Virginia Moh Pedron v. Chan Suk Chu
Read the full judgment text of DCCJ 1744/1980 on BabelCite. This District Court judgment was delivered on 8 August 1980.
1. It is admitted that the plaintiff is the registered owner of Flat A10 on the 18th floor of Pearl City Court, Hong Kong erected on Section A of Marine Lot No. 231 and Section B of Marine Lot No. 231 and she seeks possession of these premises from the defendant pursuant to Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7 of the Laws of Hong Kong.
|
DCCJ001744/1980 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 1744 OF 1980 -----------------
----------------- Coram: H.H. Judge Caird in Court Date of Judgment: 8 August 1980 ----------------- JUDGMENT ----------------- 1. It is admitted that the plaintiff is the registered owner of Flat A10 on the 18th floor of Pearl City Court, Hong Kong erected on Section A of Marine Lot No. 231 and Section B of Marine Lot No. 231 and she seeks possession of these premises from the defendant pursuant to Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7 of the Laws of Hong Kong. 2. It is also admitted that these premises form part of an entirely new building within the meaning of Section 3(1)(a) of the said Landlord & Tenant (Consolidation) Ordinance and that these premises were let to the defendant for domestic purposes at the monthly rental of $1000 and that no key or construction money or other premium has been paid by the defendant to the plaintiff. 3. The plaintiff bases her claim for possession upon the ground that she requires the said premises for occupation as a residence for herself, her youngest daughter aged 20 and her son aged 17. There was reference in the pleadings to "daughters" but the evidence, in my view, made it quite clear that there is only one daughter who would accompany the plaintiff if she were to obtain possession. 4. The principal witness called on behalf of the plaintiff was her 20 year-old daughter, Clare Pedron, and much of her evidence was hearsay. This evidence was adduced without objection from Mr. Glass on behalf of the defendant as it was made clear by Mr. Sit for the plaintiff that he felt that he could not call the plaintiff as the main witness to carry the crux of this case because of her allegedly poor state of health. I shall have more to say about her state of health later. Accordingly the case proceeded with the evidence of Clare followed up by the evidence of her mother, the plaintiff, who confirmed what Clare had said. I am indebted to both Mr. Sit and Mr. Glass for proceeding in a practical and humane way in adducing evidence on behalf of the pleaintiff. 5. The Section with which I am concerned was substantially amended on the 15th day of February this year by Section 5 of the Landlord & Tenant (Consolidation)(Amendment) Ordinance, Ordinance No. 6/80. This was enacted on the 15th day of February 1980 but was made retrospective to the 18th day of December 1979 and reads as follows:
6. In the instant case I am concerned with Section 53(2)(b)(i) which in its effect abolishes the consideration contained in the predecessor, of "greater hardship", as between landlord and tenant and substitutes the criteria that the Court should not make an order if ".... that in all the circumstances of the case it would manifestly not be just and equitable to do so". However, greater hardship remains as the expressed statutory criteria as between a principal tenant and a sub-tenant. 7. I am indebted to my brothers de Basto and Cruden for their careful reasoned judgments in the respective cases Luxor v Hillard(1) and LEE Ho-yuen v. LI Chi and FAN Lai-kee(2). 8. I agree with de Basto, D.J. that the legislature by introducing the word "reasonably" in the amended section has introduced an element of objectivity and that if a landlord establishes on the balance of probabilities that he reasonably requires possession for occupation as a residence for one of the persons specified in the section then he is, as a matter of law, entitled to an order for possession unless and until the defendant/tenant satisfies the Court under Section 53(2)(b)(i) that such an order for possession would, in all the circumstances of the case, "manifestly not be just and equitable". This is dealt with under the heading "2nd step" by Cruden, D.J. in Action 2186 of 1980. 9. As I stated earlier the landlady has two children who would accompany her, so she claims, if she were to obtain an order for possession of the premises in dispute. However, the younger child, Patrick, is aged 17 and accordingly does not come within the ambit of the relatives as defined in Section 53(2)(b). The daughter, Clare, of course at age 20 falls within the classes of relatives enumerated. However, there can be no doubt but that Patrick's position as a dependant son of the plaintiff brings him underneath her umbrella, and this is a factor which in my view must be taken into consideration in determining whether the plaintiff "reasonably" requires the premises in question. Although it does not fall to me to determine the position, I take the view that the relatives listed in Subsection 2(b) are classes of relatives for whom the landlord may reasonably seek possession of domestic premises for their own separate occupation, although he himself may be unable to live on the premises. In this determination I agree with de Basto, D.J. when he follows Smith v. Penny(3). " Just and Equitable" 10. The legislature in its wisdom has chosen the test of "just and equitable" to replace the former test of greater hardship and it falls to me to determine the meaning of these words. 11. It is purely a matter of conjecture as to why the legislature, with the assistance of the draftsman, has chosen these particular words. They are used or rather have been used in other jurisdictions and in many types of situation just as words analogies have been used, for example, "just" or the term "Just and beneficial" "just and proper" "just and convenient" "just and expedient" "just and reasonable". 12. As pointed out by Cruden, D.J. to date there are no Hong Kong decisions binding upon the Judges of the District Court as to the meaning of these words in the context of Section 53, as amended. In these circumstances are most to consider the findings of Hillbury J. in Daniel v. Rickett Cockerall & Co. Ltd & Raymond (4) where he said:
13. I am of the opinion that the legislature intended to create a judicial discretion empowering a Court to refuse to grant an order for possession, even though the landlord has established that the premises were reasonably required by him. Another interesting application by the Courts in interpreting the words "just and equitable" occurred in Collins v. Hentfordshire County Council & another, where Hillbury J. in determining a contribution of liability as between two Tort Feasors both liable in respect of the same damage, held that the contribution was to be apportioned not according to the degree of negligence on the part of each Tort Feasor but according to the relative effect of their acts with regard to causation. 14. In exercising a judicial discretion the Court must determine the issues between the parties in accordance with what it thinks is right as between landlord & tenant having regard, as Section 53 directs, to "all the circumstances of the case". 15. I agree with Cruden, D.J. that these circumstances must be relevant circumstances and that such circumstances, like the categories of negligence will never close, as he said:
16. In my opinion relative hardship is but one factor for the Court to take into account when considering the tenant's claim that an order for possession should not be granted and I am quite satisfied there may be cases where hardship bears heavier on the tenant, than the landlord, but that in the circumstances the tenant may not be able to prove that an order would "... not be just and equitable ...". Hardship, of course, falls into many categories, financial, personal, degrees of health, access to schools, hospitals, doctors (depending upon the health of the parties), size of family of each party and so forth. 17. Historically the words "just and equitable" have had an narrow construction put upon them but during this century in the Courts of the United Kingdom a wider, more liberal construction has been adopted. The first case to broaden the approach of the Courts is that of Re Brinsmead (Thomas Edward and Sons)(5). Although it must be borne in mind that the circumstances of that case involving a company initiated to carry out defraud, were so compelling that a winding up order had to issue. 18. In any event in Hong Kong Section 19 of Interpretation & General Clauses Ordinance, Cap. 1 applies. This provides that every ordinance
19. It was common ground before me and appears to be accepted by my brother Judges in considering Section 53(1)(b) that it was for the tenant on the balance of probabilities to satisfy the Court not only that it would not be just and equitable to grant a plaintiff/ landlord possession but that it would "manifestly not be just and equitable" so to do. 20. As there is a dearth of authority as to the meaning of the word "manifestly" in this context, I accept the views of Cruden, D.J. express at pp. 11, 12 & 13, 14 of his decision V.C.J. 2186 of 1980. And I particularly rely upon the views expressed in, Application for Review of Sentence 1972 H.K.L.R. p. 370 where the Full Court held that the word "manifestly" emphasizes the burden placed upon the Attorney General. 21. I am of the opinion that "manifestly" means "clearly", "Plainly", "unmistakably", "evidently" and that this imposes an additional burden upon a tenant that not only must he prove his case upon the balance of probabilities but that in the words of Cruden, D.J. "A Court should not refuse the landlord an order for possession unless the tenant plainly establishes that it would rot be just or equitable to do so". The matter was put in a somewhat different and expressive way, but to the same effect by my brother de Basto in VCJ 1910 of 1980 when he says:
