Re On Lok Co
Read the full judgment text of HCMP 1/1945 on BabelCite. This High Court CFI judgment was delivered on 14 January 1946.
1. Applicants in this case seek to recover certain premises which they allege were vacated by the On Lok Co. (to whom they had been let in 1939) some time after the fall of Hong Kong in 1941. Applicants claim that they are entitled to an eviction order against the Opponents whom they allege to be the present occupiers, or "sub-tenants" within the meaning of Article 5(b) of Proclamation No. 15. They claim an order under 5(b), alternatively under 5(a). The answer alleges that the On Lok Co. have b
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PROCLAMATION NO. 15 LANDLORD & TENANT APPEAL NO. 1 of 1945 APPLICATION NO. 19 APPEAL TO THE GENERAL MILITARY COURT ----------------- Coram: Mr Justice Leo D'Almada Date of Judgment: 14 January 1946 ----------------- JUDGMENT ----------------- 1. Applicants in this case seek to recover certain premises which they allege were vacated by the On Lok Co. (to whom they had been let in 1939) some time after the fall of Hong Kong in 1941. Applicants claim that they are entitled to an eviction order against the Opponents whom they allege to be the present occupiers, or "sub-tenants" within the meaning of Article 5(b) of Proclamation No. 15. They claim an order under 5(b), alternatively under 5(a). The answer alleges that the On Lok Co. have been the sub-tenants all along. The Application having been refused by Tenancy Tribunal, this appeal is now brought. 2. In view of the last paragraph of the Written Decision (which for convenience I will refer to hereafter as the Findings), it is necessary to decide in the first place who is now the sub-tenant, i.e. who is in occupation of the premises concerned. Is it the pre-war tenants, the On Lok Co., or the Opponents? 3. It seems to me on a careful reading of the Findings that the Tribunal arrived at a finding of fact that Chan Kwai and not the Company is the occupier or party in possession. 4. The following extracts from the Findings lead me to this view:
5. It is clear to me from the above that the Tribunal decided that the tenant or occupier was Chan Kwai and not the On Lok Co. 6. I have thought it necessary to dispose of this point first for the reason that the last paragraph of the Findings seems to suggest that the Tribunal arrived at an alternative finding of fact that the On Lok Co. are still the tenants, so that an Order should not be made, in the one case because Chan Kwai is a tenant by agreement, and in the other because as a partner in the On Lok Co. he has lived on the premises since 1939. 7. It is not unusual for facts to be pleaded in the alternative. It might for example have been alleged in the Answer that Chan Kwai was the sub-tenant, alternatively that the On Lok Co. was the sub-tenant. It would then be the duty of the Court to find one or the other (or neither) alternative proved. It could not in this case find both alternatives. The tenancy must be that of Chan Kwai or the Company. 8. In the face of the above extracts from the Findings, I cannot see how the Opponent can succeed in this case on the footing that he is a partner in the Company and resident on the premises since 1939. His claim therefore must rest upon the fact that there was an agreement between him and the Applicants, which agreement disentitles the Applicants to an order under either Article 5(a) or 5(b) of the Proclamation. 9. Having disposed of the last paragraph of the Findings, what is the real ground for the refusal by the Tribunal to make the order sought? It is this: that a tenancy agreement was entered into between the parties. 10. At this point, it would be convenient to mention the position of an Appellate Court on questions of fact. 11. On an appeal from the decision of the Judge sitting without a Jury where the matter in question in one of fact, the Court is to exercise its jurisdiction as a Tribunal of Appeal on matters of fact as well as on matters of law. Where the question 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. 12. The above, from Powell v. Streatham Nursing Home, 1935 A.C. p. 243, is a sufficient enunciation of the principles to be applied where, as in this case, the findings do not depend on any question as to the veracity of witnesses. And the Appellate Court is in no worse position if this is to be treated as a decision by a judge and jury: see the same case at p.250 and 1939 Yearly Practice at p. 1243. 13. Now, what is the evidence in this case? It is this: 14. Lam Ping Ho's evidence:
15. Ku Shui Ting's evidence:
