Shum Fong v Wong Pit Hing

Judgment Date31 October 1946
Subject MatterMiscellaneous Proceedings
Judgement NumberDCMP34/1946
CourtDistrict Court (Hong Kong)
DCMP000034/1946 SHUM FONG v. WONG PIT HING

DCMP000034/1946

IN THE SUPREME COURT OF HONG KONG

TENANCY TRIBUNAL

APPEAL No. 34 of 1946

BETWEEN
Shum Fong Appellant
(Opponent)

AND

Wong Pit Hing Respondent
(Applicant)

Coram: E.H. Williams, Puisne Judge

Date of Judgment: 31 October 1946

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JUDGMENT

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1. This is an appeal from the order of a Tenancy Tribunal giving the respondent possession of 8 Hanoi Road, of which she is the owner, and which is at present occupied by the appellant as principal tenant. The grounds of the appeal were that the decision was against the weight of the evidence and was wrong in law. The grounds of it's being wrong in law were set out in a letter from solicitors for the appellant, the main one being that there was insufficient evidence to prove there was no other suitable accommodation available for the respondent.

2. The application to the Tribunal was based on paragraph 1A(1) of Article 5 of the Proclamation i.e. , the landlord required the premises for her own use. The reasons for and facts in support of the application appear quite inconsistent. In one part it is claimed that opponent was not a tenant - she had entered into possession without the knowledge and consent of the respondent. Later it was stated that due notice to quit had been given - such notice was the ordinary letter to a tenant warning the person to vacate premises held on a monthly tenancy.

3. The grounds for opposition were briefly that the application was "res judicata", a similar application having been refused by a previous Tribunal.

4. At the hearing before the Tribunal, solicitors for both partles were heard on the point of "res judicata" and it decided in favour of respondent on that point.

5. Evidence then was heard by the Tribunal. It is clear from the record that no point was taken by the respondent that appellant was not a proper monthly tenant. The application being under paragraph 1A(1) of Article 5, no such point should have been taken.

6. The evidence necessary, to support the application was that the landlord (respondent), having given due notice to quit, required the premises for her own use and could get no other suitable accommodation. In support of the case, the respondent stated she had not looked for other premises but had given instructions to her nephew in consequence of which, as he stated, he had made inquiries from people about vacant premises though he had not put any advertisements in the paper.

7. In addition to this, evidence was given by another witness for respondent that appellant was also his principal tenant at 2 Hillwood Road where he lived and he believed she had another address in Austin Road. This evidence was quite irrelevant. The record of the case does not appear complete and perhaps solicitor for appellant raised objection to its admission. If he did not, he certainly should have done so.

8. At this hearing, the record of the previous case before the Tribunal was referred to at the request of the appellant. As a plea of "res judicata" had been raised, it is clear that some reference to the facts in the previous hearing should have been made - not for the evidence contained therein but to ascertain what was actually decided.

9. The Tribunal during the hearing adjourned to visit the premises and, its hopes for some from of compromise being disappointed, gave its decision in favour of the respondent setting out the reasons for the findings as follows : -

(1) The Applicant really requires the premises for the use of herself and family.

(2) The Opponent is not a bona fide tenant.

(3) The Opponent without the knowledge and consent of the Applicant took possession of the premises.

(4) The Opponent gives us the impression...

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