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Tat Hing Firm v Kwong Sheung Firm

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date07 February 1948
Subject MatterMiscellaneous Proceedings
Judgement NumberDCMP19/1947
CourtDistrict Court (Hong Kong)
DCMP000019/1947 TAT HING FIRM v. KWONG SHEUNG FIRM

DCMP000019/1947

IN THE SUPREME COURT OF HONG KONG

SUMMARY JURISDICTION

TENANCY TRIBUNAL APPEAL No. 19/47

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BETWEEN
Tat Hing Firm Appellants
(Opponents)

AND
Kwong Sheung Firm Respondents
(Applicants)

Coram: E.H. Williams

Date of Judgment: 7 February 1948

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JUDGMENT

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1. This is an appeal from a decision of a Tenancy Tribunal granting an order for eviction of the appellants from No.27, Wing Lok St., ground floor, on the ground that the tenant (Lung Chuen Firm) had transferred the promises to the appellants without the consent in writing of the landlords - respondents.

2. The decision of the Tribunal is set out below:

(1) There is a transfer of the premises by the Lung Chuen Firm to the Tat Hing, the opponent, after 1st March 1946.
(2) that such transfer is without the cousant in writing of the applicant,

and orders:

(1) Possession be returned to the applicant within 30 days from date of order.
(2) Mesne profits from 1st October, 1946, to date of delivery of possession at the rate of "160 per month to be paid within 2 weeks from 13th August, 1947.

The grounds of the appeal are 5 in number. They are painly facts rather than law.

3. At the bearing before the Tribunal, both parties were represented solicitors , the chairman of the Tribunal also being a solicitor. The Tribunal did not share any grounds for its decision - it is not required so to do either under the Proclamation or the Ordinance unless the appeal is by way of a case stated. It is, however very regrettable that the appellants did not follow the usual practice in appeals from Tribunals of asking the Chairman through the Court (or directly) for the reasons for its decision in cases where none are set out.

4. The evidence before the Tribunal on behalf of the respondents (applicants) was that Tse Tak Ying was the sole owner of the firm and principal tenant of the house: he left for the country in 1942. In his absence, his parent (since dead) let the ground floor to the Lung Chuen firm and, on his return in 1946, rent continued to be collected on his behalf from some one in the firm which was carrying on the business of Chinese wine merchants. Notice to quit was served on the firm in May 1946 but it was ignored and rent continued to be collected.

5. The servant who collected the rent stated that he obtained payment from the master who was surnamed Lo or, in his absence, the cook. When he visited to collect rent at the end of September, 1946, he found the old employees absent, the premises repainted, the signboard LUNG CHUEN replaced by the sign 'TAT HING, Ship Chandlers'. (photo -graphs shew the name painted prominently over the shop and on the pillars outside). The business now being carried on was a ship Chandlers'. He informed his master and a solicitors' letter was written at the end of October requiring the Tat Hing to vacate immediately. Both TSE TAK YING and his servant stated that about 10 days later they noticed a small signboard LUNG CHUEN in a corner of the shop.

6. The evidence for the appellants (Opponents) was given by Tsang Chau Jor. It was to the effect that he and one, Lo Fong, were partners in the Tat Hing; Lo Fong had been manager of the Lung Chuen: that business had been discontinued owing to the difficulty of securing a wine licence and they changed over to ship chandlers' business under the sign Tat Hing. He denied he had removed all the signboards of Lung Chuen - the one in question had remained throughout.

7. To the Tribunal he stated that he and Lo Fong had invested $4000 equally in the Lung Chuen: in the Tat Hing, he had put $100,000 and Lo Fong $5000 ($3000 paid). Lo was no longer employed in the firm (it would appear he meant the appellant firm). He had continued to display the Lung Chuen signboard because the rent receipt was in that name and also they might later wish to resume the wine business.

8. Lo Fong was present at the hearing but was not called.

9. Counsel for appellants based his case on two grounds. Firstly, he submitted that the evidence was consistent with the Lung Chuen firm retaining possession of the premises and permitting the Tat Hing to use the premises. It was well known that Chinese often carry on business under different signboards with the same partners and in the same premises. He cited Chaplin v. Smith (1925) 1 K.B. 198 and Stenning v. Abraham (1931) 1 Ch. 470 in support. The opening paragraph of the heading to the former case reads:

"A lessee who has covenanted not to part with possession of the demised premises does not commit a breach of the covenant by merely permitting another person to have the use of the premises, so long as the lessee retains the legal possession himself."

10. The observation of Farwell J. in the latter case (p. 473) is important - 'I must entirely disclaim any attempt to define the meaning of parting with possession generally. It must always be a question of fact and the construction of the particular agreement in each case. (i.e. the agreement between the tenant on the one hand and the assignee, licensee or subtenant on the other).

11. His second submission was that assuming Lung Chuen was not apparently in possession, the evidence was that the partners in both firms were the...

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