Chan Kwong Hau and Another v. But Tao

CACV000103/1984

IN THE COURT OF APPEAL

BETWEEN

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Coram: McMullin, V.-P., Silke, J.A. & Bewley, J.

Dates of Hearing: 21st December 1984, 8th February & 13th March 1985

Date of Judgment: 13th March 1985

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JUDGMENT

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Silke, J.A.:

1. On the 8th July 1983 an application was made to Lands Tribunal by the landlord of Flat D, 6th floor, Wing Luen Mansion, 76-82 Yen Chow Street - "the premises" - for possession of that premises under section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance on the grounds of a need for personal residence by the landlord, his wife and his then one child. Notice of opposition was filed on the 14th September 1983, and this was amended on the 10th December of the same year.

2. The first respondent, BUT Tao, was the tenant of the premises. There lived with him a large number of persons. From evidence at trial these would seem to be his wife, his brother - together with another brother aged 80 - four sons aged from 22 to 10, one daughter, a clansman and a sub-tenant who lived there together with his own wife and child. A number of these persons were cited as subtenants in the proceedings but not all of them.

3. The proceedings themselves had a somewhat checkered history. The original hearing was on the 13th March 1984. At that point, leave to join sub-tenants was granted and the matter was adjourned. There was a further hearing on the 16th April 1984 when the respondent was absent. No proper notice of hearing had been served upon him. On the 2nd May 1984 the hearing resumed yet again. On that occasion the respondent was absent and judgment was given in his absence. On the 1st June 1984 the respondent succeeded in an application to set aside that judgment and a fresh hearing took place on the 19th June 1984 when evidence was heard on both sides. At the conclusion of that hearing the following order was made by the Presiding Officer in the Tribunal:

"I am satisfied that the premises are reasonably required for occupation of the applicants and that it would not be manifestly unjust to. make the order asked. I therefore make an order for possession."

There was a stay of execution granted on terms. I might add that neither party has procured the Judge's reasons for the decision to which he came.

4. On the 28th June 1984 the first respondent, BUT Tao, filed a Notice of Appeal. None of the sub-tenants have taken this course. We need not concern ourselves with the contents of that Notice further other than in relation to the date upon which it was filed. The matter came on for hearing before another Division of this Court. There had been, by then, an affidavit filed by the respondent and there was a direction that that affidavit should stand as the Notice of Appeal. But that, in turn, has been superseded for he has now had the benefit of assistance from counsel and the only ground of appeal with which we are concerned is as follows:

"that the respondents/applicants have by their subsequent conducts demonstrated an intention that they do not reasonably required the suit premises as a residence for themselves."

5. In order to buttress that ground Mr. Wong, who appears for the appellant in this Court, has sought, by way of Notice of Motion, leave to call additional evidence. That. additional evidence, which we have looked at de bene esse, would suggest from the respondent's side that he was approached by the landlord, after the order of possession had been granted and after he had lodged his original Notice of Appeal on the 28th June, with a proposition that he should buy the premises. The issue is controversial for there are affidavits filed by the landlord suggesting that the approach was not by him but by the tenant himself. It is not necessary to express any views concluded or otherwise on the validity of those assertions.

6. When this matter came on for hearing on the 8th February of this year we, having raised certain issues with Mr. Wong, granted an adjournment so that those issues could be considered. One of them concerned the right of appeal from a decision of the Lands Tribunal which is limited by that Ordinance to an appeal based on an error in law. Mr. Wong has today valiantly sought to suggest to us that there is, because of the subsequent information which has come to hand - if that information be believed and accepted - an error in law in the decision of the Presiding Officer of the Tribunal on the basis that, had he been aware of the intention of the landlord at the time of hearing - if that in fact be had been his intention - not to acquire the premises for his own use but to acquire for the purpose of sale he could not have come to the conclusion he did.

7. Mr. Wong accepts that if he is not permitted to call additional evidence then this appeal must fail for the difficulty which Mr. Wong faces is that that evidence could not have been available to the Presiding Officer and he does not seek in any way to impugn the decision come to by the' Presiding Officer on the facts as presented to him.

8. Were we minded to admit fresh evidence and so have the issue tried we would have referred the trial of the issue to a Master under the provisions of O.59.

9. A further difficulty, and speaking for myself, the major one, to admission of fresh evidence in order to substantiate the ground of appeal is contained in section 53(8) of the Ordinance. That reads:

"Where a landlord or principal tenant has obtained an order for possession of the premises under subsection (2) and it is subsequently made to appear to the Tribunal that the order was obtained by the misrepresentation or concealment of material facts or where such landlord or principal tenant is shown to have acted in contravention of subsection (7), the Tribunal may order the landlord or principal tenant to pay to the former tenant or sub-tenant such sum as it thinks fit by way: of compensation for damage or loss sustained by that tenant or sub-tenant as a result of the order."

Subsection (7) of section 53 provides that a person who has obtained an order for possession of premises under subsection (2)(b) or (c) of that section shall not, for a period of 24 months after the date of the order, let the premises or any part thereof, or assign, transfer or part with possession of the premises except in certain circumstances.

10. Section 53(7E) provides that a contravention letting, assignment, transfer or parting with possession of the premises or any part thereof shall not be void, voidable or unenforceable by reason only of such contravention.

11. So the effect would appear to be this: that if a landlord obtains possession of premises and, then within the period of two years as set out in subsection (7) of section 53, sells it or assigns it or in other some way transfers possession of it, his original acquisition of the premises having been on the basis that he himself required it for his own use, he is subject to sanctions but that any such letting, assignment, transfer or parting with possession is not void, voidable or unenforceable. If the tenant's evidence here were to be accepted as being correct there was, at the highest, an attempt to contravene subsection (7) of section 53. I can see no reason why a person who attempts to contravene that subsection should be in any worse position than a person who actually does contravene it. It is not a matter for appeal. The remedy lies within subsection (8) of section 53. For, if the tenant's evidence were to be accepted, then there may have been either misrepresentation or a concealment of material facts by the landlord in the Tribunal.

12. In those circumstances we would refuse leave to call additional evidence for that would not, within the ambit of the legislation, serve any useful purpose and in those circumstances the appeal is dismissed with costs.

Representation:

Patrick Chan, Esq. instructed by Messrs. Liu, Chan & Lam for the respondents/applicants.

Alexander Wong, Esq. instructed by Messrs. Clifford Yeung & Co. for the appellant/1st respondent.