Wong Yung Kwai v. So Wai

HCA12929/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.12929 OF 1997

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BETWEEN

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Before : Hon Nguyen J in Court

Dates of Hearing : 23-25 June 2004

Date of Judgment : 16 September 2004

J U D G M E N T

The plaintiff’s claim

1.The plaintiff’s claim is for possession of a portion (about 72 sq ft) of Lot No.15, Pokfulam, of which the plaintiff is the registered owner.  The said portion was let to the defendant as from 1 January 1967 at a yearly rental pursuant to an undated agreement between the plaintiff’s agent Wong Tam Po (“WTP”) and the defendant (Ex P1).  The agreement stated that only three months’ notice was required to be given by the plaintiff to the defendant to repossess the portion, without payment of any compensation to the defendant.  The plaintiff through his solicitors in a letter dated 11 March 1997 gave three months’ notice of termination and demanded possession on or before 30 June 1997.

2.On or about 13 October 1995 without the plaintiff’s consent the defendant trespassed on 207.70 sq ft of the plaintiff’s lot which was adjacent to the portion leased to the defendant.  An illegal structure was built on the land trespassed.

3.The plaintiff claims for possession of the portion leased and the further portion trespassed upon, an injunction to require the defendant to remove the illegal structure, and mesne profits totalling $86,169.22 from November 1997 to June 2002 inclusive.

The plaintiff’s evidence

4.According to the plaintiff and the documents filed, the chronology appears to be as follows :

(1)     May – June 1967 : his uncle who was his agent WTP informed him that the plot of 72 sq ft was rented to the defendant at the rental of $50 per annum and only three months’ notice was required to repossess the lot, without any compensation being payable.  The plaintiff asked WTP to look after the plot for him.  The plaintiff went to the plot three times a year and saw a wooden structure occupying no more than 72 sq ft next to the defendant’s house at lot 90A and used as a kitchen.

(2)              1985 : WTP passed away.

(3)              July – August 1985 : The plaintiff went to the area and told other tenants of his that his agent had passed away and requested them to tender rent to the plaintiff directly.  Subsequently he saw the defendant in early August.  Each year rent was due on 1 August and the plaintiff went to collect rent.  Sometimes the defendant passed the rent to neighbours to pass to the plaintiff.  In August 1985 the defendant passed rent to him for the year 1985.

(4)              26 November 1987 : On the plaintiff’s instructions, Philip K.H. Wong & Co., solicitors, wrote to the defendant giving notice that the tenancy would be determined on 31 December 1988 and demanding vacant possession.

(5)              14 March 1989 : Poon, Yeung & Li wrote to the defendant asking for particulars of sub-tenants — their names, the parts occupied by them, the rent payable by them and the date of first occupation by them.

(6)              26 July 1989 : Poon, Yeung & Li wrote to the defendant alleging that on a date unknown to the plaintiff, the defendant assigned, sublet and parted with possession of the said portion or part thereof to others.  The letter demanded that the breach be remedied.

(7)              12 September 1989 : The plaintiff filed with the Lands Tribunal a notice of application under Landlord and Tenant (Consolidation) Ordinance, pursuant to section 53(2)(e) naming the defendant as 1^st respondent and as 2^nd respondent all persons occupying Lot No.15 as trespassers.  The application alleged that on a date unknown to the applicant, the 1^st respondent assigned, sublet and/or parted with the possession of the said lot to the 2^nd respondent without the prior knowledge and/or written consent of the applicant.  The applicant claimed possession and arrears of rent at $50 per annum from 1 January 1989.

The plaintiff said in his evidence that a friend helped him to file this application and he did not know why the friend did it this way.

(8)              2 April 1990 : Philip K.H. Wong & Co. wrote to the defendant giving notice that the tenancy shall be determined on 31 December 1991 and demanding vacant possession.

(9)              27 October 1994 : Szeto & Yeung, solicitors, wrote to the defendant stating that six year’s rental from 1988 to 1994 had not been paid by her and demanding payment of the $300 arrears.

(10)         24 January 1995 : Szeto & Yeung wrote to the defendant demanding $5,000 being the increased rental for the year 1995.

(11)         27 January 1995 : Szeto & Yeung wrote to the defendant demanding $2,000 being the increased rental for the year 1995 and stating that the previous letter was superceded by this.

(12)         13 October 1995 : The plaintiff went to the village and saw workers building a new house occupying land previously occupied by the kitchen which was demolished.  The house occupied more than 70 sq ft and encroached upon the plaintiff’s land.  The plaintiff went to the District Officer to complain on 14 October 1995 (confirmed by memo dated 19 October 1995 from District Officer (Southern) to Housing Manager, Squatter Control.  At Lunar New Year that year, the plaintiff had gone to the lot and the kitchen was still there.

