Lau Shu Ying v. Wu Fung Ying Nancy and Another

DCCJ 5210/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5210 OF 2002

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BETWEEN

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Coram: Deputy District Judge W.C. Li in Court

Date of Trial: 16^th November 2006

Date of Handing Down Judgment: 21^st November 2006

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JUDGMENT

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1.The Plaintiff was the sole executor and beneficiary of the will of Lee Yan Che, deceased, (“the deceased”) who was the registered owner and landlord of the premises known as “1^st Floor, No. 68A Percival Street, Happy Mansion, Causeway Bay, Hong Kong” (“the said premises”). The deceased died on 27 June 2000 in the United States. The Grant of Probate of the deceased’s will was issued on 2^nd November 2001 and an Assent of the said premises dated 4^th October 2001 was registered at the Lands Office in favour of the Plaintiff.

2.The deceased in 1987 let out the said premises to one, Chee Yoon Hwa Joseph (“the tenant”), on an oral tenancy for a term of two years and renewable for every two years. From the correspondence between the deceased and the Bank of Communications Trustees Limited (“BOCTL”), it was evident that the rent in September 1996 for the said premises was HK$4,845.00 and that the BOCTL was appointed as the agent of the deceased to manage the said property during the deceased’s absence from Hong Kong.

3.The tenant, Chee Yoon Hwa Joseph died on 16^th December 1992. From the correspondence between the deceased and the BOCTL, it was evident that neither the deceased nor BOCTL were not aware of the death of the tenant.

4.The 1^st Defendant is the personal representative of the estate of the tenant.

5.The 2^nd Defendant is the son of the tenant who remained and is still in occupation of the said premises.

6.BOCTL continued to receive the rent of the said premises on behalf of the deceased up to April 1997. Thereafter, no rent was paid to BOCTL or to the deceased for the use and occupation of the said premises.

7.The Plaintiff through his solicitors wrote to the 1^st Defendant on 30^th May 2002 and on 2^nd August 2002 to claim for the arrears of rent and to require the 1^st Defendant to deliver up vacant possession of the said premises to the Plaintiff.

8.The failure by the tenant to pay rent since May 1997 was in breach of the tenancy agreement and the Plaintiff as the executor of the estate of the deceased and the present registered owner of the said premises is entitled to treat the failure to pay rent as a repudiation of the tenancy agreement and to institute legal proceedings for recovery of vacant possession of the said premises and to claim for mesne profit or compensation for the wrongful occupation of the said premises by the 2^nd Defendant since the death of the tenant in 1992.

9.The Plaintiff claims against the 1^st Defendant for (1) vacant possession of the said premises;  (2) arrears of rent from May 1997 to May 2002 at $4,845 per month (totaling $353,685); (3) mesne profit from 1^st June 2003 at the rate of $4,845 per month to the date of delivery of vacant possession to the Plaintiff; 4) interest; and (5) costs.

10.The Plaintiff claims against the 2^nd Defendant for (1) vacant possession of the said premises; (2) compensation for the 2^nd Defendant’s wrongful occupation of or trespass on the said premises from June 2002 to May 2003 and as the damages are continuing, for such other sums to be assessed by the court;  (3) mesne profit at the rate of $4,845 per month from 1^st June 2003 to the date of delivery of vacant possession; (4) interest; and (5) costs.

11.The 1^st and the 2^nd Defendants were absent for the hearing of today’s trial. The case was in fact set down for trial on 14^th November 2005 and on 14^th November 2005, it was heard before Her Honour Judge M. Yuen. The 2^nd Defendant did not appear but one, Mr. Lam Kim Man appeared and claimed that he was authorized by the 2^nd Defendant to seek an adjournment of the trial. Mr. Lam said the 2^nd Defendant was ill. No further details were given to the court. H.H. Judge M. Yuen granted an adjournment with cost to the Plaintiff and ordered that the 2^nd Defendant shall file with the court a full medical report to explain the reason for his absence within 3 weeks thereof. The 2^nd Defendant had failed to comply with this Order and filed no medical report to date. When both Defendants failed to show up for trial today, the case was stood down for a while to see if they would appear.  Mr. Lam Kim Man showed up just before 10.00 a.m. and informed the court that the 2^nd Defendant had spoken to him the day before and also at 8.00 a.m. on the morning of the trial and indicated to him that he (2^nd Defendant) would come to court. Mr. Lam also confirmed to the court that he was the same Mr. Lam who appeared before H.H. Judge M. Yuen on 14^th November 2005 and that he had personally informed the 2^nd Defendant of the Order made by the court requiring the 2^nd Defendant to file a full medical report with the court within the said 3 weeks. The trial proceeded in the absence of both Defendants.

