Wu Kwan Oi v. Ip Yick Chi

DCMP000038/1946

IN THE SUPREME COURT OF HONG KONG

TENANCY TRIBUNAL

APPEAL No. 38 of 1946

(Applic.No. 564)

Coram: Mr Justice E.H. Williams

Date of Judgment: 15 January 1947

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JUDGMENT

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1. In this case before the respondent is entitled to recover the premises she must satisfy the Tribunal (a) that the premises are required by her as landlord for occupation as a residence for herself and (b) no other suitable accommodation is available for her.

2. Suitable notice to leave must, of course, have been given to the appellant.

3. By the wording of Article 5, Section 1A(1) under which the application was made, a separate residence will only be given to a son or daughter provided he or she is over 18 years.

4. In considering whether premises are required by a landlord for his own use and whether other suitable accommodation is available in my opinion, regard must be had to such circumstances an the size of his family, to considerations of health and also social amenity. But regard must be had, at the same time, to the acute shortage of housing in the Colony, resulting in a general state of overcrowding.

5. The principles to be followed by a Court of Appeal when considering the decision of a lower Court or Tribunal are discussed at length in Howell v. Streutham Manor Nursing Home. (1955) A.C.343. It was there emphasised that where the questions at issue is the proper inference to be drawn from facts which are not in doubt, the Appellate Court is in as good a position to decide the question as the judge at the trial is.

6. In the present case the facts are not in dispute. Admittedly respondent's child, aged 10, is not in good health: He is apparently suffering from T.B. spine. The Doctor, in a letter to respondent, which appears to have been before the Tribunal, remarks that 'he should be kept away from the other children, for his own sake as well as that of the other children'. The effect of the order of the Tribunal is, in fact, to give him other accommodation - apart from that of the rest of the family than the respondent, his mother will live with him. I do not say that the granting of a separate establishment to such a child is necessarily contrary to the proclamation in every case. As I have remarked, considerations of the health of the members of the family should receive consideration when a decision is being made.

7. The onus, however, lies on the owner, here the respondent to satisfy the Court by the preponderance of evidence that the additional premises are required and that she has no other suitable accommodation. In my opinion, the evidence, as a whole, cannot be put higher than that it is very desirable such additional accommodation should be available. If the conditions prevailing in the Colony did not shew a general state of overcrowding, I might be prepared to hold that the present accommodation was not suitable but as conditions are and I must have regard to them. I do not find that respondent has discharged the onus which lies on her. I regret I have come to this conclusion as I have great sympathy for the respondent.

8. I, therefore, allow the appeal and reverse the order of the Tribunal. The appellant must, of course, pay up all the arrears of rent forthwith. I allow the sum of $150 as costs of appeal to the appellants.