Leung Shuk-fong v. Lee Luen

DCCJ003255/1974

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO.3255 OF 1974

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Coram: Liu, D.J., Q.C. in Court.

Date of Judgment: 15 October 74

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JUDGMENT

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1. The Plaintiff is the landlord and the Defendant is the tenant of the suit premises which form part of a post-war building. By a six months' Notice of Termination dated the 26th October 1972 ("P5"), the Defendant was requested to quit the suit premises. It was disclosed in Mr. Mo's submission that the Plaintiff thereafter accepted rent. At the expiration of a further six months' Notice of Termination dated the 17th September 1973 ("P3"), by the present writ the Plaintiff sought to recover the suit premises from the Defendant. In fact, in October 1972, the Plaintiff caused to be obtained a Certificate of Primary User dated the 23rd October 1972 ("P2") whereby the Commissioner of Rating and Valuation certified the primary user of the suit premises as non-domestic as at the date of inspection on the 18th October 1972. In October 1973, the Defendant caused to be obtained from the Commissioner a like Certificate to the effect that the primary user of the suit premises was domestio as at the date of inspection on the 15th October 1973 ("P4").

2. In substance, solicitor for the Plaintiff rests his case on the 1972 Certificate ("P2") and the 1973 Notice of Termination ("P3"). The abovementioned documents together with an Occupation Permit ("P4") were produced by consent. Both parties were content to stand or fall on these documents, and no viva voce evidence was called. It was urged upon me by solicitor for the Plaintiff that since the primary user of the suit premises was certified by "P2" as non-domestio on the 18th October 1972, such non-domestic user must be presumed to continue until shortly before the change of user as acknowledged by the Commissioner on the 15th October 1973, the date of the subsequent inspection referred to in the 1973 Certificate "P4", and that there fore at the date of the Notice of Termination "P3" i.e. 17th September 1973, the suit premises must have remained primarily non-domestic. Solicitor for the Plaintiff craved in aid the decision in Alice Martha Wu Chan v. Peter Hui K.C.J. Action No. 3253 of 1974 (1) in which Judge Hooper ruled inter alia that the material date for deciding the question of primary user for alleged business premises is the date of senvice of a Notice of Termination and with which I agree. Thus, Mr. Mo contended that his client was entitled to serve the said Notice of Termination "P3" and recover possession of the suit premises.

3. S. 51(6) in Part II of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 provides that such certificates shall be prima facie evidence of inter alia the primary user of the premises on the date on which they were inspected. The nature of similar certificates under S.4(2) of the Rent Increases (Domestic Premises) Control Ordinance 1963 has been criticised in LI Yin-man v. NG Sik ⁽²⁾ as an exercise in futility. It would not be impertinent here to refer also to the remark of Blair-Kerr J. in CHU So v. CHIU Ki-sang ⁽³⁾ that the Commissioner's certificate under that 1963 Ordinance "is of very considerable evidential value". What role a Certificate of Primary User can play must be judged, in my view, on the particular facts in each case.

4. "Presumption of continuance" is not really so much a presumption of law, but is essentially a presumption of fact. It was well said by Denman C.J. in R. v. Inhabitants of Harborn⁽⁴⁾ "that nothing can be more absurb than the notion that there is to be any rigid presumption of law on such question of fact, without reference to accompanying circumstances, such, for instance, as the age or health of the party. There can be no such strict presumption of law. I think that the only questions in such cases are, what evidence is admissible? and what inference may fairly be drawn from it?" From any given fact, it may be inferred that the same state of affairs had continued to exist in the recent past prior to the date of discovery of such given fact or has continued to exist for a reasonable time thereafter. An example of the former cases can be found in Doe v. Fuchau⁽⁵⁾where insufficient distress on demised premises at a certain date was held to be prima facie evidence by inference of such insufficiency at a prior date. An example of the latter cases is the Governors of Magdalen Hospital v. Knotts,⁽⁶⁾ where proof of ownership in 1763 was admissible as prima facie evidence to establish by inference that such ownership had continued to exist in 1783, some twenty years later.

5. Here in this case, we have the 1972 Certificate "P2" which is prima facie evidence that the suit premises were primarily used for non-domestic purposes on the 18th October 1972. It is permissible for me to draw an inference from such fact that the suit premises were so primarily used for business purposes for a reasonable time before and after the 18th October 1972 From the 1973 Certificate "P4", it would be equally open to me to draw the like inference that for a reasonable time before and after the 15th October 1973 the suit premises were primarily used for domestic purposes. In another words, in the light of these two conflicting certificates, obviously the primary user was changed from business to domestic between 18th October 1972 and 15th October 1973. There is hardly any justification to infer from the facts contained in these two certificates as to precisely when such change of user was brought about. The relevant Notice of Termination ("P3") is dated the 17th September 1973, that is to say, some 11 months after the inspection for the business user Certificate ("P2") and only some 28 days before the inspection for the domestic user Certificate ("P4"). Upon the balance of probabilities, it would seem more likely than not that the primary user had switched back to domestic by the date of the Notice of Termination on which the Plaintiff now relies. However, in the circumstances of this case I would decline to draw any inference as to the time at which the change of user occurred.

6. This is enough to dispose of this action. However, no date of service of the Notice of Termination is pleaded in paragraph 4 of the Particulars of Claim; nor is user at the material time pleaded therein. In the result, the Plaintiff's claim lacks the necessary ingredients to found a good cause of action.

7. I hold that the Plaintiff has failed to establish the primary user at the material date. Even if I were wrong, as there is no evidence before me of the date of service of the Notice of Termination and of actual primary user at the material date, the result for the Plaintiff would not have been different. For these reasons, this action is dismissed with costs on the upper scale.

Representation:

(1) Unreported, the judgment of which was delivered on the 12th July 1974.

(2) 1964 DCLR 268 at P. 269.

(3) 1965 HKLR 446 at P. 450

(4) (1835) 2 Ad. & El. 540.

(5) 15 East. 286 at P. 287.

(6) (1878) 8 Ch. 709.