12.The Plaintiff abandoned all his claims against the 1^st Defendant. The Plaintiff proceeded the action against the 2^nd Defendant.

13.The 2^nd Defendant had filed an Amended Defence and Counterclaim in this action. He alleged that (1) In 1987, the deceased authorized him to manage the said premises and the tenant (Chee Yoon Hwa Jospeh) delivered up vacant possession to him on or about March 1987; (2) In complying with a Notice issued by the Electrical and Mechanical Services Department dated 02.01.1997, and in undertaking to decorate the said premises into a bachelor flat fit as a dwelling for the deceased, and he having paid for the expenses incurred in the amount of $163,500.00, the deceased had orally agreed to assign a half share of the said premises to him and to hold the said premises as joint tenants between him and the deceased; and (3) the deceased died without assigning to him a half share as joint tenants of the said premises. He therefore claimed he was now the sole surviving joint tenant of the said premises entitled to have the whole of the said premises. In his counterclaim, the 2^nd Defendant claimed that the deceased had wrongfully failed to assign a half share as joint tenant to him under the oral agreement and he counterclaimed for loss and damages, viz. $163,000.00 for “loss of payment of the electricity, reparation and decoration charges”: and for $20,000 for “repairing work of various defects after the year of 1997 up to 2002”. Alternatively, he counterclaimed for “a declaration of specific performance of the said property”.

14.The correspondence between the deceased and the BOCTL up to 1997 amply showed that the deceased had only appointed BOCTL as its sole trustee and/or sole agent to manage the said premises, and that included the collection of rent and to deal with the tenant on all rental and maintenance matters. As mentioned, it was also clear from the correspondence that the death of the tenant in 1992 appeared to have been withheld by the 1^st and 2^nd Defendants from the deceased and BOCTL. There were demands made by the 2^nd Defendant, holding himself out as the tenant, asking for the repair of water leakage in the said premises in June 1996 and a quotation of $8,700 dated 29^th May 1996, made by a contractor called “Wah Fung Air-conditioning and Plumbing Works” was submitted to the BOCTL, and BOCTL submitted this quotation to the deceased in their letter dated June 4^th 1996. In a letter dated 12^th October 1996 from BOCTL to the deceased, BOCTL informed the deceased that the repair expenses of $8,700 earlier mentioned had been paid out and the money been deducted from the deceased’s account. By a letter dated 30^th August 1997, the 2^nd Defendant wrote to Mr. Liu Chi Keung and Mr. Patrick Ng, of BOCTL complaining that the water leakage problem in the said premises had not been repaired for over a year, and if not further attended to, he, as tenant, would effect repair himself and deduct the expense from the rent. The 2^nd Defendant signed the letter under the title, “Tenant”.

15.The 2^nd Defendant in his witness statement filed with the court had given this explanation. “27. I would like to explain more about a letter dated the 30^th day of August 1997 from me to Mr. Liu of Bank of Communication. (a) I was informed by the tenant, Wong Hak Yan, that the leakage from the ceiling of the illegal structure, thus causing him unable to live; (b) he also informed me that he will not pay rent unless and until the owner repair the said defects; (c) he informed me a money collector acted on behalf of one owner to collect a sum of $8,700 being charges to replace the drainage pipes in respect of the said building. 28. I did personally attend the bank and informed the bank to pay the said charges but the bank did not care. 29. Later, the money collector and I went to the bank to pay the charges of $8,700. Argument between the staff of the bank and the money collector, finally, the bank paid the said sum of that person. 30. I informed the tenant to write a letter to the bank, the tenant asked me to write. I wrote a letter on the tenant’s behalf and asked him to sign. He refused and asked me to sign. So I signed the letter but failed to delete the word, tenant.”  It was obvious from the evidence before the court that the 2^nd Defendant’s explanation was nothing more than fabrication. The payment of $8,700 for the repair work was a matter almost a year earlier and the bank had paid that. The explanation of the 2^nd Defendant was merely a futile attempt to explain his way out when he had clearly represented himself as a tenant and not as the deceased’s “manager” of the said premises. From the correspondence between the deceased and BOCTL, it appeared that not only did they not know the tenant had passed away in 1992, they or at least the deceased, did not even know of the presence of the 2^nd Defendant in the said premises. The 2^nd Defendant’s claim that in 1987 the deceased asked him to manage the said premises and in 1997, promised to assign a half share of the said premises to him to be held as joint tenant look not just improbable but preposterous.