22. The Plaintiff's case 23. The main witness for the plaintiff was Clare Pedron and as stated earlier she is a 20 year old daughter, a student of Maryknoll College and plans to further her education at tertiary level. I found this witness candid and refreshing and without hesitation accepted her as being patently honest. The second witness called was the plaintiff herself. She was aged 60 and she confirmed the evidence of the daughter adding some fresh material herself. I feel it apposite at this stage to deal with what was in fact the only major conflict of evidence between the plaintiff and the defendant. It was alleged by the defendant that the plaintiff had stated to her that the eldest daughter Antonio had married and emigrated to Canada. The plaintiff denied this and in fact Clare claimed that Antonio was still living in her own Hennessy Road flat which she shared with her mother and youngest sister. I believe Clare, but, I did not altogether disbelieve the defendant. I came to the conclusion that the conversation may have occurred and that the plaintiff in an endeavour not to lose face may have presented Antonio's future plans as being already effected. 24. Another issue involved around the state of health of the plaintiff. There was no medical evidence called and the plaintiff herself gave evidence as to the necessity to have an X-ray or examination of her lungs. She produced an X-ray appointment card in support of this. She also claimed to be suffering from heart troubles in addition to lung problems. It was claimed by her and on her behalf that concern as to her future aggravated this situation. 25. In the absence of medical evidence I am unable to come to any finding as to the precise nature of the complaints allegedly suffered by the plaintiff. However, from my observation of Madam Pedron in the witness box and in the court room itself I was satisfied that she is frail, suffering from a persistent cough and genuinely upset about her present circumstances. Of course I am unable to determine whether her condition is physiologically or psychologically induced. In my view it matters not at all what the underlying cause be. Mr. Glass accepted that the plaintiff's health was not as good as "one would hope". 26. The plaintiff lives with her daughter Antonio in a flat at Hennessy Mansion 16th floor No. B1 and the other occupants are her daughter Clare and her son Patrick. Antonio is a secondary school teacher, unmarried, aged 35 and according to Clare and her mother she has been talking about marriage plans for the past two years and that she does not want to "delay matters anymore" and contemplates leaving Hong Kong. Relations have become strained and the daughter wants her mother, sister and brother to move out of the premises so as she can effect a sale. She had previously contributed to the maintenance of the family but at present gives her mother a lower allowance and "less regular money". She is home less often than previously and claims that her mother, brother and sister constitute a burden to her future career and marriage plans. 27. It is of interest that she became owner of this flat as a gift from her mother some years ago. 28. The plaintiff also has an interest in two other flats in Pearl Court one from which she receives rental at $1500 per month and the other at $1250 per month. These are, according to Clare, in the joint names of her eldest sister and her mother. There are other members of the family who have left Hong Kong and live respectively in Tahiti, the Philippines and Germany. 29. I find the account given by Clare and confirmed by her mother credible and as stated before I have no hesitation in believing Clare. It appears quite reasonable that a spinster of 35 would wish to "fly the coop" and further her career and embark upon marriage. Supporting other members of the family including her mother could well become burdensome after a period of ten or more years. Accordingly I find that there have been tensions within the household at Hennessy Road which have grown and that the plaintiff considers this to be well nigh intolerable and that over the past two to three years she has, in the words of Clare "My mother has become very, very weak with lung trouble, coughing fits and because of the unexpected change of attitude of my sister my mother's poor health became more worse" and that there were a number of arguments. 30. Evidence was also adduced that about March and April of this year the plaintiff and her two children resided in another flat in the same building as the Pearl Court Building, that this flat was one owned by the eldest sister and that in addition to the plaintiff and her two children the flat was occupied by relatives of the eldest sister's boy friend leaving one bedroom to be shared by the plaintiff and her two children. 31. Mr. Glass advanced certain submissions as to the alternatives facing the plaintiff including the possibility of her remaining at the Hennessy Road Apartment. However, I am of the view that it is quite reasonable for the plaintiff to wish to vacate these premises and move to other suitable premises. 