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Tsang Shu Wo And Another v Person Unknown In Occupation Of Lot No. 2643Rp In D.d.120, Yuen Long, New Territories, Hong Kong And Another

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date05 March 2020
Neutral Citation[2020] HKCFI 293
Judgement NumberHCMP3279/2013
Citation[2020] 1 HKLRD 1234
Year2020
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP3279B/2013 TSANG SHU WO AND ANOTHER v. PERSON UNKNOWN IN OCCUPATION OF LOT NO. 2643RP IN D.D.120, YUEN LONG, NEW TERRITORIES, HONG KONG AND ANOTHER

HCMP 3279/2013

[2020] HKCFI 293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3279 OF 2013

___________________

IN THE MATTER of Order 113 of the Rules of the High Court

and

IN THE MATTER of the Properties known as Lot No. 2643RP in D.D.120, Yuen Long, New Territories, Hong Kong

__________________

BETWEEN
TSANG SHU WO 1st Plaintiff
MAN CHEUNG LAM 2nd Plaintiff
and
Person unknown in occupation of Lot No. 2643RP in D.D.120, Yuen Long, New Territories, Hong Kong 1st Defendant
CHEUNG KWAN HO 2nd Defendant

______________________

Before: Hon Anthony Chan J in Court

Date of Hearing: 7, 8 and 13 January 2020

Date of Judgment: 5 March 2020

_________________

J U D G M E N T

_________________

1. By this action the Plaintiffs seek to obtain possession of a piece of land on which stands a house (“House 41”). They claim to be entitled to such possession by reason of their sub-tenancies over the land in question (“Land”). The 2nd Defendant is the only party responding to this action. He and his family have been residing at House 41 for many years, and he is resisting this action.

Issues

2. The 2nd Defendant says that he and his family have a licence to occupy the Land. It is clear from his pleading that such licence can only be a bare or gratuitous licence. It is trite that such a licence gives no right in the land which the licensee is permitted to occupy, and the licence may be revoked at any time by the grantor. Mr Koo, who appeared for the 2nd Defendant, accepted that if there is a valid sub-tenancy over the Land enjoyed by the Plaintiffs, they would be entitled to possession of the same as a matter of law.

3. However, the 2nd Defendant has a number of challenges in respect of the Plaintiffs’ title as sub-tenants of the Land. These challenges concern :

(i) the validity of the head tenancies under which the Plaintiffs’ sub-tenancies were derived. In particular, whether the head tenancies were properly granted by the Managers of Tang Siu Yu Tso (“Tso”), which owns the Land;

(ii) whether the grant of the sub-tenancies to the Plaintiffs were in breach of the terms of the head tenancies;

(iii) the validity of the sub-tenancies which were only granted by 1 of the 3 joints tenants of the head tenancies;

(iv) the genuineness of the latest head tenancy and sub-tenancy.

4. The Plaintiffs do not accept that the 2nd Defendant or his family have a licence to occupy the Land. In addition, there is an argument on tenancy by estoppel relied upon by the Plaintiffs in the event of any irregularity over the head tenancies or sub-tenancies.

5. Further, the Plaintiffs take issue with the locus standi of 2nd Defendant in challenging the validity of their title to the Land.

Background

6. The Plaintiffs claim that they are sub-tenants of a large plot of land (“Plot”) known as Lot No 2643 RP in DD 120, Yuen Long, New Territories of which the Land forms part. The Plot is situated in a village known as Lam Hau Tsuen.

7. The 1st Plaintiff’s sub-tenancy had in fact expired on 20 July 2017. His claim is of little relevance now. Mr K M Chong, who appeared for the Plaintiffs with Mr Alvin Chong and Mr Cheng, had informed the court that the 1st Plaintiff is no longer seeking any relief in these proceedings.

8. The Plaintiffs’ title to the Plot (including the Land) can be traced to the head leases. On 4 July 2007, a lease of, inter alia, the Plot was granted by the Tso to Tang Chi Yung (“Yung”), Tang Tung Chiu (“Chiu”) and Tang Wing Shing (“Shing”) for a term of 6 years from 4 July 2007 to 3 July 2013 at an annual rent of HK$1,300 (“2007 Lease”). The 3 tenants were members of the Tso.

9. The 2007 Lease was signed by the 3 elders of 3 sub-Tsos: Chik Son Tso; Man Son Tso; and Min Son Tso. Those sub-Tsos represented the 3 branches of the descendants of Tang Siu Yu. According to one of the signatories, Tang Kin Kwok (“Kwok”), who was the elder of Chik Son Tso and a witness of the 2nd Defendant, it was the practice of the Tso that a lease would be signed by the elders of the sub-Tsos[1].

10. Those 3 elders were Kwok, Tang Tong (“Tong”) and Tang Kau. It is common ground that out of the three only Kwok was a registered Manager of the Tso (there were 3 such Managers at the time).

