Cheng Shuk Yin v. Lee Chor Nam
Read the full judgment text of DCCJ 3760/1980 on BabelCite. This District Court judgment was delivered on 1 March 1977.
1. The plaintiff as the registered owner seeks possession of premises known as Flat A, 4th floor, No. 219 Queen's Road West, Hong Kong erected on Inland Lot No. 5947 which premises form part of an entirely new building in respect of which the written permit of the building authority to occupy the same was granted after 16th August 1945.
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DCCJ003760/1980 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 3760 OF 1980 -----------------
----------------- Coram: H.H. Judge Caird Date of Judgment: 27 February, 1981 ----------------- JUDGMENT ----------------- 1. The plaintiff as the registered owner seeks possession of premises known as Flat A, 4th floor, No. 219 Queen's Road West, Hong Kong erected on Inland Lot No. 5947 which premises form part of an entirely new building in respect of which the written permit of the building authority to occupy the same was granted after 16th August 1945. 2. The premises were let by the plaintiff to the defendant pursuant to a tenancy agreement in writing dated the 1st day of March 1977. 3. Paragraph 8 of the tenancy agreement produced by the plaintiff as Exhibit P1(a) together with the accompaning translation as P1(b) contained a provision as follows:
I might add that the defendant produced his copy of tenancy agreement as D1a together with translation D1b. There was a discrepancy between D1a and P1(a) in that at the foot of paragraph 10 in each agreement there appeared an item under the heading "announcement". This announcement concluded in respect of P1a with the following words:-
Whereas D1(b) the tenant's copy concluded
4. Both Counsel appearing before me agreed they do not know of any other discrepancies between the two agreements and for the purposes of the instant case there is no need to consider the distinction between the two copies, insofar as necessary interpretation is concerned. 5. It was the plaintiff's case that these premises were let for business purposes under the agreement and accordingly clause 8 referred to previously applies and that Part II of the Landlord & Tenant (Consolidation) Ordinance Cap. 7 does not apply by virtue of the user of these premises and further that Parts IV and V respectively did not apply. That the agreement expired on the 28th day of February 1980 by effluxtion of time and that the defendant thereafter failed to quit and deliver up vacant possession of the premises remaining in wrongful occupation as a tresspasser. 6. By an amended defence and counterclaim, the defendant admitted the existance of the written agreement and that the time allowed for occupation thereunder had expired, but claimed that he had no knowledge that the premises were let for business purposes and therefore denied that these were let to him for business purposes. He went further and asserted an oral agreement between him the plaintiff and or her husband that the premises should be occupied as a dwelling place. It was maintained further that the document was drawn up and signed under a mistake of fact. 7. It was further pleaded that the defendant had at all times used the premises for the domestic purposes with the knowledge and consent of the plaintiff, and accordingly Part II of the Landlord & Tenant (Consolidation) Ordinance applied. 8. There were alternative pleadings relating to waiver, and a further alternative pleading that the plaintiff by acceptance of rent after the expiry of the tenancy agreement entered into a domestic monthly tenancy and that Part V of the Landlord & Tenant (Consolidation) Ordinance applied. The latter proposition was not supported by evidence and I do not need to consider it further. 9. Pursuant to his counterclaim, the defendant requested a declaration that at all material times he was a domestic tenant of the plaintiff and accordingly a protected tenant under Part II. Alternative to this declaration that Part V of the Ordinance applied. Further alternatives of rectification and recission were pleaded. 10. At the outset Mr. Lee on behalf of the plaintiff maintained that evidence relating to the formation of the agreement should be held inadmissible under the Parole evidence rule. However I proposed they call the evidence indicating I would make my ruling later. I informed Counsel at the close of proceedings that I held the extrinsic evidence to be admissible. The question of acceptance or rejection of such evidence or its weight of course being an entirely different matter. It followed therefore that both the plaintiff and the defendant introduced evidence as to the making of the agreement and there was a considerable degree of conflict between the accounts rendered by both sides. Plaintiff's evidence 11. The plaintiff was called and explained that the area of the premises concerned was approximately 500 sq. feet and that the purposes for which he let the premises to the defendant were commercial. She produced the agreement P1(a). She claimed the witness to the agreement was the "partner" of the tenant and asserted that on some 6 to 7 occasions it was said the premises which were to be used for commercial use, this before the agreement was signed. She explained that the introduction to the defendant was effected through a person working in the bakery on the ground floor of the building. She thought that the defendant worked in the transportation business. She also explained that her husband collected rent for the premises. She asserted there were four persons present when she signed the agreement. These four were herself, her husband, the defendand and the witness to the agreement. In answer to a question from the Court, she claimed all the flats in the building were used for commercial purposes. 