32. It was also urged upon me that it was unreasonable that the plaintiff should select the flat returning the lowest rental out of the three in which she had an interest at Pearl Court and then seek an order for possession of this particular flat. It being submitted this was the true basis of the application. In my opinion it is quite reasonable for a landlord to select from a number of flats of equal or similar size and location that which does return the least rent, if in fact the landlord reasonably requires a flat for his own occupation as his residence. This, in my view, would apply if the landlord were in fact the sole owner of all the flats concerned. But in the instant case Madam Pedron is the sole owner of one apartment only, that which is the subject of this dispute, and is a joint owner of the other two flats. 33. Evidence was adduced that at the present premises at Hennessy Road there are three bedrooms, that these premiese are slightly larger than the premises under dispute, that out of the three bedrooms one was occupied by the eldest sister, one by the plaintiff and the third bedroom by Clare and her brother Patrick. This was described by Clare as not being "completely satisfactory" and she explained how one of the children would study in the bedroom and the other would study in the living room. The premises at Pearl Court comprise a living room and two bedrooms. It would appear from agreement reached by the advisers representing both parties, that the Hennessy Road apartment is silightly bigger than the Pearl Court apartment. Although at Pearl Court there are only two bedrooms, living conditions would barely differ from Hennessy Road, in that the plaintiff would have a bedroom to herself and Clare and Patrick would have to share the second bedroom, whereas the eldest sister would either remain at Hennessy Road or if her plans came to fruition she would emigrate from Hong Kong and possibly marry. 34. The defendant alleged in her evidence that the plaintiff was seeking possession of these premises so she could obtain a higher rental and it was asserted and not challenged that a current market rental would be $2000 per month. Of course if the plaintiff were to find alternative premises at the same market rental, that is premises to an equivalent standard, she would have to pay $2000 per month out of her total income of $3750. 35. Some considerations which I take into account "as to whether the premises are reasonably required by the plaintiff for her own occupation" are
36. I am of the view that the plaintiff has satisfied me on the balance of probabilities that the premises are reasonably required by herself for her own occupation. 37. The defendant's case 38. I now turn to consider the defendant's case pursuant to Section 53(2)(b)(i) and observe that it is for the defendant to establish her case on the balance of probabilities. 39. The defendant has been tenant of these premises in question for ten years and was paying $600 per month, but as a result of a recent increase in rental now pays $1000. She resides in the property with her husband, three sons and her son-in-law. Originally the premises consisted of one living room, one bedroom, a bathroom and a kitchen but an additional bedroom has been added by altering the living room. The witness claimed that her husband did not work due to high blood pressure and I accept her evidence that he does not work. Without medical evidence (I place little weight on the certificate produced during re-examination) I am unable to determine the nature of his illness but nevertheless believe the witness when she says her husband cannot work. Her son is a student, and her son-in-law cannot contribute any money to the household expenses because he supports his wife and children in Mainland China. The defendant's two sons each contribute one thousand dollars per month, approximately, for living expenses and with her own earnings of $700 to $800 per month, from sewing, the total available family income is $2700 to $2800 per month. 40. During cross-examination the witness agreed that her son had odd jobs as well as being a student and that he was self-supporting and that her son and son-in-law as restaurant workers had meals at the restaurants where they worked. 41. The defendant claimed that until recently she had enjoyed a good relationship with her landlady, and she gave evidence to the conversation already offered to as to the present status of the plaintiff's eldest daughter. I have disposed of this matter earlier. The witness tells us that a similar flat would cost $2000 per month at current market rental. In essence I believe the defendant certainly as to her family income and as to current market rental and there is no doubt that if an order for possession were made she will suffer considerable hardship by having to pay an additional thousand dollars per month rental if she were to have accommodation of an equivalent standard or to put it in a different way, she would sustain hardship by obtaining premises of a lesser standard. 