Lo Mon Hung and Others v. Nam Yan Investment Co

DCMP000006/1948

IN THE SUPREME COURT OF HONG KONG

SUMMARY JURISDICTION

TENANCY TRIBUNAL APPEAL NO. 6 of 1948

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(T.T. Application No. K574-578/46)

Coram: Gould J.

Date of Judgment: 2 April 1948

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JUDGMENT

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1. This is an appeal against the decision of a Tenancy Tribunal dated the 12th February, 1948, ordering the eviction of the respective appellants who were the opponents in applications Nos.K574-578 (inclusive). The applications were consolidated for the purpose of the hearing and of the appeal and by agreement. The Tribunal's notes of evidence were supplemented by notes taken at the hearing on behalf of the respondents.

2. The question was one of the existence or otherwise of tenancies and the Tribunal ruled, in my view correctly in the particular circumstances, that the appellants should call their evidence first. They did so, and it amounted to a claim that they had become tenants of the premises under and by virtue of lettings from one Tang Chung Li who was either by direct authority or by holding out the authorised agent of the landlord. Tang Chung Li himself, who was present at the hearing on subpoena and was called by the appellants gave evidence to the contrary. He denied that he had any authority from the landlord to let the premises, stating that he was a care-taker without remuneration. When the landlord discovered that there were people living in the premises, he had told him that they were acquaintances staying there temporarily. Tang Chung Li further stated that he told the landlord that he had accepted tea-money because he looked after the houses without pay. In brief, there was evidence given by the appellants (or some of them) upon which the Tribunal could have held either that there was a direct authorization of Tang Chung Li by the landlord or that the landlord was estopped from denying agency; there was, on the other hand, evidence given by Tang Chung Li which, if believed by the Tribunal in preference to that of the appellants', would negative estoppel insofar as it implied that the landlord did not know that the appellants were relying on his silence as a representation.

3. This being the position at the end of the case for the appellants, the Tribunal heard argument on the law as to estoppel and a submission by counsel for the respondents that the respondents should not be called upon to give evidence. He was not asked to elect whether he would rely entirely upon his submissions at that stage in the event of their rejection by the Tribunal. The Tribunal then held that Tang Chung Li was not the agent of the respondents and that no tenancies existed and made the order for eviction now appealed against.

4. There being no notes of counsel's submissions available, I am left in ignorance of their exact tenor. If they amounted to a suggestion that there was no case to answer in the usual sense i.e. even if all the evidence of the appellants were accepted, I think that the Tribunal was wrong in acceding to that suggestion. If the Tribunal considered the relative credibility of the appellants and of Tang Chung Li (a witness who was closely associated with the respondents) and decided in favour of the latter, I consider that they should not have been asked to do so unless the respondents had rested their case there and elected to call no evidence. The Tribunal had presumably no knowledge of the proper practice on this point and they should have been made aware of it by the solicitor for the appellants.

5. The present practice of courts in such circumstances is set out in the following passage from the judgment of the Court of Appeal in Alexander v....(illegible) (1936) 1 K.B.D. at page 178:

"

Where an action is being heard by a jury it is, of course, quits usual and often very convenient at the end of the case of the plaintiff, or of the party having the onus of proof, as the defendant had here, for the opposing party to ask for the ruling of the judge whether there is any case to go to the jury, who are the only judges of fact. It also seems to be not unusual in the King's Bench Division to ask for a similar ruling in actions tried by a judge alone. We think, however, that this is highly inconvenient. For the judge in such cases is also the judge of fact, and we cannot think it right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed. Certainly no one would ever dream of asking a jury at the end of a plaintiff's case to say what verdict they would be prepared to give is the defendant called no evidence, and we fail to see why a judge should be asked such a question in cases where he and not a jury is the judge that has to determine the facts. In such cases we venture to think that the responsibility for not calling rebutting evidence should be upon the other party's counsel and upon no one else."

In deciding an application a Tribunal determine questions of law as well as matters of fact and is to that extent in the position of a judge sitting without a jury. Goddard L.J. expressed similar views in a negligent case, Larry v. Aluminium Corporation Ltd. 162 L.T.R.. at page 237, where he said:

"I think that in all these cases of negligence, if a judge is asked to rule at the end of the plaintiff's case that the plaintiff has made cut no case, it is most desirable that he should adopt the practice, laid down a great many years ago in this court, when Mathew, I.J. was sitting here, and since adopted by Morridge, J. who was a judge of the greatest experience in these matters, that the judge should say to counsel who is submitting no case: 'Do you elect to call no evidence?' If counsel in content to leave the case where it is, then the judge can rule. But it is very undesirable for the judge to give a ruling in a case which may afterwards be upset by the Court of Appeal, when the defendant may be in a position to say: 'I must have a new trial, because my evidence was never heard.' I think that in negligence cases the right course is for the judge to refuse to rule unless counsel says that he is going to call no evidence."

Whether it should follow the practice in any particular case is a question of the discretion of the Court or Tribunal concerned - Goddard L.J. referred to an exception in cases of defamation. In the present case the Tribunal did not exercise a discretion as their attention was never called to the practice.

6. For the foregoing reasons, I held that the hearing was unsatisfactory in that the evidence disclosed a case to answer and that if the Tribunal's ruling was based on the comparative credibility of the witnesses, it should not have ruled at that stage unless the respondents had elected to call no evidence. The appeal is allowed and I direct that the case be heard de novo. In view of the rather difficult question of law involved, the new hearing should be before a Magistrate.

7. Costs will be paid by the respondents and are fixed at $156.