Leung Lai Mai v. Tong Tung Sing
Read the full judgment text of DCMP 14/1947 on BabelCite. This District Court judgment was delivered on 17 September 1947.
1. This appeal from the decision of a Tenancy Tribunal granting eviction against the occupiers of the front portion of No.186 Nathan Rd. (1st flr.) was heard by this Court de novo as it was apparent from the very meagre notes taken by the Tribunal that there had been no proper trial of the real issues between the parties. The real opponent, Ip Sick Ying, was not served with the application originally but by order of this Court, fresh reasons for the application and grounds of opposition have bee
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DCMP000014/1947 IN THE SUPPEME COURT OF HONG KONG TENANCY TRIBUNAL APPEAL ACTION No. 14 of 1947 ----------------- (Application K.493)
Coram: T.J. Gould Date of Judgment: 17 September 1947 ----------------- JUDGMENT ----------------- 1. This appeal from the decision of a Tenancy Tribunal granting eviction against the occupiers of the front portion of No.186 Nathan Rd. (1st flr.) was heard by this Court de novo as it was apparent from the very meagre notes taken by the Tribunal that there had been no proper trial of the real issues between the parties. The real opponent, Ip Sick Ying, was not served with the application originally but by order of this Court, fresh reasons for the application and grounds of opposition have been filed. For the sake of convenience, I will refer to Tong Yung Sang as the applicant and to Ip Sick Ying as the opponent. 2. The allegations made by the applicant are in brief that on 11th October, 1945, he let the whole of the first floor of No.186 Nathan Rd. to the opponent on a monthly tenancy. The terms of the tenancy were written upon the first rent receipt and included a provision that when the applicant returned from Macao, he was to have the premises back for his own use. The rent receipt (bearing the only copy of these terms) remained in the possession of the opponent. The applicant returned from Macao in December, 1945, but did not bring his family at that time, and he occupied a small portion of the rear of the premises in question. About the end of February, he gave notice to the opponent to quit at the end of April as his family was returning from Macao. The opponent failed to leave and during 1946 and 1947, the applicant alleged a series of sublettings of the premises to which I shall refer in greater detail later. 3. The opponent admits taking a tenancy on the 11th October, 1945, but says that it was only of the front portion of the premises while the applicant remained in occupation of the back portion where he still remains. It is denied that the terms were reduced to writing at any time and that they included any term that the opponent was to vacate when applicant returned from Macao. He admits the verbal notice to quit given about the end of February but denies that any of the persons who occupied or shared his premises during 1946 or 1947 were subtenants. 4. The applicant relied upon section 18 (e) and (f) and section 20 of the Landlord & Tenant Ordinance, 1947, and the solicitor for the opponent conceded that he was entitled to rely on the Ordinance as distinct from the repealed Proclamation. Subsections (a) and (f) of section 18 empower a Tribunal to order recovery of possession in cases where a tenant has agreed to vacate premises either with intent to deprive himself of the protection of the Ordinance or upon the return to the Colony of the person who was tenant before the 25th December, 1941. I do not need to consider the legal points raised by the parties in connection with these subsections as I have no doubt upon the evidence that the opponent did not make any such agreement. On this point, I accept the evidence of the opponent that the terms of the tenancy were not reduced to writing and contained no reference to his vacating the premises when the applicant returned from Macao. 5. It remains then to consider the evidence so far as it relates to section 20 which is in the following terms: -
The first of the alleged subtenants of the opponent was one Pau Fong chow, who came into the premises about the end of February, 1946. The applicant could not say that Pau Fong Chow paid any rent to the opponent and evidence given by Pau himself and the opponent is to the effect that he was a friend and former tutor of the opponent and stayed with him as an invitee. In or about August, 1946, the opponent went to Formosa on business for a few weeks and after he left, Leung Lai Ming and Ho Lai Ping, two girls employed as dancers by local dance balls, entered into possession of one of the cubicles. Pau Fong Chow, who was still on the premises, said in his evidence, "He entrusted me to be in charge of the premises. As I could not be there all the time. I could not take full responsibility. Ip had a friend who recommended Leung Lai Ming to look after them with me. I never sublet (the premises) or received any money." The friend who introduced the two girls was a Mrs. Chung and, to this extent, Pau Fong Chow's evidence is confirmed by Ho Lai Ping who was called as a witness, and also by the applicant who said that Mrs. Chung slept one night on the premises and then Leung Lai Ming came. Ho Lai Ping however then went on to say that they paid a rent of $120 monthly for their cubicle of which they paid two months to Pau and one month to the opponent after he returned. This is strenuously denied by Pau Fong Chow and the opponent. While the opponent was still away, the applicant lodged an application for eviction against Leung Lai Ming and the other occupiers and Leung Lai Ming and Ho Lai Ping eventually left in November. 6. From their departure, the applicant rather vaguely alleged a subletting to Pau Fong Chau, stating that the opponent himself stayed away from the premises until April, 1947. This is strongly refuted by other evidence and there is nothing to show that the status of Pau Fong Chau had changed in any way between February and November, 1946. Pau left the premises about January, 1947, and thereafter it is alleged that portion of the premises was let to one, Leung Kin Chan, a female doctor for women's and children's diseases. It is admitted that advertisements appeared in the Chinese press in her name advertising a clinic at the address in question. She removed to another address at the end of July and notice of her removal was advertised and similar advertisements have since appeared showing the new address. At the request of the applicant, she signed a paper on leaving 186 Nathan Rd. in the following terms: - "I hereby willingly surrender possession of the whole portion of the front portion of your flat to Mr. Ip for him to receive. (The premises) shall have no concern with me. This is proof.
