Lee Gwok Ying v. H. Turner
Read the full judgment text of DCMP 28/1946 on BabelCite. This District Court judgment was delivered on 27 August 1946.
1. This is an appeal from the decision of a Tenancy Tribunal dated 6th July sitting in Kowloon, refusing the application of the appellant for an eviction order under Proclamation No.15 as amended by Proclamation No.25 - the relevant article being Article 5, paragraph 1A(1) (a) (i).
Cited by 95 cases
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IN THE SUPREME COURT OF HONG KONG ----------------- TENANCY TRIBUNAL APPEAL NO.28 OF 1946 ----------------- (Application No. K304) -----------------
Coram: Mr. Justice E.H. Williams, Puisne Judge Date of Judgment: 27 August 1946 ----------------- JUDGMENT ----------------- 1. This is an appeal from the decision of a Tenancy Tribunal dated 6th July sitting in Kowloon, refusing the application of the appellant for an eviction order under Proclamation No.15 as amended by Proclamation No.25 - the relevant article being Article 5, paragraph 1A(1) (a) (i). 2. The material part of the Article in question reads -
3. The facts, in the main, are not in dispute and are as follows. Proclamation No.25 which amended Proclamation No.15. so as to enable a landlord to recover possession of his property under certain circumstances, was made on 1st March, 1946. The premises in question are No.3 Austin Avenue, Kowloon, of which premises the Respondent (Opponant) became tenant in November, 1945 at a rent of $100 per month. They consist of 4 rooms - servants quarters and at the material time were occupied by 4 men, 3 women and 3 children. 4. Early in April, 1946, the appellant (applicant) purchased the premises and on 17th April through his solicitors gave the respondent notice to quit. Appellant was living at 26 Connaught Road Central. 2nd floor, which consisted of one sitting room and 2 cubicles and there were resident the appellant and 8 other persons (including 3 servants). The respondent did not vacate the premises at Austin Avenue and on 1st June appellant made application to the Tenancy Tribunal for an eviction order on the grounds that he required the premises for himself and members of his family for a residence. On 8th June, respondent stated his grounds of opposition as being that appellant was not owner of the premises when he became tenant and, furthermore, he (respondent) was unable to secure alternative accommodation. 5. The case was heard by a Tenancy Tribunal on 6th July, both parties being legally represented. 6. At the hearing, appellant called medical evidence to shew that he and his wife were suffering from T.B., the wife's state of health being bad in that she also suffered from a pulmonary heart. The doctor described the premises as being unsuitable as a residence for the appellant and his family; he admitted that they would be unsuitable for respondent and his fellow-tenants. Appellant gave evidence to the effect that he had formerly lived in 105 Austin Rd. which had been part of his father's estate: he left there when the Japanese occupied the premises early in 1942; he went to live at 26 Connaught Road Central, 2nd floor, in September 1943 where he has since lived. On the re-occupation of Hong Kong by the British his house was taken over by the British Military Forces which still occupy it. He had tried to secure its release for his own use but was unsuccessful and hence he purchased the premises in question as a residence. He had been unable to find other suitable accommodation. 7. In cross-examination he stated he was Secretary to Messrs. Jowson & Co. which owned 26 Connaught Road Central. He had described himself, when writing to the Registrar of Companies, as a director of that firm but that was done by mistake. The firm own at present 4 houses viz. two in Woo Sung Street, 26 Connaught Road Central and a house in Kwai Lin Street. They had sold several houses during the Japanese occupation. Appellant's younger brother owned several houses but they were occupied by tenants who could not be evicted. 8. The respondent's evidence was to the effect that 4 men, 3 women (two of whom were pregnant) and 3 children occupied the premises; that on receipt of the notice to quit on 17th April he had endeavoured, without success, to quit on 17th April he had endeavoured, without success, to get other accommodation by inquiries from certain named well known property owners. 9. When solicitors for the parties had addressed the Tribunal it withdrew to consider its decision. After retirement for about 30 minutes it announced its decision as follows
