Tsuen Wan Hsin Kuang Restaurant Ltd. v. Lau Ho Po and Another

DCCJ2654/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2654 OF 2005

BETWEEN

Coram:   H H Judge C B Chan in  Court

Date of Hearing:   10 January 2006

Date of Delivery of Judgment:    10 January 2006

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J U D G M E N T

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1.This is an assessment of mesne profit against the defendants for trespass from 1 July 2003 until 28 November 2003.

2.The plaintiff relies on the fact that in or about 6 March 2003, a tenancy agreement was negotiated with the tenant, Chau Chi On, Andy, under Tenancy Agreement of two years from 1 April 2003 to 3 March 2005, and the rent payable under this Tenancy Agreement as evidence of the market value of rent at the time of trespass.

3.Before the said tenancy was negotiated on 6 March 2003, the same premises had been let to a tenant at $56,000 per month, exclusive of management fees, air-conditioning charges and other charges, which had to be paid by the tenant.  However, before the said tenancy agreement for these premises had been reached, the said premises had been left vacant for one month.  Further, 6 March 2003 is at the beginning of the period of SARS.  Because of that the rent had been lowered to $54,000 per month, inclusive of all charges.

4.The plaintiff relies on the authority Sword Heath Properties Ltd v Taber & Ors [1979] 1 All ER 240.  The plaintiff’s solicitor particularly relies on a paragraph at page 242, between paragraphs (g) and (h) where it states:

“It appears to me to be clear, both as a matter of principle and of authority, that in a case of this sort the plaintiff, when he has established that the defendant has remained on as a trespasser in residential property, is entitled, without bringing evidence that he could or would have let the property to someone else in the absence of the trespassing defendant, to have as damages for the trespass the value of the property as it would fairly be calculated; and in the absence of anything special in the particular case it would be the ordinary letting value of the property that would determine the amount of damages.”

5.The plaintiff’s solicitor seeks to argue that the letting value of the property would be $54,000, inclusive of all charges, the same as the rent in the said tenancy.  I have been informed by the senior manager of the plaintiff, Lee Suet-lai, Shirley, that despite SARS none of the tenants of the plaintiff in nine other premises in the same building and on the same floor as these present premises, defaulted in rent.

6.The plaintiff landlord voluntarily reduced rent to these tenants at 20 per cent for the month of April 2003.  Apart from that there was no reduction of rent given.  There was waiver of management air-conditioning charges for the month of May 2003.  Thereafter the rent remained the same for each of these nine tenants and none of the tenants defaulted in rent nor vacated the premises.

7.Having considered that the period of mesne profit claimed starts from 1 July 2003, over one whole month after SARS ended, and the fact that the rent of $54,000 per month, inclusive of all charges, was less than the rent charged by the plaintiff before February 2003, and the fact that the defendants have failed to come forward in this case to state their case, I am satisfied that this is a reasonable rent to base the market rent of the premises for the period of trespass.

8.There are 151 days for the period in question from 1 July 2003 to 28 November 2003.  Mesne profit for this period should be calculated according to this formula: $54,000 times 12 times 151 divided by 365.  The result is a sum of HK$268,076.71.  I give final judgment for the plaintiff against the defendants with the sum of HK$268,076.71, together with interest thereon at judgment rate, from date of writ to date of final judgment and thereafter at judgment rate until payment.

9.I grant an order for costs against the defendants, to be taxed, if not agreed.

1st Defendant, in person, absent.

2nd Defendant, in person, absent.