Kwok Kam Chiu and Another v. Chiu Sui Har and Others

Case No.CACV 122/1983

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACV000122/1983

IN THE COURT OF APPEAL

Civil Appeal No.

122 of 1983

BETWEEN

	KWOK KAM CHIU and WAN SUI YUNG	Appellants
	and
	CHIU SUI HAR
	LO TAI FOOK
	LEUNG FEI	Respondents

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Coram: Leonard, V.-P., Cons and Fuad, JJ.A.

Date of Judgment: 6th January, 1984.

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JUDGMENT

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Fuad, J.A.:

1. This is an appeal from the decision of a Presiding Officer of the Lands Tribunal dated the 22nd July 1983 whereby he dismissed an application for possession of a flat brought under s.53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance.

2. The Appellants, who are husband and wife, are the owners of a flat in Kam Wa Street, Hong Kong. The flat was originally let for domestic purposes to a certain Chiu Loi. After his death, his daughter, the lst Respondent took over the tenancy. The 2nd and 3rd Respondents are her sub-tenants. The Appellants sought possession of the premises on the ground that it was required for occupation as a residence by their 22 year old daughter.

3. The evidence led before the Tribunal showed that the Appellants live in a flat in Shaukiwan Main Street East with the husband's mother; their four sons aged, respectively 26, 25, 24 and 13; a cousin; and their daughter and her husband. The daughter was married in November 1982, some seven months before the application for possession was filed.

4. The flat in which they live is between 1,400 - 1,500 sq. feet in area. The husband runs a fish shop, and stores beer and soft drinks (which he sells from the shop) in the flat, using about 750 sq. feet of the flat for storage purposes. The Appellants' daughter and her husband occupy a 10 × 6 foot cubicle in the fiat.

5. The suit premises have an area of about 1,000 square feet (including a balcony) divided into a sitting room and four bedrooms. The daughter told the Tribunal that if she could move in, one room would be used as a bedroom by her husband and herself, one would be a study, one a guest room and one as a nursery, for she planned to have a baby quite soon. She wanted her elder brother to live with her, too. Her father testified that he might use part of the flat as a store “for the time being”.

6. The male Appellant said that he earned about $300,000 a year from his business (which included a fish farm) and had a rental income of about $2,800 a month. But he was in debt to the tune of about $2.7 million and was living on an overdraft.

7. The daughter worked as an accountant for her father at a salary of $2,500 a month and her husband earned about $2,000 a month in a shipyard.

8. About his property, the male Appellant is recorded to have said, in cross-examination -

"I own two shops - two commercial premises - both of which are what I now have converted into my home at 32 Shaukiwan Main Street East. I have four other apartments, includihg suit premises - three of these are: leased and leases not expired - and the fish and general store... I have a seafood shop in rented premises in Kowloon, which my sons run. "

9. In answer to a question put by the Presiding Officer, he said "If I emptied the half of my house that is used as a store that would be impossible toy rent another place to store the goods. "

10. The 1st Respondent testified that she had been unemployed since 1981 and had had tuberculosis for which she was still receiving treatment. She receives $600 a month from her sister for looking after her child. Apart from the child, her younger brother lived with her in the same bedroom and contributed $500 or $600 a month. She had lived in the flat for the past 10 years. The second room was occupied by the 2nd Respondent and the third by the 3rd Respondent, who pay $200 and $180 rent respectively. The fourth room is lived in by a relative who pays $400 for board and lodging. Her elder brother; who contributes about $700-800 a month "for household expenses and rent" occupies the sitting room.

11. In cross-examination the 1st Respondent said "We have looked for alternative accommodation". Her relatives did not give evidence, but the 2nd and 3rd Respondent did. All the 2nd Respondent said was that he was a driver earning $2,500, and "I want to stay there”. The 3rd Respondent said no more than that he was 75 years old and lived on public assistance of $225 per month, adding “It is difficult to find another place". In cross-examination he agreed that he had received $45,006 "lump sum on retirement".

12. The Presiding Officer's judgment is short and I will read it out in full -

The applicants have issued proceedings for possession of the suit premises which, they submit, are reasonably required for their recently married daughter. The suit premises are occupied by a total of 6 persons and 1 baby and consist of about 1,000 sq.ft. with four bedrooms, a living room, a kitchen and a bathroom. Possession of the premises is required to accommodate the applicants' daughter and her husband, two persons only.

