Poon Kai Tin v Lam Mee Kam And Others

Judgment Date25 October 1983
CourtCourt of Appeal (Hong Kong)
Judgement NumberCACV91/1983
Subject MatterCivil Appeal
CACV000091/1983 POON KAI TIN v. LAM MEE KAM AND OTHERS

CACV000091/1983

Landlord and Tenant (Consolidation) Ordinance - section 53(2)(f) - proof of illegal activity on suit premises - notice to quit served prior to 19th December 1981 - effect of section 52(1C).

IN THE COURT OF APPEAL

1983 No. 91

(Civil)

BETWEEN

POON KAI TIN

Appellant

and

LAM MEE KAM

Respondents

LAM OI LAN

LAM CHIN PANG

LAM MO

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Coram: Yang J. A., Barker J. A. and Kempster J.

Date: 25th October, 1983.

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JUDGMENT

___________

Yang J.A.:

1. This case concerns a cockloft at 81 Ho Pui Street, Tsuen Wan, New Territories. The landlords of the premises sought to recover possession on the grounds that the tenant had been involved in certain illegal activities there.

2. In effect this appeal consists of two issues. One was whether there was illegal activity on the premises in question and secondly, whether a Notice to Quit dated the 9th July 1980 sent by the landlords' solicitors to the tenant had the effect of terminating the tenancy on 31st January 1981.

3. Dealing with the first point, it was argued on behalf of the tenant that there was no evidence to show that there was any illegal activity: the illegal activity in question being illegal bookmaking within section 7(1) (a) of the Gambling Ordinance. The Presiding Officer in his judgment quite clearly took into consideration the meaning of the phrase "illegal bookmaking" as defined in section 2 of the Gambling Ordinance. Though he did riot expressly say so, it was clear in his judgment that he took all the evidence into consideration when he came to the conclusion that the tenant was involved in that illegal activity and that illegal gambling was going on.

4. This could be seen at pages 5, 6 and 7 of his judgment. At page 5 he came to the conclusion that the tenant had assisted another person in bookmaking or been an accessory to bookmakers by placing bets himself and his friends in the premises. Then on the following page, he went on to consider whether the tenant assisted either directly or indirectly another person in bookmaking and he came to the view that there was ample evidence to show that some persons telephoned the said premises placing bets, and this evidence, together with the other evidence, tended to show that on the balance of probability the tenant was fully aware of the activities inside the premises and that such activities were illegal bookmaking. He also came to the view that he was satisfied that the tenant was well aware of the illegal activities at the premises on the day in question, i. e. the 27th February 1982. Finally, he concluded that he was satisfied that-the landlords had discharged their burden in showing that illegal activities did take place.

5. I am of the view that the Presiding Officer was correct in coming to the conclusion as he did on the evidence before him. For this reason, the first part of this appeal fails.

6. On the second part of the appeal which relates to the Notice to Quit, a very interesting technical point arises. It is argued on behalf of the tenant that the Notice to Quit dated the 9th July 1980 was not a valid notice. Mr. Fung argued with some force that the tenancy in question is a monthly periodic tenancy. He argued that the allegation made in paragraph 4 of the landlords' Notice of Application that the said contractual tenancy was terminated on the 31st January 1981 was not a correct allegation. This is because (Mr. Fung said) that contention relies on a Notice to Quit served by the landlords upon the tenant on or about the 9th July 1980, at a time when no Notice to Quit would suffice to terminate any tenancy of domestic premises protected under Part II of the Landlord and Tenant (Consolidation) Ordinance. And, Mr. Fung said, at that time, only an...

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