Shum Fong v. Wong Pit Hing

DCMP000034/1946

IN THE SUPREME COURT OF HONG KONG

TENANCY TRIBUNAL

APPEAL No. 34 of 1946

Coram: E.H. Williams, Puisne Judge

Date of Judgment: 31 October 1946

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JUDGMENT

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1. This is an appeal from the order of a Tenancy Tribunal giving the respondent possession of 8 Hanoi Road, of which she is the owner, and which is at present occupied by the appellant as principal tenant. The grounds of the appeal were that the decision was against the weight of the evidence and was wrong in law. The grounds of it's being wrong in law were set out in a letter from solicitors for the appellant, the main one being that there was insufficient evidence to prove there was no other suitable accommodation available for the respondent.

2. The application to the Tribunal was based on paragraph 1A(1) of Article 5 of the Proclamation i.e. , the landlord required the premises for her own use. The reasons for and facts in support of the application appear quite inconsistent. In one part it is claimed that opponent was not a tenant - she had entered into possession without the knowledge and consent of the respondent. Later it was stated that due notice to quit had been given - such notice was the ordinary letter to a tenant warning the person to vacate premises held on a monthly tenancy.

3. The grounds for opposition were briefly that the application was "res judicata", a similar application having been refused by a previous Tribunal.

4. At the hearing before the Tribunal, solicitors for both partles were heard on the point of "res judicata" and it decided in favour of respondent on that point.

5. Evidence then was heard by the Tribunal. It is clear from the record that no point was taken by the respondent that appellant was not a proper monthly tenant. The application being under paragraph 1A(1) of Article 5, no such point should have been taken.

6. The evidence necessary, to support the application was that the landlord (respondent), having given due notice to quit, required the premises for her own use and could get no other suitable accommodation. In support of the case, the respondent stated she had not looked for other premises but had given instructions to her nephew in consequence of which, as he stated, he had made inquiries from people about vacant premises though he had not put any advertisements in the paper.

7. In addition to this, evidence was given by another witness for respondent that appellant was also his principal tenant at 2 Hillwood Road where he lived and he believed she had another address in Austin Road. This evidence was quite irrelevant. The record of the case does not appear complete and perhaps solicitor for appellant raised objection to its admission. If he did not, he certainly should have done so.

8. At this hearing, the record of the previous case before the Tribunal was referred to at the request of the appellant. As a plea of "res judicata" had been raised, it is clear that some reference to the facts in the previous hearing should have been made - not for the evidence contained therein but to ascertain what was actually decided.

9. The Tribunal during the hearing adjourned to visit the premises and, its hopes for some from of compromise being disappointed, gave its decision in favour of the respondent setting out the reasons for the findings as follows : -

(1) The Applicant really requires the premises for the use of herself and family.

(2) The Opponent is not a bona fide tenant.

(3) The Opponent without the knowledge and consent of the Applicant took possession of the premises.

(4) The Opponent gives us the impression that she, as principal tenant in various premises, collects much more rent than landlords.

10. At the hearing of the Appeal, Counsel for Applicant submitted that reasons (2) & (3) were not supported by any evidence and that reason (4) was irrelevant: also that there was no finding that other suitable premises were not available and moreover the evidence in support of such a finding was inadequate. The respondent should have called evidence of definite searches from named sources as was indicated in an appeal case heard some time ago by me. He submitted also that the Tribunal, because of reasons (2) , (3) & (4), had been influenced by extraneous matters perhaps as to (2) & (3) because of something contained in the previous record (which was not before me) or of something contained in the "reasons" for the application : if it had not been so influenced, he claimed the Tribunal would not have made the order.

11. Counsel for the respondent submitted that the point of the insufficiency of evidence that respondent had not been able to find other accommodation, was not raised by solicitor for appellant before the Tribunal and should not now be taken on appeal. Even if it could be taken on appeal, there was sufficient evidence from the nephew to shew it was impossible to find such: furthermore, the scarcity of housing was now so great that the Court could take judicial notice of the fact that accommodation could not be obtained.

12. Both Counsel cited authorities which I need not now set out.

13. Admittedly, the reasons set out for the Tribunal are in the main either irrelevant or unsupported by evidence. It is also unfortunate that the record is not as complete as it should be. There is, for instance, no account of any concluding address by either solicitor. Counsel for respondent has informed the Court that in fact a great deal more was said at the hearing than appears in the record.

14. For the various reasons, I have indicated the case is not an easy one to decide.

15. Regarding the argument for Applicant that more evidence of inability to find suitable. accommodation was necessary and the argument for appellant that the Court should take judicial notice that it is almost impossible to get accommodation, I now hold that much less evidence is required of the inability to find suitable accommodation than I would have required some months ago. From correspondence in the press, from numerous conversations with members of the Chinese and European communities, I learn that it is almost impossible to get housing accommodation without the payment of a large sum as "tea money" or for repairs to be carried out, or for some fittings worth only $10 or $20. In my opinion, the Court would be shutting its eyes to a very obvious state of affairs if it did not now recognise that the shortage of housing is extremely acute. I now hold the view that a minimum of evidence is required to satisfy a Tribunal of such inability. Admittedly no definite rule can be laid down and a Tribunal, before making an eviction order, should satisfy itself that some inquiry has been made.

16. I find, therefore, that there was evidence on which a Tribunal could find that no suitable accommodation was available and I hold that I would not be justified in reversing altogether the decision.

17. Counsel for Appellant submitted that if I did not reverse the order of the Tribunal, I should vary it by not requiring eviction from the whole house.

18. Perusal of the findings of the Tribunal shews that the Tribunal felt that a settlement between the parties should have been reached. The forms of settlement is not mentioned but I take it that the settlement in view was an apportionment of the premises. The Tribunal also expressed a wish, when making the eviction. order against appellant, that respondent would not require the sub-tenants to remove. In my opinion, when the majority of persons fortunate enough to have some form of premises in which to reside are sharing with others, division would not be unreasonable, remembering that the house consists of 8 rooms and respondent desires to accommodate about 8 or 9 persons.

19. I therefore make order that the decision of the Tribunal be varied by ordering eviction of appellant from a portion of the premises.

20. I adjourn the case until 9th November, in order that the parties may arrange what part of the house is to be given up to appellant. - perhaps the first floor: there will, of course, be the question of arranging a propertionate rent. In future, respondent and the sub-tenants are to become tenants of and pay rent to respondent.

21. If the parties come to a settlement on or before 9th Nov., there will be no need for them to appear on that date - it will be sufficient to notify the Court in writing that a settlement has been reached. It is a condition of this order that appellant pay all arrears of rent and mesne profits.

22. As appellant has succeeded in part but not on the whole of her appeal, I make no order as to costs.