Sir Yuet Sau v. Wan Chuen Shing and Others

DCCJ013519/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 13519 OF 1981

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Coram: H.H. Judge Li

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JUDGMENT

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1. In this action the Plaintiff claims possession on two grounds. First that there has been sub-letting without consent in writing. Secondly she reasonably requires the suit premises for her own use.

2. I find that the Plaintiff and the five Defendants are truthful witness. The credibility of the 1st Defendant has been impugned. One matter relied on was that it was incredible that he could remember having a conversation with his then Landlord, Mr. Lau Wah Leong, on the precise date of 15th July 1964 when Mr. Lau was informed that the premises would be sub-let. Without any explanation this does seem incredible. The 1st Defendant proferred the explanation that he remembers the conversation as having taken place on the same occasion as when he had tea with Mr. Lau when he paid rent for the first time and obtained a rent receipt. This is still in his possession (although not in Court) and is dated 15th July 1964. It is by reference to it that he could remember the precise date. I accept that explanation. There were other aspects of his evidence which were unsatisfactory. But as Mr. Booth faily accepts, these were minor aspects and do not in my judgment affect the credibility of his evidence as a whole.

3. I deal first with the claim on the ground of sub-letting. Mr. Chuk for the Defendants contended that this should fail because:

4. If the old law applied, waiver would be an answer to sub-letting without consent- Chan Nam v. Poon Sui Ping Court of Appeal No. 3/80. In my judgment waiver has been made out in this case. First on 15th July 1964 the 1st Defendant informed the Plaintiff's predecessor in title that he would sub-let. Mr. Lau's reply was that this was alright as long as rent is paid and in effect gave permission for it. Further he collected rent thereafter until June 1977 when the suit premises were sold to the Plaintiff. Secondly, the plaintiff learnt through her solicitors from the 1st Defendant's answer dated 17th August 1981 (Exhibit P2) that there are sub-tenants. Yet as was common ground she continued to collect rent until 22nd October 1981 for the period up to 15th November 1981. Mr. Chuk also relied on the knowledge the Plaintiff derived when she visited the suit premises to collect rent. On these visits she noticed that one room was locked. In my judgment this at most put her upon inquiry as to whether there are any sub-tenants and cannot prove actual knowledge of sub-letting on her part which is essential to waiver.

5. Having found that there was waiver on the facts and that this is an answer if the old law applied, it is unnecessary for me to decide on Mr. Chuk's additional attack that the new law was applicable. His Honour Judge Downey had on 7th June 1982 decided in Lee Lai Bing v. Ng Yu & Others KCJ No. 9812/81 that the new law applies even if the writ was issued before 19th December 1981 understand that this case will shortly be heard by the Court of Appeal when an authoritative ruling on this question will no doubt be made.

6. I turn to the claim on the ground of reasonable requirement.

The plaintiff's position

7. The facts regarding the Plaintiff's position were as follows.

8. She is 68 years old. She has for some years worked for a Mr. Lau Wah Leong and his wife as an amah. Her salary is $1,000 a month and she collects $600 rent from suit premises. Mrs. Lau is the Plaintiff's niece. The plaintiff sleeps in a room with the Laus' daughter who is 13 years old. The amah quarters have been pulled down; the space is used for worshipping purposes. The other two bedrooms at the residence of the Laus are respectively occupied by the Laus and their son who is 15 years old.

9. Mr. Lau sold the suit premises to the Plaintiff in June 1977 for $40,000. This was below the market price. It was intended by the Laus that the Plaintiff would live in it in her old age.

10. The Plaintiff intends to retire and requires the suit premises for her own use upon retirement. She has no alternative permanent accommodation though she can live temporary with the Laus of her grandaunt. Her husband is deceased. After her retirement she will rely for her support on (a) her savings amounting to a few ten thousand dollars and income therefrom and (b) her grandchild. He is 27 and earns about $2,000 a month as a plastic worker. He will move in with her.

11. Reasonable requirement connotes something more than desire but something must less than absolute necessity - see Court of Appeal in Ma Hon v. Andy Mahtans (1981) HKLR 570.   It has sometimes been put that the Landlord must have a genuine and reasonable need for the premises. The word "need" appropriately connotes the something which is more than desire but must less than absolute necessity. But it must not only be genuine it must also be reasonable determined objectively.

