Chong Mo Fong v. Yeung Bor and Others

CACV000158/1982

IN THE COURT OF APPEAL

BETWEEN

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

Date: 14th January, 1983.

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JUDGMENT

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Cons, J. A. :

1. This is an appeal against a refusal of the Lands Tribunal to give possession in an action   brought upon reasonable requirement under Section 53(2)(b) of the Landlord and Tenant Ordinance.

2. The plaintiff is a married lady living with a husband and four children in an illegal and temporary structure on a roof top. It is only 170 square feet in area. It has no proper water supply and it has no flushing facilities in the toilet. The plaintiff is also worried that her children should play upon a roof top.

3. In this appeal all the parties have appeared in person. In the Court below the respondents, who are the tenants of the flat sought, also appeared in person. The plaintiff was represented by a solicitor. She was the only witness whom he called and in her evidence in chief gave the facts that I have just very briefly summarised. She was cross-examined by the first defendant while the other two defendants declined to ask any further questions. The plaintiff was then examined at some length by the Presiding Officer who conducted the hearing.

4. The Presiding Officer came to her decision in the case without calling on the defendants to give evidence. She dismissed the claim on the ground that the plaintiff had shown no reasonable requirement for the premises. She did not accept the evidence of the plaintiff. With respect to her we do not think the reasons she gave for that withstand scrutiny. One reason was that at one stage the plaintiff had said that she had no connection with the flat on the floor below; later she admitted that her mother occupied that flat.

5. The purpose of that first piece of evidence or what the plaintiff understood by the word "connection" is not easy to see. The evidence was in answer to a question put by the Presiding Officer herself and was apparently based on the fact that the 14th floor was mentioned on the front page of the writ. Yet the copy of the writ supplied to us bears no address at all. Be that as it may it is at worst some small discrepancy in her evidence on which the Presiding Officer was entitled to rely, if she thought fit. But apart from that, and with every respect to the Presiding Officer, the other ground on which she founded her decision is far from sure.

6. She relied upon photographs to discredit particular facets of what she took to be the plaintiff's evidence. To start with the photographs were not proved (although they appear to have been accepted and noted as exhibits). They were put to the plaintiff by the first defendant as part of his cross-examination. They were not agreed by the plaintiff's solicitor. The plaintiff herself specifically disagreed with them, although it is not clear from the record whether she disagreed that they were an accurate representation of the premises or whether she disagreed with the inference that the first defendant sought to draw from them.

7. Secondly in our view the photographs do not support the inferences which the Presiding Officer drew from them. She said this:

"Exhibits PD2(a) and (e) further cast doubt upon the plaintiff's assertion that the structure has only an area of 170 square feet, for they show that the structure in fact runs the whole width of the flat beneath it, and is as private and as exclusive as the flat beneath it."

Yet neither photograph shows the whole of either flat, nor was there any evidence as to the size of the flat below, let alone that it was more than 170 square feet.

8. Then the Presiding Officer said this :

However the plaintiff did not complain as to lack of privacy and security in the structure. Her complaint was that the roof top was accessible to the public and that when she hung her washing out people sometimes came up and stole it.

9. Again the Presiding Officer said this:

"In spite of what the plaintiff had said about drainage, photographs Exhibit PD2(a), (c), (e), (f) and (g) show the existence of a drainage pipe like that of the neighbouring unit."

In fact the plaintiff said nothing about drainage. What she said was this :

"During typhoon and rainstorms the structure and the walls leak. In rainy seasons the walls and the ceiling leak."

10. Moreover without some explanation we would be very slow to draw any conclusion from the little that the photographs show of the drainage pipes in the area.

11. There is one final matter. It would seem from the record that before the Presiding Officer stopped the case she gave no opportunity to the plaintiff's solicitor to make submissions. Now it may be that whatever he had said would not have dissuaded her preliminary conclusion; but he should have been given the opportunity to try.

12. In all these circumstances we think that the proper course is to allow the appeal, to set aside the decision below and to remit the matter back to the Lands Tribunal for retrial before another Presiding Officer.

Representation:

CHONG Mo-fong, Appellant in person.

YEUNG Bor alias YEUNG Kan Bor, 1st Respondent in person.

WONG Lok Kee, 2nd Respondent in person.

CHAN Ying Kit, 3rd Respondent in Person.