So To-ho v. Hg Hon-ling
Read the full judgment text of DCCJ 11194/1979 on BabelCite. This District Court judgment.
1. By a writ, issued on 28th December 1979, the plaintiff seeks to recover possession of Flat C on the 9th floor of a building at 199, Cheung Sha Wan Road, Kowloon ("the premises"), which she alleges were let to the defendant:-
Cited by 1 case
|
DCCJ011194/1979 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION ACTION NO. 11194 OF 1979 -----------------
----------------- Coram: His Honour Judge Downey Date of Hearing: 6th August, 1981 Date of Judgment: 25th September, 1981 ----------------- JUDGMENT ----------------- 1. By a writ, issued on 28th December 1979, the plaintiff seeks to recover possession of Flat C on the 9th floor of a building at 199, Cheung Sha Wan Road, Kowloon ("the premises"), which she alleges were let to the defendant:-
She does not state when this monthly tenancy commenced or the purposes for which the premises were so let to the defendant, but in paragraph 5 of her Particulars of Claim she alleges:
She then claims to be entitled to possession of the premises by reason of service of a Notice to Quit taking effect on 14th October, 1979. 2. At the trial, the defendant admitted that such notice had been served on 21st March 1979. However, in his Defence, filed on 31st December 1979 when he was acting in person, he alleged that the premises had been let to him since 15th February 1975 "for domestic use only", and that he had been residing there with his family "con-sisting of seven members". He later instructed solicitors who, on 13th May 1981, filed an Amended Defence, which deleted these specific allegations and alleged:
Notwithstanding the final state of the pleadings, both parties led evidence as to the actual user of the premises by the defendant over a period of some 5½ years since he first occupied them. It is common ground that the defendant first occupied them. It is common ground that the defendant first occupied the premises on 15th February 1975, under a written tenancy agreement for three years. That agreement was not put in evidence, but it is also common ground that it contained a term to the effect that the premises were let to the defendant for domestic purposes. It is, also, not disputed that the defendant continued to occupy the premises after the 14th February 1978. 3. Mr. Loong and Mr. Kwan presented their respective cases, and made their final submissions, on the basis that there was only one issue for me to decide, viz. the "primary user" of the premises. The recent decision of the Court of Appeal in CHAN Kwok-kwan v. CHAN Cheong-wai [1980] H.K.L.R. 450 was drawn to my attention, partly to guide me in my approach to the question of "primary user", but mainly to assist me in my assessment of the evidential value, if any, of two certificates of primary user issued by the Commissioner of Rating and Valuation in accordance with section 51(5)(a) of Cap.7. These related to inspec-tions of the premises carried out on 6th March 1978 (Exhibit P3) and 24th June 1980 (Exhibit P4). In view of the dates of these inspections and the fact that the other evidence dealt vaguely with the times of other observations during a period of some 5½ years, I invited the parties' solicitors to address me on the date or dates which were relevant or material to the determination of the primary user of the premises, as this must, in my view, have a bearing upon the relevance and weight of some of the evidence. 4. Mr. Loong contended that I should consider the primary user at the date of the notice to quit. He did not cite any authority for this proposition, but I assume that he had in mind the decision of Judge Hooper (as he then was) in Alice Martha WU Chan v. Peter Hui [1974] D.C.L.R.15, where it was held that the tenant was not entitled to the protection of Part II of Cap.7, since the primary user of the premises was non-domestic at the time of the service of the notice of termination. That decision was cited, with apparent approval, by Bewley, J. in LEUNG Sau-han v. CHAN Loy-fat [1980] H.K.L.R.508, where it was held that the relevant date was the date of the writ, presumably because the landlord was, in that case, seeking to rely on re-entry upon forfeiture for breach of covenant. 5. I see no real conflict between the relevant date selected in that case and the relevant date selected in Alice Martha WU Chan v. Peter Hui, supra. In my view, the relevant date must depend upon the basis upon which a landlord unequivocally indicates his intention to recover possession, by whatever legal processes are available to him. In some cases, service of a notice to quit or notice of termination will be the relevant date. In other cases, the date of the service of a writ will be the relevant date. I would merely add that, having regard to the provisions of section 51(2) of Cap.7, it may occasionally be necessary for the court to examine closely the factual and legal history of the tenancy since its commencement, simply because the deeming effect of section 51(2)(b) may result in the nature of the tenancy changing from time to time. For this reason, I do not think that I can reject as irrelevant some of the evidence I have heard simply because it deals with the actual or apparent user of the premises at times remotely connected to the relevant date or dates. 