12. In my judgment the Plaintiff has made out a case of reasonable requirement. She genuinely intends to retire and needs the suit premises. This was the purpose for which it was purchased. She has no alternative accommodation. She says she can only live temporarily with her grandaunt or her employer upon her retirement. Even if she can live at either permanently, it is unreasonable to expect her to depend on the bounty of others when she does not wish to do so. The fact that she will be living in the suit premises with 400 odd sq. ft. with her grandchild who will be supporting her whereas she is sharing a room with her employer's daughter at present does not in my judgment render her requirement unreasonable.

13. I therefore turn to consider whether in all the circumstances it would manifestly be unjust and inequitable for an order to be made.

14. The facts relating to the 1st Defendant are as follows.

The principal tenant

15. The Principal tenant, the 1st Defendant has rented the suit premises since 15th July 1964. He now has five children ranging in age from 2 to 10. Four of them are attending school or kindergarten within walkable distance from the suit premises. His wife takes care of them. He is a metal worker earning about $3,000 a month. His family's expenditure is about $2,830 a month. Of that $1,900 is for household expenses including the electricity, water and telephone bills which amount to about $240 a month. He spends $310 in school fees and $160 on milk for the youngest child. He has savings of $12,000 accumulated over 10 years.

16. The area of the suit premises is about 400 sq. ft. and the rent is $600. But the 1st Defendant only pays $30. Since 1964 he has sub-let 1 room. The present sub-tenants, are the 2nd and 3rd Defendants paying $300 a month. Since 1971 he has sub-let another room to the 4th and 5th Defendants for $270 a month. The 1st Defendant discharges the electricity water and telephone bills. He occupies the remaining room of 70 odd sq. ft. with his family. The sitting room is shared by all occupants.

17. The plaintiff's wife has made efforts to find alternative accommodation. From these efforts it would appear that the going rate in the Hunghom area where the suit premises are situated is about $1,000 a month for a 200-300 sq. ft. flat in an old building and about $2,000 in a new building and that the rent for an equivalent room is $500 odd. A room is difficult to rent because the 1st Defendant has a large family.

18. The facts relating to the position of the sub-tenants which is relevant (see the Court of Appeal decision in Chow Wing v. Yuen Chi Hung (1980) HKLR 788) are as follows.

The sub-tenants

19. There are 4 sub-tenants.

20. The 2nd Defendant and his 17 year brother the 3rd Defendant occupy 1 room at the monthly rent of $270. The 2nd Defendant is a garment factory worker earning $1,500 a month. She pays the rent. The 3rd Defendant is an apprentice painter earning $1,000 a month with at least 3 years of his apprenticeship to run.

21. The 4th Defendant and his cousin the 5th Defendant occupy the other room at the monthly rent $300 shared equally between them. The 4th Defendant is an odd job worker on constructive sites earning $1,500 a month and the 5th Defendant works in a knitting factory earning about $1,100 - $1,200 a month.

22. The evidence is that an equivalent room would cost about $700 a month in the neighbourhood.

23. All sub-tenants have no alternative accommodation with other members of the family to move to.

24. There is no doubt that an order for possession would involve hardship on the 1st Defendant. It is difficult for him to rent a room with his young family. The rent would be around $500 a month. On his own very approximate calculations he has say $100 odd to spare from his income. He would have to find $400 odd by saving on his present expenditure of $2,830 i.e. about 15% assuming no increase in income for the family. The rent increase will be very substantial an increase from $40 and he would be deprived of the income from the sub-letting. But in considering this I have not overlooked the fact that he has enjoyed this for many years now. This is relevant as I have to consider all the circumstances.

25. An order for possession would also involve hardship on the sub-tenants but less so. They have to pay over double their present rent. But they are young people with little family commitment.

26. Having regard to all circumstances including the Landlord's circumstances, I find that the Defendants have not discharged the onus of showing that the making of an order of possession would be manifestly unjust and inequitable. There will definitely be hardship on the Defendants. But I cannot say it would be thoroughly unjust. I am unable to say that there are clear cogent and compelling reasons why making an order of possession would result in injustice or that a reasonable person would throw up his hands in dismay and say that cannot be right.

Representation:

Mr. G.N. Booth of Messrs. Hampton, Winter & Glynn for plaintiff.

Mr. W. Chuck of Messrs. Alexander Tsang & Co. for all defendants.