42. Mr. Glass in his submissions pointed out there is no guarantee that Clare or Patrick, the children of plaintiff, would ever get into university. He asserted that there is no proper reason for the eldest daughter to sell the premises at present occupied and pointed cut the alternatives available to the plaintiff, namely the premises at Pearl Court where the plaintiff and the children resided in March and April this year also he claimed that she could remain in the premises at present occupied by her eldest daughter, herself and her other two children. He submitted that she could claim possession of one of the two other flats of which she is a part owner. Mr. Glass pointed out with some force stating that it appeared strange that the eldest daughter was not interested in these proceedings and suggested that this was somewhat suspicious, that had this daughter wanted to have her mother leave the premises that she would have been eager to attend Court and assist in giving evidence. He stressed that the plaintiff could rely on her legal right to remain in these premises. I refuse to be diverted by this argument as I believe that this would involve a full scale examination of collateral issues as between the plaintiff and her eldest daughter as to whether in fact she was a tenant or a licensee, or whether if a tenant, she was a protected tenant and so forth. 43. Mr. Glass laid considerable stress on the decision in Luxor v Hillard referring to the need for the "bona fide" grounds as there pointed out by de Basto, D.J. He stated that there are a number of highly suspicious aspects to the plaintiff's case as follows:
Mr. Glass then moved on to consider the meaning of the words "manifestly just and equitable" and asserted that it "would not be right to ask the tenant to leave when the plaintiff has other alternatives and that there are so many strange facts" emerging from the plaintiff's case. 44. On hardship Mr. Glass stated that the Court should take the view that there is a slight difference in means and that the landlord was slightly better off and that it was accordingly an easier task for the landlady to find alternative accommodation and suggested that these in view of the circumstances as such, that would be wrong to make an order for possession against the tenant. 45. I take the view that financially there is no doubt there would be greater hardship on the tenant if an order for possession were made. I have considered Subsection b(i) & (ii) together in an attempt to determine whether because of the use of the test "greater hardship" in b(ii) whether this precludes greater hardship as being an aspect coming within the umbrella of "all the circumstances ... not be just and equitable ...". However, I am satisfied that greater hardship is a factor that which must constitute one of the circumstances contemplated by the legislature in enacting Section 53(2)(b)(i). 46. There are the circumstances I have referred to earlier, as to whether the premises are reasonably required by Madam Pedron. Another circumstance which I think of some importance, is that where a landlord has premises suitable for his own occupation and his present housing situation is difficult or near intolerable that this is a circumstance entitling him to seek to make use of those premises which he has been fortunate or wish enough to acquire at an earlier time. 47. I am grateful to Mr. Sit for pointing out to me, the effect of Section 55(8) of the Landlord & Tenant (Consolidation) Ordinance, which provides sanctions, should a landlord misrepresent or conceal material facts from the court. He observed that should the defendant establish that the eldest daughter has left Hong Kong then evidence could be brought subsequently as to this issue. 48. Although there is a considerable hardship operating against the tenant there is also considerable hardship of a different kind operating against the landlord. The plaintiff has potential, and I believe it to be real potential hardship, if she were forced to find alternative accommodation at current market rental. Although it is an oft expressed view, that money is all important in Hong Kong I believe in considering all the circumstances of a case, brought pursuant to this legislation the quality of life sought to be enjoyed by the plaintiff is of considerable importance. In the instant case I am firmly of the opinion that the plaintiff's quality of life would improve if she were to be physically divorced from her daughter and that this would extend to her youngest daughter Clare and possibly to Patrick. Although a lessening of tension may not result in a material improvement to the plaintiff's health (I have no medical evidence as to this) I believe there should be no further deterioration, irrespective of whatever fact is causative. 49. With the utmost sympathy for the defendant and the members of her family, I hold that she has failed to satisfy the Court that in all the circumstances of the case it would manifestly not be just and equitable for the Court to make an order for possession in favour of the plaintiff. 50. According it is ordered that the plaintiff be granted an order for possession of the premises under dispute in terms of the prayer contained in sub-paragraph 1 of paragraph 5 of the Particulars of Claim.
51. There to be a stay of execution for a period of three months from the date of delivery of this judgment. 52. Mesne profits at the rate of $1000 per month during the period of this stay.
Representation: (1) VCJ 1910 of 1980 (2) VCJ 2186 of 1980 (3) 1947 1 K.B. 230 (4) 1938 2 K.B. 322 (5) (1897) 1 Ch. 406 C.A. at pp. 420, 421 (6) 1977 H.K.L.R. p. 523 at p. 530 |