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Yu Wing Kan v Lau Shuk Lan

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date12 June 1990
Year1990
Judgement NumberCACV68/1989
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000068A/1989 YU WING KAN v. LAU SHUK LAN

CACV000068A/1989
IN THE COURT OF APPEAL 1989, No. 68
(Civil)

(On appeal from the Lands Tribunal of Hong Kong Application No. 1668 of 1988)

BETWEEN

YU WING KAN

Applicant

AND
LAU SHUK LAN

Respondent

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Coram: Hon. Fuad, V.-P., Kempster & Clough, JJ. A.

Date of hearing and judgment: 12 June 1990

Date of handing down of reasons for judgment: 28 June 1990

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REASONS FOR JUDGMENT

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Clough, J. A.:

1. These are our reasons for our order made on the 12th June 1990 allowing the appeal of Madam Yu Wing-kan ("the applicant") against the order of the Lands Tribunal (presiding officer His Honour Judge Leong) made on the 20th April 1989 refusing her application under rules 11 and 13A(7) of the Lands Tribunal Rules to be added as a respondent, and to set aside the default order for possession of a residential flat ("the premises") in Hong Kong made by the Tribunal in favour of the landlord of the premises (Mr. Yu Wing-kan: "the landlord") on the 28th November 1988, in proceedings brought by him under Part II of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7).

2. It was common ground that the premises were within Part II of the Ordinance. They had originally been let by the landlord to Madam Lau Shuk Lan ("the tenant") under a Chinese Tenancy Agreement ("the Agreement") made on the 1st August 1975 for a 2 year term. Upon the expiration of that term on the 31st July 1977 the tenant had held over as a monthly tenant on the terms of the Agreement. The tenant had left Hong Kong in 1984 and gone to live in the Philippines, leaving her son Mr. Lee Li Mang to manage the premises on her behalf.

3. The landlord claimed that in late March (he later said it was in April) 1988 he had discovered that the premises had been sublet by the tenant in breach of the Agreement. This resulted in the service by his solicitors of a notice dated the 2nd May 1988, addressed to the tenant at the premises pursuant to section 58 of the Conveyancing and Property Ordinance (Cap. 219), alleging that in contravention of clause 2 of the Agreement ".... you had sublet the whole of the above premises and ceased to live in any part thereat." Possession of the premises on or before the 10th May 1988 was demanded by the notice which threatened proceedings for possession in the Lands Tribunal in the event of default. The landlord collected no rent after the end of April 1988.

4. The notice not having been complied with, the landlord made an application to the Lands Tribunal on the 19th May 1988 against the tenant for possession of the premises. The application was made in reliance upon section 53(2) (e) and (h) of the Ordinance. In the particulars of claim it was pleaded that clause 2 of the Agreement had provided inter alia that the tenant:

"…. should not without the Applicant's consent assign underlet or part with possession of the said premises or any part thereof."

5. There followed the somewhat nebulous pleading in paragraph 5 of the particulars of claim that the tenant had:

"…. without the consent of the Applicant sublet, and/or part (sic) with possession of the said premises or any part thereof to parties whose identities are unknown to the Applicant and does not occupy any part of the said premises as her dwelling."

6. No application had been made under section 53(6C) to require the sub-tenants to disclose their interest in the premises.

7. In reliance on the sublettings so alleged in breach of clause 2 of the Agreement and upon the cessation of occupation of the premises by the tenant, the landlord claimed that the tenancy had been forfeited and claimed vacant possession of the premises under section 53(2) (e) and (h) and rent and mesne profits as from the 1st May 1988.

8. There followed the usual manoeuvrings that commonly occur where sub-tenants are not joined as parties to proceedings for possessions under Part II of the Ordinance. On the 4th June 1988 Mr. Lee applied for legal aid on the tenant's behalf. This application was refused on the 23rd June. Nevertheless he applied on the 18th July 1988 to be added as the second respondent in the proceedings. This application was dismissed by the Tribunal (presiding officer His Honour Judge Striven) on the 5th August 1988, but the Tribunal directed that hearing notices be sent to Mr. Lee at the premises as agent for the tenant.

