Tse Chi-kin v. Kwong Muk-yin and Others

CACV000136/1982

BETWEEN

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

Date: 2 December 1982

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JUDGMENT

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Leonard, V-P.:

1. This is another appeal concerning the application of the proviso to section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance. The landlord of the premises in question, a man of fairly comfortable, if limited, means, is at the moment living in a very small premises the size of which has forced him to live apart from his two young children, one aged 4 years and the other aged 1. One of these children lives with the maternal grandparents and the other with the paternal grandparents. There is, therefore, no doubt as to the reasonable requirement of the landlord for the premises in question and the sole issue for our consideration is whether the trial judge erred in finding that it would be manifestly unjust and inequitable for an order to be made.

2. The suit premises consists of three rooms and the corridor and they are occupied by nine persons. They are :- the 1st defendant and his wife, who are elderly. The evidence indicates that the wife is neurotic and sick: Two sons of the 1st defendant each occupying one room of it with their respective wives; and three tailors who occupy bedspaces in the corridor of the flat. The total income from the unit consisting of the 1st defendant and his wife, the two sons and the two daughters-in-law is approximately $4,200 per month. The three tailors earn sums varying between $900 and $1,500 each per month. The let defendant works on the premises as a tailor, and his earnings are only about $500 to $600 per month. The two daughters-in-law do not work and have no children.

3. The trial judge having found that the plaintiff reasonably required the premises for himself went on to consider whether or not the proviso had been satisfied by the defendant. She was satisfied that the 1st defendant, his wife, the two sons and the two daughters-in-law if they had to move would of economic necessity have to move as a unit. I consider this is correct as is her second finding that since both the sons are married they would require as a unit at least three rooms.

4. The combined income of the plaintiff and his wife was found to be about $5,700 a month plus the rental for the suit premises. The trial judge did not in considering whether an order would be unjust and inequitable entirely ignore the factors which led her to conclude that the plaintiff reasonably required his own premises and as to these factors she held that as a family of two adults with two small children the plaintiff's family could probably manage in smaller accommodation than the 1st defendant and pointed out that their living expenses would also be less. Nevertheless she appears to me to have approached the problems posed to her in separate sections. In the first she considered the difficulties faced by the landlord and having found that he had a reasonable requirement for the premises because of those difficulties she put them to one side. What causes me anxiety is whether, when considering if the tenant had satisfied the onus she gave sufficient weight to those difficulties in particular the factor that the plaintiff was forced to live apart from his two children and to have these two children living not only apart from him but also apart from one another. This factor, combined with the right of the plaintiff to occupy his own premises, appears to me to be of very considerable significance. From the general structure of the judgment I am not satisfied that the difficulties facing the landlord received proper consideration from the judge when she was considering the proviso.

5. My view that they did not is reinforced by the manner in which she dealt with the position of the 3rd, 4th and 5th defendants after she had concluded that the tenant had discharged the onus. She pointed out that they were elderly men and said "the test in relation to sub-tenants vis-a-vis landlords is one of hardship." This is incorrect as a statement of law. It is also an incorrect approach. In a case such as this the person against whom the landlord seeks an order for possession is the tenant. The order sought is to be enforceable against sub-tenants and their position must be considered when determining the question as to whether the tenant has discharged the onus but they have no onus to discharge under the subsection.

6. Having found that the test in relation to the sub-tenants was one of hardship the trial judge went on to say "I am satisfied the greater hardship would be caused by making the order than by refusing it." and continues "It would therefore be manifestly unjust and unreasonable to make an order for possession against the 3rd, 4th and 5th defendants." Here she appears to equate "greater hardship" with "manifestly unjust and unreasonable." This is to ignore the fact that the legislature has done away with the test of greater hardship in the case of a suit between a landlord and his tenant. The position of the 3rd, 4th and 5th defendants is therefore but one more of the circumstances which have to be taken into account when deciding whether or not the proviso is applicable.

