Wong Tai Hing v. Wong Lau Yuk Ling

Case No.FCMC 776/1983

Court

Family Court

Date—

JudgeH.H. Judge Caird

Case Document

100%Judiciary

FCMC000776/1983

DJ776/83

Family Law

Application for transfer of a Housing Department Tenancy by Order of the Court. Tenancy held to be "property". Reasons why Court should exercise its discretion sparingly. Some competing policies of Housing Department reviewed. Some factors germane to Courts discretion discussed.

IN THE DISTRICT COURT OF HONG KONG

DIVORCE JURISDICTION

NO. 776 of 1983.

________________

BETWEEN

WONG TAI HING

Petitioner

and

WONG LAU YUK LING

Respondent

_______________

Coram: H.H. Judge Caird in Court

Hearing Date of judgment: 23.8.84.

Date of Judgment: 7.9.84.

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JUDGMENT

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1. A decree nisi was made by His Honour Judge Leonard on the 31st August, 1983 and subsequent to that hearing His Honour Judge O'Dea, on the 3rd May, 1984, gave custody, care and control of the three children of the family to the Respondent, wife.

2. The present application is for a transfer of the tenancy of Room 809, Fu Ming House, Tai Wo Hau Estate, Tsuen Wan, from the registered tenant who is the Petitioner, to the Respondent, wife.

3. The proceedings were heard in open Court in conjunction with proceedings in suit 2457 of 1983, Lui v Lui, where the same point was in issue although the Respondent in that matter had indicated that he would vacate the premises.

4. As the matter involved interests of the Housing Department the Crown Solicitor was invited to represent that Department and present its views, accordingly Mr. K.A. Lewis, Crown Counsel, appeared. Right at the outset I must say that I am greatly indebted to he, Mr. Plowman, Counsel for the Respondent, and Mr. C.L. Smith, Counsel for the Petitioner, for the efforts taken by them and for the considerable assistant given by them to the Court.

5. The Housing Department as landlord enters into contractual tenancies with tenants and the position is analogous to that pertaining in the United Kingdom for council houses administered by Local Authorities.

6. The position in England has been considered in a number of cases and it is clear from Hale v Hale 1975 2 All E.R. p 1090 following Thompson v Thompson 1975 Family Reports p 25 that a weekly tenancy or any other tenancy was "property" within the meaning of the appropriate United Kingdom legislation. I am in no doubt that such a tenancy as I have to consider in the instant cases is "property" within the meaning of Section 6 of the Matrimonial Proceedings and Property Ordinance, Cap. 192.

7. It has been held in the United Kingdom that the Court has power in an appropriate case to order a transfer which the tenant himself could have made, and in Hale v Hale the wife's application was granted, however there is a passage appearing at p 1093 which is of considerable interest :

"If the Court made an order transferring the Council tenancy from the husband to the wife or from the wife to the husband in a way which the Council did not approve in accordance with its housing duties, there would be nothing whatever to prevent the Council from putting an end to the transfer and tenancy within a short space of time. Obviously in such circumstances the Court would at any rate hesitate for a very long time before it would make an order transferring property which the Local Authority might perfectly, properly and consistently with its duty prevent from being fruitful. "

8. The tenancy in the instant case, pursuant to what I understand to be a standard agreement, includes a clause which I assume to be in all such agreements providing that the tenancy is determinable by the Hong Kong Housing Department, as landlord, upon 46 days' notice in writing, Ex. P1.

9. In this agreement the tenant, is expressed to be the Petitioner, and authorized occupants are the wife, the three children of the Family and the Petitioner's mother.

10. Although I am in no doubt that the tenancy is "property" nevertheless the interest available to the tenant and that which is sought by the Respondent wife, constitutiong "property" is severely curtailed in that it is only a tenancy, should the Housing Department so determine, for a period of 46 days.

11. For this and for other reasons which will become apparent it is clearly apparent that in Hong Kong any Court should properly "hesitate for a very long time. " before making an order involving Housing Department units even although it is competent for the Court to make such orders.

