Tam Yan v. Lee Chor Leung t/a Leung Kee
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 157 OF 1972 ----------------- BETWEEN
----------------- Coram : Briggs, J. in Court ------------------------ J U D G M E N T ------------------------ 1. The Plaintiff is the landlord, and the Defendant is the tenant of certain premises on the ground floor of No.3 Yin On Street, Kowloon. The tenancy is a tenancy from month to month. The rent is $600 per month. Originally the lease was for a fixed term and the rent was $620 per month. As with many tenancies in Hong Kong the rent was reduced during 1967. It was reduced to $500 per month. The rent was raised later to $600 per month. This was in April 1971. The Defendant first became the tenant of the premises in 1961. 2. In July 1971 the Plaintiff served the Defendant with a Notice of Termination under Section 3 of the Tenancy (Notice of Termination) Ordinance claiming vacant possession of the premises as from January 8th 1972. The Defendant has held over, hence these proceedings. The Defendant claims that he is protected by the Rent Increases (Domestic Premises) Control Ordinance. The sole question at issue is therefore whether these premises are a ‘domestic tenancy’ within the meaning of that Ordinance or not. 3. Section 5 of the Rent Increases (Domestic Premises) Control Ordinance defines the meaning of ‘domestic tenancy’ for the purposes of that Ordinance. It is a long section and I will not set it out. It sets out various matters which the Court must and many consider when deciding whether a tenancy is a domestic tenancy or not. The burden of proof lies of course upon the party claiming the protection of the Ordinance. It is therefore for the Defendant to prove on the balance of probabilities that the Ordinance protects him. 4. Originally the premises were let as a shop. The Defendant quite soon after he moved in, sub-let part of the premises which were, and still are used for a stationary business. The Defendant himself carried on a small business as a seller of cooked food in part of the remaining portion of the premises. This business was registered under the Business Names Registration Ordinance as a business carried on from these premises. 5. However the Defendant said that he ceased to operate this business in 1967, thoughhe continued to sell iced drinks there, from an ice box, for some time. He cancelled the business registration on July 6th 1970. 6. The relevant date is the date of the coming into operation of the Rent Increases (Domestic Premises) Control Ordinance, which was June 5th 1970. What I have to be satisfied of is that on that date, these premises were a domestic tenancy, if the Defendant is to succeed. The Plaintiff said that the premises were originally let as a shop not as domestic premises. And the Defendant agrees. I was shown a lease dated 1964, which must have been the second lease between the parties. The lease can be read either as a lease for business purposes or not. But this is immaterial because both parties agrees that the premises were let as business premises originally. 7. The Plaintiff sought to rely upon the Occupation Permit which was produced as an exhibit. This is an equivocal document. And I derived no assistance from it. 8. The Defendant sought to rely on a certificate issued by the Commissioner of Rating and Valuation which states that the primary user of the premises is domestic. The date of the Certificate is February 11th 1972. The Ordinance provides that such a certificate is prima facie evidence of the facts there set out on the day the certificate was issued. 9. The Defendant and his wife have 6 sons. Three are grown up and three are children. The youngest three were all born on the premises, the last in 1970. All six sons still live with their parents on the premises. In addition the sub-tenants live in their part of the premises. 10. The Plaintiff called his wife who was in the habit of collecting the rent from the Defendant. She began to do this in 1961 when the tenancy commenced. She continued to do so until the issue of the writ in this action. This would include June 5th 1970, the relevant date. None of this evidence was challenged by the Defendant. The Plaintiff’s wife described the premises to the Court as she used to see them. She saw the Defendant was selling cooked food there and that there were tables and chairs for his customers to sit and eat what he sold. Part of the evidence of this witness was vague. She said she saw a partition wall separating the portion of the promises sub-let to the sub-tenant. But she made no mention of the cockloft, an addition to the premises erected by the Defendant. She also said the Defendant’s portion of the premises was to the right when it is to the left. 11. She also said that the cooked food was sold from a table at the entrance to the shop premises and that that was the position when she collected rent during last year, 1971. 12. The Defendant said she was mistaken in this, that he had long since given up selling food. He said that his eldest son sold cooked food outside the premises, where there were tables and chairs, and where an awning had been erected. He added that the necessary cooking was done outside the premises also. Anything done outside the premises need not concern us here. 13. I have come to the conclusion but with considerable reluctance, that the Defendant has not satisfied me that he is protected under the Ordinance. I have no doubt that the premises are now being used primarily as domestic premises. But what was the position in June 1970? The evidence that the wife of the Plaintiff collected the rent regularly was not challenged as I have already said. And she was quite certain that for the whole period during which she collected rent the premises were used as a sort of restaurant, where food was cooked and sold to customers who ate on the premises. In addition at the relevant time, in June 1970, the premises were still registered as business premises. And there was a sign on the outside wall of the premises bearing the firm name under which the Defendant was carrying on business. 14. There must therefore be an order for possession of the premises with mesne profits at the rate of $600 per month from August 9th 1972 until possession is given up. 15. The Plaintiff is entitled to his costs. 16. There will be a stay of execution until October 9th 1972. Order for payment out of $4,200 now in Court. This sum represents the arrears of mesne profits up to August 9th 1972.
Eddis (Hon & Co.) for Plaintiff Defendant in person |