Ng Wan, Proprietor of Sang Kee v. So Yim

DCMP000024/1947

APPEAL NO. 24 of 1947

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Coram: Mr. Justice T.J. Gould.

Date of Judgment: 28 November 1947

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JUDGMENT

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1. This is an appeal from a 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. The refusal of this order is contained by implication in the words of the decision of the Tribunal which are as follows:-

"Opponent is to pay from October 1st, 1947, $11.50 p.m. to applicant as principal tenant. If he is to get back his tenancy, he should take legal proceedings accordingly."

The grounds upon which the original application was based are difficult to ascertain from the "Reasons for the application" which were drawn apparently by the appellant himself or at any rate by some person without legal qualifications. The Tribunal apparently assumed, and I think rightly, that there was only one ground - that the respondent did not bona fide claim under a landlord (Article 5 1(a) of the Landlord & Tenant Proclamation). The reference to non-payment of rent in paragraph 6 of the "Reasons" is intended, I think, to support this ground and not to be understood as alleging that the respondent is a subtenant of the appellant and that his rent is in arrear. The grounds of the appeal are that the Tribunal's decision was against the weight of evidence and wrong in law in the two following respects:

2. To say the least, each of these grounds in law might have been better expressed. As to the first of them, the Tribunal obviously had jurisdiction to make or refuse an order for eviction, though to the extent that it went further than that, its decision may be open to objection. The second ground reads more like a statement of fact than a ground of appeal in law, but I assume it to mean that the established facts show the respondent to have been something less than a tenant e.g. a licensee, invitee or trespasser.

3. The notes of the proceedings before the Tribunal were before me at the hearing of the appeal and pursuant to the usual practice, the Chairman of the Tribunal supplied to the Court the reasons for the Tribunal's decision which he has headed "Further Notes". The latter make it abundantly clear that only a portion of the evidence heard by the Tribunal was included in the original notes of proceedings. The "Further Notes" consist of a large number of statements of fact which the Tribunal held to have been established and they present a far clearer picture of the proceedings than do the original notes of evidence. The "Further Notes" being rather in the nature of findings of fact in a case stated, the question arises on an appeal based partly on fact whether I am entitled to assume that they are properly based on evidence.

4. Certain references in the Landlord & Tenant Ordinance, 1947, and the Rules thereunder (e.g. Sect.26 (4) γ, and Rule 47) make it clear that Tenancy Tribunals are expected to take notes of the proceedings before them, and cases on appeal in the past have shown that Tribunals have normally endeavoured faithfully to carry out this duty. The Tribunals, however, are in most cases comprised of laymen and having regard to that fact and to the necessity for speed due to the great number of applications awaiting hearing, it is not to be expected that the notes will be as full or as accurately relevant as those taken by a properly qualified judicial officer. In one recent case where the notes provided virtually no information as to the proceedings, I agreed to hear the case de novo . In the present case, I refused a like application as the notes were less inadequate and are augmented by the "Further Notes" of the Chairman. I think that the importance to be attached to such a report is one to be decided by the Court with regard to the circumstances of the particular case. In the present instance, the members of the Tribunal were Chinese and the absence of necessity for interpretation with its attendant delay probably contributed to the meagreness of the notes, but at the same time assisted the Tribunal's understanding of the actual evidence. The "Further Notes" show that detailed enquiry was made and that the contentions of both parties were fully considered; in my view I am 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. The position might be different if the appellant had been able to produce notes taken on behalf of his client at the hearing before the Tribunal which indicated the contrary, but as neither party was there legally represented, no such notes were taken. It follows that although the solicitor for the appellant rightly pointed in argument to certain conclusions contained in the "Further Notes" not supported by anything contained in the original notes, in view of the opinion I have expressed above the appeal must fail as regards the ground that the decision was against the weight of evidence.

5. The main facts as found by the Tribunal were that the respondent became the principal tenant of the ground floor shortly after the occupation. The appellant may have been the pre-war tenant, but if so he in effect abandoned his tenancy in favour of the respondent. After the re-occupation, the appellant working together with the landlord "persuaded" the respondent to give up his position as principal tenant and to substitute for it what is described in the "Further Notes" as "a state of non-paying co-occupancy with the applicant" and again as "a co-tenant". The Tribunal expressed the opinion that the respondent had been tricked in some way and said, "If he is to get back his tenancy, he should take legal proceedings accordingly". Be that as it may, it appears that the essence of the new arrangement as found by the Tribunal was that the appellant and respondent became co-tenants, agreeing between themselves as to the portions to be occupied by each. The whole of the rent was payable by the appellant and in consideration of his giving up his exclusive tenancy and certain fixtures, the respondent was not to be called upon to pay anything towards the rent. That being the Tribunal's finding, there was no need for it to go further; the duration of the arrangement did not concern it. But either from a desire to effect a settlement of the dispute or because there was some confusion in the mind of the Tribunal as to the difference between a "co-tenancy" and a subtenancy, the Tribunal fixed the rent for the part occupied by the respondent and directed him to pay it to the appellant. This order I hold to be of no effect as the Tribunal had no jurisdiction to make it.

6. I see nothing in the notes or the findings to support the contention that the arrangement between the parties is more consistent with respondent's being a licensee than a tenant so as to show the Tribunal to have been wrong in holding that he was the latter.

7. In the result, the appeal fails on the substantial issues - it succeeds only insofar as the order of the Tribunal as to rent is declared of no effect. On this account. I allow slightly reduced costs to respondent - in the sum of $120.

8. I should perhaps mention that at the commencement of the hearing of this appeal, I rejected a submission on behalf of the respondent that the order made earlier in the proceedings granting extended time to file notice of appeal was beyond the powers of the Court. Even apart from the contention that such objection should have been taken by way of appeal against the order itself, and apart from the general powers of the Court as to time, the matter is put beyond doubt by the proviso to Sect. 26(1) of the Landlord & Tenant Ordinance, 1947, which, by virtue of Sect.27(3) is applicable to purely procedural matters in the present application.