In his evidence, the plaintiff confirmed that he collected rent from the defendant after 1985 and until 1997.  He confirmed the kitchen was there till 13 October 1995.  He said he applied to the Lands Tribunal because the defendant would not adjust the rental.  He confirmed the defendant was using the kitchen herself.  He denied he had said in the Lands Tribunal that she sublet.  He said he wanted possession of the lot as soon as WTP died and he had an arrangement with her over the rental but she did not agree.  He agreed that up to 13 October 1995 no problems arose in respect of the defendant’s tenancy.

(13)         3 January 1996 : The plaintiff wrote to the defendant returning her eight cheques for payment of rent from 1989 to 1996 of Lot 90I.

(14)         22 March 1996 : Messrs Paul T.S. Lam & Co. wrote to the defendant complaining of the trespass “on a date unknown to our client” and stating that the defendant extended the structure to about 180 sq ft of the plaintiff’s land.  The plaintiff said in evidence that he did not tell the solicitor the date of the trespass.  Similarly the date was not mentioned in the original Statement of Claim.

(15)         11 March 1997 : C.W. Heung & Partners wrote to the defendant stating that the rent was $50 per annum and giving notice to quit on or before 30 June 1997.  The letter also claimed that the defendant trespassed on the plaintiff’s land by extending an illegal structure for about 180 sq ft and demanded demolition on or before 31 March 1997.

5.The plaintiff agreed that before 13 October 1995 he suggested raising the rent but the defendant indicated she did not agree to any rent increase.  The plaintiff agreed that all the solicitors’ letters were written on his behalf based on instructions given by him.  He agreed he did not tell Szeto & Yeung about the existence of Ex P1.

The defendant’s evidence

6.She is aged 80 and said that she lived in the house next door to the plaintiff’s lot and asked WTP if he would rent that lot to her.  He said yes.  This was 40 years ago.  The lot was vacant.  WTP allowed her to live there.  She said she would pay $30 per annum as rent.  After 8 to 10 years he asked her to increase it to $50 per annum.  She agreed.  She paid the rent to WTP.  There was never any discussion about the length of the notice to quit.  The lot which exists today is the same as it was then.  The plaintiff is WTP’s son.  After WTP died, the defendant paid the rent to               WTP’s wife but she would not accept.  She asked the defendant to pay it to her son.  The defendant’s son took the rent to the plaintiff’s house in the village but he would not accept it.  The rent was paid once a year in about October.

7.Forty years ago the defendant erected a house made of wooden planks but it became dilapidated so she rebuilt it.  The present house was the third house and was made of bricks.  She offered the rent to the plaintiff but he would not accept.

8.When the defendant first rented the lot, she did not sign Ex P1.  WTP wrote three lines on a piece of paper which was not as wide or long or contained as many words as Ex P1.  This was about one to two years after she rented the lot.  WTP said it was only to show that the defendant paid him rent.  The defendant was illiterate and signed on no paper.  She used a chop for her bank account.  She is willing to carry on renting the lot but is not paying rent at the moment.  The last time she paid rent, it was $50 per annum.  The plaintiff proposed that the new rent should be at $5,000 per annum.  The defendant’s son suggested signing a lease for 20 years but the plaintiff would not agree.

9.The wooden house was used for living and not as a kitchen.  Thirty years ago the defendant and her family comprising her husband, father‑in‑law and six sons moved to Wah Fu Estate and surrendered her original lot (adjacent to the plaintiff’s lot) to the landlord.  Five of her sons moved to Wah Fu and the defendant and her husband and 3^rd son remained in the plaintiff’s lot.  The lot of the plaintiff was 300 sq ft.  The new wooden house which was built was attached to the defendant’s original house.  The present brick house was built about 10 years ago.  The second house was also made of wood and was about the same size as the first house.

10.The defendant never allowed others to use the plaintiff’s lot.  In 1989 the defendant and the plaintiff went to the Lands Tribunal and the judge ruled that the defendant need not leave and could stay on the plaintiff’s lot.  That time what was produced in Court was the three‑line note written by WTP, not Ex P1.

11.So Ka Chau is the defendant’s brother.  He did live on the plaintiff’s lot once, and stayed there for 10 odd days.  The defendant never left the lot and allowed her brother to use it.  Her brother only used a bedspace on the lot.  The defendant lived in Stanley for two years and during that time her 3^rd son lived on the plaintiff’s lot with his family.  Presently, for 10 days in a month, the defendant lives on the lot.  The brick house is the same size as the wooden hut.