12. Mr. Plowman informed me that consequent upon a discussion between all three counsel it had been agreed that the Court does have power to transfer "subject to the consent of the Housing Authority", Mr. Lewis informed me that it should be the responsibility of solicitors concerned, when an application is made, to apply for "consent", prior to presenting the application to Court. It can be seen from the approach adopted by the Judges in the United Kingdom and from these matters urged upon me by counsel that the Court is in the position of having its powers severely curtailed.

13. It was urged by Mr. Lewis that different policies apply and it is obvious that in many cases there will be competing policies. For instance, in the instant case the wife Respondent has obtained custody and it is a policy, which the Court has observed in many many cases to be well known to Housing Department tenants, that the party who has obtained custody will normally obtain a transfer of the tenancy from the Housing Department.

14. Further, at the present time, in the instant case, the premises are "under-utilized" by the Petitioner.

15. A further complication exists in the instant case in that the Petitioner's mother who is as I said is an "authorised occupant" is aged 73 and handicapped. I have been informed that the Department is "rather loath to make a transfer order when there is an elderly lady of this type involved. "

16. The position disclosed to me is that if the Housing Department were to determine that the Petitioner was under-utilizing the premises then he would be given alternative accommodation of a lesser floor area, but should the Court make an order, then Mr. Wong would be offered temporary accommodation in a "resite area. " The condition of such premises is an the information given to me clearly of a lesser standard than that presently enjoyed by Petitioner and I am of the view that he has a reasonable natural reluctance to occupy such accommodation.

17. Evidence has been given by the parties. The Respondent resides in Taipo with her mother and younger brother. The mother is aged 65, the brother aged 30, and the three children of the family reside there with her. Her mother owns this property. Petitioner occupies a bedroom of about 50 sq.ft. The total floor area of the premises is 500 sq.ft. and she contributes $1,100 per month for rent and food, a most satisfactory arrangement, as far as finance is concerned, for her. If she were to obtain possession of the matrimonial home she would live there with her three children, and she accepts that Petitioner's financial position may deteriorate and that he would not be able to pay as much maintenance as at present.

18. A representative of the Housing Department was called and outlined, as best he could, the position. Unfortunately he was rather vague over a number of matters. However between he and Mr. Lewis. I was able to comprehend the situation reasonably well.

19. I am informed by Mr. Lewis that the Department appreciates the difficulties in getting vacant possession and indeed "The position is always sensitive. If eviction is ordered the dependant will comply with the order. " I appreciate that where a tenant of long standing for some 20 years as in the instant case is being evicted, this can cause a great deal of unease, and possible unrest and disturbance amongest neighbouring tenants in the estate.

20. The points that appear of importance to me are as follows:

(1)	Respondent and the children occupy premises, which albeit somewhat cramped are occupied on most reasonable financial terms.
(2)	There is no real prospect of the Respondent being evicted. The premises being owned by her mother. This compares most favourably with the situation where a party is living in rented accommodation at an "arms length" basis.
(3)	The policy that the Housing Department has of transferring a tenancy to the party who has custody of the children is one which in many cases would be adopted by the Court in considering whether or not a transfer order should be made.
(4)	If the Court were to make an order the Petitioner and his aged handicapped mother would be forced to live in infernior accommodation, i.e. a resite area with flat roof. He has to put in walls and toilet and washing facilities are not so congenial as at present enjoyed in "Permanent" accommodation.
(5)	If I were to refuse to make an order and the Housing Authority were to determine that it is proper to remove Petitioner from the premises with his aged mother, then permanent (in the sense that he would have a tenancy subject to determination in 46 days) accommodation of a far better standard than resite accommodation is available.

21. The case consists of competing interests and I repeat that even in ordinary circumstances the Court will hesitate for a very long time before making an order. In the circumstances that pertain in the instant case that ordinary reluctance is intensified.

22. I am not prepared to make the order as sought.

23. There shall be no order as to costs. Save and except that each party's own costs shall be taxed in accordance with Legal Aid Regulations Upper Scale with a certificate for counsel. No order as to costs in respect of the Housing Department appearance.

Sd. (B.T. Caird)

District Judge

Representation:

Mr. C.L. Smith instructed by Munro & Co. for Petitioner.

Mr. Plowman instructed by Haldance & Midgley for Respondent.

Mr. K.A. Lewis c.c. for the Crown Solicitor.