So Yuet-wah v. Wong (or Wang) Teh-ai
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CACV000136/1980
----------------- Coram: Huggins and Cons, JJ.A., and Garcia, J. Date of Judgment: 18 November 1980 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. This has all the appearance of an extremely complicated case and there are difficult questions which have been raised. In the event, however, it seems to me that the case can be decided on a very short and comparatively simple point. 2. The action was brought under section 53(2)(e) of the Landlord and Tenant (Consolidation) Ordinance alleging that the 1st Defendant had sub-let to the 2nd and 3rd Defendants without written consent. The story, as I said, is a complicated one. The Plaintiff bought the premises in 1966 and, living as she did in the Philippines, she allowed her son, whether adopted or by blood I am not sure, to occupy and, it is said, to manage the flat. He was a sailor and he was absent from Hong Kong a great deal of the time. He therefore, and it is said with the consent of the Plaintiff, let all except one room to the 1st Defendant. The son subsequently became ill. The 1st Defendant allowed him to use another room in place of the room which he first had. Rent was paid to the son. He did not account for this money to the Plaintiff. In fact, unfortunately he appears to have fallen out with the Plaintiff and her husband. The son eventually died. There was then negotiation between the 1st Defendant and the Plaintiff, as a result of which there was an agreement - whether valid and whether effective or not I am happy we do not have to decide - whereby the 1st Defendant was to become the tenant of the Plaintiff. The 1st Defendant in 1973 let part of the premises to the 2nd Defendant and in 1976 let another part to the 3rd Defendant. Difficult questions have been raised as to the nature of the tenancy or tenancies which subsisted at the time that the writ was issued, but the one point upon which we have heard full argument and upon which I find it possible to dispose of the action is that there was consent given by the Plaintiff to the 1st Defendant to sub-let. 3. The main evidence upon which I am satisfied it should be found that there is an estoppel against the Plaintiff from obtaining possession is a letter, which is at p.75 of the record, dated 22nd August 1977. It is conceded that this letter was written in the name of the Plaintiff. The letter gives all the appearance of having been dictated by the Plaintiff. She, it is accepted, is illiterate and the judge found - and I do not think this really is challenged - that she was unable to write such a letter herself. The letter was written by somebody else. Her story is that she never authorised the writing of this letter. The learned judge was not very clear in some of his findings and as to this he merely said that he does not accept that the letter had nothing to do with the Plaintiff and he suspects that the business friend wrote it to the 1st Defendant in the name of the Plaintiff in order to secure the 1st Defendant's acceptance of an increase of rent which the Plaintiff had proposed. The judge does find that this friend had been authorised to achieve an increase in the rent. It seems to me that on those findings the only possible co lusion is that the friend was authorised to write to the 1st Defendant to obtain an increase of the rent and that anything which that friend might say in order to achieve that object was within his authority. In the letter we find this statement:
The implication is that the Plaintiff was saying "The increase of rent which I am proposing will not be too much of a burden on you because you can pass it on to your sub-tenants". A clearer consent or acceptance of sub-letting would be hard to imagine. In my view that is the end of the matter. Quite clearly the Plaintiff was authorising a sub-letting and she cannot now be heard to rely upon these sub-lettings as a ground for obtaining possession under section 53(2)(e) of the Landlord and Tenant (Consolidation) Ordinance. 4. For this reason I would allow this appeal. Cons, J.A.: 5. I would also allow the appeal and for the reasons already given, although they do seem to me to reveal a most unnatural and artificial approach to the circumstances of this case, an approach which has been forced upon the proceedings by the particular findings of fact made by the trial judge in this instance. Garcia, J.: 6. I agree with what has been said by my learned brothers and have nothing further to add. I would allow the appeal. 18th November 1980. |