The explanation given by the opponent and Leung Kin Chan is that the clinic belonged to the former (who claims to be a chiropractor) and that Leung Kin Chan was employed by him at $300 per month. He supplied her with food and she slept on the premises when she wished. 7. On the evidence, I find it is unlikely that Pau Fong Chow was ever more than an invitee and in any event the applicant has not shown that his occupation commenced after the 1st March, 1946. The case against Leung Kin Chan is stronger. A clinic combining treatment of women's and children's diseases with chiropractic treatment would perhaps be an unusual combination and there are the advertisements in Leung Kin Chan's own name and the paper which she signed when leaving. The latter, however, signed at the applicant's request and being a surrender in favour of Mr. Ip, might possibly be construed as a waiver, and the explanations given by the opponent and Leung Kin Chan are, though perhaps ...(illegible) unlikely, not impossible of belief. On the whole, I consider that nothing more than a case of suspicion has been set up. 8. In the case of Leung Lai Ming and Ho Lai Ping, I find that the applicant has established that these two persons became subtenants of one cubicle and remained so for something like three months. There is the definite evidence of Ho Lai Ping that rent was paid both to Pau Fong Chow and the opponent. She was informed of the amount of the rent by Mrs. Chung who arranged it with Pau Fong Chow in her presence. Against the denials and explanations of the latter and of the opponent must be set the probabilities of the situation. Were these two girls, whose employment kept them out until a late hour each night, of a kind that would be of much assistance to Pau Fong Chow in looking after the premises? Is it likely that two persons, strangers to the opponent and to Pau Fong Chow, would be given accomodation rent free? It is to be noted that they left only after an application for eviction had been lodged, which indicates that they considered they had some claim of right. 9. It remains to be considered whether this finding is sufficient to justify an order for eviction. Section 20 is in definite terms. At first sight, it might appear that the "occupier" contemplated by the section was not the tenant. In many cases he would not be, but the word "occupier" has a definite and wide meaning and it is to be noted that the order may be made against the occupiers (the singular including the plural) of the whole "premises", although "any part thereof" and not the whole, may have been sublet. No question of waiver arises as the original application was lodged not long after Leung Lai Ming and Ho Lai Ping went into occupation. 10. The solicitor for the respondent submitted that there was no jurisdiction to make the order as no valid notice to quit had been given; the verbal notice mentioned in evidence was invalid as it did not expire at the end of a month of the tenancy. He relied upon the decision in Kerr v. Bryde, 1923, A.C. 16 in which it was held that a valid notice to quit was a condition precedent to the right of a landlord to a permitted increase of rent under the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. The decision turned upon section 3 (i) of that Act which reads as follows: -
The effect of this subsection was held to be that it was necessary to reduce a tenancy to the status of a statutory tenancy before the increased rent would become payable and in 1923 an amending Act was passed to rectify this by providing that the notice of intention to increase the rent should operate as a valid notice to quit. There is, however, no provision parallel to section 3(i) of the Statute of 1920 in the Landlord & Tenant Ordinance, 1947, and, in any event, it has not been suggested that the decision in Kerr v. Bryde had any application to section 5 of that statute which is the parallel section to section 18 of the Landlord & Tenant Ordinance. That Ordinance by section 5 provides simply that no order against a tenant for the recovery of possession of or for ejectment from premises shall be made otherwise than under the provisions of the Ordinance. Sections 18, 19 & 20 then specify the cases in which orders can be made; with the exception of one or two special cases, they are of a kind which would frequently be provided for by covenants in a lease and would give rise to forfeiture on a breach of any such covenant which could be taken advantage of without any prior notice to quit. It would be repugnant to such provisions as are contained in section 18, subsections (b) and (c) for example, that a further month's notice should have to be given before they could be invoked. This submission therefore fails unless it can be shown that the term "tenant" as used in the Ordinance is restricted to "statutory tenant" by definition. This is not so. The definition given in section 2 (n) clearly calls for rectification by the Legislature. As it stands, subsections (i), (ii) & (iii) thereof are not linked up in any way with the first part. Subsections (i) & (ii) contain descriptions of statutory tenants under the Proclamation and the Ordinance respectively. Subsection (iii) is obviously intended to widen the definition and it follows that there must have been a similar intention with subsections (i) and (ii). In my view, none of the three subsections can have been intended to be restrictions on the wide general meaning of the term "tenant". 11. In the result, I hold that the applicant is entitled to succeed. The decision of the Tribunal is upheld and there will be an order for recovery of possession of that part of the first floor of the premises which is not already in the occupation of the applicant at the expiration of thirty days from this date. Costs are allowed to the applicant in the sum of $200.
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