7. Mr. Hemmings with very considerable skill acknowledges the flaws which we have pointed out in the course of argument but suggests that looking at the case in its entirety and taking all the circumstances into account it would still have been manifestly unjust and inequitable to make an order. He has, in making his submissions, acknowledged the fact that two daughters-in-law are unemployed and that no reason has been advanced as to why they must remain unemployed. To my mind this coupled with the other circumstances I have mentioned indicates that his contention that the lst defendant and his wife would literally have nowhere to go of an order were made is untenable. I do not consider that the position of the lst defendant, his wife, sons and daughters-in-law is as crucial as is suggested by Mr. Hemmings. I accept as I accepted in Lam Chuk Ying v. Chan Kwok Kwan ⁽¹⁾ that extreme hardship may be a dominant factor in refusing possession but I would reiterate the view there expressed that it seldom can be for the overriding factor will almost inevitably be the right of the owner to exercise the privileges of ownership.

8. I would also reiterate the test mentioned in Chow Wing v. Yuen Chi Hung & Another. ⁽²⁾ adopting it I cannot see how an ordinary man fully enlightened as to the facts of this case would necessarily throw up his hands and say "That cannot be right." if an order for possession were made. Having regard to all these matters I consider that this appeal should be allowed and the order for possession should be made.

Cons, J.A. :

9. I agree with my Lord that the appeal should be allowed. It is a decision that I have come to with some hesitation. The finding that an order would or would not be manifestly just and equitable in particular circumstances is not a finding with which this Court will interfere merely because the members feel that left to themselves they would have come to a different conclusion. We have moreover to bear in mind that the judge below saw the persons concerned and was thus able to form a truer picture of the overall circumstances than we are able to from his, inevitably sketchy notes.

10. However my decision in this case is not based merely on the confidence that I would myself have come to a different conclusion at first instance. Counsel for the tenants admitted that in the instant circumstances the landlord has a particularly strong claim. But he submitted that the circumstances of the tenant were even more compelling, in that the tenants literally could not survive if they were evicted from their present premises. This I think is the view taken by the learned judge below, although she did not express it in the same words.

11. With every respect to the judge, and despite the forceful submissions of Mr. Hemmings, in my view the evidence does not justify that conclusion. In particular the judge overlooked the possibility that the two young daughters-in-law could assist towards the family income. This is no criticism of the judge, for counsel for the landlord below did not draw it to her attention. But as the tenant's case is based almost entirely upon financial considerations it seems to me a matter of great importance that the potential earnings of the daughters-in-law should have been considered.

12. As far as the sub-tenants are concerned the learned judge clearly misunderstood the legislation. I see nothing which would make the reasonable man throw up his hands in horror if the order for possession were made against them, as well nor any way in which their circumstances would support the position of the principal tenant.

Fuad, J.A. :

13. I also agree that the appeal should be allowed and would make the order proposed by my Lords. In my view, although the evidence led on behalf of the respondents at the trial might possibly have satisfied the greater hardship test which was in the previous law, there was insufficient evidence to justify the finding that an order for possession would be manifestly unjust and inequitable. The Plaintiff wanted to be able to have his children live with him and since his sons are aged only four and one, this was a perfectly natural desire. As Mr. Hemmings very fairly conceded, as extremely heavy burden lay on the respondents in the particular circumstances of this case and I have no doubt in my mind, with all due respect to the trial Judge who tried the case with anxious care, that this burden was not discharged. I also agree, as has been conceded by Counsel, that the greater hardship test referred to in paragraph (ii) of the proviso to paragraph (b) of sub-section (2) of s.53 of the Ordinance only applies when considering the position of a principal tenant vis-a-vis his tenant, and not that between a landlord and a sub-tenant.

(1)    Civil Appeal No.97 of 1981 H.K.L.R. 661.

(2)    Civil appeal No.145 of 1980 H.K.L.R. 788.

Representation:

Mr. Benjamin Chain (Johnson, stokes & Master) for Appellant/Plaintiff.

Mr. John Hemmings (Jenkins, Oliver & Au) for Respondents/Defendants.