Lee Gwok Ying v H. Turner

CourtDistrict Court (Hong Kong)
Judgment Date27 Aug 1946
Judgement NumberDCMP28/1946
SubjectMiscellaneous Proceedings
DCMP000028/1946 LEE GWOK YING v. H. TURNER

IN THE SUPREME COURT OF HONG KONG

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TENANCY TRIBUNAL APPEAL NO.28 OF 1946

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(Application No. K304)

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Between
Lee Gwok Ying Appellant
(Applicant)

AND

H. Turner Respondent
(Opponent)

Coram: Mr. Justice E.H. Williams, Puisne Judge

Date of Judgment: 27 August 1946

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JUDGMENT

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1. This is an appeal from the decision of a Tenancy Tribunal dated 6th July sitting in Kowloon, refusing the application of the appellant for an eviction order under Proclamation No.15 as amended by Proclamation No.25 - the relevant article being Article 5, paragraph 1A(1) (a) (i).

2. The material part of the Article in question reads -

" 1A(1) Any Tenanoy Tribunal constituted hereunder may, on an "
" application by a landlord and subject to any limitations "
" which may be provided by Regulation, make an order for "
" recovery of possession of any dwelling-house or portion "
" thereof (hereinafter referred to as "the premises") or for "
" the ejectment of a tenant therefrom: "
" (a) if the premises are required by the landlord for "
' occupation as a residence for : "
" (i) himself; "
" Provided that no such order shall be made unless the Tri- "
" bunal is satisfied that the tenancy of the premises has been "
" duly terminated by a notice to quit which has expired at the "
" date of the order for possession or ejectment; and that no "
" other suitable accommodation is available for the landlord "
" or for his family as above specified or for the family of a "
" deceased landlord as above specified. "

3. The facts, in the main, are not in dispute and are as follows. Proclamation No.25 which amended Proclamation No.15. so as to enable a landlord to recover possession of his property under certain circumstances, was made on 1st March, 1946. The premises in question are No.3 Austin Avenue, Kowloon, of which premises the Respondent (Opponant) became tenant in November, 1945 at a rent of $100 per month. They consist of 4 rooms - servants quarters and at the material time were occupied by 4 men, 3 women and 3 children.

4. Early in April, 1946, the appellant (applicant) purchased the premises and on 17th April through his solicitors gave the respondent notice to quit. Appellant was living at 26 Connaught Road Central. 2nd floor, which consisted of one sitting room and 2 cubicles and there were resident the appellant and 8 other persons (including 3 servants). The respondent did not vacate the premises at Austin Avenue and on 1st June appellant made application to the Tenancy Tribunal for an eviction order on the grounds that he required the premises for himself and members of his family for a residence. On 8th June, respondent stated his grounds of opposition as being that appellant was not owner of the premises when he became tenant and, furthermore, he (respondent) was unable to secure alternative accommodation.

5. The case was heard by a Tenancy Tribunal on 6th July, both parties being legally represented.

6. At the hearing, appellant called medical evidence to shew that he and his wife were suffering from T.B., the wife's state of health being bad in that she also suffered from a pulmonary heart. The doctor described the premises as being unsuitable as a residence for the appellant and his family; he admitted that they would be unsuitable for respondent and his fellow-tenants. Appellant gave evidence to the effect that he had formerly lived in 105 Austin Rd. which had been part of his father's estate: he left there when the Japanese occupied the premises early in 1942; he went to live at 26 Connaught Road Central, 2nd floor, in September 1943 where he has since lived. On the re-occupation of Hong Kong by the British his house was taken over by the British Military Forces which still occupy it. He had tried to secure its release for his own use but was unsuccessful and hence he purchased the premises in question as a residence. He had been unable to find other suitable accommodation.

7. In cross-examination he stated he was Secretary to Messrs. Jowson & Co. which owned 26 Connaught Road Central. He had described himself, when writing to the Registrar of Companies, as a director of that firm but that was done by mistake. The firm own at present 4 houses viz. two in Woo Sung Street, 26 Connaught Road Central and a house in Kwai Lin Street. They had sold several houses during the Japanese occupation. Appellant's younger brother owned several houses but they were occupied by tenants who could not be evicted.

8. The respondent's evidence was to the effect that 4 men, 3 women (two of whom were pregnant) and 3 children occupied the premises; that on receipt of the notice to quit on 17th April he had endeavoured, without success, to quit on 17th April he had endeavoured, without success, to get other accommodation by inquiries from certain named well known property owners.

9. When...

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