Wong Kai v. Lee Sum Houng t/a Shanghai Tung Shan Co
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 2803 OF 1971 ----------------- BETWEEN
Coram : Briggs, J. in Court ------------------------ J U D G M E N T ------------------------ 1. The Plaintiff is the landlord of certain premises known as the ground floor of No.452 Jaffe Road, Hong Kong. The Defendant is his tenant. It is agreed that the provision of the Landlord and Tenant Ordinance do not apply to those premises. The lease is for a month to month tenancy. It is an oral lease which was created as long ago as 1958. For the 10 years before that date the Plaintiff let the premises on a similar basis to the father of the Defendant, though of course at a much lower rent. 2. The Plaintiff served a written notice of termination of the lease under the provisions of Section 3 of the Tenancy (Notice of Termination) Ordinance on 28th April 1971. And he was asked to vacate the premises on or before October 31st 1971. 3. The Defendant has held over. He claims that he is entitled to do this by virtue of the provisions of the Rent Increases (Domestic Premises) Control Ordinance. 4. His case is that his tenancy is a “domestic tenancy” within the provisions of Section 5of that Ordinance. 5. The Plaintiff stated in evidence that he originally let the premises to the father of the Defendant as business premises. And that he has always let the premises both to the Defendant’s father and to the Defendant himself as business premises. The Defendant is a painter and decorator as his father was before him. And the Defendant carries on his business, the Shanghai Tung Shan Company, from these premises. 6. The Plaintiff produced a copy of the application made by the Defendant for the registration of this firm, the Shanghai Tung Shan Company, which gives the premises as the address of that Company. 7. He also produced certain photographs of the premises taken by him in January of this year. These show the outside of the premises with the name of the Company of the Defendant written in English and in Chinese characters over the door. These were also photographs taken of the inside of the premises which showed that the ground floor was used as a paint store and a place for keeping the usual paraphernalia necessary for carrying on the business of a painter and decorator: such as ladders, buckets, trestles etc. 8. The premises consist of a ground floor and a small cockloft. There is a yard behind. The Plaintiff did not take any photographs of the inside of the cockloft. However he applied to the Commissioner of Rating and Valuation under Section 5(5) of the Rent Increases (Domestic Premises) Control Ordinance for a certificate of primary user. 9. The premises were inspected by an officer of that Department who stated in evidence that he found that the primary user of the premises on February 3rd 1972 was “non domestic”. He stated that he found that 67% of the effective area of the premises was so being used. He said that the cockloft was being used wholly for domestic purposes. But that the ground floor was being used as a store for paint and other articles connected with the trade of the Defendant. In the rear portion of the premises he found a carpenter’s workshop. 10. The Defendant also gave evidence. He said that his entire familylived there. He also made the point that he did not carry on business on the premises. But I do not think that that is material. The evidence clearly shows that the premises are not primarily being used as domestic purposes even though the Defendant’s family or some of them are actually living there. 11. The Defendant has my sympathies since he has been in the premises for 24 years. And he has been a very good tenant as the Plaintiff agrees. But the Plaintiff is entitled to possession. It is not disputed that the notice of termination of the lease was in proper form under the Tenancy (Notice of Termination) Ordinance. And I find as a fact that the premises were being used as non domestic premises at the relevant time, so the Rent Increases (Domestic Premises) Control Ordinance has no application. 12. There will be judgment for the Plaintiff for possession of the premises with a stay of execution until September 30th 1972. The Defendant has paid the rent or mesne profits up to date. He must continue to pay at the same rate until the date he vacates the premises.
M.Huang (T.M. Chow &Co.) for Plaintiff Defendant in person |