Ng Wan, Proprietor of Sang Kee v. So Yim

CACV000017/1947

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

APPEAL No. 17 of 1947.

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(TENANCY TRIBUNAL APPEAL No. 24 of 1947).

Coram: Mr. Justice E.H. Williams and Mr. Justice J. Reynolds

Date of Judgment: 19 February 1948

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JUDGMENT

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1. This is an appeal from the decision of Gould J. confirming substantially the decision of a Tenancy Tribunal refusing an order against the respondent for possession of part of the ground floor of No.155 Connaught Road, Central.

2. The facts of the case are fully set out in the judgment of the learned judge and it is unnecessary here to repeat them at length. The reasons for the application and the grounds of opposition were enumerated at considerable length but obviously by persons without legal qualifications. The 'notes' of the hearing before the Tribunal which consisted of three Chinese members, none of whom was a lawyer, are very brief. Only the applicant and opponent gave evidence. The decision of the Tribunal is contained in a few lines. That was described as 'Further Notes' were later supplied by the Chairman of the Tribunal. In them are set out at length the facts which the Tribunal found were established. It is clear that their findings were based on more than is contained in the 'Notes'. We agree with the view contained on pare 3 of the judgment of the learned judge and for the reasons there set out, that he was 'justified not only in accepting the conclusions of fact therein contained but also in assuming what the Chairman obviously intended to convey i.e. that those conclusions were based upon accepted evidence.'

3. The earlier facts as established are that prior to the war NG WAN, appellant (applicant) carried on business under the sign 'Sang Kee' on the premises. It is not definitely found that he was the tenant, but it is more than probable he was. He left Hong Kong in early 1942 and about the same time respondent (opponent) moved in to the premises and paid the rent to the landlord, carrying on his own business under the same sign-board 'Sang Kee'. He continued paying rent all through the period of the occupation. Soon after the re-occupation (about November, 1945) respondent had had electric fittings, meter and some water-pipes installed at his own expense. Appellant returned to the Colony about January, 1946 and was desirous of getting the tenancy. As a consequence, an arrangement was reached between the parties concerned viz, the landlord, appellant and the respondent. The real question at issue is what was the legal effect which resulted from such arrangement. It should be observed that the agreement was in force for some time before trouble arose between appellant and respondent.

4. The details of the arrangement as found by the Tribunal are contained in the concluding portion of paragraph 3 of the Further Notes and are:

5. 'So Yim was prevailed upon to relinquish his principal tenancy and to substitute for it a state of non-paying co-occupancy with the applicant, together with certain other considerations. These being: So Yim was to occupy some smaller space in the premises for him to live in and to transact business; at the same time he was to waive his claims on certain things fixed up by him in the premises, as water-pipes, electric meter etc.'

The penultimate paragraph of the same notes reads:

6. 'The Tribunal is unanimously agreed that there must be in the first instance some sort of verbal agreement by virtue of which So Yim was made to have his status changed from a principal tenant into a co-tenant; that, secondly, Ng Wan not satisfied with having thus gained an advantage over So Yim, is bent on getting rid of him as a tenant.'

7. Counsel for the appellant submitted that from certain statements contained in the Notes and Further Notes, the Tribunal should have found that the result of the agreement was that the tenancy had reverted to the appellant: that the relationship of landlord and tenant between the landlord and the respondent had ceased: that the state of non-paying co-occupancy gave respondent no better title to occupy than that of a licensee or at best a title of rent-free sub-tenancy. He contended that there was no evidence to justify the Tribunal's findings that the respondent became a co-tenant.

8. He further submitted that if the respondent was only a licensee then he was not protected under the Proclamation: or if he was a rent-free tenant or sub-tenant, he also failed in accordance with the decisions in the case of Iranee v. Mahuvawalla (T.T.A. No.41/46) and Ip Lee Hang v. Chor Hip Hing (T.T.A. No.4/47) which laid it down that 'rent' must be pecuniary rent.

9. Respondent was unfortunately not legally represented before this Court and was therefore not in a position to give us any effective assistance.

10. It is admittedly true that certain statements contained in the Notes and Further Notes appear to conflict with the Tribunal's findings that the respondent became a co-tenant. Had the case come before this Court on appeal from the decision, say, of a magistrate or other person with legal qualification and experience in a case where full notes were taken, then this Court might consider that it was its duty at least to order a re-hearing. Regard, however, should be had to the nature of Tribunals established under the Proclamation, and the Landlord and Tenant Ordinance. This case was heard under the Proclamation, the application apparently having been filed before the date of the passing of the Ordinance. The Tribunal normally consists of lay men - though fortunately in a number of cases a lawyer sits as Chairman. The Court in appeals from a Tribunal consisting wholly of laymen ought not therefore to be over-meticulous in scrutinising every word contained in the findings but should have regard rather to its general purport.

11. The position of the respondent at the time the agreement was reached must be remembered when considering the nature of such agreement. He had been since early 1942 the sole tenant of the premises in question and paid his rent regularly to the landlord. Though he had become tenant during the Japanese occupation, his holding had been acquiesced in by the landlord by acceptance of rent since the establishment of the British Military Administration: he was not, therefore, liable to eviction under the Proclamation which had come into operation shortly before the date of the agreement (see Article 5, 1, (b) of the Proclamation). In November, 1945, he had one to the expense of providing electric and other fittings. When appellant returned to the Colony at the end of 1945 and sought to obtain the tenancy, the respondent was in a relatively strong position to bargain though it is true his financial circumstances were not then good. He did not require the whole of the premises for his business. Is it then reasonable to suppose that he would have consented to any arrangement whereby his position as an occupant (using this word to cover tenant, sub-tenant or licensee) became any the less secure than that of the appellant? This Court is not prepared to disturb the general finding of the Tribunal that respondent had agreed to his status being altered from that of principal tenant to that of co-tenant.

12. With regard to the submission of Counsel for the appellant that, as respondent under the agreement was not to pay any rent, he was not protected under the Proclamation, the Court makes this distinction between the present case and the cases of Mahuvawalla and Choi Hip Hing. In the latter cases the landlord received no pecuniary payment: in this case the landlord receives his full rent though the person paying is the appellant. The arrangement whereby respondent pays no portion of the total rent is one primarily between himself and the appellant as co-tenants of the landlord.

13. For the reasons above stated the Court upholds the decision of Gould J.

14. The appeal is therefore dismissed.