Ng Wan, Proprietor Of Sang Kee v So Yim

Judgment Cited in Precedent Map Related
Judgment Date19 February 1948
Year1948
Judgement NumberCACV17/1947
CourtCourt of Appeal (Hong Kong)
CACV000017/1947 NG WAN, PROPRIETOR OF SANG KEE v. SO YIM

CACV000017/1947

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

APPEAL No. 17 of 1947.

-----------------

(TENANCY TRIBUNAL APPEAL No. 24 of 1947).

BETWEEN
Ng Wan, Proprietor of Sang Kee Appellant
(Applicant)

AND
So Yim. Respondent
(opponent)

Coram: Mr. Justice E.H. Williams and Mr. Justice J. Reynolds

Date of Judgment: 19 February 1948

-----------------

JUDGMENT

-----------------

1. This is an appeal from the decision of Gould J. confirming substantially the decision of a Tenancy Tribunal refusing an order against the respondent for possession of part of the ground floor of No.155 Connaught Road, Central.

2. The facts of the case are fully set out in the judgment of the learned judge and it is unnecessary here to repeat them at length. The reasons for the application and the grounds of opposition were enumerated at considerable length but obviously by persons without legal qualifications. The 'notes' of the hearing before the Tribunal which consisted of three Chinese members, none of whom was a lawyer, are very brief. Only the applicant and opponent gave evidence. The decision of the Tribunal is contained in a few lines. That was described as 'Further Notes' were later supplied by the Chairman of the Tribunal. In them are set out at length the facts which the Tribunal found were established. It is clear that their findings were based on more than is contained in the 'Notes'. We agree with the view contained on pare 3 of the judgment of the learned judge and for the reasons there set out, that he was 'justified not only in accepting the conclusions of fact therein contained but also in assuming what the Chairman obviously intended to convey i.e. that those conclusions were based upon accepted evidence.'

3. The earlier facts as established are that prior to the war NG WAN, appellant (applicant) carried on business under the sign 'Sang Kee' on the premises. It is not definitely found that he was the tenant, but it is more than probable he was. He left Hong Kong in early 1942 and about the same time respondent (opponent) moved in to the premises and paid the rent to the landlord, carrying on his own business under the same sign-board 'Sang Kee'. He continued paying rent all through the period of the occupation. Soon after the re-occupation (about November, 1945) respondent had had electric fittings, meter and some water-pipes installed at his own expense. Appellant returned to the Colony about January, 1946 and was desirous of getting the tenancy. As a consequence, an arrangement was reached between the parties concerned viz, the landlord, appellant and the respondent. The real question at issue is what was the legal effect which resulted from such arrangement. It should be observed that the agreement was in force for some time before trouble arose between appellant and respondent.

4. The details of the arrangement as found by the Tribunal are contained in the concluding portion of paragraph 3 of the Further Notes and are:

5. 'So Yim was prevailed upon to relinquish his principal tenancy and to substitute for it a state of non-paying co-occupancy with the applicant, together with certain other considerations. These being: So Yim was to occupy some smaller space in the premises for him to live in and to transact business; at the same time he was to waive his claims on certain things fixed up by him in...

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