Kong Meau Co. Ltd. v. Tse Moon Kam Mackin

HCA011348/1997

HCA 11348/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11348 OF 1997

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Coram : The Hon. Mr. Justice Waung in Court

Dates of Hearing : 3 - 5, 10 and 11 November 1999

Date of Delivery of Judgment : 11 November 1999

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J U D G M E N T

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1. This is an action by the Plaintiff against the Defendant arising out of the dispute over a car parking space in a building called Golden May in Kowloon Tong which was let by the Plaintiff to the Defendant. The letting was on a monthly basis and the notice period for termination was agreed at the trial to be one month.

2. The Defendant Mr. Tse was, at the material time, owner of three vehicles: a Ford which was the car in question, a Landrover and a Mercedes Benz. He unfortunately, however, did not have the use of three legal parking spaces. He rented the car parking space in question from the Plaintiff and that allowed him to park one car. He had another parking space in other building but for the third car, he had to resort to parking in an illegal parking space on a first-come-first-served basis.

3. Mr. Tse lives on a top floor of a building known as No. 12, Sau Chuk Yuen Road, across the street from Golden May Mansion. The car park in question was rented from the Plaintiff who was the owner of something like 16 units in Golden May. The Plaintiff was also the owner of a large number of car parking spaces, something like 13, 14 or 15 spaces. What caused the problem was that in the beginning of 1997, as a result of the Plaintiff's dispute with some of the owners in Golden May, the Plaintiff found itself in need of the particular parking space which had been let out to the Defendant.

4. In April 1997, the big boss of the Plaintiff, Mr. Patrick Chen instructed his driver, Mr. Lam, to give notice of the termination of the letting of that car parking space. Mr. Lam accordingly, that was in April, went to the premises of the Defendant and served the letter of termination which can be found at p.103 of the bundle. The notice itself said that the car parking space would be returned and the tenancy terminated on 12th May. The dispute at the trial was whether Mr. Lam had gone to the wrong address to serve the notice.

5. In May, the Defendant requested for a one month extension and there is no dispute that the Plaintiff had agreed to the one month extension and accepted a cheque for the May to June period.

6. In June, there was the further evidence that the parties were in discussion in the manner which I will describe later, whereby the one further month of extension was granted to the Defendant for the use of the car park and the cheque for the period June to July was accordingly accepted by the Plaintiff on that basis.

7. There was a service of what was said to be a confirmation letter around early July and that document can be found at p.105 of the bundle. When the purported termination of the permission to park on 12th July took place, the Plaintiff found that the Defendant had left his car Ford parked there and that Ford car remained there from 13th July until just before Christmas Eve in 1997.

8. Around 19th or 20th July there was a putting up by the Plaintiff of Signs which gave notice that all outside cars were not permitted to come in and anyone in breach would have the car impounded. The notice in Chinese characters can be found in photographs 2, 4 and 11 of Exhibit P1.

9. Around 2 or 3 days after the impounded notice was put up, the Defendant, notwithstanding also oral warning to remove the car, did not remove his Ford car parked at the parking space in question. The Plaintiff therefore on 22nd or possibly 24th July, caused the Defendant's car to be impounded. The photographs at p.202 show clearly the impounding of the car.

10. On 22nd September, a letter was written by solicitors for the Plaintiff, Baker & McKenzie addressed to the Defendant demanding that he should move the car and saying that despite repeated requests, the car had not been removed and also requiring payment of sum $3,090 for impounding car expenses. Notwithstanding that letter from Baker & McKenzie on 22nd September, the car was not removed.

11. On 25th October, the Writ in this Action was issued and the Writ claimed among its reliefs for (a) vacant possession of a car park; and (b) injunction to restrain the Defendant whether by himself, his servants or agents or otherwise from remaining on or continuing the occupation of the car park and (c) damages. A ground of the complaint in the Statement of Claim is that the Defendant had been in unlawful occupation of the car park. On 24th November, the Plaintiff sensing that it might be playing into the hands of the Defendant decided to release the impounding of the car and the car was eventually removed on 23rd of December.

12. The Action however continued because the Defendant refused to be responsible for the unlawful occupation of the car park space and alleged that there was no lawful termination of the tenancy on 13th July.

13. Before me in this Action, there are three large issues which fall to be decided. The first issue is whether there was lawful termination of the car park tenancy on 12th July. The second issue is what would be the damages payable by the Defendant to the Plaintiff in respect of the unlawful occupation if the court should find there was lawful termination of the tenancy. The third issue arises out of the counterclaim of the Defendant, namely irrespective of lawful or non-lawful termination on the tenancy agreement, whether the Plaintiff was liable to the Defendant for having caused damage to the Defendant's car in the sense of repairs required to be undertaken to the car.

14. Before I turn to consider the issues in some detail, I should first give my assessment of the credibility of the witnesses because as both parties had acknowledged from the very beginning of the case that this Action largely turns on the credibility of the witnesses.

15. For the Plaintiff, Mr. Patrick Chen, the big boss of the Plaintiff gave evidence. I found him to be an attractive witness. He gave his evidence well, truthfully and he was ready to concede any mistake whenever it was pointed out to him. He was sensible. He was responsive and I found him to be a wholly reliable witness. I accept without question his evidence.

16. Another witness of the Plaintiff, in some ways a key witness was Mr. Lam Chiu Ming. He is now aged 77. He was at the material time aged 75. Although of advanced age, he is unquestionably in full possession of his faculties. He is much more intelligent than impression by his outside appearance lead one to believe. His physical movements are limited but his mental abilities are impressive. Occasionally his memory might be less than perfect but I found him to be a wholly truthful witness. His answers very often were short but nevertheless truthful and clear. He supported largely his boss's evidence and I accept their evidence.

17. I now turn to the Defendant's witnesses. The principal witness for the Defendant was Mr. Tse himself. Tse is a business man, probably in his early 40s, bright, educated, a man of the world, a man who is used to dealing in the rough and tumble world of the textile industry. He is successful, boss of the textile company. A man of achievement. He gave extensive evidence before me. He was examined in-chief and also cross-examined. He was never lost for an answer but I found him to be not a reliable witness. He has the ability to go around the corner and he would give justification for everything but his justification bears no resemblance to either common sense or to what the surrounding evidence point to. I gain the impression that he was a man of hauteur and of considerable arrogance, a man used to getting his way and regarded this case as something that he should not be troubled with. I have no confidence that anything he had told me.

18. Mr. Leung, his driver gave short evidence. He was a robust man and a shrewd man was Mr. Leung in my assessment who knew where his bread was buttered. He was not a satisfactory witness.

19. Finally, there was Mrs. Tse who gave quite limited evidence. She supported her husband. I could not say that everything she said was unreliable but I do not find her a witness of truth and I cannot attach weight to her evidence it, especially when it conflicts with the evidence of the reliable Mr. Lam and Mr. Patrick Chen.

20. So far as the three non-independent witnesses of the Defendant are concerned, that is Mr. Tse, Mrs. Tse and Mr. Leung whenever their evidence conflict with the evidence of Mr. Chen and Mr. Lam, I prefer the evidence of the Plaintiff's witnesses.

21. The last witness of the Defendant was a motor mechanic, Mr. Choy. On the whole his evidence did not touch on any controversial aspects of the Defendant's case.

22. I now turn to the issues in the case. The first issue and the main issue is the lawful termination. The evidence of the Plaintiff on this was the service of the April notice letter at the Defendant's home by slipping it under the door because there was no one there. The evidence on that, of course, came from Mr. Lam and I had found that he was a reliable witness. The dispute by the Defendant over that notice was that it was served at a wrong address, that is Mr. Lam must have gone to the wrong address and reliance was placed on Mr. Lam's witness statement where there was reference to his serving the April notice at 3rd Floor, No. 12, A-C and emphasis being made on A to C or A-C. Now the home of the Defendant is agreed at Sau Lai Garden, 3rd Floor at Flat B. Flat B is situated at the front of that building on the left hand side and it can be observed from the front entrance of Golden May. Where the flat of the Defendant was located, there was also an illegal roof structure on top. Lam who gave evidence before me, told me that he went to the place of the Defendant. He told me that he knew the place and that he could see it everyday and he disagreed with Mr. Thomas Chan for the Defendant that he had gone to a wrong address. I have no hesitation in believing that Mr. Lam had gone to the right address in April. There was subsequent evidence that he had also gone there to serve the July notice. So on the proper service of the written notice, I find in favour of the Plaintiff.

