Chow Wing v. Yuen Chi-hung and Another

DCCJ002713/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 2713 OF 1980

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Coram: H.H. Judge Barnes in Court

Date of Judgment: 15th July, 1980

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JUDGMENT

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1. In this case, the plaintiff seeks possession of the subject promises on two grounds. One ground being unlawful subletting and the other ground being that the plaintiff reasonably requires the promises for use as a dwelling for himself.

2. On the first ground, the plaintiff in order to succeed needs to show that the subletting occurred after December, 1973. The evidence before me clearly establishes that the subletting was before December, 1973 and therefore I rule that ground fails.

3. So, we come to the second ground which is the real matter in issue in this case. Firstly, I have to consider has the landlord proved that he reasonably requires the premises for occupation as a residence for himself? And the evidence as to this is: that the landlord himself is a man 80 years of age whose health is not as good asit used to be. He has got trouble with his legs. His wife who is 76 is suffering from heart trouble and there is a doctor's certificate which says that because of her illness, she has difficulty in climbing stairs. The landlord and his wife presently live in premises which are on the fourth floor of a building with no lift. So, although the landlord of these premises already has accommodation which has proved adequate for him for many many years now, there is in a sense a genuine present need for him and his wife to have premises where there is a lift service. So, to my mind, the landlord has established that he does reasonably require at least part of the premises for residence for himself and his wife.

4. So, the real question is: Has the tenant satisfied the Court that in all the circumstances of the case, it would be manifestly not just and would be manifestly not equitable if an order for possession were made?

5. A good deal of the tenant's evidence is unsatisfactory. Given every opportunity to explain how he expends his monthly income of $3,600.00, he made no effort to do so. He has a family of 5 daughters and one son; all of whom are living with him. It is very hard for me to accept that neither of the two daughters who is working in such an apparently close knit family would make no contribution whatsoever from their earnings to the up-keep of the family. I find that very difficult to believe. He has made no effort whatsoever to find any alternative accommodation.

6. On the other hand, there is this matter which concerns ...(illegible) he has been a tenant of these premises since 1966. The relationship between him and the landlord over that long period of time is one in which the landlord has in effect almost given him a security of tenure. The relationship between them over recent years has been so informal that he could readily have been led to believe that the landlord was quite happy to have them there as tenants as long as he was prepared to pay the going rental and look after the premises.

7. It would be very difficult for a man with 6 children to find alternative accommodation. I accept that because I do accept the tenant's statement that he would have to rent a whole flat. It does seem to me that it would be inequitable to make an order for possession to evict a man with such a large family who has been a tenant of those premises for such a long period of time when in the circumstances here although there would be hardship on the landlord and his wife remaining in the premises where they presently are, nevertheless, I think to give them the added advantage which they would have from securing possession would have an inequitable result so far as the tenant is concerned at the present time.

8. These are difficult cases to decide because in this particular case, the merits are fairly evenly balanced. The fact that has weighed very very heavily with me is the fact that the tenant has been a tenant of these premises for a very very long period of time. And that fact has been a weighty matter in inclining me to the view that it would be inequitable to make an order to dispossess that tenant at this particular time.

9. In the result, the action for possession fails. To the extent that any rent is in arrears, I give judgment for it in favour of the plaintiff for that rent in arrears at the rate of $822.20 per month from the 12th of February, 1980 until today. In this particular case, as I said I feel that the merits are so evenly balanced that I am not going to make any order as to costs.

Representation: