Lam Hoo Kai and Another v. The Royal Hong Kong Jockey Club

DCCJ004735/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 4735 OF 1980

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Coram: Judge H. Hong in Court.

Date of Judgment: 4th July 1981

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JUDGMENT

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1. Plaintiffs brought this action under Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7 to recover possession of the premises known as Plat D, 3rd floor and the Main Roof and Car Park of No.7 Tung Shan Villa, Tung Shan Terrace, Hong Kong.

2. It is common ground that the suit premises:

3. Plaintiffs, who are husband (PW2) and wife (PW3) were married in 1965. Before and after their marriage, they had worked together in the importation of frozen meat and traded under two companies owned by them and called Cheong Hing and Hong Kin. In 1971 they purchased the suit premises while they themselves resided at a flat registered in PW2's name at Winner House, North Point. In 1974, this couple formed a limited company entitled Cheong Hong Hong Nin Ltd. to take over the business of their previous partnerships and became the only two shareholders of the new organisation. They also continued to be solely responsible for the operation of their new company, a family-type enterprise but, for business and perhaps other reasons, decided to settle abroad. Following their successful application to emigrate to Canada, they and their two sons, born in 1966 and 1969, landed in their country of adoption on 18th July 1975. However, that date does not mean the severance of their ties with Hong Kong, because PW2 found that, owing to the exigency of his business, he had to often return to the Colony, though the other members of his family lived in Vancouver most of the time during the first three years or so, the children to study and their mother to look after them and plaintiffs' branch office there.

4. Towards the end of 1975 PW2 sold his flat in Winner House and thenceforth and for the next two or three years became a house guest of H.P. Cheng (PW1) whenever he came to stay in Hong Kong. For convenience's sake, plaintiffs executed a Power of Attorney to PW1, their personal friend and manager of Wing Lung Bank, to handle matters connected with the suit premises, which from 1976 have been their sole remaining real property here. PW1 thus renewed a tenancy agreement with defendant on plaintiffs' behalf for three years from 30th June 1977. Meanwhile, since 1975 PW3 and her two sons had complied with the Canadian Immigration Regulations by actually residing in Canada for more than six months in each year for three consecutive years and finally secured Canadian citizenship in January 1979, whereas PW2 did not and has not so qualified in consequence of his longer residence outside than within Canada. According to PW2, he had obtained special permission from the Canadian authorities to be away from their country a great deal of time for business purposes. In this respect, he says that he has commercial connections with USA, Australia and Now Zealand and uses his Hong Kong base to purchase goods from those states as well as Canada. He further adds that in the past two years the volume of his transactions has grown to such an extent that his presence in Hong Kong has correspondingly increased and for longer periods than elsewhere.

5. It is not disputed that on 21st March 1979 defendant wrote to PW2 to inquire whether or not PW2 would be interested in selling the suit premises to it and, if so, at what price. PW1, acting as plaintiffs' agent, named a certain amount as selling price and that was followed by further exchange of correspondence concerning the subject-matter. The deal did not materialize and nothing was heard between the parties on the issue as from 18th July 1979. In the meantime, as a result of the expansion of the family business, PW3 decided to east her husband's burden and agreed with him that they should take turn in returning to Hong Kong to personally negotiate with local clients on important topics. Thus, their visits to the Colony which had become more frequent and for a long spell each time made it necessary, in view of the shortage of space in PW1's house and the inconvenience to both guest and host thereat, for plaintiffs to be accommodated in hotels as from 1979 onwards. However, it sometimes happened that plaintiffs were unable to book hotel rooms in Hong Kong during tourist seasons and such failure had led to the cancellation of some of their trips to the Colony with consequential loss of business.

