Lee Wai Har v. Paul Cm Tsang

DCCJ002583/1970

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 2583 OF 1970

-----------------

-----------------

Coram: Cons, District Judge

Date of Judgment: 23 September 1970

-----------------

JUDGMENT

-----------------

1. The landlord in this case is a married man with a wife, two children aged 10 and 8 years and a baby of 10 months. Strictly speaking it is his wife who is the registered owner of the premises in question but as only the husband gave evidence before me it will be more convenient to refer to him as "the landlord". The premises he presently occupies together with his wife and family are tied to his employment as an Inspector of the Star Ferry Company Limited. He now wishes to seek other employment, with the natural result that if successful he will immediately lose his present living accommodation. His decision is prompted by the lack of future prospects offered by his present job, now limited, by his having been passed over for promotion, to an annual increment of $30 upon a net monthly salary of $1,704. He would not seem to face any difficulties in finding other suitable employment.

2. The landlord also finds the premises in question more desirable in that although the overall size is possibly little different from that of the flat supplied by his company it is more conveniently divided into one living and three bedrooms, whereas the company flat has a living but only one bedroom. More importantly his children are plagued with recurrent respiratory infection from the atmospheric pollution in the area in which it is located.

3. The tenant is also married with a wife and two children. In addition there live with him his mother, his mother-in-law, two unmarried elder sisters and a ten-year-old niece. His salary is $1210 per month. I do not know the amount of his domestic expenses or of the contributions thereto made by his unmarried sisters. It was suggested that he or those living with him owned considerable real estate in this Colony, but in the absence of the landlord's wife, who was apparently the ultimate source of this information, I am satisfied that it is not true. The tenant can find suitable and similar accommodation elsewhere at an extra cost of $300 per month upwards.

4. The tenant moved into the premises in 1966 to replace a previous tenant. At the time the landlord was away from the Colony but apparently accepted the tenant on his return. The rent was then $600 per month, reduced to $570 in August 1967. As from January 1970 it was reinstated at $600. There is some dispute as to what, if any, negotiations accompanied this matter. There is also dispute as to whether or not the landlord's wife requested a further increase of $150 per month on the 13th of February this year. I have had the benefit of the evidence of only one party to the telephone conversation in which this request is said to have been made, namely the tenant's mother, but I was favourably impressed by that lady and am satisfied that it was so.

5. On the 23rd of April the landlord wrote a personal letter to the tenant asking him to leave the premises within 6 months. He mentioned that he found his company flat too small now that he had three children. No other reason was given. The tenant refused, but specifically left the matter open for further proposals, the expected nature of which has still not been made clear to me. On the 11th of May the landlord's solicitors issued a formal notice to quit expiring on the 13th of June.

6. I would have found it of considerable assistance in this matter to have known the date that the landlord was passed over for promotion and the effect that this would have upon possible subsequent promotion within the same company. Without it I find it impossible to still the suspicion that must inevitably be aroused by a decision to change employment that manifests itself, after some nine years' uncomplaining labour, at a time so convenient in the context of tenancy legislation. The wording of the landlord's letter of the 23rd of April does not suggest any intention to change employment at that time. Taking this together with the request for an increase of rent by the landlord's wife only the previous month, and the denial of that request by the landlord in Court, I have considerable Doubts as to the sincerity of the intention expressed in that letter or in the formal notice to quit given shortly afterwards.

7. I appreciate that this conclusion necessarily involves the assumption that a parent is willing to subject his children to at least some risk to their health. It is an assumption not lightly to be made. But again I have been handicapped by the meagreness of the evidence. I was not told when the pollution commenced in that area; its dangers cannot have become substantial by April of this year or they would surely have been mentioned by the landlord in his letter then. I have no idea how long the pollution is likely to continue; the demolition of old building should not be a very prolonged operation. The doctor's certificate mentions recurrent infection, but it does not give any indication of the extent of the danger to health or whether it might have lasting or permanent effects. A substantial health hazard would be a serious worry to a parent, reflected in every action connected with his children or his home. But the role that this aspect has played throughout this matter inclines me to believe that it is not so great and not sufficient to dispel the doubts I have earlier expressed.

8. For these reasons I am not satisfied that the landlord requires the premises for his own use and his action must be dismissed. Perhaps I should add, in case it may assist him in the consideration of his future conduct, that had my conclusion been otherwise I would not have thought that the granting of an order would have caused hardship to the tenant, although, of course this comment is not binding upon any other Judge. The defendant is to have his costs of this action.

Representation:

Mr. Ip ( Peter Mo & Co. ) for plaintiff.

Mr. Poon ( Deacons ) for defendant.