10. Notice of appeal was lodged thereafter on the grounds that the decision was (1) against the weight of the evidence and (2) wrong in law. The latter ground of appeal was, however, later abandoned and the one question which I had therefore to decide was whether the decision of the Tribunal was against the weight of the evidence. 11. Counsel for the appellant submitted that the Tribunal should have given the order asked for if it was satisfied on two points (1) that proper notice to quit had been given and (2) that no other accommodation suitable for the landlord was available; that there being no dispute as to (1) the only point at issue was whether the appellant had discharged the burden which lay on him of satisfying the Tribunal that no other suitable accommodation was available for him. As the onus was that of proving a negative he claimed that the burden was discharged by less evidence that if an affirmative is required to be proved. After reviewing the evidence he submitted that it was clear on medical grounds that 26 Connaught Road Central was unsuitable for appellant and his wife in their state of health; that the other houses owned by Messrs. Jowson & Co. - even if appellant was in a position to secure one of them - were in Victoria City and equally unsuitable; that the evidence of the appellant, supported as it was by the evidence of the respondent on the point, shewed clearly that appellant could not secure other suitable accommodation. 12. Referring to the judgment of the Tribunal he submitted that it had clearly been influenced by the submission of solicitor for the respondent admittedly put before them that it would be a great hardship on the respondent if he were evicted. The Tribunal had put in the forefront of its decision the statement that the members considered it unfair for appellant to do what he had done viz. purchase property and immediately give notice to quit. Their final statement that they were not satisfied that appellant could not get other suitable accommodation was merely a make-weight to bolster up their private view of the case. 13. Regarding the burden of proof required Counsel for the appellant pointed out that this being a civil case the Tribunal should have decided in favour of appellant if "the preponderance of probability" was in favour of the view that the landlord would not find other suitable accommodation. The Tribunal had not to be satisried beyond reasonable doubt. 14. Lastly, Counsel for the appellant drew attention to the principles on which a Court of Appeal should act when reviewing a case tried by a judge with or without a jury - Powell v. Streatham Manor Nursing Home (1935) A.C. 243; Sharpe v. Avery 4 A.E.R. 85 at p.86 and 87 (top); Jones v. Spencer 77 L.T. p.536. He submitted that the Tribunal had proceeded on a wrong principle in considering the question of hardship on the respondent or the morality of appellant's conduct, and such being the case, as the evidence all went to shew that appellant was unable to get other suitable accommodation, this court should reverse the decision of the Tribunal; to send it back to the Tribunal for a new trial would be a waste of time. 15. Solicitor for the respondent submitted that the Tribunal had had the advantage of hearing the appellant give his evidence; that the Tribunal, before proceeding to a decision, would naturally have asked themselves 'Can we believe appellant when he says he can find no other accommodation?' when deciding on his credibility they must have been influenced by the fact that appellant had at one time described himself as a director even though he now said that that was a mistake; the Tribunal were quite entitled on the whole of the evidence heard by them to come to the conclusion 'we are not satisfied that appellant cannot obtain suitable accommodation'. 16. On the question as to whether the Court was justified in interfering with a finding of a Tribunal he referred to Solomon v. Bitton (1881) 8 Q.B.D. 176; Metropolitan Railway Co. v. Wright (1886) 11 A.C. 152 at 156 and Powell v. Streatham Manor Nursing Home (1935) A.C. p.247 particularly paragraphs 3 and 4 of the headnote. He submitted that on consideration of these cases it was impossible for the Court to reverse the finding of the Tribunal as being against the weight of the evidence, the principle being that the verdict of a jury (here the Tribunal) should not be upset on the grounds that it was against the weight of the evidence unless the verdict was one which a jury viewing the whole of the evidence reasonably could not properly find. 17. It now falls to me to give my decision in this case. 18. It is clear that the Tribunal considered the conduct of the appellant as morally wrong. They may have been impressed by the evidence of respondent as to the hardship he would suffer if evicted. Strictly speaking such evidence was not relevant to the question before the Tribunal. I am not, however, entitled to overrule the decision on that account. Indeed, Rule 33 of the Rules of Procedure is of interest here, for under it a Tribunal may take into consideration any matter which it considers relevant to the application before it notwithstanding that such matter is not strictly admissible under the law relating to evidence. No argument has been addressed to me by either party on that rule. I propose, however, to deal with the case without consideration of any hardship which may fall on the respondent as a result of an adverse decision. 19. The Tribunal came to the conclusion that it was not satisfied that appellant could not obtain other suitable accommodation. I think that it would have been preferable if there were available here the reasons why the Tribunal so concluded; as it is one can now only surmise. It is obvious that the members gave the question very serious consideration for their deliberation lasted about half-an-hour. 20. It is possible that the Tribunal was not satisfied as to appellant's statement that he was unable to recover No.105 Austin Road from the Military Forces. His evidence here would, I feel, have carried more weight had he produced correspondence on the point with the Authorities. If he had forwarded to them a medical certificate shewing that the health of himself and his wife was bad he might perhaps have received intimation that the premises would be released within a reasonable time. Whatever reply he got on such an application would have been of sdvantage to the Tribunal in arriving at a proper decision. 