Chan Yick Tao v. Chan Chee Hung

HCA 2315/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2315 OF 2005

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BETWEEN

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Before : Mr Recorder A Chan, SC in Chambers

Date of Hearing : 1 August 2006

Date of Judgment : 1 August 2006

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J U D G M E N T

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1.This is an appeal by the Defendant against the decision of Master J Wong made on the 10^th April 2006 whereby judgment for vacant possession (“the Judgment”) of certain business premises known as Ground Floor including the Yard of Wang Kee Building, No. 254 Hennessy Road, Hong Kong (“the Premises”) was granted against the Defendant in favour of the Plaintiff. 

2.The Plaintiff is the owner of the Premises and it was let to the Defendant under a 3-year tenancy terminating on the 5^th November 2005.  By a writ issued on the 18^th November 2005, the Plaintiff claims against the Defendant for, inter alia, possession of the Premises, arrears of rent and mesne profits.  His case is that the Defendant has not honoured his obligation to pay rent since March 2005.  By a Summons filed on 23^rd January 2006 (“the Summons”), the Plaintiff seeks summary judgment against the Defendant. 

3.At a call-over hearing of the Summons before the Master on 10^th April 2006, the Master gave judgment for the Plaintiff in respect of his claim for vacant possession and adjourned the remainder of his claim for argument with a number of directions which had been agreed by Counsel on both sides. 

4.The Defendant has not appeared today to prosecute his appeal.  On that ground alone, I must dismiss this appeal.  Further, like the Master below, I am unable to see what conceivable justification there is for the Defendant to continue to occupy the Premises after the expiration of his tenancy. 

5.Furthermore, I should add that possession of the Premises has indeed been recovered by the Plaintiff on the 20^th July 2006 via enforcement proceedings of the Judgment (The Defendant has not made any application for stay of execution.).  I note that the Judgment does not embrace a costs order.  The costs order made by the Master on the 10^th April 2006 was one of costs reserved.  In the circumstances, this appeal has been rendered academic.  It is trite law that this court will not normally adjudicate upon an academic question – see Gay v Yip Shut Yuen, CA, [2004] 1 HKC 615.  This is another ground for dismissing this appeal.

6.For these reasons, this appeal is dismissed with costs to the Plaintiff.

Mr Herbert Leung, instructed by Messrs Joseph Chu, Lo & Lau, for the Plaintiff

The Defendant, in person, absent