Wong Ho Tai also known as Hector Wong v. Leung Pak To
Read the full judgment text of CACV 159/1983 on BabelCite. This Court of Appeal judgment.
1. This is an appeal against the refusal by a Presiding Officer of the Lands Tribunal of an application for the possession of a flat made under s.53(2)(b) of the landlord and Tenant (Consolidation) Ordinance.
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CACV000159/1983
BETWEEN
________ Coram: Leonard, V.-P., Cons and Fuad, JJ.A. Date of Judgment: 13th January, 1984 ___________ JUDGMENT ___________ Fuad, J.A.: 1. This is an appeal against the refusal by a Presiding Officer of the Lands Tribunal of an application for the possession of a flat made under s.53(2)(b) of the landlord and Tenant (Consolidation) Ordinance. 2. The Appellant, Mr. Wong Ho-tai owns a flat in Braemar Hill Road. The premises were let to the Respondent in July 1967. At the expiry of the last lease he continued to occupy them under the Ordinance. A notice to quit required him to leave the flat at the end of July 1983. He did not do so, and the application for possession by the Appellant was filed on the 1st August. 3. Mr. Wong was born and brought up in Hong Kong and holds a Hong Kong identity card. The flat is his only property here, purchased in 1972. He went to work and live in Nigeria in 1966 and was married to a Chinese lady the following year. They have two daughters and a son, aged, at the time of the hearing, respectively 12, 10 and 8. His wife and children lived with him in Nigeria until 1981 when they went to the U.S.A., the children to study and the wife to look after them. His immediate family held temporary Nigerian residence permits whilst they lived there and they were presently in the U.S.A. "on a temporary residence". 4. Mr. Wong himself has never acquired a right to permanent residence in Nigeria - he said he did not think he would be granted such a right if he were to apply for it and, in any event, he had no desire to live there permanently. Thus his temporary residence permit had to be renewed every two years and his current one would expire on the 14th July 1985. 5. The Wong told the Tribunal that during his time in Nigeria he used to return to Hong Kong at least once a year to spend most of his annual one month's holiday here, and to see his parents, brothers and sisters. Sometimes his work brought him here for short periods. On average his business trips lasted 7-10 days and his holiday visits 3-4 weeks. 6. His immediate family would stay with him in Hong Kong on his annual holidays, usually at an hotel. When he had only one child, they were able to stay with relatives. 7. In his evidence before the Tribunal, Mr. Wong formulated his claim for possession in this way -
8. He added that his company had an agency in Hong Kong which hired staff and purchased materials for them. He could return to work for that agency. Another thing was that the agency also had other lines of business. The main shareholders of his factory and the agency were the same. He said that although no arrangements had been made for him to work in Hong Kong, he believed that these could be made. The reason why he had not already made those arrangements was that he felt he must have a place to live in the first place, because hotels were too expensive. 9. Mr. Wong further testified that if he managed to get possession of the flat, he would occupy it with his wife and children. In that event he would have to look for schools in Hong Kong for his children. He asked the Tribunal for possession as soon as possible but not later than July 1984, when his children would return to Hong Kong for their school holidays. 10. In his judgment, the Presiding Officer reviewed the facts, and his decision on the issue of reasonable requirement is explained and contained in the following passage -
11. The Presiding Officer then went on to hold that if he had come to a contrary conclusion on that issue, on the evidence before him, he would not have held that it would be manifestly unjust and inequitable to grant possession to Mr. Wong. There is no Respondent's Notice on this issue, and this decision was clearly right. 12. With the utmost respect to the Presiding Officer, once he found Mr. Wong to be a witness of truth (as he plainly did) it was not open on the evidence to hold that Mr. Wong’s requirement of his flat was "vague and remote" and that there was "an absence of a genuine need of those premises by him". The Presiding Officer does not say what made him form the "impression that [the Appellant] was in no hurry to resume permanent residence in Hong Kong. " In a passage just before the paragraph of his judgment that I have read out, the Presiding Officer said "He expressed no urgency for possession of the suit premises and preferred to have such possession in the summer of 1984 when his children would be on vacation". Unwittingly, the Presiding Officer was not being fair to the Appellant. What he in fact said, as we have seen, is that he wanted possession as soon as possible, but not later than July 1984. This was a serious misdirection. 13. It takes little imagination to realise that an expatriate living and working in a foreign country, who makes up his mind to return home, is fully justified in seeking to secure a residence first for his family before he looks for other employment. The Appellant was giving evidence towards the end of November 1983, and it should not have been taken against him (if such an inference could, indeed, legitimately be drawn, which I very much doubt) that he was prepared to wait until the summer of 1984. 14. Here I would mention some of the submissions made on behalf of the Respondent by his Solicitor at the hearing to indicate how unrealistic and desperate was the opposition to the application. It was submitted that there was no evidence that the Applicant’s wife and children had agreed to, and would, reside in the flat. It was contended that the Applicant could live in his elderly parents flat and so did not need the suit premises, and did not need to stay in an hotel. It was suggested that since the Applicant could stay on in Nigeria until 1985 (and he had had no difficulty in extending his temporary residence permits every two years since 1966) his intention to reside in Hong Kong was "doubtful". These were not responsible submissions. 15. In my judgment the Appellant had made out a very strong case indeed for possession under s.53(2)(b) of the Ordinance and the finding of the Tribunal on the reasonable requirement issue is not sustainable. 16. I would allow the appeal and grant possession to the Appellant. Leonard, V.-P. : 17. I, too, would allow the appeal. Cons, J.A. : 18. With the very greatest respect to the Presiding Officer, I think he led himself astray by evidence which just simply did not exist. He believed the applicant, he says so quite clearly in his judgment. That means he believed this part of the applicant’s evidence: "If possession of the suit premises is granted to me, my wife, my children and I would occupy them. " And yet later he in effect says that he did not believe that, relying on what he refers to as "the totality of his evidence”. 19. Mr. Fung argues that there is evidence to support the Presiding Officer's suspicion. He has referred us to the fact that the applicant owns 10% of the company of Nigeria, and that when there was to be a court hearing sometime ago, the applicant did not turn up. The reason the applicant gave for his absence was that he had to be in Nigeria at that time because certain necessary licences had to be renewed and he was the only person who was in a position to renew them. That seems to me to be a very sensible and understandable reason for not coming. I cannot see that either that, or that the applicant owns l0% of the company is any justification for the Judge's suspicion. 20. For these reasons I also would allow the appeal and enter judgment for possession for the applicant.
Representation: Patrick Chan (Lau, Wong & Chan) for Appellant. Alfred Fung (M.K. Lam & Co.) for Respondent. |