23. The effect of that finding therefore would in normal situation be sufficient to dispose of this aspect of the case. But at the stage of final submission, Mr. Thomas Chan stood up and took a point that the written notice of April was nevertheless a bad notice and his point is that because the written April notice was addressed not to the Defendant personally but to the Defendant's company. I ruled that this was not a matter open to Mr. Thomas Chan as the point was not in the pleadings, not in the Witness statements and it was not even in his written submissions and it was not canvassed at the hearing. It was contrary to the whole tenor of the case at the hearing where the dispute was whether the April notice was served in the wrong place. Mr. Chan was very frank in admitting that the point only occurred to him at the last minute when he was on his feet at the final submission. He could have saved himself the trouble of not raising the point as it was a bad point and in any event not a point open to him.

24. The Defendant, however, did not rest the defence merely on the wrong service of the April notice. The Defendant's substantial case which was not in the pleadings, hardly appearing in the witness statements but which came out strongly in the oral evidence led in chief mostly by Mr. Thomas Chan from his client Mr. Tse, was to this effect that Mr. Tse during the period from April onwards was told by Mr. Lam, the driver of Mr. Chen that the car parking space although the Plaintiff wanted it back, would not have to be handed back by the Defendant until such time the Defendant could find another alternative parking space somewhere else. This was not only alleged to have been said by Mr. Lam to Mr. Tse but also alleged to be said by Mr. Lam to Tse's wife, Mrs. Tse and also by Mr. Lam to driver of the Defendant, Mr. Leung. So the question therefore, which was heavily contested at the trial is whether such representations were made. Mr. Lam denied the allegation.

25. Apart from credibility of the witnesses from the two sides, there is the inherent improbabilities of the surrounding circumstances. There is no doubt that the April notice was a genuine notice, namely it was a genuine document that came into existence already in April. There was no attack by the Defendant on the authenticity of that document. If in April, the Plaintiff in the form of big white chief Mr. Patrick Chen already was serving or wanting to serve such a notice (taking back the space and giving only one month), is it at all likely that his servant or employee in the form of the driver, Mr. Lam, would be making an agreement or even representation that the Defendant could stay on in the car parking space until such time indefinite in the future as the Defendant might be able to find a parking space? For me, it is inconceivable.

26. There is, however, a further aspect and this comes out even in Mr. Tse's own evidence, that is from April onwards he was desperately looking, with the help of all the drivers and all the people he knew around the area, for an alternative parking space. This has all the hallmarks for someone who had been given a limited time to go, and therefore he was desperately trying to find quickly an alternative parking space. This can only be consistent with his knowing that he was told to go and that was by his having received the April notice. I have no doubt at all that from April 1997 onwards, Mr. Tse knew that he was told to go and that he must go within one month which explained the actions that he took, namely desperately trying to find an alternative parking space.

27. This being the case on the 13th May the tenancy came to an end, unless the Defendant managed to secure from the Plaintiff a one month extension and the burden is on the Defendant to show that he managed to secure one extension or two extensions. Now there is no dispute that in May, the Plaintiff agreed to the one month extension thereby terminating the permission to park on 12th June. On that basis, the Plaintiff accepted cheque given in May for the May/June period. Then, we come to June. The evidence on June is the critical evidence. There is a substantial dispute on what happened in June. The evidence from the Plaintiff's side was that Mr. Lam, the driver in fact told Mr. Leung that this extension was the last, namely that it expired on 12th July 1997. It was on that basis and after Mr. Patrick Chen was given the assurance by Mr. Lam that Leung had fully understood this that the June cheque covering the period June to July was accepted by the Plaintiff. The case of the Defendant was that there was already back in May and April, the general concession made by Mr. Lam to Mr. Tse, Mrs. Tse and Leung that the space would not have to be vacated until Defendant found alternative parking space. As I indicated earlier, I prefer the evidence of the witnesses of the Plaintiff. There is further the confirmation letter of 3rd July which also supports the Plaintiff's case.