Assessment of the evidence

12.The plaintiff’s evidence that his agent WTP had rented 72 sq ft to the defendant at the rental of $50 per annum and that only three months’ notice was required to repossess the lot, without any compensation being payable, is hearsay.  WTP has been deceased since 1985.  The plaintiff admitted that all the letters written on his behalf by solicitors were based on instructions given to them by him.  Taking into account the first letter written by Philip K.H. Wong & Co. on 26 November 1987 when the solicitors gave the defendant one year’s notice to quit, and the following letters culminating in the letter of 22 March 1996 written by Paul T.S. Lam & Co. when the solicitors spoke of a trespass “on a date unknown to our client”, and taking into account the letters written between those two dates, for example, the letter of 2 April 1990 by Philip K.H. Wong & Co. giving the defendant about one year and nine months’ notice to quit, my view is that the plaintiff’s conduct during those years is totally inconsistent with his case as presented in Court, namely, that there was an agreement signed by the defendant leasing 72 sq ft as from 1 January 1967 and agreeing to only three months’ notice to quit and that on 13 October 1995 the plaintiff witnessed the defendant trespassing onto his land which was adjacent to the 72 sq ft leased to the defendant by the defendant building a new house thereon.  On a balance of probabilities, I prefer the evidence of the defendant to that of the plaintiff.  Despite her age (80), the defendant gave clear and consistent evidence.  Her evidence was she was illiterate and could not have signed any agreements.  The plaintiff’s land which was leased to her by an oral agreement between herself and WTP was always the same size, about 300 sq ft and she never trespassed onto the plaintiff’s land.  The brick house which now stands on the land was the third house built by her and it replaced the previous two wooden houses which were either dilapidated or torn down.  I therefore find as a fact that Ex P1 was not signed by the defendant, either at the commencement of the tenancy on 1 January 1967 or at any time.

13.I find as a fact that the defendant leased the plaintiff’s lot some 40 years ago by an oral agreement between herself and the plaintiff’s agent WTP.  The rental agreed upon was $30 per annum and that was later increased to $50 per annum.  The whole of the plaintiff’s lot measuring about 300 sq ft was leased to the defendant and there were no discussions at any time between herself and either WTP or subsequently, the plaintiff himself, about the length of any notices to quit for the plaintiff to terminate the tenancy.  I find as a fact that the defendant at no time trespassed upon any part of the plaintiff’s lot as the whole lot was leased to her right from the beginning.

The law

14.My finding above is that there was created some 40 years ago a yearly tenancy between the plaintiff and the defendant at the annual rental of $50.  As such, the tenancy enjoys the protection of the Landlord and Tenant (Consolidation) Ordinance, Cap.7, section 50 of which states that subject to subsection (6), Part II of the Ordinance applies to every domestic tenancy and domestic sub‑tenancy of post‑war premises, whether the same was effected orally or in writing and notwithstanding any provision in such tenancy or sub‑tenancy, including any provision purporting generally or specifically to exclude Part II.  Subsection (6) states that Part II shall not apply to inter alia, a tenancy or sub‑tenancy of agricultural land, which expression shall have the meaning assigned to it by section 36 of the Rating Ordinance (Cap.116), including such a tenancy or sub‑tenancy where there is on the land a dwelling house occupied by persons working the land.  Section 36 of the Rating Ordinance, Cap.116 defines “agricultural land” as “land used as farm land, a fish pond, a market garden, a nursery ground, an orchard or for animal husbandry”.

15.Mr Boey for the plaintiff submits that the land in question is agricultural land.  He relies on the plaintiff’s evidence that before the lot was leased to the defendant, it was used by other villagers of the village to plant small trees and sweet potatoes.  However, there was no evidence from either the plaintiff or the defendant that after the defendant leased the lot, it was ever used for anything other than as a dwelling for herself and her family.  That is, to my mind, an incontrovertible fact and I rule that the lot was not agricultural land.  Mr Boey quite properly concedes that if the Landlord and Tenant (Consolidation) Ordinance applies to this tenancy, the plaintiff will not be entitled to possession because none of the matters under the ordinance which would entitle him to possession are applicable to this tenancy.  Mr Boey also concedes that the three‑month notice to quit given by the plaintiff’s solicitors on 11 March 1997 does not comply with the requirements of the ordinance.

16.In the circumstances, I dismiss all the prayers of the plaintiff’s claim except the prayer for mesne profit at the rate of $50 per annum from November 1997 to date, for which I give the plaintiff judgment.  The defendant will be awarded her costs of the action, to be taxed if not agreed.  The defendant being legally aided will have her own costs taxed in accordance with the Legal Aid Regulations.  The order nisi for costs is to be made absolute at the expiration of 14 days from the date of the handing down of judgment.

Mr Boey Chung, instructed by Messrs Cheng, Chan & Co., for the Plaintiff

Mr Tony Ng, instructed by Messrs Hui & Lam, for the Defendant