6. Having regard to the provisions of sections 51(2)(a) and 51(3)(a), I do not think that I can wholly disregard the purpose for which the premises were let to the defendant, although this may not carry much weight against evidence of user for different purposes. If I had to determine such purpose on the basis that the tenancy began after 14th February 1978, when the aforesaid agreement for a fixed term would have expired by effluxion of time, I would feel compelled to say that the evidence before me is insufficient. Section 51(2)(c) of Cap.7 would then operate to oblige me to concentrate on the primary user. However, I consider that I am only concerned with one tenancy, viz. the one which commenced on 15th February 1975. That tenancy has, in my view, always been subject to Part II of Cap.7. There being no evidence of any delivery of actual physical possession of the premises by the defendant to the plaintiff, that tenancy was continued by section 52(1) of Cap.7. Cf. Capital Land Investment Co., Ltd. v. SE Mong-kai [1973] H.K.L.R.371. As I have said, it is not disputed that the written agreement entered into in 1975 contained a term that the premises were let for domestic purposes. Accordingly, by virtue of section 51(2)(a) of Cap.7, the existence of that term becomes "prima facie evidence that the premises are being used for such purpose." 7. I have not overlooked the provisions of section 51(2)(b) of Cap. 7. which appear to contradict the terms of its bed-fellow in paragraph (a) of the same sub-section. (Perhaps they can be reconciled by distinguishing between evidence as to the purpose for which premises were originally let and the presumptive or inferential effect of such evidence, by virtue of the enactment in paragraph (a)). The weight, if any, which I should properly attach to the purpose of the original letting must, in my view depend upon what the legislature intended by the words "prima facie evidence" in section 51(2)(a). I conceive that I must also direct my mind to this question when considering the weight to be given to the two certificates issued by the Commissioner under section 51(5)(a), because the legislature has again declared that such certificates shall be "prima facie evidence of the facts set out there in and of the primary user of the premises on the day on which they were inspected". 8. There are dicta in CHAN Kwok-kwan v. CHAN Cheong-wai [1980] H.K.L.R. 450 (at 455), suggesting that such certificates have no evidential weight, once there is evidence to the contrary. The authority cited in support of what Li, J.A. described as "considerable doubt" on the part of the members of the Court of Appeal (R. v. National Insurance Commissioners, ex-parte Richardson [1958] 2 All E.R. 689) dealt with a statutory provision, which provided:
With respect, I do not consider that this decision supports the wider proposition that when the legislature declares certain facts to be "prima facie evidence", such facts cease to have any evidential weight or value, once there is evidence to the contrary. In my view, the effect of such words is to transfer the evidential burden, but not, of course, the legal burden, to the other party. See Re TUNG Cheung-chun [1970] H.K.L.R. 21. Having achieved that objective, I do not think that the prima facie evidence ceases to be evidence in the case. The weight to be given to it, is another matter. When a statute states that certain matters are to be treated as prima facie evidence it may mean:-
Although I consider that in the context of Cap.7, the legislature intended the expression to have the first meaning, it is unnecessary for me to choose between the two possible interpretations. In my view, very little weight should be attached to the Commissioner's certificates of primary user. The certificates give no indication of the facts upon which the opinion of the Commissioner or his representative has been reached, and section 68(1) of Cap.7 precludes the court from receiving evidence from such public officers. At most such evidence can only have the effect of tipping the scales in favour of the party relying upon it when the other evidence is in a state of equilibrium. 9. I will now turn to the other evidence of primary user. On behalf of the plaintiff, this consists of two photographs of the main door of the premises taken by the plaintiff's son in October 1979 - Exhibits P6A and B - and the plaintiff's own observations during her various visits to the premises from shortly after the commencement of the tenancy until some date in 1979. 10. It is clear from the two photographs, and not really disputed, that the Chinese characters "Tai Wah" (大華) are painted boldly in red on the outside of the main entrance (or iron grille) of the premises. Until, at least, the end of 1978, the defendant ran a shop at other premises, selling garments, under that name or style, and he does not dispute the suggestion that they were painted thereon before the end of 1978. This evidence, in my view, affords some support for Mr. Loong's submission that the premises were being used as a garment factory for the defendant's retail shop, especially in view of the defendant's explanation for placing these Chinese characters on the entrance to the premises. I find it difficult to accept his explanation that it was for the convenience of his friends and those who knew him. However there is some ambiguity in this explanation, which was not clarified or explored at the trial. It may be that these characters were painted on the main door as a direction sign to his business friends and acquaintances who only knew him as the proprietor of the "Tai Wah" shop. It may have been intended as a guide to some of his suppliers, as he did admit that part of the premises were used to store cloth or materials used in connexion with