Yee Ying v. Chung Sun Wei Yee
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CACV000112/1982
BETWEEN
____________________ Coram: Hon. Leonard, V.P., Cons & Fuad, JJ.A Date: 23 November 1982 __________ JUDGMENT __________ Cons, J.A. : 1. This is an appeal from a decision in the District Court whereby the judge refused an order for possession. He was not satisfied that the plaintiff reasonably required the premises as the writ claimed. He made no finding as to whether, if he had thought that requirement satisfied, there would have been manifest injustice or inequity in making the order. 2. The case is slightly unusual. The landlord is a mother and claims the premises for two sons who are living with their wives, and in one case with one child already and another expected, in a flat belonging to a third sons. The third son also has a wife and one child. Each of the families has one room to itself in the flat, but the premises are tiny, measuring only some 310 sq. ft., whereas the suit premises are 600 sq. ft. 3. The only evidence for the landlord was given by two of her sons, the one who owns the flat where the three are living and one of the two who said he intends to move, if possible, to the premises claimed. 4. The ratio of the judge below appears to be contained in the last paragraph which appears on page 26 of the Appeal Bundle, i.e. page 3 of his typewritten judgment :
It is not altogether easy to understand, but taking it together with comments that the judge made earlier we think that he felt it incumbent, as a matter of law, that the mother and both sons should give evidence before him, the mother to show that she was willing to allow the sons to live in her flat - although one might have thought that her instructions to her solicitor to launch the action would have been sufficient for that - and the sons to show that they required the suit premises and actually to say so in so many words. 5. If we are correct in reading his judgment in that way we would with respect to him say that he has not adopted a correct approach. The plaintiff is entitled to prove her case by calling whatever witnesses she or her counsel thinks fit. All she has to do is to establish sufficient facts from which her reasonable requirement may be properly inferred. No particular words or expressions are needed. 6. It may be sensible in a situation such as this to call all those who are directly concerned unless, of course, there is good reason to the contrary, which reason can be easily explained to the trial judge. Otherwise he may suspect the integrity of the family as the judge did in this case. He was fortified in that doubt by what may, or may not have been, a slip of the tongue in the evidence of one son. Unfortunately, although he had the benefit of hearing and seeing that son give evidence, he did not resolve that question. He left it hanging in the air, like the smile of the Cheshire cat. We have not had the advantage of seeing that son and we are not prepared to come to a conclusion from the transcript alone as to whether it was a slip of the tongue revealing the underlying truth or a genuine mistake. 7. In the unsatisfactory state in which the case is left we think that the only thing that can with justice be done is to order a re-trial. 8. We therefore allow the appeal and remit the action to the District Court for trial by some other judge and, subject to any comments that counsel wish to make, we order that the cost of this appeal be costs in the cause.
Representation: P.W. Wong (M/S K.B. Chau & Co.) for Appellant/Plaintiff. Aiken (M/S Yu, Tsang & Loong) for Respondent/Defendant. |