Kong Tai Sang v. Wong Kwok Nang Ano Others

CACV000113/1982

Landlord and Tenant (Consolidation) Ordinance (Cap. 7) - where a landlord seeks to recover possession under s.53(2)(b) and extreme hardship of the kind shown by the facts of this case would result to the tenant, proviso (i) is applicable and nothing said in the authorities obliges the court to grant an order for possession.

For confidence in the administration of justice to be maintained, it is undesirable for a trial court to suggest, by implication, that a decision by which it is bound leads to injustice.

BETWEEN

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Coram: Hon. Leonard, V-P; Cons & Fuad, JJ.A.

Date: 3 November 1982

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JUDGMENT

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Leonard, V-P. :

1. This is another appeal on the application of the proviso to section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance, a proviso which appears to give difficulty. The proviso requires a common-sense approach and whether or not it applies must depend upon the facts of each individual case.

2. The facts of this case are as follows. The premises of which possession is sought is a Flat 15, Yick Fat Building, Hong Kong in which there are two bedrooms and a living room. The area of the flat is about 480 square feet and the usable area is about 400 square feet. The rent is $750 a month.

3. The plaintiffs below were three : a husband and wife who live together in a resettlement estate at Chun Sin Mei with a daughter aged 19 and a son aged 18. The premises they occupy at present consist of two rooms totalling 200 square feet in area and are, of course, over-crowded by the 1st and 2nd plaintiffs and their children. The 3rd plaintiff has worked all her life as a domestic servant and has been 29 years with the same employer. She now wishes to retire and as she is in some degree related to the let and 2nd plaintiffs, she and they wish to occupy the suit premises. They are in relatively comfortable circumstances as the let plaintiff earns $2,800 a month and the daughter $1,200 a month. We do not know precisely the circumstances of the 3rd plaintiff but, presumably because she has lived frugally as is the Chinese custom, there is no doubt that she is now in a position where she can afford to retire and wishes to do so. Her retirement will necessitate her leaving the premises where she has worked all these years and she must find somewhere to live. There is then no doubt whatsoever but that the plaintiffs established a reasonable requirement for the suit premises and the onus had passed to the defendant to show that it would be unjust for the Court to make an order for possession.

4. The circumstances of the defendant and his family are unusually tragic. He is a man who unfortunately has not enjoyed good health for some time past; it has been discovered that he is suffering from a malignant cancer and he has been operating upon for this disease. Whether the operation has been entirely successful it is apparently too early to say. His wife who has been looking after him receives only $700 a month. He has three sons,two of whom are still in school and apparently he receives no contribution from the 3rd who is aged 24. He has a daughter aged 26 but she is married and there is a grand-daughter aged 5. Owing to the continued illness of the defendant the family had to live by borrowing and the trial judge described the consequences of making an order for possession as horrendous. I have no doubt but that he was right in so describing them. He went on to place, in my view, too great a degree of importance on the landlord's right to enjoy his own premises. I do not resile from anything which I said on this subject in Lam Chuk-ying v. Chan Kwok-kwan⁽¹⁾ but this case is, I consider, one of the exceptional cases I contemplated in my judgment in that appeal in which the extreme hardship to the tenant is a dominant factor. That extreme hardship which is not mirrored in the considerable hardship which the plaintiffs will suffer from being kept out in their own premises, is of such a degree that it would to my mind cause an ordinary person to throw up his hand and say "it cannot be right" that an order for possession should be made in this case. I would, therefore, allow this appeal and set aside the order for possession of the Court below.

Cons, J.A. :

5. I agree with my Lord the Vice-President. The appeal must be allowed. Here was a case in which the judge below felt the consequences of making an order in favour of the landlord would be manifestly more "horrendous" to the tenant than in any he had until then experienced. Nevertheless he felt himself bound to make that order by reason of comments made by this Court in the case of Lam Chuk-ring v. Chan Kwok-Kwan⁽¹⁾, comments which he thought required him to attribute "an overwhelming degree of importance to the landlord's legitimate and reasonable desire to recover possession".

6. These were not the words actually used in that case, nor, with respect to the judge, do I think they constitute a fair interpretation of the words that were. What was intended there was to draw attention to what was in our view a deliberate change in policy introduced by the then recent amendments to the legislation, a change that had apparently not been recognised in all courts. Thenceforth the common law right of an owner to occupy his own property should, provided he reasonably required it as a residence for himself or his parents or grown up children, no longer be set on one side except in the most exceptional circumstances, as in fact we have here.

7. It is perhaps unfortunate that the judge should have misunderstood what was said earlier. The tenant and his wife must in any event already be under severe strain due to the tenant's extreme ill-health and their inability, in that circumstance, even to make ends meet. The decision below can only have added to their distress.

Fuad, J.A. :

8. I also agree. As I understand the authorities, in all the circumstances of this case, there was nothing to prevent the trial Judge from deciding in favour of the tenant. On the facts found, such extreme hardship would result from an order for possession that it should plainly have been refused under proviso (i) to s.53(2)(b) of the Ordinance.

9. I merely wish to add, with the utmost respect to the Judge, that in my judgment some of his observations were out of place. I have particularly in mind the following paragraph -

"For myself I would, without the benefit of the decisions of the Court of Appeal and the reasoning of various members of the divisions of that Court, have come to the conclusion that the making of an order would be thoroughly unjust. I consider that the one of the important purposes of Part II as presently enacted is to give some degree of security of tenure to tenants and sub-tenants, and to control step rental increases. Bearing in mind always the aspirations of landlords to recover possession for themselves or those persons specified in Section 53(2) of Cap. 7."

10. It is not helpful in maintaining confidence in the administration of justice to suggest, by implication, that decisions of the Court of Appeal by which Court is bound, lead to injustice. One can test the matter by imagining how bewildered the parties must have been when they heard what the Judge said. While I have do doubt he was prompted by the highest possible motives, I am bound to say that he should have chosen his words rather more carefully.

(1)    Civil Appeal No. 97 of 1981

Representation:

Mr. Benjamin Yu (11[s. Laurence Pang & Co.) for Appellant.

Mr. R. Wu (M/s. Lau, Chan & Ko) for Respondents.