Cheng Shuk Yin v Lee Chor Nam

CourtDistrict Court (Hong Kong)
Judgment Date27 February 1981
Judgement NumberDCCJ3760/1980
Subject MatterCivil Action
DCCJ003760/1980 CHENG SHUK YIN v. LEE CHOR NAM

DCCJ003760/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 3760 OF 1980

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BETWEEN CHENG SHUK YIN Plaintiff
and
LEE CHOR NAM Defendant

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Coram: H.H. Judge Caird

Date of Judgment: 27 February, 1981

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JUDGMENT

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1. The plaintiff as the registered owner seeks possession of premises known as Flat A, 4th floor, No. 219 Queen's Road West, Hong Kong erected on Inland Lot No. 5947 which premises form part of an entirely new building in respect of which the written permit of the building authority to occupy the same was granted after 16th August 1945.

2. The premises were let by the plaintiff to the defendant pursuant to a tenancy agreement in writing dated the 1st day of March 1977.

3. Paragraph 8 of the tenancy agreement produced by the plaintiff as Exhibit P1(a) together with the accompaning translation as P1(b) contained a provision as follows:

"This premises may only be used for business purposes party B may not store illegal good or do anything in contravention ......"

I might add that the defendant produced his copy of tenancy agreement as D1a together with translation D1b. There was a discrepancy between D1a and P1(a) in that at the foot of paragraph 10 in each agreement there appeared an item under the heading "announcement". This announcement concluded in respect of P1a with the following words:-

"The landlord would have the right to terminate the tenancy and recover possession of the said premises and also claim against party B for all damages."

Whereas D1(b) the tenant's copy concluded

"The landlord would have the right to terminate this tenancy agreement."

4. Both Counsel appearing before me agreed they do not know of any other discrepancies between the two agreements and for the purposes of the instant case there is no need to consider the distinction between the two copies, insofar as necessary interpretation is concerned.

5. It was the plaintiff's case that these premises were let for business purposes under the agreement and accordingly clause 8 referred to previously applies and that Part II of the Landlord & Tenant (Consolidation) Ordinance Cap. 7 does not apply by virtue of the user of these premises and further that Parts IV and V respectively did not apply. That the agreement expired on the 28th day of February 1980 by effluxtion of time and that the defendant thereafter failed to quit and deliver up vacant possession of the premises remaining in wrongful occupation as a tresspasser.

6. By an amended defence and counterclaim, the defendant admitted the existance of the written agreement and that the time allowed for occupation thereunder had expired, but claimed that he had no knowledge that the premises were let for business purposes and therefore denied that these were let to him for business purposes. He went further and asserted an oral agreement between him the plaintiff and or her husband that the premises should be occupied as a dwelling place. It was maintained further that the document was drawn up and signed under a mistake of fact.

7. It was further pleaded that the defendant had at all times used the premises for the domestic purposes with the knowledge and consent of the plaintiff, and accordingly Part II of the Landlord & Tenant (Consolidation) Ordinance applied.

8. There were alternative pleadings relating to waiver, and a further alternative pleading that the plaintiff by acceptance of rent after the expiry of the tenancy agreement entered into a domestic monthly tenancy and that Part V of the Landlord & Tenant (Consolidation) Ordinance applied. The latter proposition was not supported by evidence and I do not need to consider it further.

9. Pursuant to his counterclaim, the defendant requested a declaration that at all material times he was a domestic tenant of the plaintiff and accordingly a protected tenant under Part II. Alternative to this declaration that Part V of the Ordinance applied. Further alternatives of rectification and recission were pleaded.

10. At the outset Mr. Lee on behalf of the plaintiff maintained that evidence relating to the formation of the agreement should be held inadmissible under the Parole evidence rule. However I proposed they call the evidence indicating I would make my ruling later. I informed Counsel at the close of proceedings that I held the extrinsic evidence to be admissible. The question of acceptance or rejection of such evidence or its weight of course being an entirely different matter. It followed therefore that both the plaintiff and the defendant introduced evidence as to the making of the agreement and there was a considerable degree of conflict between the accounts rendered by both sides.

Plaintiff's evidence

11. The plaintiff was called...

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