6. The suit premises cover an area of some 1,300 square feet and have a sitting-dining room, three bedrooms, two bathrooms, a kitchen, a servant's quarters and a store-room, for which plaintiffs collected from defendant $4,000.00 in monthly rental and from which they had to pay rates and property tax. Against this income plaintiffs had defrayed, as can be seen from the Hong Kong Hilton Hotel bill, a daily charge and tax of $364.00 for a single room. This would bring a monthly stay in hotel apart from other expenses, to $10,920.00 and from documents produced by plaintiffs, it appears that they spent about $117,000.00 and $80,000.00 on hotel room charges alone for the years 1979 and 1980, as compared with loss than $48,000.00 (i.e. rent less rates and property tax) that they collected from the annual lease of the suit premises to defendant. In addition, plaintiffs claimed that their return to Hong Kong would occur very often in the future to meet the growing business demand of their personal attention and that their sons would spend their summer and Christmas holidays here to study Chinese.

7. It is not denied that plaintiffs wanted to permanently live in Canada when they signed the application for emigration to that country. Neither is it disputed that their children and PW3, now being Canadian citizens, would come to Hong Kong as tourists from a Commonwealth country and need no visa for a stay of three months but would have to apply for an extension of stay thereafter, in spite of their former roots here. On the question of nationality, I am of the view that PW2, being husband and father of Canadians, does not have an automatic right to become Canadian himself, but would have to conform with the regulations on residence to gain citizenship as his wife and children have done. He continues, as testified and manifested by documents produced, to hold a Certificate of Identity issued in Hong Kong for his travel, so that his local resident status has to-date remained unchanged. Thus, as far as residence is concerned, that issue, in my opinion, is not applicable to the present case, because PW2 is for all intents and purposes a Hong Kong resident and spends more time here than abroad. Besides, as stated in p.116 of "Blokelmann v. Barr" (1971) WLR "But a man .......... Leewenstein v. De Salis (1926) 10 J.C. 424. It can be also said that PW2 has a better claim than the plaintiff in the Lusher's case (V.D.C. No.1910 of 1980 - unreported), who is American and required the suit premises for the use of his step-father who was then in America.

8. It was suggested by defence counsel that since plaintiffs had decided to settle down in Canada for good they should, whenever they come to Hong Kong, stay in a rented apartment if they don't like living in a hotel or, better still, they ought to purchase another flat for their own occupation. With respect, I cannot subscribe to this view. First of all, it is natural that a landlord, who owns one flat, should not be deprived of its use, except for some special reasons, such as the tenant's poorer or needier circumstances than his. There are no such special reasons in the present case. Secondly, if plaintiffs are deemed affluent and should take care of their accommodation other than having an eye on the suit premises, the same can be said of defendant who is one of the richest clubs in the world and should be able to look after the question of accommodation of its employees without having resort to the further use of the suit premises. as argued by Defence Counsel I would also regard the abortive negotiations which were initiated by defendant, for the purchase of the suit premises from plaintiffs, as having no bearing on the present issue.

9. On the point of law concerning joint ownership, I agree with plaintiffs' counsel that PW3 plays a dual role of co-owner of the suit premises and as PW2's wife and has testified in both capacities There is no need for me to repeat what do Basto, D.J. has already clearly expounded in the Lusher's case, as cited by defence counsel, on the legal requirement on a plaintiff in a case of this nature. Suffice it for me to say that I believe from the evidence that PW1/PW3 are witnesses of truth and that I am satisfied from facts that plaintiffs have established, on balance of probabilities, both a bona fide and a reasonable requirement for the suit premises as a residence for themselves. From this finding, the burden is shifted, under Section 53 (2) (b) (i), to defendant, tenant, to satisfy the Court that "in all the circumstances of the case it would manifestly not be just and equitable" to make an order for possession in favour of the landlord, i.e. plaintiffs. This onus and the meaning of the constituent components of the relevant section have been amply and aptly dealt with in the Lnsher's case and in "Chow Wing v. Yuen Chi-hung and Hong Pak-ning" (Civil Appeal No. 145 of 1980)) and need no further elaboration. And as defendant chose not to give evidence, it has not discharged the required burden of proof. In the event, there will be judgment for possession in plaintiffs' favour against defendant.

Representation: