Chan Ng Shi v. Tsui King Fung

DCMP000054/1946

IN THE SUPREME COURT OF HONG KONG

SUMMARY JURISDICTION

TENANCY TRIBUNAL APPEAL

ACTION No. 54 of 1946

(Application No. K 447)

Coram: Mr Justice E.H. Williams

Date of Judgment: 13 February 1947

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JUDGMENT

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The facts of this case are not in dispute. The main ground of appeal is that the Tribunal, when refusing the application by its statement in the Finding 'There is no hardship on the applicant', had erred in law as no question of hardship arises under the provisions of the relevant Article in the proclamation.

2.Before the Tribunal makes an order for eviction under Article 5, para. 1, A(i) it must be satisfied that the landlord requires the premises for himself ..... or any son or daughter over 18 years old and that no other suitable accommodation is available for such landlord .......... or the son or daughter over 18. In addition, it must find that the usual notice to quit has been given.

3.Owing to the crowded conditions of living in the Colony and the difficulty of obtaining other accommodation, it is inevitable that the tenant will plead hardship, as he pleaded here, if he is evicted - the landlord may also plead hardship. This question of hardship is of great importance under the English Acts, as it is a factor which has ...(illegible) to be taken into consideration. Under the Acts also, another factor has to be considered, namely, whether the Court considers it reasonable to make such order.

4.Under the Proclamation, the Tribunal has to make the order if conditions mentioned in paragraph 2 supra are fulfilled. Though the wording reads 'the Tribunal may make the order etc', but I agree with and follow previous decisions of this Court that here 'may' is not discretionary but is directory. If the above-mentioned conditions are found by the Tribunal to held, then however great the hardship on the tenant; however unreasonable it may be to make the order e.g., if the tenant or other occupant is dangerously ill and removal might cause death, the Tribunal must grant the eviction order. It can only stave off the evil day for a period of 30 days. The position of a tenant in the Colony is therefore considerably less favourable than it is in England.

5.In its Finding, the Tribunal make no mention of the essential findings of fact that the premises were required or that no other suitable accommodation was available. In addition to the statement that there was no hardship on the appellant (applicant), the Tribunal suggest that the second son after marriage might stay in the roof room, a room which is already occupied by a famale cousin of the appellant (applicant).

6.The evidence shows that there are 3 sons, all over 18, living with the appellant, 2 of whom have recently returned from America. One is married, his wife lives with him in one cubicle; a second is shortly to be married. At present, he occupies the teng with the third son and a sister-in-law of Appellant. Appellant occupies a second bedroom. The premises consist of a teng, 2 small bedrooms, verandah and a fairly large roof room occupied by the appellant's cousin. I have visited the premises and am satisfied that the appellant requires other premises for one or more of her sons and that the present accommodation is not suitable. Admittedly, the state of overcrowding is not as great as that which prevails on the floor occupied by the respondent (the tenant).

7.From the finding of the Tribunal, it is clear that the main factor which led it to refuse the application was that of hardship but, as I have already indicated, this is a matter which the Tribunal is not entitled to consider. I therefore hold that the Tribunal was wrong in law in so doing and allow the appeal.

8.I had considered whether I should give possession of the whole floor or of part but I have come to the conclusion that the size of the floor is such that any division would inevitably lead to quarrels between the respective parties.

9.The order for eviction will apply to the respondent and the sub-tenants, to take effect within 30 days from to-day.

I realise my order will entail, perhaps, considerable hardship on respondent and the sub-tenants - whatever decision a Court makes in such cases involves hardship on one party or the other.

Appeal allowed. Decision of Tribunal reversed: eviction within 30 days from to-day. Order for payment of all mesne profits due within 7 days. No order as to costs.