12. Plaintiff's husband CHAN Kin-wah also stated in evidence that the relationship with the defendant and the witness was "they said that they were partners". He said that on some five or six occasions it had been mentioned to the defendant that the premises were to be used for commercial purposes. I take no account of the discrepancy between the plaintiff and her husband in this regard. He claimed that the defendant could read and write because he had sometimes seen him read newspapers. He agreed he always went to collect the rent and that when he saw inside the house "there was one desk and one telephone and there are paper cartons of goods". He claimed that during negotiations the defendant said there will be a telephone installed for "few persons to make calculations". He also claimed Lee had said that "no one would sleep there". He maintained that during negotiation, he and his wife were present also the defendant and Mr. Lau and "they said they were partners". He further claimed that there was never any mention of defendant being a coolie and that when he had the agreement prepared it had the handwritten part put in by someone on his behalf copying from his draft. It was agreed by the witness in answer to Mr. Lau that the defendant and his witness Lau wrote down their Identity Card numbers but that he did not ask his wife to write down her Identity Card number. For myself I considered this to be of no significance in that he may have known his wife's Identity Card Number or he was confident enough to know her whereabouts without resort to any identity card. 13. He also informed me that "the Solicitor" had advised that the premises were to be let for commercial purposes only. The occupation permit had been produced as P2 by the plaintiff wherein it was stated the first to fifth floors inclusive were "three offices per floor for non-domestic use". He agreed that he had collected rent for three years, mostly around 4 p.m. by arrangement and that when he collected he looked around the premises and did not see any beds, he never observed any kitchen but there was a tea pot and a kerosense stove present. There were some five or six cardboard cartons 'two feet by two feet' inside the premises. He disagreed that a-part from the defendant and Mr. Lau that there were two other persons present during negotiations. He also disagreed when it was put to him that the defendant said that he wanted the place "to sleep". 14. At the instigation of the Court, after the defence case had closed, a further witness was called LAM Tak-cheong, Solicitor's Clerk employed by the plaintiff's solicitors. He described the taking of number of photographs which he produced and claimed that he had not seen any other flats in the building. By agreement with Counsel I wrote a note on the back of each photograph describing the scene depicted. The effect of this evidence was to endeavour to establish non-domestic user. Defendant's evidence 15. Two witnesses were called on behalf of the defence, first was the defendant LEE Chor-nam who stated that he was living in the premises together with three other persons LAM Chi-tin, SHUM Man-tung and KWOK Yue-fong. He explained that he had been a coolie for about 31 to 32 years and worked on the Waterfront at the mouth of Whilmer Street in the Western area. He said that he saw an announcement that premises No. 219 Queen's Road West were available and that he inquired about these at the bakery. He asserted that when he went to see the go-between that he was accompanied by three others, all coolies. That during negotiation Chan Kin was present also the witness LAU Man-hoi. There was no mention of the plaintiff attending this meeting. He described the negotiations, the paying of the deposit and explained that he did not wear glasses when at work and that he could read the writing on the agreement only if he wore his glasses. He also asserted that when the tenancy agreement was signed he was unable to read because he was not carrying his glasses that day. He claimed that he had never seen Mr. Chan with a lady until sometime in March of 1980; a direct contradiction of the evidence of the plaintiff and her husband. He asserted that Mr. Chan had never stated that there must be an agreement "for the purposes of doing business". 16. The defendant gave evidence as to his residence in the premises with three other persons. His telephone was a residential line and he produced a receipt in support. This is of little importance as I can visualize many persons using a residential telephone for business purposes. Even barristers on occasion must take phone calls at their home. He described the furniture as being "two wooden beds and two nylon beds." There was no partition within the premises, and the cooking utensils present consisted of a chopping board, chopper and pot. He asserted he would not have rented the premises if he had known they could be used for commercial purposes only. 17. He explained that after he received a letter from his landlord he went to the District Office in Western and was advised to apply for a certificate at the Rating and Valuation Department. A certificate dated the 2nd of May 1980 showing the primary user on the 22nd of April as "domestic" was issued under Section 51(5)(a). He claimed that he did nothing to the premises before going to the Rating & Valuation Department and he said there were five or six boxes containing hooks and clothes for carrying items of "the workmates". He asserted that when Mr. Chan came to the premises he could see a bed and nothing had ever been said about the user of the premises. 