11. As shown by the documents, the rent under the 2007 Lease was all paid and accepted by the Tso.

12. On 21 July 2012, Yung granted a sub-lease of the Plot to the 1st Plaintiff for a term of 5 years from 21 July 2012 to 20 July 2017 at an annual rent of HK$60,000 (“P1’s Sub-lease”). This Sub-lease was recorded in a booklet printed for rental purposes. The last page of that booklet as reproduced in Trial Bundle C, pg 96, contained a Remark acknowledging the payment of the entirety of the rent in 1 lump sum of HK$300,000. The receipt for that payment was dated 1 August 2012. Both the acknowledgment and the receipt were signed by Yung.

13. It was admitted by the 2nd Defendant that the 1st Plaintiff discovered his occupation of House 41 in about August 2012.

14. On 7 July 2013, after the expiration of the 2007 Lease the Tso granted another 6-year lease to the same 3 members from 4 July 2013 to 3 July 2019 (“2013 Lease”) at the annual rent of HK$1,450. The 2013 Lease was signed by 2 elders, namely, Tong and Tang Ching Ning. They represented Man Son Tso and Min Son Tso respectively (Chik Son Tso was not represented).

15. At the time of the extension, there were 2 Managers of the Tso, namely, Tong and Kwok.

16. Like the 2007 Lease, all the rent had been paid as recorded in a book kept by the Tso. However, the 3 pages of record (“Payment Records”) concerning the rental payments under the 2013 Lease were only adduced at the trial with the leave of the court, and they are the subjects of challenge as to authenticity by the 2nd Defendant.

17. On 14 January 2017, there was a meeting of the members of the Tso during which it was resolved, inter alia, that the 2013 Lease be confirmed by unanimous consent; and that Kwok’s resignation as a Manager of the Tso be accepted with immediately effect.

18. It should be pointed out that Kwok’s unchallenged evidence is that none of the members of his sub-Tsos had attended that meeting.

19. On 20 July 2017, P1’s Sub-lease expired.

20. On 1 August 2017, Yung granted a sub-lease of the Plot to the 2nd Plaintiff for a term of 5 years from 21 July 2017 to 20 July 2022 at an annual rent of HK$60,000 (“P2’s Sub-lease”). P2’s Sub-lease was also recorded in a booklet. The 2nd Defendant challenges the authenticity of this document.

21. Like P1’s Sub-lease, all the rent was paid in 1 lump sum. The undated acknowledgment (part of the booklet) and the receipt dated 1 August 2017 were signed by Yung.

22. Both of the receipts dated 1 August 2012 (see para 12 above) and 1 August 2017 are being challenged as to authenticity.

23. There is a 2-page document dated 4 September 2017 which was described by Mr Chong as a “Confirmation by the Landlord, Tenant and Sub-tenant”. It was signed by Tong on behalf of the Tso, Yung and the 2nd Plaintiff confirming, inter alia, the 2013 Lease and that Yung agreed to sub-let the Plot to the 2nd Plaintiff from 21 July 2017 to 3 July 2019.

24. From the contents of the document, it was apparently made due to the dissent by Kwok over the 2013 Lease as it was not signed by all the Managers of the Tso[2]. The document was stamped as a lease on 4 October 2017.

25. The 2013 Lease came to an end on 3 July 2019.

26. According to a Confirmation of record of meeting of the Tso (“鄧宵羽祖會議記錄確認”) (“2019 Confirmation”), on 26 August 2019, Yung confirmed that a members’ meeting had been held for the Tso during which it was resolved that the Plot would continue to be leased to him, Chiu and Shing from 20 July 2019 to 30 September 2022 (“2019 Lease”). Further, Yung had sub-let the Plot to the 2nd Plaintiff from 21 July 2019 to 20 July 2022, and it referred to a rent book having been signed by Yung and the 2nd Plaintiff to record the sub-lease.

27. The 2019 Confirmation was signed by Yung and Tong (with the stamp of the Tso) with Tang Chi Hok signing as a witness.

28. At the time of the 2019 Confirmation, there were 2 registered Managers of the Tso, namely, Tong and Kwok.

29. Although the authenticity of the 2019 Confirmation is not challenged, the 2nd Defendant disputes the “authenticity” of the 2019 Lease and the recorded sub-lease to the 2nd Plaintiff.

30. Save as noted, the above is either uncontroversial or based on undisputed contemporaneous documents. However, it should be said that Kwok in his evidence had expressed disquiet about the Record of the 14 January 2017 meeting (“Record of Meeting”) (see para 17 above). He said that notice of the meeting was not given to members of his sub-Tso, and none of the members of the same was present at that meeting.

The Licence

31. The evidence of the Licence came from the 2nd Defendant’s father. Together with Kwok, they were the only witnesses called by the 2nd Defendant, who also gave evidence. The Licence was allegedly granted before the 2nd Defendant was born, and therefore what he knew about it came from his father.

32. According to the witness statement of 2nd Defendant’s father (“Cheung”), which was adopted as his evidence in-chief, in about 1979, Kwok made an oral promise (or guarantee) to him that he and his family could all continue to live in House 41.

33. When asked by the court to repeat what was said to him by Kwok, Cheung said that Kwok told him that he might live there [House 41] for as long as he liked, including his...

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