Au Yeung Yin v. Lam Sun

HCA001609/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 1609 OF 1973

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Coram: Li, J. in court.

Date of Judgment: 3rd May, 1974.

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JUDGMENT

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1. This is an action for possession of a premises under the former Tenancy (Notice of Termination) Ordinance, Chapter 335, which has been incorporated into the Landlord and Tenant (Consolidation) Ordinance, the relevant section and counterpart is to be found in section 122 of the Landlord and Tenant (Consolidation) Ordinance, Chapter 7.

2. It is common ground between the parties that the plaintiff is the landlord of the property in question, namely, No.6 Hart Avenue, ground floor, Kowloon (hereinafter called the suit premises), and that the defendant is the tenant. It is also agreed that the suit premises is part of an entirely new building, and that no key money had been received.

3. The plaintiff's case is that the premises was let to the defendant for business user and that the defendant's case is that the suit premises was let to him for domestic use or primarily for domestic use. The plaintiff's evidence is that in the year 1965 she purchased the suit premises at the price of $75,000 with vacant possession from the defendant who was the then registered owner. After a 10 per cent of the purchase price as deposit was paid the defendant said that he had difficulty in finding alternative accommodation for his business. At that time the defendant was carrying on the business of tailoring in the suit premises. As a result $5,000 of the purchase price was deducted so that the plaintiff paid the defendant only $70,000 retained $5,000 on the defendant's undertaking that he defendant would move out of the suit premises within the six months the $5,000 would be given back to the defendant. The defendant failed to move out within six months and henceforth the plaintiff retained the $5,000 as deposit. Mr. LAI Ngan-yau, husband of the plaintiff, said that he was the one who negotiated the purchase and the negotiation and allowed the defendant to remain in the suit premises. According to Mr. Lai, the defendant remained in occupation and paid the plaintiff $1,000 per month, Mr. Lai emphatically denied that the $1,000 represented any rent. Subsequently, this $1,000 was raised to $1,200. In November 1972 notice of termination was served upon the defendant to terminate the tenancy by the 31st May 1973. The defendant failed to move out. In July, 1973 Mr. Lai went with a photographer Mr. HUNG Sai-kang to take a series of pictures of the suit premises as shown in Exh.6. These show that the whole premises and the vast area of the suit premises was being used for business purposes. These are particularly shown in Exh.6G to 6L. He says that the sketch prepared by the defendant, Exh.8, is not a true picture. Even at the time when he saw the premises in July 1973 the whole flat was a completely open space like a hall and workmen were working there. There was only one small fitting room and one small office, and all the partitions in the premises were all fitted in after the termination of notice had been served. I should also mention that the photographer, Mr. HUNG Sai-kang says that he went in to take a series of pictures under the general supervision of Mr. Lai and that he took pictures of practically every room but that he was prevented from going into the rooms to take pictures by the defendant's daughter.

4. The defendant, Lam Kwong and his son, Lam Wai-ming give evidence. The defence evidence is that the defendant was the registered owner of the suit premises from 1958 to 1965. The family used to live in No.32 Hankow Road. When in 1958 the defendant acquired the suit premises he intended to use it for business purpose by opening up a shop-front, Later he found that it was not possible. Around the early sixties No.32 Hankow Road was demolished. He moved into the suit premises and he and his family had been living there ever since. He said that the majority of the area of the suit premises was used for domestic purposes leaving only 25 per cent of the area for business purpose. A sketch was made in Exh.8 to show the rooms which were occupied by the defendant's family and one sub-tenant. A small proportion of the suit premises was used for tailoring business. Exh.7, photographs taken by the son Lam Wai-ming, has been produced showing the condition of the various cubicles and rooms partitioned off for domestic purposes and the small space that has been used for tailoring business.

5. This then is a case where the question whether the suit premises were used primarily for business purpose or for domestic purpose is in issue. The defendant said that in 1958 he acquired the suit premises partly for business and partly for domestic purposes but basically for domestic purposes and so used it. When he sold the suit premises to the plaintiff in 1965 it was negotiated that he should remain as a sitting tenant paying rent for $1,000 a month with a deposit of $5,000 for rent. This may be material because, having regard to the provision of paragraph (b) in sub-section (2) of section 52 of the Landlord and Tenant (Consolidation) Ordinance. This paragraph (b) provides:

Paragraph (c) of the same sub-section provides:

Subsection (3) of section 52 provides that:

6. First of all, having considered the whole evidence, I find that there is some exaggeration on the part of both parties. The plaintiff's evidence as produced in the photographs do not present the full picture of the suit premises. Having compared the photographs Exh. 6G to 6L, I find that 6H to 6L are really photographs of the same area of the premises taken at different angles. There are no more than four sewing machines in that area. The photographs of the cubicles present only one side of the cubicles. The photograph said that he had tried to take photographs inside the cubicles but he was being prevented from so doing by the defendant's daughter. But he had taken only photographs of some rooms, one or two rooms. None was taken of rooms4 and 5. Besides, there is evidence that Mr. Lai was a trained detective prior to his retirement. I am certain that when he went to take photographs with a photographer he would have told the defendant the purpose of such photographer. I am certain the defendant, having heard that, would be only too anxious for him to allow the photographer to go inside the cubicles if there were any bedding and beds in such rooms. If there was no bedding and beds inside the rooms the plaintiff would only be too pleased to take photographs of the rooms. The photographs in Exh.7 well show the suit premises as a whole in a far better and fairer proportion. They show the inside of the rooms. They also show the area which is not materially altered from the position of the pictures taken in July, 1973 by the plaintiff. I find that Exh. 7J and 7K of the same area as shown in Exh.6G to 6L show roughly the same layout. Instead of putting so many pictures in one area, they have shown an overall picture of practically every cubicle and every part of the suit premises. Exh.7 was taken in September/October 1973 just as Exh.6 was taken in July, 1973. Both sets of pictures were taken at a time which should not be material. The material time was to be found at the time when the notice of termination was being served. However, the presention of photographio evidence does indicate the degree of exaggeration or fairness of the parties.

7. The defence also produced, in an agreed bundle, Exh.5, which is a certificate of user by the Commissioner of Rating and Valuation, certifying that the user on inspection on the 13th of August of the suit premises was for domestic purposes. The suit premises were inspected and a certificate issued long after the notice of termination had expired. But the occupation permit, Exh.3, which is to be considered as provided in subsection (3) of section 52 show that the occupation permit was granted for occupation of the building for domestic purposes.

8. To my mind, a lot of this documontary evidence, except the occupation permit, are really evidence obtained after the notice of termination expired. Thus it is really difficult to say from such evidence whether the suit premises were in fact used for domestic purpose or for commercial purpose. On the balance of probability, I say that Exh.7, the defendant's photographs, present a fairer picture than the evidence in Exh.6. It goes back then to the conflict of evidence between Mr. Lai, the plaintiff's husband, and that of the defendant and his son. On the balance of probability again, I feel that the son of the defendant has given a clear picture as to occupation and how the premises were used. That is not all. In a suit like this, the burden of proof is always on the plaintiff. He has to prove that the premises were in fact used or business purposes and I find that he has failed to discharge this burden. Accordingly I will dismiss this action with costs.

Representation: