant's reasonableness which has enabled this case to be completed today. Mr. Kut sought instructions. His instructions were to ask for costs; and he does. The defendant asks me not to award costs against him because he lacks funds. I feel that I cannot do anything but let costs follow the event. I therefore award the Plaintiff the costs to be taxed on the Upper Scale.

25. The Defendant asks for 9 months stay of execution. I told him that 6 months was the maximum. He then asked for that. Mr. Kut says that the Defendant was informed of the Plaintiff's mother's arrival long ago; and that two months and no more should he ordered. I feel that the maximum stay is called for in this case. I grant a stay of 6 months stay of execution from today.

Representation:

Y.H. Kut (of W.I. Cheung & Co.) for plaintiff

Defendant in person