DCCJ 5012 of 2007
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
ACTION NO. 5012 OF 2007
||MAN TIM WAN (文添穩)
||CHUNG TAI HOI (宗體開)
Before: Deputy District Judge C. Lee in Court
Dates of Hearing: 12th and 13th April 2010
Date of Judgment: 19th April 2010
J U D G M E N T
1. The trial concerns the main dispute on whether there was a verbal agreement allegedly made between the Plaintiff and the Defendant's late husband Mr. Ho Kong (“Mr. Ho”) in 1968 in respect of the land known as lot no. 967 in Demarcation District No. 9 Tai Po New Territories, Hong Kong ("The Property"). Alternatively, the Defendant contended that the Plaintiff made the promise to Mr. Ho that his family could reside there for an indefinite period until they give up their rights (“The 1968 Promise”). The Defendant relied on the hearsay promise and alleged that the whole family suffered from detriment. She relied on the doctrine of proprietary estoppel.
2. It is common ground that:-
(1) The Plaintiff is the landlord of the Property and the Defendant's late husband, Mr. Ho Kong (“Mr. Ho”) was the lessee of the Property since 1968. The yearly rent at that time was 3 piculs of rice or its equivalent value at the time.
(2) The Property is for agricultural use only.
(3) Shortly after leasing the Property, Mr. Ho obtained the permit from the government to build temporary structures on the Property. The permitted structures are stated as “dwelling”, “kitchen” and “shade” (“Temporary Structure Permit).
(4) The conditions of the Temporary Structure Permit contain such usual clauses as “nothing shall be construed as creating the relationship of landlord and tenant (as between the government and the permit holder)”; “no permit … shall constitute a waiver”; “erection of any structure otherwise than in accordance with the terms and conditions in the permit shall be an offence”; “the Authority may in his absolute discretion cancel this permit … .”
(5) Mr. Ho died in 1989. As at December 1995, the Defendant occupied the Property as the lessee in place of Mr. Ho Kong. The yearly rent has been gradually increased throughout the years: $2,640 for 1996, $2,904 for 1997 to 1999, $3,200 for 2000 and thereafter. The Defendant paid the rent for the said years but she did not pay rent for the year of 2006 on the ground that the Plaintiff did not go to the Property to collect rent.
3. It is the Plaintiff's case that there was no agreement or the 1968 Promise as alleged. He would not make that promise because it was akin to a gift to Mr. Ho for good, bearing in mind that they had no blood or family relationship at all. He also contended that he has given notice of termination dated 19th December 2005. He did that through his daughter Ms. Man Sau Chun (“Ms. Man”), by affixing the notice for 3 consecutive days from 19th to 21st December 2005 at the gate of the Property. She also caused photographs be taken depicting the newspaper of the day to prove the service of the notice. The expiry date of the lease was 31st December 2006 but the Defendant refused to give vacant possession. Alternatively, the Plaintiff said that the Defendant was default in paying the rent for the year of 2006, that was due and payable in the end of 2006. He is therefore entitled to possession of the Property.
4. The Defendant has prepared 2 witness statements in her name, despite attempts, she was unable to confirm or adopt the statements. Counsel for the Defendant, Mr. Chow chose to tender her for cross-examination by the Plaintiff without reliance on her written statements. Be there as it may, the Defence in gist is that one day in early 1968, Mr. Ho told the Defendant that he obtained a lease that entitled them to reside in the Property as long as they wish until they gave up the rights. The eldest son was also present on that occasion, who was then about 11 years old. He is Mr. Ho Yue Tak (“DW1”). The Defendant relied on the evidence of DW1 to support the contention of the 1968 Promise. She also relied on the evidence of Ho Shing Tak (“DW2”) to suggest how the Plaintiff collected rent before the dispute. Both DW1 and DW2 also said that the notice of termination did not come to their notice. The Defendant alleged that it was the Plaintiff who failed to go to the Property or approach the Defendant to collect rent for the year of 2006. The Plaintiff never issued any rental receipt to them.
5. In rebuttal:
(1) The Plaintiff reiterated that he did not make the 1968 Promise. He elaborated that he left Hong Kong for Belgium in 1957 and did not return to Hong Kong until 1970 with copies of his passport in support during which he did not talk to Mr. Ho nor he met Mr. Ho. He simply entrusted the rental matters, especially the collection of rent to Madam Law Kiu 「羅嬌」also known as auntie Nam「南嫂」until about 1990 when his daughter took over the task.
(2) The Property was for agricultural land use and he could not have permitted residential occupation over the Property in breach of the condition of the land use.
(3) He relied on Ms Man's evidence to establish how she served the notice of termination.
(4) He also relied on Ms Man's evidence that in recent years before the dispute, it was the Defendant or her son who visited Ms. Man's office in Tai Po and paid the rent, instead of Ms. Man went to the Property to collect rent.
6. In light of the above and the undisputed relationship of landlord and tenant between the Plaintiff and the Defendant, the fundamental and central issues for determination at trial are:
(1) whose version is more believable regarding the existence or non-existence of the 1968 Promise.
(2) whether the Plaintiff has served the notice of termination and whether it should have come to the notice of the Defendant.
(3) whether the Defendant was in default in paying the rent for the year of 2006.
7. In respect of the main issues, three subsidiary issues arise which are:
(1) whether the parties' conduct on payment of rent after 1995 was that as alleged by the Defendant i.e. Ms. Man went to the Property to collect rent or as alleged by the Plaintiff, i.e. the Defendant and/or her eldest son and/or youngest son went to Ms. Man's office to pay rent;
(2) whether the Defendant was ready and willing to pay the rent for year 2006 at that time.
(3) whether the Plaintiff has ever issued rental receipt to the Defendant.
C. THE EVIDENCE
C1. The Plaintiff's case and evidence in...