Lee Ho Yuen v Li Chi And Another

CourtDistrict Court (Hong Kong)
Judgement NumberDCCJ2186/1980
Subject MatterCivil Action
DCCJ002186/1980 LEE HO YUEN v. LI CHI AND ANOTHER

DCCJ002186/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 2186 OF 1980

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BETWEEN LEE HO YUEN Plaintiff
AND LI CHI 1st Defendant
FAN LAI KEE 2nd Defendant

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Coram: H.H. Judge Cruden in Court.

Date of Judgment: 20th June, 1980

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JUDGMENT

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1. The plaintiff seeks orders for possession against the defendants in respect of premises known as Flat M, 9th floor, Central Mansion, 527-539 Jaffe Road, Hong Kong together with mesne profits and other relief.

2. I am satisfied that Flat M comprises residential premises part of which are occupied by the 1st defendant and the remaining part of which are occupied by the 2nd defendant. Each defendant pays a monthly rent of $215. The defendants admitted that the premises are part of an entirely new building within the meaning of Section 3(1)(a) of Part I of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7 in respect of which an Occupation Permit was issued by the Building Authority after the 16th day of August, 1945. It was common ground that since the 18th day of December, 1979 the premises have been subject to Part II of the Ordinance.

3. The premises were purchased by the plaintiff's mother in 1978 and thereupon assigned to the plaintiff by way of gift. The plaintiff's mother has since died. At the date of the assignment the premises were tenanted. I accept the plaintiff's evidence that his mother purchased the property and assigned it to him to provide a future home for the plaintiff and his fiancee when they married. I also accept that it is intended that the marriage will be solemnised in October 1980. The plaintiff stated that upon his marriage he personally wishes to live in the suit premises together with his wife and her parents.

4. At present he is sharing a room in a wooden hut being No. 48 Lo Wai Village, Tsuen Wan. He is a clerk who earns $2600 per month and he pays $150 per month for his present accommodation. The wooden hut also houses 30 to 40 other persons many of whom are recent arrivals from China. Photographs of the hut were produced and I accept that its cooking, toilet and other facilities are minimal. I find that it is not suitable accommodation for him and his fiancee after their marriage. The plaintiff's fiancee is also a clerk and receives $1500 per month. She lives with her parents in a flat in Wanchai of about 300 square feet. A total of eight persons live at her home, namely, her parents, her brother, her sister, her grandparents and herself. Those premises are not large enough to provide a home for also the plaintiff and his fiancee after their marriage.

5. The suit premises are approximately 500 square feet. At present they are subdivided into two separate living quarters. One of these is occupied by the 1st defendant and comprises about 300 square feet. The other, comprising about 200 square feet, is occupied by the 2nd defendant.

6. The plaintiff's claim is based on the recently amended provisions of Section 53 of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7. Section 53 was substantially amended by Section 5 of the Landlord & Tenant (Consolidation) (Amendment) Ordinance, Ord. No. 6/80. The amendment was enacted on the 15th day of February, 1980, but by virtue of Section 1(2), was made retrospective to the 18th day of December 1979. As a result of the amendment Section 53(2)(b) now includes these provisions:-

" 53. (1) .....
(2) A Court shall not make an order for possession of premises in respect of which there is a tenancy or sub-tenancy to which this part applies unless it is satisfied that -
(a) .....
(b) the premises are reasonably required by the landlord or principal tenant for occupation as a residence for himself, his father, his mother or any son or daughter of his over the age of 18:
Provided that the court shall not make an order by reason only that the circumstances of the case fall within this paragraph if -
(i) in the case of a tenancy, the tenant satisfies the court that in all the circumstances of the case it would manifestly not be just and equitable to do so;
(ii) in the case of a sub-tenancy, the court is satisfied having regard to all the circumstances of the case, including the question whether other accommodation is available for the principal tenant or the sub-tenant, greater hardship would be caused by granting the order than by refusing it;"

7. A comparison of the amendment and the previous Section 53(2)(b) indicates that the earlier consideration of greater hardship has, as between landlord and tenant, been abolished and replaced by a new formula. Nevertheless greater hardship remains an express statutory consideration as between a principal tenant and a sub-tenant. However, as will be adverted to shortly, although greater hardship may no longer be an express statutory consideration, as between landlord and tenant, it may still, in many cases, be relevant.

8. The effect of the amendment is tolerably clear, but argument does exist as to the considerations that may properly be taken into account and as to the precise meaning of some of the new statutory provisions.

Procedure

9. Proceedings under Section 53(2)(b) will, in most cases, procedurally involve two main steps:-

1. First step: (a) The plaintiff must first establish that the premises are reasonably required by him, as landlord, for occupation as a residence for himself, his father, his mother or any son or daughter of his over the age of 18.

10. So far as evidence in respect of this first step is concerned, the Court is solely concerned with whether the plaintiff's wish to obtain possession for the prescribed residential purposes, is reasonable. At this stage the Court is not concerned with the position of existing tenants or their position in relation to the landlord. The tenant's circumstances and issues of what may be just and equitable as between landlord and tenant, do not at this stage arise.

(b) If the Court, looking solely at the landlord's position, is not satisifed on the balance of probabilities that the premises are reasonably so required by him, then the action should be dismissed.
(c) If the Court is satisfied that the premises are reasonably required by the landlord then, and only then, does it have to go on to consider the tenant's position.
2. Second step:
(a) Where the Court is satisfied that the plaintiff landlord does so require the premises, the onus immediately passes to the tenant, under the proviso to Section 53(2)(b).

The proviso, unfortunately, is negatively and awkwardly drafted.

(b) if the tenant can establish, on the balance of probabilities, the matters referred to therein, then the Court shall not make an order for possession by reason only, that it is satisfied that the landlord reasonably requires the premises for himself or his statutory relatives.

11. Under the proviso, the tenant is therefore given the statutory opportunity to resist a claim for possession, even though the landlord may have already satisfied the Court that he reasonably requires the premises for himself or his statutory relatives. The nature of the obligation the defendant must discharge under the proviso varies, depending on whether he is a tenant or a sub-tenant:-

(i) tenant:
The onus on the tenant is to satisfy the Court that if the landlord were to be granted possession then "in all the circumstances of the case it would manifestly not be just and equitable" to make such an order.

Again one may lament the negative drafting technique adopted.

(ii) sub-tenant:
The onus on the sub-tenant is to satisfy the Court that if the principal tenant were granted possession then "in all the circumstances of the case, including the question whether other accommodation is available for the principal tenant or the sub-tenant, greater hardship would be caused by granting the order than by refusing it."

12. In the instant case I am only concerned with the position as between landlord and tenant. No sub-tenancy exists.

Substantive provisions

13. Turning to the substantive provisions, Counsel raised at least three matters to which I should properly refer:-

1. The proper interpretation and status of the relatives named in Section 53(2)(b).
2. The meaning of "just and equitable".
3. The effect of the use of the word "manifestly".

I will consider each of these matters in turn.

The proper interpretation and status of the relatives named in Section 53(2)(b)

14. The defendants Counsel pointed out that the statutory list of a landlord's...

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