16. Pausing here for a moment, I would remark that had the evidence stopped there, then in my opinion there could be no other conclusion than that Applicants must succeed, for up to this point there is nothing to show more than that Chan Kwai became a tenant solely because of the acceptance by the landlord of rent. 17. Were it not for subsection 5(b), the acceptance of rent as shown by the evidence quoted would be abundant evidence from which an agreement could be inferred which afforded protection against eviction to the tenant. By virtue of the subsection however, this is not so. 18. In effect, the subsection declares that an agreement such as would defeat the landlord's right to an order for eviction does not arise from the acceptance of rent solely, i.e. without anything more. This "something more" may be a variety of things. It may for example be that the landlord had agreed to the tenant remaining in possession for a certain period; it may be a stipulation that the tenant should effect certain repairs; and it may be (as expressly provided in the subsection) acquiescence by the continued acceptance of rent after a certain date. The circumstances in each case would have to be considered. 19. Is there this "something more" in the present case? 20. In my view there is. It lies in the evidence that Chan Kwai's rent was subsequently increased to Y90.00 per month, and later still to Y180.00. Had the landlord continued to accept the rent of Y25.00 per month then, to use a colloquialism, he could be said to be making the best of a bad job, and therefore within subsection 5(b). But the moment there is a demand for higher rent acceded to by the tenant, then there is that "something more", in this case as agreement to accept him as such, which takes the case out of the subsection. 21. I am well aware that the section deals with a person who "became a tenant solely etc.", wherefore it may be argued that in any event the tenant in this case is not protected, his tenancy in the first case having arisen solely by the acceptance of rent. Such an argument would not impress me. Can a trespasser be ousted on the ground of his original trespass, when his title is founded on an agreement with the landlord arrived at subsequent to the tort? 22. How, although this increase in rent is not mentioned in the Findings as one of the reasons for the conclusion that there was an agreement between the parties, I am not certain whether it was not an element considered by the Tribunal. 23. Paras. 8 & 9 of the Findings are as follows:
24. Mr Silva argued that the last sentence of para. 9 of the Findings can only relate back to para. 8. 25. If as suggested by Mr. Silva, these paragraphs mean that in order to succeed the Applicant must prove something additional to the fact that the "tenancy" arose by reason of the acceptance of rent solely, such as duress or some other factor inducing the acceptance, then I must say that I disagree with the Tribunal. 26. In my view, the fact that the "tenancy" arose by reason of such acceptance solely, without any inducing or other factor, is enough to bring it within the Proclamation. And the onus is on the 'tenant' to prove the "something more" which takes his case out of the section. However, I am not satisfied that this is the meaning of the Tribunal. Standing by itself, the last sentence above mentioned may be read as indicating that in this case there was evidence over and above acceptance of rent solely, which proved the consent of the landlord. 27. In any event, even if this did not form the basis of the Tribunal's decision, this Court being in as good a position as the court of first instance as to inferences to be drawn from facts not in doubt, I find that by reason of the demand for a higher rent and the tenant's compliance with the demand, there is that "something more" which takes the case out of the subsection. 28. If this is so for the purposes of subsection 5 (b) it must be so also under subsection 5 (a). 29. Subsection 5 (a) provides for the eviction of a person who "does not bona fide claim possession under a landlord". A bona fide claim means a claim honestly made, and, but for the existence of subsection 5 (b) by which such a claim must be taken to be excluded from subsection 5 (a), even a claim based on the acceptance of rent solely would in most cases be considered a bona fide one. A claim based on an agreement to pay a higher rent after some time is such a bona fide one. 30. This appeal therefore fails so far as it is based upon the evidence before the Tribunal. 31. Mr. Silva has asked leave in the event of his arguments not being accepted, to adduce further evidence before this Court. This evidence falls under six heads. He argues that the function of this Court being to ensure a determination on the merits of the real question in controversy between the parties, all this evidence should be admitted. On five of these heads the evidence is such as could by proper diligence have been obtained and produced at the hearing. In the circumstances I do not think I ought to admit it now. On the sixth head the position is different: this involves an allegation that the Respondent, Chan Kwai, is not Chan Kwai, but an imposter; that the alleged impostor is not in occupation of the premises; and that the sole occupants are Hong Kin Wan, the second Respondent, and his family. This imposture first became known to Applicants at the hearing when, they allege, they first saw the Opponent who claimed to be Chan Kwai, and was not disclosed to the solicitor for the Applicants until after the hearing. Involving as it does grave allegations of fraud, and because the discovery was not made known to appellant's solicitor until after the hearing, I will hear this evidence, but only after an adjournment which will enable this judgment, in particular this last paragraph, to be translated to the Respondents who are not represented, and to whom the seriousness of the allegations may not be apparent until they have had time fully to consider it.
Hong Kong, 14th of January, 1946. |