Liew Pai Win v. Foo Shing Trading Co

DCMP000036/1946

IN THE SUPREME COURT OF HONG KONG

SUMMARY JURISDICTION

TENANCY APPEAL No. 36 of 1946.

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Coram: Mr Justice T.J. Gould

Date of Judgment: 31 December 1946

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JUDGMENT

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1. This is an appeal from the decision of a Tenancy Tribunal ordering the appellant to deliver up possession of three rooms (Nos. 112, 113 & 114) in Marina House, Hong Kong to the respondent. The grounds set forth in the notice of motion are that (a) the decision was against the weight of evidence and (b) that it was wrong in law.

2. As to the first of these two grounds I need only say that this is a case where there was a direct conflict of evidence, which was given at some length, and that the Tribunal was in a better position than this Court to assess the value of the evidence on each side. So far from it having been shown that this is a case where the Tribunal clearly fell into error, I am of the opinion that their findings of fact, as I gather them from the judgment, were correct on the evidence before them.

3. The only two points of law which were seriously relied upon by the solicitor for the appellant are as follows:-

4. The facts as to the first of these are that the respondents at the hearing relied on certain letters written by the landlord of the premises and by the appellant himself as establishing that the respondents were in fact the tenants and upon the evidence of one Choy San Nam as establishing that appellant rented the premises as agent of the respondent. It was contended that the respondent should have called the landlord himself to establish as part of his case that he was the tenant - that the landlord's evidence was the "best" evidence within the meaning of the well known rule. With this contention I cannot agree. The issue between the parties was not whether the premises were let to the Foo Shing Trading Co., - there is a written agreement to that effect in evidence. The real issue is whether the appellant or the respondent is the person entitled to the tenancy under the description "Foo Shing Trading Co." and in the circumstances of the case, the appellant having admittedly signed the tenancy agreement, this resolves itself into the question "Was the appellant acting as agent for the respondent when he did so?" This being a question of the relations of the parties inter se it is by no means apparent that the best evidence of it could be given by the landlord, particularly in view of its letters of the 16th and 21st May. Consideration must also be given to the effect of Rule 33 of the Rules of Procedure which is as follows:-

Under this rule even if better evidence was available than that admitted the Tribunal could still have regard to the secondary evidence admitted. In face of the correspondence I do not consider that there was any resultant injustice to the appellant rendering it desirable to give effect to the proviso to the Rule. Upon this ground therefore in both its aspects the appeal fails.

5. The argument addressed to the Court by the solicitor for the appellant on the question of jurisdiction did not seem to embrace the real question of jurisdiction which arises. The ground relied upon is that the Tribunal has no jurisdiction to give judgment by way of "declaration as to who are the proprietors or partners of the Foo Shing Trading Co., tenants of the premises .........". It is true that in its judgment, which somewhat misleadingly purports to be a list of findings of fact, the Tribunal does find that the respondent and one other are the partners of the Foo Shing Trading Co. This however is unnecessary and irrelevant particularly in view of the finding at Para. 10 of the judgment that the appellant does not claim to have any interest in the Foo Shing Trading Co. The question which it was necessary for the Tribunal to decide was whether the respondent or the appellant was the person entitled to the tenancy granted by the landlord to the Foo Shing Trading Co., and the bringing in of the name of the Foo Sing Trading Co., the name under which appellant claims to have operated his business merely tends to confuse the issue. Neither the appellant nor the respondent claims to have been a partner of the other of them at any time, and therefore it was unnecessary for the tribunal to decide any question arising out of partnership relations. The argument for the appellant that a tribunal has no jurisdiction to decide which of two partners was entitled to a tenancy after an alleged dissolution (on the ground that such a decision would effect other rights of the partners inter se), whether or not such an argument would be good in a proper case, is here misconceived and irrelevant.

6. The real question of jurisdiction which falls to be decided is in my view whether a tribunal can decide between two claimants which of them is the tenant of any particular premises. This I think I am bound to decide although not in the grounds of appeal. Proclamation No.15 is of course designed primarily to settle questions of rent and possession of premises between acknowledged landlords, tenants and subtenants, but no doubt in view of the unsettled state of the Colony after the occupation the powers of eviction conferred upon the tribunals were framed to include persons in possession without title. This is the effect of Article 5(1)(a) which is as follows:-

1. Any Tenancy Tribunal constituted hereunder may, subject to any limitations which may be provided for by Regulation, make an order for the eviction of (a) any person who in the opinion of such Tribunal does not bona fide claim possession under a landlord or his predecessor in title;

7. I cannot see any other provision in the Proclamation which might be construed as contemplating proceedings for eviction being brought except by the landlord, or by a principal tenant against a subtenant, and I am doubtful whether the framers of Article 5(1)(a) had in mind circumstances such as these of this case. Nevertheless the wording adopted is wide and is in my view sufficient to give a tribunal jurisdiction to evict a person in possession of premises who is not in the opinion of the Tribunal a bona fide tenant, and there appears to be no good reason why proceedings for such eviction should not be instituted by any person who claims to be the bona fide tenant, as well as by a landlord. In T.T. Appeal No.11 of 1946 the appellant and respondent were rival claimants to a certain principal tenancy and although the question of jurisdiction was not specifically raised, jurisdiction was apparently assumed, as the case was dealt with on the merits both by the tribunal and on appeal. I hold therefore that the tribunal in this case had jurisdiction and the appeal on that ground fails.

8. Paragraph 6 of the "further and fuller particulars" of the grounds of appeal raises a point which is not in my view strictly a ground upon which the appellant can rely, but nevertheless raises a matter of which the Court should take notice. The order of the tribunal was that the opponent is ordered to deliver up possession and occupation of these 3 rooms to the applicant ....". Article 5(4) of the Proclamation provides that an order of eviction against a principal tenant shall not, unless the Tribunal otherwise directs, operate as an eviction of any subtenant. It is not absolutely clear in this case whether the tribunal intended to give such a direction. It is not legally within the power of the appellant to give possession of the three rooms unless the order is construed as evicting the subtenants. If so I think the order was wrong. In the first place, there is no evidence that the subtenants were served with the proceedings, though this may well be the result of the incorrect instructions given by the appellant to his solicitors which led to their letter of the 24th May 1946 addressed to Messrs. Hall Brutton & Co. Apart from this the cross examination of Mr. Choy, respondent's agent, reveals that he was aware of the subtenancies and was content that the rent to the landlord be met by this method. On the merits therefore I can see no ground for evicting the subtenants. The order made by the tribunal is varied accordingly and the appellant is ordered to deliver up possession of the premises described in the Application subject to any existing subtenancy or subtenancies not later than the 15th day of January, 1947.

9. On the substantial issues between the parties the respondent has succeeded and the appellant will pay costs in the sum of $250.