Li Chung Checng v. Tsang Muk Leung and Others

CACV000141/1982

Headnote

Landlord and Tenant (Consolidation) Ordinance - claim for possession for unlawful subletting under s.53(2)(e)- unrebutted evidence that the landlord let the premises to a single tenant and on a later date they were being occupied by him and six "uncles and nephews" establishes a sufficient "prima facie case that there has been an apparent change of occupancy for the purposes of s.53(3) so that the burden is on the tenant to satisfy the court that the premises or part thereof have not been sublet.

Date of hearing: 11th January 1983.

Date of handing dorm reasons: 18th January 1983,

BETWEEN

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

Date: 18th January 1983.

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JUDGMENT

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Fuad, J.A.:

1. This is an appeal, by leave, from the decision of a District Judge where, on the 5th October 1982, he dismissed a landlord's claim for the possession of a flat in the New Territories. The claim was founded upon the breach of a covenant not to "assign, sublet or part with possession of the premises or any part or pants thereof without the previous consent in writing of the lessor", and thus came under s.53(2)(e)  of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7(" the ordinance"). The three year lease expired on the 2nd November 1981 and the action was filed on the 11th August 1982. At the conclusion of the hearing we allowed the appeal and now give our reasons.

2. The Particulars of Claim averred the breach of covenant by the tenant (the 1st Defendant) and the 2nd - 7th Defendants were also parties. They filed a joint statement of Defence stating that the Plaintiff had been informed early in 1980 by the 1st Defendant that "his relatives, to wit the 2nd - 7th Defendants would come from China and join the 1st Defendant in sharing the premises" and had orally agreed to this arrangement. They added that the 1st Defendant had never received rent from any of his relatives.

3. The Defendants were not represented at the hearing before the District Court and did not appear. The Plaintiff gave evidence, produced the tenancy agreement, and said that he had never allowed anyone to sublet under the relevant covenant. He had never met the 1st Defendant (for his eldest brother managed the premises) and knew nothing about his relatives. The Plaintiff's brother told the court that he had negotiated the tenancy with the 1st Defendant (in January 1979). In 1981, the 1st Defendant had told him that relatives from China would come and stay with him for a short while. He had said no objection would be raised provided they did not stay longer than 8-10 days and had drawn the attention of the 1st Defendant to the terms of the lease. In August 1982 he had asked one of his staff to invite the 1st Defendant to "fill in a form". This person testified that in that month he had asked the 1st Defendant "to put down the names of all the occupants of the premises". This he had done, and the witness produced the form. The form is headed "Family of Tenant" and has the name, dates of birth and identity card numbers of the 2nd to 7th Defendants. Under the column "Relationship to Tenant", two are listed as "uncles" and the remaining four as "nephews".

4. In his reserved judgment the District Judge reviewed the facts and then said -

"I cannot draw from [the evidence] the inference that the tenant is no longer in occupation of the premises. I cannot say there has been a change in occupancy. There has been an addition to the occupancy, but by members of the tenant's family, blood relations apparently. The "deeming" provision therefore does not apply. There is no evidence of sub-letting so the landlord cannot succeed on that as a substantial ground. For the same reasons, I can find no evidence to warrant a finding that the first Defendant has parted with possession of the premises. He is still getting rent receipts in his own name and I am not satisfied that he has moved out. The Plaintiff's claim for possession fails."

5. Section 53(3) of the Ordinance, to which the Judge referred earlier in his judgment, is in these terms -

6. It seems plain to us that the legislature enacted this provision to ease the burden on a landlord of proving what experience has shown is sometimes very difficult to prove. The position at common law, as para.1-1209 of Woodfall on Landlord and tenant (28th Edition) shows, was very different -

"It was at one time held, that where there is aright of re-entry upon assignment or sub-letting, if a person be found on the premises appearing as tenant, it is prima facie evidence of a sub-letting, and that the defendant must show whether the person was a tenant or merely a servant; but it has since been decided that it is not sufficient to prove that the defendant is a stranger in possession of the demised premises, nor to rely on his admission that they were demised to him by another stranger, even if the tenant had covenanted not to part with the possession."

7. In the absence of any evidence given or called by the Defendants, with the utmost respect to the District Judge, me do not think it was open to him to find as he did as the evidence stood at the conclusion of the hearing. The simple word of subsection (3 ) of s.53 must be given their ordinary meaning and, we think, present no difficulty of interpretation. We consider that the Judge clearly misdirected himself when he held that an addition to the occupancy by apparent blood relatives did not mean that there had been a change of occupancy. His finding does not seem to give any weight to the word "apparent" that occurs in the subsection before the expression "change of occupancy". If evidence had been led by the Defendants, the task of the court in deciding the precise nature of the occupancy of the 2nd - 7th Defendants might have been a difficult one. But, here, all the court knew was that the premises had been let solely to Mr. Lau Tak Tai from the 3rd November 1978, and in August 1982 they were being occupied by Mr. Lau and by six others said to be his uncles and nephews. In our judgment, by any fair use of language, this was prima facie evidence of an apparent change of occupancy, which was never rebutted. The Plaintiff's claim for possession should therefore have succeeded.

Representation:

Mr. C.Y. Cheung (Ip, Ku & Stoppa for the Appellant)

Respondents not present and unrepresented.