28. I have no doubt that the Defendant knew very well from June onwards that this was the last extension and that he must go by 12th July. Therefore, he knew very well that from 13th July onwards, he would be a trespasser by leaving his car at the parking space. And this is what happened. He left the car there. He had no choice because he had not found other space. I think he said in his evidence that he found another space sometime on 10th July but that space would not be available until the end of month, I think 1st August.

29. Mr. Tse being the arrogant man he was took the chance. He knew he was supposed to move the car but he had no space. He could not leave the car on the street. So he just left it in the car parking space, even though the term had expired and he would be parking as a trespasser. The evidence of the Plaintiff was that soon after the driver was warned to take the car away. There was also the notice put up a few days before 22nd July. For the reasons given above, I find and I hold as a fact that the car parking lease had been terminated on 12th July and that from that time onwards, the Defendant was in unlawful occupation of the space.

30. I now turn to issue 2. Issue 2 is really a short issue. It is whether the Defendant is liable to the Plaintiff for the unlawful occupation of the space. Quite extraordinarily, counsel for the Defendant contended and tried to argue for non liability to pay, notwithstanding the fact that the Defendant was a trespasser at that space and the Defendant had not moved the car away after the 13th July and notwithstanding the repeated notices which had been given by the Plaintiff to the Defendant in the form of oral notice, the Impounding Signs as well as the letter of 22nd September and the issue of the Writ. The assertion of Mr. Thomas Chan of the Defendant is that the Defendant is not liable to pay any sum to the Plaintiff except impounding charges. That contention is reflected in the following sentence of his skeleton argument:

"The unavailability of the said car park space was caused entirely by the deliberate act of Plaintiff when impounded the Defendant's car is not caused by Defendant's conduct or responsibility."

That submission has no substance or merit. The Defendant knew he was trespasser. Defendant was told to go. The Defendant refused to go. Defendant should have asked to take his car away when he knew the car was being impounded. He did not do that and this was notwithstanding the oral notice, the Impounding Signs, the written formal letter of Baker & McKenzie and the issue of the Writ asking for injunction and for the Defendant to cease unlawful occupation of the car park.

31. As a result of the Defendant's action the Plaintiff had lost the use of the car parking space for that period of time. It seems to me that it is unarguable that the Plaintiff is not entitled to damages in the sum of $12,000 which seems to me to be entirely reasonable. The Plaintiff had been deprived of the use of the space for that period of time. The Plaintiff has very sensibly abandoned its claim for loss of rent connected with the loss of the use of the car park space. I think the Defendant had been extremely fortunate and should thank his lucky star that he did not have to pay a great deal more damages. And I regret the audacity of counsel for the Defendant. Therefore the Plaintiff must be entitled to the sum of $12,000.

32. I now turn to the third and final issue. This is the issue of the counterclaim. Even if the Defendant suffered loss of $15,000 in relation to the repairs to the car, on what basis could such a claim be made. The case cited to the court of Arthur & Anchor shows that in similar situation such as this, the owner of the land was entitled to protect itself and it seems to me that whatever might have been caused to the car, was entirely the own making of the Defendant. The Defendant should have taken the car away after the time for the lease had expired or at least immediately after it was impounded but he did not do so. In fact it had taken some 5 months for the Defendant to take the car away. The Defendant had taken no steps to protect his car, to take the normal precaution of, for example, dis-engaging its battery, possibly draining the oil and cleaning the filter if he has the intention to allow it to stay there for a long period of time.

33. I am totally not convinced that the repairs done to the car was due to the actions of the Plaintiff or was due to the alleged stationary of the car for the 5 months period. I do not believe that the car had been properly taken care of before July or was regularly serviced. In my view, the alleged damage had not been made out and in any event, there was no basis for the contention of the Defendant that damage to the car resulted from the actions of the Plaintiff.

34. I therefore conclude in favour of the Plaintiff on all the issues. The Plaintiff is entitled to judgment for $12,000 plus interest thereon at 3% above prime from the date of the Writ.

Representation:

Mr. Maurice J. Chan instructed by Messrs. Baker & McKenzie for the Plaintiff

Mr. Chan Chun Yee Thomas instructed by Messrs. Peter W.K. Lo & Co. for the Defendant