his business from time to time. It may be that more could have been made of this aspect of the evidence, but having regard to the manner in which it was dealt with, I feel unable to draw any reliable inferences, either way, which might assist me on the question of the primary user of the premises. I would observe that the significance (if any) of this evidence relates to a period ending on 31st December 1978, when, as I find as a fact, the business carried on as the "Tai Wah" shop ceased. Furthermore, the presence of these Chinese characters on the main door was not mentioned by the plaintiff, in her evidence, as a feature which caused her to come to her conclusion that from "shortly after" she let the premises to the defendant (i.e. in February 1975) the premises were being used as "a garment factory". The supposed significance of their presence on the main door was not apparently appreciated until October 1979 when the plaintiff's son took the photographs (Exhibit P6A & B). Although that observation is more proximate to the material dates, it occurred some ten months after the closure of the "Tai Wah" shop. Having regard to the reasons for the closure of that business given by the defendant, which I accept, the presence of these apparent indications of a business activity being carried on at the premises can easily be explained by the inertia to be expected after personal and commercial tragedies. I accept the defendant's evidence that he gave up the shop in order to look after his wife, who was in bad health, and his family. I also accept his evidence that his wife died in February 1979. This evidence has not been challenged by the plaintiff. In all the circum-stances, I conclude that I cannot derive much assistance from the presence of these Chinese characters on the main door of the premises. 11. I turn now to the evidence of the plaintiff's own observations. Her general impression that the premises, or the part which she actually observed, were being used as a garment factory from shortly after the commencement of the tenancy, in 1975, was partly fortified by some details of what she saw at the premises. Although it eventually emerged that some of her detailed observations coincided with the evidence and admissions of the defendant, she adhered adamantly to her view that the premises were, at all material times, being used as a "garment factory". Even if I were to accepts her evidence on matters of detail where it differs from that of the defendant - for example, on the number of sewing machines, or types of irons, or persons engaged in tailoring work, observed in part of the premises - I do not think that I could properly accept her general impression that the premises were being used as a "garment factory". She was singularly unwilling to qualify or modify her general impression or opinion, in the light of subsequently elicited features clearly suggesting some substantial domestic user, such as the presence of the defendant's two young children on weekdays and weekends, as well as a refrigerator, a sofa and various cooking utensils. She eventually admitted that there was a small partitioned room or space near the balcony, but never bothered to find out what it was used for. She was extremely vague and hesitant in her answers to questions regarding the manner in which the premises were partitioned. It eventually emerged that alterations to the internal lay-out of the premises, which she originally suggested were carried out by the defendant after he occupied them in 1975, had in fact been carried out before the defendant went into occupation of the premises. Furthermore, she gave what was, in my view, an unsatisfactory explanation of her failure to take prompt action upon discovering, according to her evidence, quite flagrant breaches of the terms upon which the premises were let to the defendant. She claims that she objected to the non-domestic user shortly after she first discovered it, early in 1975, but did not take any action because the defendant indicated his intention to stay in the premises until his 3-years' term expired. This may ex-plain her failure to enforce her supposed legal remedies at that time, and for the next two or more years. But, she has not offered any explanation for the delay of some twelve months, between 14th February 1978 - the notional end of the 3-years' term - and the service of the notice to quit (or notice of termination). 12. I do not know when the plaintiff first sought expert legal advice, and I would be reluctant to decide an issue against her solely on the ground that her conduct may be inconsistent with her actual or supposed legal rights and remedies. But I cannot believe that she was totally ignorant of her rights as landlord of the premises. In March 1978, she had obtained a certificate of primary user from the Commissioner under the provisions of Part II of Cap. 7. Although that certificate was in her favour, she took no positive action for at least a year. 13. Taking all these considerations into account I am not persuaded that I should accept the plaintiff's description of the user of the premises. Indeed, where her evidence conflicts with that of the defendant I prefer that of the defendant. This shows, in my judgment, that the undoubted non-domestic user of the premises is consistent with the original purpose of the letting. I find as a fact that the non-domestic use of the premises has, at all material times, been consistent with what has been quaintly described in many cases as a "cottage industry". In matters of particularity, I regard the defendant as a much more reliable witness. In addition to the items of domestic furniture which the plaintiff eventually admitted were in the premises, I find as a fact that in the area between the main entrance and the balcony, which is and was partitioned into two bedrooms, there were a combination cabinet, T.V. set and a table used for meals. I also find that there were only two sewing machines and ordinary irons in that part of the premises seen by the plaintiff during her visits. These and the other features consistent with domestic user, which I have mentioned, point, in my view, to the premises being used predominantly for domestic purposes. 