Lee Tse Ven Thomas v. Sea-land Service Incorporation and Another

LDPD000136/1986

HEADNOTE

Part II premises. Possession required for occupation of landlord as residence. A genuine present need for possession connotes some element of necessity. Application for possession of adjacent premises to accommodate applicant's children who reside abroad and who come to visit him from time to time not reasonable requirement.

IN TIE LANDS TRIBUNAL OF HONG KONG

HOLDEN AT KOWLOON

APPLICATION NO. 136 OF 1986

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BETWEEN

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Coram: H.H. Judge L.J. D'Almada Remedies in Court.

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1. For a dwelling house to be reasonably required it must be the subject of a genuine present need on the part of the landlord; per Stephenson L.J. in Kennealy v. Dunne (1977) 1 QB 837 at 844. The word 'need' connotes some element of necessity. 'Reasonable requirement' is something more than desire although at the same time something less than absolutely necessity will do.

2. The applicant lives at Flat B, 11/F., Beacon Hill, Kowloon Tong. The area is approximately 1,400 sq. ft. It has two rooms consisting of a master bedroom and a guest room. There is a living/dining room, two bathrooms, a kitchen and servants quarters. The applicant lives with his wife alone. They share the master bedroom. The guest room is unoccupied. They have an amah who occupies the servant's quarters. Presumably, the amah attends to the duties associated with a domestic servant. She also cooks for the applicant.

3. The applicant has seven children and four grandchildren. Two of his children reside elsewhere in Hong Kong. The other five live abroad; some in Canada, others in the United States. None of his grandchildren are in Hong Kong. All his children are over 25 years of age. The applicant is the founder and Managing Director of Tom Lee Co. Ltd. a well-known musical company which represents over 200 manufacturers of musical instruments worldwide.

4. Adjacent to where the applicant lives there is the suit premises. It is occupied by the 2nd respondent and tenanted by the 1st respondent. It is of the same type and size of the flat where the applicant is at present residing. According to the applicant his intention is to obtain possession of the suit premises to convert that flat and his own present accommodation into one flat providing the applicant with sufficient accommodation to put up his children and grandchildren when they visit, to employ a house cook for the household and to entertain overseas and local business contacts and customers.

5. No plans have been put before me of the proposed conversion. There is no evidence of any application made to or permission granted by the Building Authority relating to the proposed conversion. I am not told of what form the proposed conversion will take or whether under the Deed of Mutual Covenant a conversion is permissible.

6. I must, therefore, treat this case as an application for possession of the suit premises as it stands which is a self-contained unit occupied by the respondent as a separate dwelling.

7. It is clear that if the applicant is to succeed it can only be on the basis of his requiring the premises for occupation as a residence for himself. The applicant does not intent to vacate his present residence; he intents to continue in occupation of the flat here he is staying and where he appears to be comfortably accommodated. Indeed, he said that he personally selected the place where he is staying as his home; that he was attracted by its location and view. It was purchased after his inspection. That was in 1982. As he now says that where he is at present residing is not good enough one can reasonably expect him to state what occurred between then and now which led him to believe that although it was good enough in 1982 it is not now good enough. It seems that what happened was that when the applicant first approached the 2nd respondent for possession he wanted the suit premises to store certain items that were in the company's premises at Cameron Lane so that the Cameron Lane premises owned by the limited company could be used as a music school. If that was not the reason then there is a complete absence of any explanation as to why he regarded the premises where he is staying as being sufficient for his purposes in 1982 but no longer suitable now in 1986.

8. Having heard the testimony of the parties I am bound to say that on factual issues and where there is a conflict between the evidence of the applicant and that of the respondent, I accept the evidence of the respondent. I find it strange that on 3 separate occasions the applicant thoughtfit to give a reason for possession to the second respondent differing from that which he now advances before the Tribunal. The reason he gave to the 2nd respondent was also given to Mr. William Kwok whom the applicant approached on a number of occasions to persuade the 2nd respondent to move out. There is no acceptable explanation as to why the applicant deemed it necessary to give inaccurate or wrong reasons for possession to the 2nd respondent and William Kwok.

9. However, although I attest the respondent's evidence it is not necessarily fatal to the applicant's case because there was no obligation on the part of the applicant to state his reasons at that time although he is, of course, required se to do before the Tribunal.

10. The applicant's case now is that possession is needed because when his children come to visit him in Hong Kong he will be able to put them up comfortably if he obtains possession of the suit premises. I consider this to be nothing more than a desire not amounting to any semblance necessity, nor am I able to equate this desire as being a requirement for possession for occupation as a residence for the applicant. It is a desire to accommodate children of his who have their own home and who reside elsewhere. Section 53(2)(b) is sufficiently indicative of the legislature's intention that in so far as possession is required for any son or daughter over the age of eighteen years it must be shown that it is reasonably required for such child as a residence. The same reasoning would apply (mutadis mutandis) when the applicant says that he requires possession so that on festive occasions he would like to have his children in Hong Kong at his home to celebrate these occasions. Again, this is no more than a desire which appears to me in any event, capable of implementation without requiring possession of the suit premises. Another reason why possession is sought is that the applicant would be able to entertain overseas and local business customers in a manner appropriate to his status'. If he obtains possession I wonder how he proposes to do that. Is he going to use one of the bedrooms next door? Presumably not. Perhaps he will use his living and dining room for some guests and at the same time the living-in dining room in the suit premises for his other guests. Ie he then going to hop from one premises to the other to ask how his guest are faring? That is hardly likely to improve his image as a business supremo. Be that as it may, there is no evidence that many of the customers or business associates of the limited company arrive in Hong Kong at the same time. If one or two of them are here at any one time I see no reason why he cannot entertain them where he is at present residing. In any case it is common knowledge that for business purposes such customers are entertained at different places specifically catered for such purpose. The applicant's evidence is that he even entertains them in a form of a banquet at such places. These persons are customers of Tom Lee Co. Ltd. They are entertained, strictly speaking, by the company. It is the company that foots the bill. To require premises to enhance the business of the company of which the applicant is a Director is a business purpose. I do not regard it as a reason for requiring possession as a residence for himself, nor do I think that possession can be granted because he desires to entertain customers of the company which, in any event, he is well able to do without obtaining possession.

11. He also says he wants to employ a cook. Must it be a live-in cook? His evidence is that the cook will stay in the suit premises. Recovery possession cannot be granted for the occupation of premises by his cook. If the applicant does want a mahjong room, there is no reason why the guest room where he is at present staving cannot be used as such.

12. So my finding is that the applicant has not discharged the burden of establishing that the suit premises are reasonably required as a residence for himself; that he is comfortably accommodated where he is at present residing in respect of which he pays no rent; that the reasons he has advanced for wanting possession are such that I am unable to characterise them as reasonable in the circumstance having regard to the evidence before me. The application for possession is therefore dismissed.

Dated the 19th day of August, 1986.