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Lee Gwok Ying v H. Turner

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date27 August 1946
Year1946
Judgement NumberDCMP28/1946
Subject MatterMiscellaneous Proceedings
CourtDistrict Court (Hong Kong)
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 solicitors for the parties had addressed the Tribunal it withdrew to consider its decision. After retirement for about 30 minutes it announced its decision as follows

"We have decided to refuse the application for an Eviction Order. We are of the opinion that it was most unfair of the Applicant to purchase a house and immediately afterwards give notice to the tenants of the premises to quit. We are not satisfied that Applicant cannot obtain other suitable accommodation."

10. Notice of appeal was lodged thereafter on the grounds that the decision was (1) against the weight of the evidence and (2) wrong in law. The latter ground of appeal was, however, later abandoned and the one question which I had therefore to decide was whether the decision of the Tribunal was against the weight of the evidence.

11. Counsel for the appellant submitted that the Tribunal should have given the order asked for if it was satisfied on two points (1) that proper notice to quit had been given and (2) that no other accommodation suitable for the landlord was available; that there being no dispute as to (1) the only point at issue was whether the appellant had discharged the burden which lay on him of satisfying the Tribunal that no other suitable accommodation was available for him. As the onus was that of proving a negative he claimed that the burden was discharged by less evidence that if an affirmative is required to be proved. After reviewing the evidence he submitted that it was clear on medical grounds that 26 Connaught Road Central was unsuitable for appellant and his wife in their state of health; that the other houses owned by Messrs. Jowson & Co. - even if appellant was in a position to secure one of them - were in Victoria City and equally unsuitable; that the evidence of the appellant, supported as it was by the evidence of the respondent on the point, shewed clearly that appellant could not secure other suitable accommodation.

12. Referring to the judgment...

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