14. I accept the defendant's explanation that his wife used part of the premises for finishing piece-goods and training others in tailoring prior to her final break-down in health, and that he also used part of the premises for storing goods required for his shop. However, I think that his estimate that each of these activities or uses occupied about one-tenth of the area of the premises must be approached with some caution. But even if one doubles these estimates, to take account of the likelihood that the defendant may have spent more time at the premises exercising his skills as a tailor (after the cessation of his trading activities), although he testified that these were done at his brother's premises in Wong Chuk Street, and to take account of the arrival, in 1979, of two nephews, who are also tailors and may have done some work in the premises, I still think that the non-domestic user of the premises was less than the domestic user thereof. 15. At the end of 1980, the defendant acquired other premises in the same building. This fact emerged from cross-examination of the defendant. However, Mr. Loong did not seek to attach any significance to this at any stage, and I do not think that it carries any weight. Although, it might be regarded as an attempt to gain a tactical advantage after these proceedings were threatened by the notice of termination, it is in my view more consistent with a desire on his part to start up again a business of his own, and a recognition that he could not do so at or from the premises, because he needed them as a home for himself and his growing family. I accept his evidence that in 1981, he was living in the premises with his daughter, two sons and his mother-in-law. In 1979 and 1980 his two nephews were also residing in the premises. 16. Although I was referred to CHAN Kwok-kwan v. CHAN Cheong-wai [1980] H.K.L.R. 450, neither party's advocate invited me to embark upon anything resembling the arithmetical analysis conducted by the Court of Appeal in that case. Nevertheless, I have found it useful to do so as a means of testing the conclusions I have reached, based on the totality of the evidence. 17. The evidence of square footage was scant, but from the scale plan annexed to the plaintiff's title deed (Exhibit P1), the total area of the premises amounts to approximately 534 square feet. The balcony takes up some 167.5 square feet. I find as a fact that this was separated from the rest of the premises by a partition, and that the balcony was divided into two rooms used as bedrooms. This part should be treated as 100% domestic. On this basis, it would be necessary to show that an area of 267 square feet (or about 73%) of the rest of the premises was devoted exclusively to non-domestic use before one could find an overall balance of non-domestic use for the entire premises. Even if one doubles the defendant's estimates of the proportion of the premises taken up by the sewing machines and the storage of goods (i.e. from one-fifth to two-fifths) the area of exclusive non-domestic use would not exceed 212 square feet. That would fall short of the amount required to show 51% of non-domestic use for the entire premises. Accordingly, I consider that this brief and somewhat crude analysis, does not cause me to entertain any sub-stantial doubts or reservations regarding the conclusions I have reached on the totality of the evidence. For the sake of completion, I would remark that no evidence has been adduced as to the gross profits from the non-domestic user of the premises, and I am satisfied that the only persons who have been engaged in using the premises for non-domestic purposes were, at all material times, dwelling in the premises. 18. For all these reasons, I do not consider that the plaintiff has proved, on the balance of probabilities, that the primary user of the premises, at all material times, was non-domestic. On the contrary, I am satisfied that the defendant has amply proved, on the balance of probabilities, that, at all material times, the premises have been primarily used for domestic purposes. The plaintiff has not proved any ground for possession under section 53(2) of Cap.7. Accordingly her claim for possession of the premises must be dismissed, with costs of the action to the defendant on the upper scale. The plaintiff's claim to arrears of rent and/or mesne profits is catered for by the order for interim payment made on 1st May 1981. That order is now discharged without prejudice to the plaintiff's right to levy execution thereon in respect of any non-compliance therewith prior to the date of this judgment, No evidence has been adduced in support of the plaintiff's claim in respect of rates. That is also dismissed.
Representation: Mr. M.I. Loong (Messrs. Yu, Tsang & Loong) for plaintiff. Mr. John Kwan (Messrs, Samuel Soo & Co.) for defendant. Date of Hearing: 6th August, 1981 |
Other judgments that cite this case