Shui Hing Co v. Chan Kwai and Others

Case No.DCMP 1/1945

Court

District Court

Date28 Jan 1946

Judge—

Case Document

100%Judiciary

DCMP000001/1945

STANDING MILITARY COURT OF HONG KONG

GENERAL MILITARY COURT

TENANCY TRIBUNAL APPEAL No.1 of 1945

(Application No.19 of 1945)

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Between
	Shui Hing Co.	Appellants (Applicants)
	AND
	Chan Kwai, Wong King Wan & others	Respondents (Opponents)

Coram: Leo D'Almada, President

Date of Judgment: 28 January 1946

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JUDGMENT

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1.In this case, the Landlord seeks to recover or certain premises under Proclamation No.15.

2.His claim is defeated by an agreement found from increases of rent demanded and paid by the tenant.

3.It is to be noted that:

	(a)	This agreement was found on evidence adduced on behalf of the Applicants, the Opponents' evidence making no mention of these increases;
	(b)	There was nothing in the evidence of the Applicants at the Tribunal hearing to suggest that they knew the First Opponent to be the tenant or even residing in the premises.

4.Applicants now allege that the First Opponent, who claims to be the tenant, is not the tenant at all, i.e. that he is not the person from whom rents were received which formed the basis for the finding of the agreement.

5.The case may be likened to one in which an agreement is raised in defence to a claim, where the burden of proof of the affirmative, i.e. of the agreement, would rest on the person pleading it, whether there was a simple joinder of issue without further pleadings, or a specific plea in reply that the defendant was not a party to the agreement.

6.The difference lies only in that the point was not raised at the Tribunal hearing, wherefore evidence was adduced on appeal to prove the Applicants' case, leave having been given for this.

7.The Opponents not being legally represented at this appeal. I was at pains to explain the position to them more than once, both for the purposes of the case itself and because of the gravity of the implications in the Applicants' further evidence. This was done after each witness's evidence, and again at the end of the Applicants' further evidence. The importance of the Opponents' adducing evidence on their own behalf was also stressed.

8.Despite this, the Opponents contented themselves with a few questions in cross-examination, some points made in argument, and ex parte statements to which I can naturally attach no value.

9.Leaving aside for the moment the question of the onus on the above analogy, the evidence before me is this :

	(a)	That the First Opponent bears the name Wong Hing, and has a tobacconist's licence issued in that name. (This was not denied by him, and when asked whether he wished to cross-examine, he merely stated that it was another name which he bears. And it is not insignificant that when in the course of the appeal he was asked his name by Mr. Ng Chak Wing, the Court Interpreter, "he said 'Wong', then corrected himself and said Chan Kwai.").
	(b)	One Chan Kwai used formerly to live on the premises, in whose name, the same as that claimed by the First Opponent, the rent receipts were made out, and by whom the rent was paid. (The First Opponent suggested in cross-examination that this Chan Kwai used a different character for "Kwai". This was denied, and no attempt has been made to prove this on the part of the Opponents).
	(c)	This Chan Kwai was not in occupation in August, 1945, when a witness for the Applicants was told by the Second Opponent that he was no longer living there.
	(d)	The First Opponent does not reside on the premises, but has been seen visiting it, apparently to smoke opium.
	(e)	Neither of the rent collectors employed by the Applicants has ever received rent from the First Opponent, though this has on occasion been paid by the Second Opponent and by some women on the premises.
	(f)	To one of the witnesses, the First Opponent suggested in cross-examination that he had entered into an agreement regarding the premises with the First Opponent. This was denied, the witness going further to assert that he had never seen the First Opponent.

10.	How is this evidence to be regarded?
	"In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded either of explanation or contradiction, No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him in the absence of explanation or contradiction; but, when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction, can human reason to otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but, in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected". - Per Lord Tenterden in Rex v. Burdett, 4 B. and Ald., p.161, a criminal case quoted with approval and applied by Knight Bruce, v-c, in Stikeman v. Dawson, a civil case involving fraud, 16 L.J. Chancery at page 210.

11.Applying the above-quoted observations to the present case and ignoring the question of the onus of proof on the analogy mentioned earlier, do not the evidence and the Opponents' failure to contradict or explain it warrant a reasonable and just conclusion that judgment must be for the Applicants? Upon a careful consiceration of the whole case, I can arrive at no other view. And, if the true view is as I suggest, that on the said analogy the burden is on the Opponents, how can the Court find otherwise than that the Applicants must succeed?

12.Upon this further evidence, therefore, uncontradicted and unexplained by the Opponents, I hold that the Applicants are entitled to the premises as against the First Opponent, who must vacate them and give up possession to the Applicants before February 1st.

13.The Second Opponent did not give evidence before the Tribunal or on appeal. His claim to remain on the premises can only be through the First Opponent, whose claim has failed. There will therefore be the same order in the case of the Second Opponent.

14.I make no order as to costs. It seems to me that if the employees of the Applicants had exercised ordinary intelligence they would have drawn the attention of their employers or counsel for the Applicants to the position at the Tribunal hearing, and there would have been no appeal.

	Sd. Leo D'Almada
	President
	Ceneral Military Court.

28.1.46.