There are two points to consider. The first point is: Do the applicants reasonably require the premises for the reasons stated? The applicants live in premises which have been described as consisting of 1,600 sq.ft. and which were commercial premises converted to domestic premises. Half of these premises are used as a store for groceries, beer and sodas. The applicants' run a shop on the ground floor. There is no evidence to show that there is anything to prevent the commercial premises being converted into domestic premises and therefore there is nothing to prevent the applicants from converting the remainder of these premises into domestic premises and doubling the size of their present accommodation. The only difficulty they would encounter would be to find alternative storage to store the items required for their shop on the ground floor. I am sure it is much simpler to find alternative storage for groceries than it is to find alternative accommodation for tenants.

Also the applicants are looking for more space than is needed by the newly married daughter. All the present occupants of the suit premises would have to find alternative accommodation and it should be particularly difficult for the 3rd Respondent who is aged 75 years and who is not in receipt of a very large income. From the evidence of one of the applicants, KWOK Kam-chiu, it is quite clear that he is a very wealthy man and in all the circumstances I find that he has not proved that he reasonably requires the suit premises and I further find that it would be manifestly unjust and inequitable to dispossess the tenants of the entire of the suit premises. "

13. The Appellants appeal against the findings that they did not reasonably require the-premises for their daughter and that in any event it would be manifestly unjust and inequitable to grant them possession of the entire flat. By a Respondent's Notice, the 1st Respondent maintains, inter alia,-

"2.

That on the evidence, other than the premises in which the Applicants and their daughter were then residing, the 1st named Applicant or the Applicants had 4 other apartments and only 3 of those were leased with the leases unexpired. In the premises, the Applicants failed to prove a reasonable requirement of the suit premises. "

14. Although the presiding Officer's note (I have already read out the relevant passage) could have been better expressed, there is no doubt in my mind that it was perfectly clear that by the words he used, the male Appellant was saying that he owned four apartments other than the one in which he was living; one was the suit premises and the three others were still under lease. If it were necessary, ma understanding of the evidence would be fortified by the fact that the Appellant was not asked anything more about an available flat in cross-examination; the solicitor for the 1st Respondent at the hearing made no mention of the matter in his address to the Tribunal; and the Presiding Officer did not refer to it in his judgment.

15. I would mention here that the judgment does not make clear which were the considerations the Presiding Officer felt to be relevant to the issue of reasonable requirement, and which were relevant to the issue of manifest injustice.

16. In my judgment the Presiding Officer was wrong to suggest that the Appellants could store their goods elsewhere and make extra living space available in their present flat for their daughter. The use to which the Appellants were putting their present accommodation was entirely their own affair and could not be considered unreasonable in the light of conditions in Hong Kong. Why should they be required to go to the trouble and expense of keeping their stores in other premises to make more room for their daughter when they own a flat which they could give her to live in? This appeared to be the foundation of the Presiding Officer's decision and cannot be justified.

17. Nor do I find any possible justification for his finding that "the applicants are looking for more space than is needed by the newly married daughter". The girl was recently married. She intended soon to have a baby. She is the daughter of a man described by the Presiding Officer as "very wealthy". She earns $2,500 per month and her husband $2,000. In my view it was not open to the Tribunal on the evidence to hold that the flat was bigger than she reasonably required. Why should the young couple not wish to live by themselves in comparative comfort if the law permits it?

18. In the circumstance I do not think it is necessary to consider whether an appropriate order under s.53(4A) of Cap. 7 (as amended by Ordinance 29 of 1983) should be made. This is because in my view, on the evidence, no reasonable Tribunal could have been satisfied that only part of the premises were reasonably required.

19. On the other issue would say only this. On the authorities, the evidence fell very far short of establishing that it would be manifestly unjust and inequitable to make an order for possession. The Presiding Officer gave no reason for reaching this conclusion.

20. I would therefore allow the appeal and make the order for possession sought, to take effect after a reasonable time.

Leonard, J.A. :

21. I too would allow the appeal for the reasons given by Mr. Justice Fuad.

Cons, J.A. :

22. I agree and would only, add this.

23. Mr. Mok, who appears for the principal tenant, has drawn our attention to a very recent amendment to the law, i.e. s.53(4A) of the Landlord and Tenant (Consolidation) Ordinance. In view of the-decision to which we have come his arguments thereon are not pertinent to the present case. It does seem however that the new subsection may have far reaching effects upon the manner in which cases like the present are litigated and may require very careful consideration in the future.

Apart from that, he has sought to introduce into a question which is essentially one of fact, having regard to all the circumstances of the case, arguments of a highly technical and sophisticated nature with every respect to him for my part I have found in them no assistance. To adopt an idea which was first voiced by my lord Mr. Justice McMullin I cannot say exactly when or where - the arguments would have been much better addressed to a gathering of medieval schoolmen than to a modern court of law trying to do justice according to difficult laws in difficult conditions. I too would allow the appeal.

Representation: