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Leung Lai Mai v Tong Tung Sing

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date17 September 1947
Year1947
Judgement NumberDCMP14/1947
Subject MatterMiscellaneous Proceedings
CourtDistrict Court (Hong Kong)
DCMP000014/1947 LEUNG LAI MAI v. TONG TUNG SING

DCMP000014/1947

IN THE SUPPEME COURT OF HONG KONG

TENANCY TRIBUNAL APPEAL

ACTION No. 14 of 1947

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(Application K.493)

BETWEEN
LEUNG LAI MAI Appellant

AND
TONG TUNG SING Respondent

Coram: T.J. Gould

Date of Judgment: 17 September 1947

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JUDGMENT

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1. This appeal from the decision of a Tenancy Tribunal granting eviction against the occupiers of the front portion of No.186 Nathan Rd. (1st flr.) was heard by this Court de novo as it was apparent from the very meagre notes taken by the Tribunal that there had been no proper trial of the real issues between the parties. The real opponent, Ip Sick Ying, was not served with the application originally but by order of this Court, fresh reasons for the application and grounds of opposition have been filed. For the sake of convenience, I will refer to Tong Yung Sang as the applicant and to Ip Sick Ying as the opponent.

2. The allegations made by the applicant are in brief that on 11th October, 1945, he let the whole of the first floor of No.186 Nathan Rd. to the opponent on a monthly tenancy. The terms of the tenancy were written upon the first rent receipt and included a provision that when the applicant returned from Macao, he was to have the premises back for his own use. The rent receipt (bearing the only copy of these terms) remained in the possession of the opponent. The applicant returned from Macao in December, 1945, but did not bring his family at that time, and he occupied a small portion of the rear of the premises in question. About the end of February, he gave notice to the opponent to quit at the end of April as his family was returning from Macao. The opponent failed to leave and during 1946 and 1947, the applicant alleged a series of sublettings of the premises to which I shall refer in greater detail later.

3. The opponent admits taking a tenancy on the 11th October, 1945, but says that it was only of the front portion of the premises while the applicant remained in occupation of the back portion where he still remains. It is denied that the terms were reduced to writing at any time and that they included any term that the opponent was to vacate when applicant returned from Macao. He admits the verbal notice to quit given about the end of February but denies that any of the persons who occupied or shared his premises during 1946 or 1947 were subtenants.

4. The applicant relied upon section 18 (e) and (f) and section 20 of the Landlord & Tenant Ordinance, 1947, and the solicitor for the opponent conceded that he was entitled to rely on the Ordinance as distinct from the repealed Proclamation. Subsections (a) and (f) of section 18 empower a Tribunal to order recovery of possession in cases where a tenant has agreed to vacate premises either with intent to deprive himself of the protection of the Ordinance or upon the return to the Colony of the person who was tenant before the 25th December, 1941. I do not need to consider the legal points raised by the parties in connection with these subsections as I have no doubt upon the evidence that the opponent did not make any such agreement. On this point, I accept the evidence of the opponent that the terms of the tenancy were not reduced to writing and contained no reference to his vacating the premises when the applicant returned from Macao.

5. It remains then to consider the evidence so far as it relates to section 20 which is in the following terms: -

"20. It shall be lawful for a Tenancy Tribunal on the application of a landlord to make an order for the recovery of possession from or ejectment of the occupier of any premises the rent whereof is payable monthly, the tenant of which has, after the 1st March, 1946, without the consent in writing of the landlord, assigned, transferred, sub-let or parted with the possession of such premises or any part thereof: Provided that no order shall be made under the provisions of this section against an occupier holding as the subtenant of a Principal Tenant any portion of any domestic premises which premises before the 22nd October, 1945, were divided into and let as separate domestic premises, or since that date have, with the consent of the landlord, been so divided and let."

The first of the alleged subtenants of the opponent was one Pau Fong chow, who came into the premises about the end of February, 1946. The applicant could not say that Pau Fong Chow paid any rent to the opponent and evidence given by Pau himself and the opponent is to the effect that he was a friend and former tutor of the opponent and stayed with him as an invitee. In or about August, 1946, the opponent went to Formosa on business for a few weeks and after he left, Leung Lai Ming and Ho Lai Ping, two girls employed as dancers by local dance balls, entered into possession of one of the cubicles. Pau Fong Chow, who was still on the premises, said in his evidence, "He...

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