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Tsoi Ip Shi v Cheung Yee Koo And Others

Judgment Cited in Precedent Map Related
Vincent
Judgment Date06 September 1948
Year1948
Judgement NumberDCMP21/1948
Subject MatterMiscellaneous Proceedings
CourtDistrict Court (Hong Kong)
DCMP000021/1948 TSOI IP SHI v. CHEUNG YEE KOO AND OTHERS

DCMP000021/1948

IN THE SUPREME COURT OF HONG KONG

TENANCY TRIBUNAL

APPEAL No. 21 of 1948

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(Applic. 233/1947)

BETWEEN
Tsoi Ip Shi Appellant
(Applicant)

AND
Cheung Yee Koo, Leung Shing, Respondents
Cheung Foo and Tam Ming. (Opponents)

Coram: Mr. Justice T.J. Gould.

Date of Judgment: 6 September 1948

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JUDGMENT

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1. This is an appeal against the refusal of a tenancy tribunal to make an order of eviction against the four respondents, all of whom are occupiers of portions of No. 414 Queen's Road, West, 2nd floor. The facts in brief are that the respondents were sub-tenants of their respective portions of this property and one Kwok Pak Hang was principal tenant. On the 24th May, 1947, the appellant by her solicitor gave the principal tenant notice to quit on or before the 30th June, 1947, and on the 31st May, 1947, gave notice to the respondents under section 12(2) of the Landlord & Tenant Ordinance, 1947 requiring them at the expiration of one calendar month after service, to pay their respective rentals directly to the landlord. The last mentioned notices contained also the somewhat peculiar intimation that "service of determination of the principal tenancy has been served upon Kwok Pak Hang." It must be assumed that the first word "service" in that quotation was intended to be "notice". On the 31st July, 1947, letters were sent to the respondents on behalf of the appellant referring to the notice of 31st May and asking for payment of rent for July, 1947. Prior to these notices, on the 30th April, 1947 Kwok Pak Hang, then principal tenant was fined by a Magistrate for charging the sub-tenants excessive rent. At that time the Magistrate made no order for ejectment of the principal tenant and it would seem that whatever he said on this subject has been relied upon by the respondents as entitling them to continue to pay their rent to the principal tenant, even after receiving the notices above referred to. In this the tribunal found that they had acted in good faith and refused to make an order for eviction.

2. The appeal against this refusal is on the ground firstly that there was no sufficient evidence that the respondents acted in good faith in paying their rent to the principal tenant, and secondly that the rent, being payable to the appellant and not to the principal tenant, was in arrears for more than 30 days and the tribunal had no discretion to refuse the order.

3. Before these matters arise for consideration, it is necessary first to decide whether the notices served on behalf of the appellant had the effect of creating in law a liability on the respondents to pay their rental direct to the appellant. This point was not taken before the Tenancy Tribunal by the respondents who were not legally represented there or in this Court. In view of the fact that a great many of the tribunals have no legally qualified members, it has been the practice of this Court, where a party has appeared before a tribunal in person, to permit a point of law to be taken on his behalf on appeal even though not taken before the tribunal. This concession would not of course be made in favour of a person whose conduct had in some way disentitled him to it, but I see nothing which would in any way incline me...

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