18. He went so far to assert "the landlord suggested to me that we could partition the flat and do some subletting but the four of us were all men". (By landlord he meant the landlord's husband). The defendant agreed that he did not have a television set in the premises nor a radio, there was but one table which he claimed was a mahjong table, also there was bedding in the premises. He claimed that other units in the building were used for domestic purposes. He agreed that he sometimes read a Chinese newspaper. He agreed during cross-examination that he had kept the tenancy agreement for three years and he had not read it and said that everyone of the four had seen the agreement but "some of them cannot read." 19. The second defendant's witness was LAM Chi-tin who could not understand the writing on the "affirmation card" because "I have not got a pair of glasses with me". This was one of the four persons allegedly residing in the suit premises as a domestic user. He claimed that all four had moved in together and he became a coolie after he moved in. He contributed money to the renting to the premises. He referred to the landlord originally wanting $850 and coming down to $820. This is in contradiction to the defendant who said that the original price was $900 this when the "four of us" were present. This witness claimed that he kept wooden pole hooks in the premises and that he took a bath "either in the lavatory or kitchen". He explained that there was no lift to the building and that most of the units of the upper storey were domestic premises, because he saw women go to buy food, and husbands and wifes lived there "I also saw children". He asserted that on the first floor only there were premises obviously used for commercial purposes. At my request to draw a sketch plan, he produced exhibit D6 showing fixed beds in green and nylon beds in red. A desk was drawn with a blue pen and table marked in pencil. The red beds (nylon) were folded up during the day time and he showed where they were stacked this in green. He said these could be seen from the door. 20. Findings of fact 21. There is no doubt that the occupation permit issued for "non-domestic use". The plaintiff's evidence that she and her husband informed the defendant that the premises were to be for commercial purposes is entirely consistent with their knowledge of the use to which the premises were to be put. 22. There was a discrepancy which I think was material namely the initial rental asked for the premises between the defendant his witness. I observed the demeanour of the plaintiff and her husband, and the defendant and his witness, I am left in no doubt that the defendant and his witness were lying on matters relating to the negotiation. I consider it is quiet inconceivable that if four persons turned up to be present at the signing of an agreement such as this, that no one would be able to read the provisions of the tenancy agreement in respect of the premises which they were to share. It would be an amazing coincidence if those who required glasses to read; did not take them and there who could not read didn't need glasses. I believe negotiations took place between the plaintiff and her husband, on the one part with the defendant and Mr. Lau witness, to his signature, allegedly a partner, on the other part. 23. As determined earlier I held the extrinsic evidence to be admissible. Nevertheless after hearing all such evidence adduced as to the surrounding circumstances relating to the agreement, I hold that the plaintiff has on the balance of probabilities (had it been necessary beyond reasonable doubt), established that the premises were let for business purposes. 24. User 25. I have to determine the user of the premises in order to establish whether Part II of the Landlord & Tenant (Consolidation) Ordinance applies to the defendant's tenancy. 26. The matters which have to be considered on the evidence are:-
27. The prima facie evidence taken together with Mr. Chan Kin's evidence is strong evidence that the user was commercial or of a non-domestic nature. 28. On the other hand there is the evidence of the two defendant's witness, the defendant and Mr. Lam which I rejected. In addition there was tendered to me a certificate issued by the Commissioner of Rating & Valuation pursuant to Section 51(5)(a), this is prima facie evidence of the facts referred to therein and of the primary user of the premises, "On the day on which they were inspected". Subsection (6). I have no doubt that it could be easy to fabricate evidence to show a difference user than that normally pertaining, for purposes of an inspection by a member of the Rating & Valuation Department. This certificate is no more than prima facie evidence of user on the 22nd of May 1980 only. 29. I appreciated that it may have been possible for the defendant to have given an appearance of commercial user on the days when Mr. Chan Kin called by appointment and I do not overlook this possibility. However the situation is such that there is no credible evidence before me to show that contrary to the provisions of clause 8 of the agreement the premises were being used for domestic purposes on any occasion other than the date of inspection on the 22nd of May 1980. I determine that the user was commercial or non-domestic and accordingly the provisions of Section 51(2)(b) do not apply. Therefore the provisions of Part II do not apply. 30. Waiver 31. The defendant in his statement of defence as amended alleged waiver of the plaintiffs right to claim possession by acceptance of rent with knowledge of the user of the premises as domestic premises. 32. Taking the view as I do as to the defendant and his witness and bearing in mind the husband's evidence that when he collected rent that the premises had an appearance of non-domestic user all allegations as to waiver have not been made out by the defendant. 33. I would in passing observe that had I determined that the premises were being used for domestic purposes this would be a clear breach of the provisions of clause 8 of the agreement, and by the user thereof Part II of the Ordinance would apply to the tenancy. In consequence Section 53(2)(a) of the Ordinance would in turn apply and in such circumstances the landlord would be entitled to claim possession for breach of covenant. 34. I must observe that I am indebted to Mr. Lau for the extremely thorough way in which he presented his case and also for his most considerable assistance on matters of law. 35. There shall be judgment for the plaintiff as follows:-
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