Chan Hing Kwong v. Ho Tin

CACV000126/1982

BETWEEN

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

Date: 26 November 1982

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JUDGMENT

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Cons, J.A. :

1. The plaintiff in the action below is the owner of a flat which comprises about 520 sq. ft. and is divided into three rooms and a sitting-room. It is on the 16th floor.

2. The plaintiff purchased the flat in 1972. He was then, and still is, living in the cockloft above a ground floor workshop where his father, with his assistance, runs a printing business. In the workshop are machines of various kinds, including a motor lathe, and all told it must be rather noisy. Certainly, as the plaintiff said, it must be very hot inside.

3. The cockloft is only 200 sq. ft. It is approached by a steep ladder which has 8 steps. It is stuffy, with only two small windows, although it does have the benefit of an air-conditioner which the plaintiff's family turn on at night. It is now home to the plaintiff, his wife, three daughters, age 11 to 6, and one baby son age 2. There are no partitions. Three beds are set side by side, so at night there can be little privacy, and by day little peace. The children do their homework at the door of the workshop with people and traffic passing by. They tend also to run around the machines, which must in any event present a danger to young children. But the principal danger is to the eldest daughter. She was operated on for a deformed leg in April this year. While in plaster, and subsequently in bandages, she had to be carried up the 8 steps of the ladder to the cockloft, and the judge was told that she still has difficulty in walking properly. He was also told that the mother had a heart condition in 1975 and still continues to have headaches and dizzy spells.

4. In the light of these circumstances, it is not just with surprise, but with something more akin to dismay that I realised the judge below found that the plaintiff did not "reasonably require" something better for his family.

5. With respect, as to one aspect it seems to me that he was obsessed with the need for what he on one occasion called "concrete evidence" - although I think he meant "medical evidence" - before he would accept any adverse effect of those conditions upon the plaintiff's family. For myself, unless the plaintiff were being completely untruthful or obviously exagerating, I would have thought the conditions he mentioned spoke for themselves.

6. Then as to another aspect, the judge was strongly influenced by the fact that he thought that no complaint as to his own conditions had been made by the plaintiff during the 11 years that he has owned the property or that no earlier attempt had been made to recover possession.

7. As I read the evidence it is not strictly correct to say that no complaint had been made during those 11 years. But be that as it may, it seems to me not a consideration that has relevance. Factual conditions change as time passes by. In particular, children, and of course their parents too, get older. Apart from that, legal conditions have changed considerably since the tenancy was last renewed.

8. The judge appeared to rely in several ways upon the position of the plaintiff's father. A11 that the evidence discloses about him is that he owns two flats in the same block as the plaintiff's flat. He has knocked them into one and lives there with another son and that son's family. In addition he manages the plaintiff's flat for him. He arranges the tenancies and executes them, and it was he who approached solicitors in the first instance in the present action. There is no evidence that he has any wealth apart from the ownership of his flats or that he would assist the plaintiff financially or in any other way. Indeed, it is said that he does not get on well with the plaintiff's wife.

9. When counsel for the plaintiff opened the case in the Court below he said that he intended to call as witnesses the plaintiff and the plaintiff's father. The plaintiff did give evidence, but ultimately counsel did not call the plaintiff's father. We do not know, if that was because, at least as the judge thought, defence counsel in cross-examination suggested that the father was the chief instigator of the suit. Again, as I read the evidence, that was not a true reflection of the questions put. But even were it so I fail for myself to see, as the judge did, something sinister in that conductor in the conduct generally of the father. However much he may have disliked his son's wife, I would not have expected him to look kindly upon his grandchildren living in circumstances such as I have described when other accommodation was available to them. And managing as he did his son's property, I would not find it surprising that he should encourage the son to take advantage of what it is now the more favourable position of the landlord as regards recovery of possession; nor would there be anything in that encouragement to lead me to think that the son's bringing this action was in any way not genuine or that he did not really want to move his family to better accommodation.

10. The defendant lives in the suit premises with a wife and two children aged 11 and 10. He is a barber who earns approximately $1,500 a month. His wife is a casual sempstress. She earns about $1,000 a month. He pays by way of his share of the rent $408. The remainder is paid by his sub-tenants, also two barbers, each having one bedroom to himself. The families of both are in China.

11. The judge very properly intimated what his view would have been on manifest injustice had he been required to consider it. He thought it would have been manifestly not just or equitable to terminate the tenancy and he gave four reasons. They are -

The only financial backing appears to be that the plaintiff does not pay rent for the cockloft that is held together with the workshop on a monthly tenancy. It is pure speculation whether the defendant could find anywhere else appropriate to live, for he acknowledged that he had made not the slightest effort to find anything and that he had allowed an application for public housing to lapse.

12. The plaintiff's financial position is that he earns some $3,000 a month and has a wife and four children to support. The tenants' total income is $2,600 for a wife and only two children, less whatever rent he might be required to pay elsewhere. It is in my judgment a moot point whether that could be called a much more healthy financial position.

13. As I have already mentioned the evidence does not disclose that the plaintiff has in fact passed all those eleven years without making any complaint. Even if it did, it can only be in very rare cases that that would be a material consideration.

14. The first matter, the length of occupation by the tenant, is of course something to be considered, but even taking that into account, and all the other circumstances to which Mrs. Penlington has drawn our attention, in my judgment the total circumstances go nowhere near discharging the burden that the Legislature has now placed upon the tenant. With every respect again to the judge below, in my view, in this aspect as well, he was clearly wrong. I therefore would allow the appeal and substitute an order for possession.

Leonard, V.P. :

15. I agree and have little to add. The general structure of the judgment in this case suggests to me that the trial judge while considering with some care the individual reasons put forward by the plaintiff for his reasonable requirement failed to grasp the picture in its entirety. My brother has shown not only the individual components of this picture but the picture as a whole. Speaking for myself I must say that if the father of the tenant was the instigator of these proceedings, he was perhaps lacking in his duty as a grandfather in not instigating them earlier; as I have little doubt had they been instigated even under the old law, the tenant could not have succeeded under the greater hardship provision, much less the present proviso to Section 53(2)(b). I too would allow this appeal and grant an order for possession.

Fuad, J.A. :

16. I also agree that the appeal should be allowed and would grant the order proposed by my Lords the Vice-President and Cons J.A. I would only add that I have no doubt, with all due respect to the District Judge, that his decision was plainly wrong. The facts proved showed much more than the appellant had a genuine present need for the premises - he was in desperate need to take his family away from that dreadful cockloft. There was no justification whatever to suspect his bona fides. I also agree that the District Judge seems to have been bemused by the evidence relating to medical matters. He should, in my view, have granted possession to the appellant even if all the members of his family were in perfect health. On the evidence, the respondent did not come within even measurable distance of satisfying the manifestly unjust and inequitable test.

Representation:

Y.C. Mok (M/S Wong, Hui & Souza) for Appellant/Plaintiff.

Mrs. Penlington (D.L.A.) for Respondent/Defendant.