Cheng Sang v. Tam Cheong

DCMP000011/1946

THE STANDING MILITARY COURT OF HONGKONG

GENERAL MILITARY COURT

TENANCY TRIBUNAL APPEAL NO.11 OF 1946

(Application No.237)

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Coram: Mr. Justice Les D'Almada, President

Date of Judgment: 27 April 1946

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JUDGMENT

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1. The undisputed facts are :-

1. Appellant was Principal Tenant of the premises from before the Pacific war until May, 1945.

2. The tenancy was a monthly one.

3. From shortly after the surrender of the Colony, the landlord ceased to collect rent.

4. The Respondent became Sub-Tenant of the Appellant early in 1945.

5. Appellant and his family left the premises about May, 1945, leaving certain belongings in the premises and without giving notice to the landlord.

6. The Respondent thereafter continued to pay rent to the Appellant's brother whom he had appointed as agent for the purpose.

7. With this rent the agent paid the rates and taxes for the premises until the re-occupation of the Colony.

8. After the re-occupation the Respondent became tenant of the whole premises by agreement with the landlord.

9. On his return to Hong Kong in November last, the Appellant was permitted by the Respondent to live in the premises for a few days without paying any rent. He outstayed his welcome in consequence of which an eviction Order was obtained against him.

2. Against this Order this Appeal was brought. Before the Tribunal the Appellant relied inter alia on an agreement with the Respondent by which he alleges the Respondent took over the whole of the premises from him and undertook to give him back possession of that part which he was formerly occupying on the termination of hostilities.

3. This alleged agreement is not referred to in the Findings of the Tribunal. I will assume therefore that it was not proved although I must say I regard it as significant that the letter which Appellant's solicitors wrote to the Respondent on the 12th November last, setting out the agreement, was not answered by the Respondent. One would expect that had this agreement not been entered into there would be an immediate denial of it. However, for the purpose of this Appeal I propose to ignore it.

4. The ground for the Tribunal's Order must be, as Mr.Kwan has argued, the following which I quote from the Findings:-

"In law the Tribunal feels that the Appellant has no reason to maintain that he could claim from the landlord a tenancy after he has quitted the premises and gone back to the country and had not paid rent during his absence."

5. It is to be noted that the period of absence extended to early in November last, and the non-payment of rent likewise.

6. The question is whether the Tribunal was right in finding that there was no longer a subsisting tenancy between the landlord and the Appellant.

7. Had the payment of rates and taxes by the Appellant's agent continued beyond the re-occupation of the Colony I would have had greater difficulty in deciding this case. As things are, however, there is a period of more than two months from the re-occupation during which neither Appellant nor his agent did anything vis-a-vis the landlord. From the re-occupation, then, Appellant may be taken to have abandoned the premises. It is true that any attempt to negotiate with the landlord after he had let the premises to the Respondent might have been of no avail, but the significance of Appellant's and his agent's inactivity over the whole period was a serious consideration with the Tribunal and with their view of it I respectfully concur. This inactivity led to the landlord's letting of the premises to the Respondent. This letting was in circumstances from which the Appellant's consent to it may, I think, be inferred: his agent who had, until the re-occupation, been paying the rates and taxes ceased to do anything to show a continued interest in the premises; he did not attempt to communicate with the landlord; and he knew all the time that the Respondent was in possession. If this is so, then there was a surrender by operation of law which terminated the Appellant's tenancy (Walls v. Ateheson, 3 Bing. p.462).

8. Assuming, however, that this consent cannot be inferred from the circumstances, what then is the position? The answer must be that the landlord by his letting of the premises to the Respondent evicted the Appellant (Hall v. Burgess, 5 B. & C. p.332). This leaves the Appellant with a remedy by way of an action for damages against his landlord. So far as the Respondent is concerned, however, he has no redress. His continued presence in the premises against the Respondent's consent mates him a trespasser and as such he is not protected by the Proclamation.

9. In the result the decision of the Tribunal is affirmed and the Appeal dismissed.

10. There will be an Order that the Appellant give up possession of the premises to the Respondent within 14 days hereof. Despite the time that has elapsed between the decision of the Tribunal and this Judgment I deliberately give the Appellant a fortnight in which to move out because like the Tribunal my sympathies are with him for that I think he has been dealt with hardly by the Respondent. For the same reason I make no order as to costs.