Chang Chung Ching and Another v. Lee Wai Ching

CACV000140/1983

BETWEEN

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Coram: Sir Alan Huggins, V-P., Barker, J. A. & Power, J.

Date: 29th November 1983

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JUDGMENT

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Barker, J. A.:

1. This is an appeal by Mr. Yau Hin Chiu from a decision of His Honour Judge Downey on the 20th September 1983 whereby he ordered the appellant to give up vacant possession of a front room at Flat 14, 1st floor, the Chartered Bank Building, San Po Kong, Kowloon.

2. The landlady, Madam Lee Wai Ching, had brought an action against the principal tenant, Chan Chung Ching, claiming possession of those premises on the grounds that she reasonably required them as a residence for her daughter who was over the age of 18. That action was settled. Chan Chung Ching agreed to give up possession. But, in circumstances in which it is not necessary to enter in this judgment, the appellant, Mr. Yau Hin Chiu, applied to be joined as a defendant/respondent.  The reason he did so was that he was a lawful sub-tenant of the principal tenant. Let me say at once that it has never been suggested by anyone, least of all, by Madam Lee that the appellant was anything but a well behaved and good sub-tenant.

3. The reason why Madam Lee wanted possession of these premises was that her elder daughter was getting married. A date has been fixed for the wedding - that day being at the beginning of or in the middle of next month.

4. Madam Lee gave evidence and was questioned not only by the Court but also by the appellant. Her daughter, Lam Chiu Chiu, also gave evidence and was similarly questioned by the Court and cross-examined by the appellant.

5. The principal tenant did not give evidence. But there was no reason why he should, because it was never in issue whether the appellant was not a proper and lawful sub-tenant.

6. The appellant was given the option, according to the notes of the Judge, of giving evidence in the witness box or making a statement from the well of the Court. He decided not to give evidence but made a short statement in which he said that he had been living there for ten years and asked to be allowed to remain there as an occupant. He also said that he used to run a clock and watches stall but that stall had been pulled down and he had appealed to the government to issue a licence for him to continue running the stall.

7. At the time he made that statement the result of his appeal had not been determined. We allowed him to put before us a letter which says that the appeal has been turned down. That was the evidence plus that statement which was before the Judge.

8. Having considered all that evidence, the Judge came to the conclusion that the respondent, Madam Lee, had satisfied the burden which lay upon her of proving that she reasonably required the premises for use by her daughter who was over the age of 18 years.

9. The appellant before us contended that that finding ought to be disturbed because he says that the flat is more than could reasonably be required by one person having regard to its area and number of rooms. He has produced, with our permission, a plan which shows how the flat could be altered so that there would be little inconvenience to the married couple. This amounts in effect to a suggestion that there was alternative accommodation available. But there is no provision in the Law of Hong Kong with regard to alternative accommodation now.

10. The Judge in the course of his judgment said this:

"But, to obtain the exclusive use of the flat, consisting of three bedrooms and a sitting room, seems to be more than satisfying a present need for more living space; it is more akin to gratifying a preference or mere desire for better living conditions."

That, with respect to him, is not the correct test. The proper test is whether the applicant has established a genuine present need for the premises; and it would be possible for a lord to establish a genuine, present need for his castle.

11. Nevertheless, on the totality of the evidence the Judge was amply entitled to arrive at the conclusion that he did, that the requirement of reasonably requiring the premises was satisfied.

12. The Judge went on to say that since the appellant had elected not to give evidence, no question of the application of the proviso to the section arose. The section says, and it is section 53(2)(b):

That, with respect to the Judge, was not a relevant proviso because he was not dealing with a tenancy, he was dealing with a sub-tenancy.

13. The relevant part of the proviso was (ii) which reads:

"     Provided that the Tribunal shall not make an order by reason only that the circumstances of the case fall within this  paragraph if -

14. Nevertheless, this Court is satisfied that if the Judge had applied the correct test he must have arrived at the same conclusion.

15. There is one further matter which we must mention and that is, as I have said earlier, that the Judge gave the appellant the option of giving evidence in the witness box or making a statement from the well of the Court.

16. In days gone by, it used to be possible in criminal proceedings for an accused person to make a statement from the dock not on oath. It is no longer permissible for an accused person so to do. But it has never been possible for a witness or party in a civil action to give evidence not on oath or on affirmation. And so the option which the Judge should have given to the appellant was either to give evidence or to give no evidence at all. Nevertheless, for the purpose of deciding this appeal, we have treated what the appellant said in Court as if it had been his evidence.

17. For the reasons which I have given this appeal must be dismissed.

18. The judgment I have just delivered is the judgment of the Court.

Representation:

Appellant in person.

Respondent in person.