Kong Bik Ying v. Leung Man Kit and Others

DCCJ009842/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO.9842 OF 1981

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Coram: H .H. Judge Remedios

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JUDGMENT

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1. The Plaintiff is the Landlady of Flat 1106, 10th floor, Block A, I-Feng Mansion.The 1st Defendant has been the monthly tenant of the Plaintiff since the 1st June 1969. It is not denied that the 1st Defendant has sublet part of the premises to the 2nd and 3rd Defendants for which reason the Plaintiff claims forfeiture under section 53(2)(e) of the Landlord and Tenant (Consolidation) Ordinance.

2. The case for the Defendant is that a few days before the commencement of the tenancy, in June 1969, she and her husband orally asked the Plaintiff for consent to sublet the premises or part thereof which was agreed to by the Plaintiff. The Plaintiff denies that she ever gave such consent.

3. In 1969, as far as I am aware, there was no legislation controlling rent or affecting the contractual rights of a landlord or tenant in the case of an entirely new building or premises forming part thereof where the occupation permit was issued after the 16th August, 1945. This being so, the 1st Defendant was entitled, at the time the tenancy was created, to lawfully sublet the premises or any part thereof without the consent of the plaintiff. I should not be taken to mean by so saying that for this reason the 1st Defendant did not seek or obtain the consent of the Plaintiff to sublet generally. What I must decide is whether, when regard is had to the evidence, the 1st Defendant has satisfied me, on a balance of probability, that oral consent to sublet generally was given on which a plea of estoppel can be founded.

4. It is not disputed that immediately before the commence-ment of the tenancy, the 1st Defendant carried on a knitting factory known as Chi Shing Knitting Factory two doors away from the suit premises at No. 1104, 10th floor, Block A. At that time the whole of No. 1104 (which was of the same size of premises in suit was used by the 1st Defendant for the operation of factory whilst the 1st Defendant and her family resided elsewhere. I accept the evidence of the 1st Defendant that she told the Plaintiff that she wanted the suit premises not only for the operation of the factory (which the Plaintiff knew she was conducting two doors away but that she and her family would also be residing in the premises which she intended to and did rent from the Plaintiff. In the circumstances, I am not satisfied that the 1st Defendant asked the Plaintiff for consent to sublet since the plaintiff was informed that the whole of the suit premises would be used for a dual purpose which justified the Plaintiff in assuming that every available space would be required both as a dwelling and for business purposes. I accept the evidence of the Plaintiff that consent to sublet was not sought and that she did not give consent to sublet generally or at all

5. I now come to the second ground on which the 1st Defendant's case is based. The question for me to consider is whether the Plaintiff with full knowledge of the subletting by the 1st Defendant to the 2nd and 3rd Defendants waived her right of forfeiture by the acceptance of rent. The plea of waiver is put in the Defence in paragraph 4 in this manner; "The Plaintiff knew or was aware of the let Defendant's subletting of the premises or part thereof to other persons and the Plaintiff continued to accept rent and performed that act of acknowledging the continuance of the tenancy and thereby waived his right...." I do not consider this to be an appropriate plea of waiver. Let me put it this way: If a tenant sublets part of the premises to a sub-tenant and the landlord with knowledge of this subletting accepts rent, the landlord waives his right of forfeiture. But it does not follow that such a tenant can, thereafter, with impunity, create new sub-tenancies of that part which he had sub-let or of other parts of the premises as and when he pleases leaving the landlord with no redress. The reason for this is because a subletting is not a continuing breach. Each subletting is a new letting which may or may not be waived by the landlord.

6. In this action, two witnesses were called to show that they were previously subtenants of the premises. I do not think that their evidence materially affects the Plaintiff`s case. The first of the witness said he was a sub-tenant in 1974 and that he might have seen the plaintiff but he is not sure whether he can say that the plaintiff had seen him. The second witness who was a sub-tenant in 1971 said he saw the Plaintiff when he was residing there but he does not know if she saw him because he was in the room. So nothing turns on the evidence of these two witnesses.

7. It is not disputed that the 1st Defendant did sublet a part of the premises to the 2nd Defendant in March and another portion of the premises to the 3rd Defendant in April 1980. (The 1st Defendant had ceased operating a business at the premises by then). What I have to consider is whether the Plaintiff knew of these sublettings and with that knowledge waived her right to forfeiture by the acceptance of rent.

8. It is common ground and admitted by the counsel for the parties that there is no evidence before me to show that between March 1980 to March 1981, the Plaintiff knew that portions of the premises were sublet to or occupied by the 2nd and 3rd Defendants. I accept the plaintiff's evidence that in arch 1981 she saw a lady in the premises. That in my view, having regard to the circumstances of this case, could, if at all, give rise to nothing more than suspicion. It does not necessarily follow that whenever a landlord sees someone in the premises that such a person must be a tenant and is not a guest or visitor. In any event, I accept the Plaintiff's testimony that at that time she entertained nothing more than suspicion. I also accept her evidence that when she went to the premises in June 1981 she saw a number of strangers cooking in the premises which led her to believe that the 1st Defendant had sub-let the premises. She then stopped collecting rent and went to see her solicitors which resulted in the proceedings now before me. On the evidence I find that there was no waiver by acceptance of rent. I, therefore, make an Order for possession as claimed and for payment of mesne profits by the 1st Defendant in terms of the proyer in the Writ. Stay of execution for possession for six months.  No order as to costs.

Representation:

Miss Y.K. Fung of Messrs. Raymond Tang & Co. for plaintiff.

Mr. Y.W. Yu of Messrs. Ford Kwan & Co. for defendants.