Thomas Young v. Chan Pak Wai
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CACV000100/1983
BETWEEN
_______ Coram: Roberts, C.J. Yang & Barker, JJ.A. Date: 2nd November 1983 ___________ JUDGMENT ___________ Barker, J .A.: 1. This is an appeal from the judgment of a Presiding Officer of the Lands Tribunal, in which he ordered possession of various premises to be handed over to the Respondent. 2. The relevant law as it applies to this action is as follows. Section 52(1) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7,1979 Ed. as amended by the Landlord and Tenant (Consolidation) Ordinance 1980 read as follows:
3. And section 53(2) thereof as amended in 1980 read so far as is relevant:
4. The tenancy agreement itself was an agreement for three years from the 10th May 1977 to the 9th May 1980 and it contained a term:
I pause there to say that although that was not a point which was argued before us, the Presiding Judge's conclusion that that option had not been validly exercised by the Appellant was clearly wrong. It was not an option which required the assent of the landlord. It was a term of the agreement that the tenant could exercise the option and he clearly did. However, that, as I have said, is a matter which was not argued before us. 5. It was common ground that immediately prior to 18th December 1979, the premises were outside the scope of Part II of the Ordinance and, therefore, section 53(2)(e)(i) did not apply. 6. The vital matter which had to be found by the Judge in this case was whether the admitted subletting occurred before or after 18th December 1979. On that vital matter the Judge made no finding of fact whatsoever. It was argued on behalf of the Respondent that it was implicit in the Judge's judgment that he found that the subletting occurred after the 18th December 1979. But we are unable so to hold. 7. It was the Appellant's evidence that the subletting occurred on the 1st December 1979. The Judge nowhere held that he rejected that piece of evidence. He did, on one occasion, make some criticism of part of the Appellant's evidence. Whether such criticism was valid or not is something upon which it is unnecessary to express any conclusion. But the fact remains that on this vital point there was no finding of fact. We consider it would be unsafe in the extreme to draw any inferences from the circumstantial evidence that the judge must have so found. 8. We are fortified in this conclusion that the judgment is unsatisfactory because, when the Judge sets out the terms of section 53(2)(e), he, in reciting (e)(ii) which read:
seems to have had his mind directed to the question of whether or not there was consent in writing. That had never been an issue in the case. It was admitted that the premises had been sublet. It was admitted that there had been no express consent in writing by the landlord and it is difficult in those circumstances to understand by the Presiding Judge should have chosen to underline those words. 9. For these reasons, we have come to the conclusion that this judgment cannot stand. We have hesitated as to whether or not we can ourselves make a finding of fact on this vital issue. But, we have come to the conclusion that we cannot. 10. In the result, we allow the appeal and order that there be a new trial of this action before a different Judge. 11. I should add, for the sake of completeness, that there was another argument placed before us. That was that in any event the Respondent had waived any breach there might be by the tenant by the acceptance of rent in full Knowledge of the subletting. 12. That was a matter on which the Presiding Judge made a finding of fact against the Appellant and we cannot say that he approached the matter on any wrong principle nor that there was not evidence on which he could arrive at that finding of fact. That being so, and since no appeal on a matter of fact will lie onto the Landlord and Tenant Ordinance to the Court of Appeal, we would not interfere with that finding. 13. However, I add this: we have remitted the case to be for a new trial to be tried before a different Judge and although the parties may, of course, by agreement, confine themselves to whatever issues they wish, it will be open to the Appellant, if he so desires, to have the whole matter re-tried by that different Judge including the question of waiver. But that must be a matter for the parties about which this Court gives no directions at all. Representation: Appellant in person. Patrick Chan, Esq. instructed by Messrs. Wilkinson & Grist for Respondent. | |||||||||||||||||||||||||||||||