16.In par. 10 of the 2^nd Defendant’s witness statement, he had this to say, “During the telephone conversation between my late father and the deceased, the deceased intended to appoint me to look after the premises, further more, the deceased would also appoint a bank to collect rent”.  Again, this was wholly incredible when it was obvious that all along the 2^nd Defendant was withholding the news of the death of his father in 1992 and he pretended to be the tenant for all these years. What the 2^nd Defendant was saying was quite dubious in itself that the deceased only intended to appoint him as a to look after the property and the intention was made known over a telephone conversation between his deceased father and the deceased.

17.On the evidence, the Plaintiff was the executor of the will of the deceased and was also the sole beneficiary under the will. By an Assent, he became the registered owner of the said premises. The tenant, Chee Yoon Hwa Joseph had passed away in 1992. The personal representative of the estate of the tenant would be liable for rent in arrears and for /mesne profit. As for the 2^nd Defendant, although he was the son of the tenant, he had no right to the tenancy and must not remain in occupation without the consent of the deceased. It was plain that the 1^st and 2^nd Defendants had concealed the death of the tenant from the deceased and BOCTL, and they knew fully well that they were merely trespassers in the said premises after the demise of the tenant. To cover up their scheme, the 2^nd Defendant had come up with this story that the deceased had appointed him to manage the said premises and the tenant had delivered up vacant possession to him in 1987. As a trespasser, the 2^nd Defendant is liable to pay compensation to the Plaintiff for the period of his occupation in the said premises. The Plaintiff’s claim against the 2^nd Defendant for vacant possession and for compensation must therefore succeed.

18.The Plaintiff asked for compensation payable by the 2^nd Defendant for his wrongful use and occupation of the said premises to be assessed on the prevailing market rent for the said premises at the relevant times. The relevant periods that the 2^nd Defendant appears liable to pay compensation would run from 1^st May 1997 right up to the date of delivery of vacant possession by the 2^nd Defendant to the Plaintiff. I do not think the 2^nd defendant is liable for mesne profit as he was not a tenant but a trespasser who is liable to pay compensation to the Plaintiff, and the trespass is still ongoing today. My view is that the 2^nd Defendant has become a trespasser on the said premises starting from the date of death of the tenant in 1992. I also noted the rent was $4,845 in 1997 and there were no increase in rent made by the deceased up to his death. Assuming the tenancy had been good and on going, then the rent payable to the deceased or his estate would be the same rent of $4,845 per month and not what the Plaintiff now claims to be the prevailing market rent to be calculated in accordance with the ratable value of the said premises. I think the compensation payable by the 2^nd Defendant should be the equivalent of the rent for all these years. Judgment is therefore entered for the Plaintiff against the 2^nd Defendant for (1) Vacant possession of the said premises to be delivered forthwith;  (2) Compensation of $58,140.00 payable at the rate of $4,845 per month from June 2002 to May 2003;  (3) Compensation at the rate of $4,845 per month from 1^st June 2003 to the date of delivery of vacant possession of the said premises by the 2^nd Defendant to the Plaintiff;  (4) Interest at judgment rate is to be paid by the 2^nd Defendant to the Plaintiff on the said judgment sums ( in (2) and (3) above) from the date of Writ of Summons, i.e. 20^th August 2002 to the date of handing down of judgment, and interest at judgment rate from the  date of handing down of this judgment to the date of full payment of all judgments sums payable;  and (5) Costs of this action be to the Plaintiff to be paid by the 2^nd Defendant, to be taxed if not agreed, with certificate for counsel.

19.For the same reasons, the 2^nd Defendant’s counterclaim in this action must therefore fail. His counterclaim for damages in the total sum of $183,500, and the alternative declaration he sought for specific performance for the said premises to be assigned to him are therefore dismissed with costs be to the Plaintiff, to be taxed, if not agreed.

The Plaintiff: represented by Mr. Simon Ho instructed by Messrs. Waller Ma Huang & Yeung, Solicitors.

The 1^st and 2^nd Defendants: not legally represented, absent from the trial.