21. Again, the Tribunal may have formed the opinion that as Secretary of a Company which owned other houses (even though not quite so suitable as No.3 Austin Avenue) appellant ought to have been able to secure one of these houses or a part thereof or one of the 6 houses owned by his brother in Ko Shing Street. When comparing his evidence on the question of ability to secure other premises with that given by the respondent the Tribunal may well have given consideration to the fact that the evidence shewed appellant to be a man of some means, owning two houses in the Colony, whilst respondent is not shewn to have been the owner of any household property. From this it may have formed the view that appellant was a person whose chance of securing other accommodation after a proper search was reasonably good. 22. Moreover, even though the Tribunal has not stated in writing that it disbelieved appellant, I cannot help thinking that its faith in him must have been slightly shaken by his evidence under cross-examination regarding his connection with Messrs. Jowson & Co. 23. When it is remembered that the onus lay on appellant to shew that no other suitable accommodation was available more detailed evidence of inquiries made by him e.g. from named friends or named property owners would, I should think, have carried greater weight with the Tribunal. 24. These are all matters which in my opinion a Tribunal of business men, well aware of conditions prevailing in the Colony, was entitled to consider and indeed may well have considered before coming to a conclusion. 25. Am I justified in reversing the decision of the Tribunal that it was not satisfied that appellant could not obtain other suitable accommodation. I quote one statement from Metropolitan Railway Co. v. Wright (1886) 11 A.C. 152 at 156 "if their finding is absolutely unreasonable a Court may consider that that shews that they have not performed the judicial duty cast upon them; but the principle must be that the judgment upon the facts is to be the judgment of the jury and not the judgment of any other Tribunal" per Lord Halsbury. Again Clarke v. Edinburgh Tramways Co. per Lord Shaw quoted in Powell v. Streatham Manor Nursing Home (1935) A.C. 243 at 250.- "When a judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the judge makes any observation with regard to credibility or not". 26. Again 'On an appeal against a verdict, if the evidence was such that no jury properly directed could reasonably have found the verdict in question, the verdict will be set aside. A verdict, however, will not necessarily be set aside merely because it is, in the opinion of the Court of Appeal, against the weight of the evidence, but there is jurisdiction to grant a new trial in such a case' per Viscount Sankey in Powell v. Streatham Manor Nursing Home (supra) at p.250. 27. One should not overlook the difference which exists between proceedings before the Tribunal and proceedings before a judge with or without a jury in the ordinary Civil Courts. Before the Tribunal there is (as here) a minimum of witnesses - in any civil case of importance there is usually a large number of witnesses. The Tribunal in coming to a decision has not the guidance of a legally trained person uninterested in the result. It has to make its decision usually on the minimum of evidence. 28. I am quite satisfied that the Tribunal here knew what question it had to decide namely 'was it satisfied that no other accommodation was available for the appellant'. Even though the Tribunal gave its own view of appellant's conduct (and incidentally stated that view before giving its reasons for the decision) it knew what was the real question at issue. I feel certain that solicitor for the appellant did not omit to point out to the Tribunal what it had to decide. 29. On consideration of the authorities, some of which I have previously mentioned, I have come to the conclusion that I am not justified in holding that the decision of the Tribunal is so unreasonable that I should interfere. 30. I therefore dismiss the motion that the order of the Tribunal be set aside. 31. The decision of the Tribunal is therefore confirmed. 32. Costs to be agreed if possible. 33. I might perhaps here draw attention to two points where by amendment of the present law a tenant might receive more protection than he receives at present. 34. In the English Act - Rent & Mortgage Interest Restriction (Amendment) Act 1933 - the landlord is not permitted to obtain eviction of the tenant when he desires premises for his own occupation unless he has been landlord prior to a fixed date (in that Act about 2 years prior to the passing of the Act). 35. Secondly, the question of relative hardship must be considered by the Court (including that whether other accommodation is available for the landlord or tenant). I admit that this question is usually a most difficult one. By our Law no question of hardship on the tenant may be taken into consideration.
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