9. Notices of the landlord's application having been duly served on the tenant pursuant to rule 8(b) of the Lands Tribunal Rules and no notice of opposition having been filed by the tenant under rule 53, the landlord applied on the 7th November 1988 under rule 13A for a default order for possession of the premises and arrears of rent and mesne profits. He made two affirmations in support of this application. By his affirmation filed on the 7th November 1988 he verified his particulars of claim. In particular he exhibited a copy of the Agreement together with an English translation which was not certified for the purposes of section 27 of the Evidence Ordinance (Cap. 8).

10. However, pursuant to section 10(6) of the Lands Tribunal Ordinance (Cap. 17) the Tribunal was not inhibited from giving such weight as might be appropriate to the English translation of the Agreement, particularly in default proceedings. Clause 2 of the translation began as follows (words in square brackets added) :

"2. "B" [the tenant] shall not sub-let in whole or in part or transfer the tenancy of the premises to other person ...."

11. As to the alleged breach of clause 2 by the tenant, this was affirmed in paragraph 8 of the landlord's affirmation, in the same terms as ;paragraph 5 of the particulars of claim, by reference to unlawful subletting or parting with possession of the premises or any part thereof by the tenant to parties whose identities were unknown to the landlord. However, by his supplemental affirmation filed on the 23rd November the landlord affirmed inter alia that he had discovered "the unlawful subletting sometime in late March 1988 when I was summoned by the Respondent's son to inspect the windows of the premises for the purpose of repair."

12. On the 28th November 1988 the Tribunal, as might be expected, made a default order for possession and rent and mesne profits in favour of the landlord against the tenant. The position now was that the landlord had obtained an order for possession against the tenant which appeared to be good under section 53(2) (e) or (h), but what of the sublettings to parties alleged to be unknown to the landlord? It was at least possible that one or other of them might want to claim that their interest was protected under Part II of the Ordinance. It was therefore important, as always, that no writ for possession should be issued without due compliance with Order 45 rule 3 which applies to the Lands Tribunal by virtue of section 10(1)(g) of the Lands Tribunal Ordinance.

13. It transpired from later evidence of the landlord that he claimed that he and his wife were scared of the tenant's son Mr. Lee and the occupants of the premises. Be that as it may, no attempt seems to have been made by the landlord's solicitors to invoke section 53(6C), nor was there evidence of any attempt to identify the persons in actual occupation of the premises so that notice of the possession order could be served upon them personally or at least individually by registered post. Instead the Tribunal appears to have been satisfied to issue a combined writ of fieri facias and possession on the strength of the landlord's solicitors' clerk's affirmation evidence of the service of a notice in the usual form but addressed to:

"The below-mentioned Respondent, Lau Shuk Lan, and to all persons in actual possession of the premises...."

14. The evidence of the solicitors' clerk was that the notice in question was sent by prepaid registered post on Wednesday the 28th December 1988. He also affirmed that on the same day at about 4.30 p.m. he had posted up a copy of the notice at a conspicuous place at the main entrance to the premises. He had done the same on the following day at about 4.15 p.m. when he had gone to the premises and found the previous notice to be missing. He had repeated the process in the same circumstances when he returned to the premises at 12.05 p.m. on Friday the 30th December 1988.

15. Under the circumstances his evidence was at the very least ambiguous when he affirmed that on the 28th December 1988 he had sent "by prepaid registered post to the Respondent and to all persons being in actual possession of the said premises a Notice..... setting out the particulars of the said Order..." In fact only one notice had been posted to the premises addressed in the manner indicated above. The affirmation of the solicitors' clerk concludes with a paragraph that begins as follows:

"7. I am informed and according to the best of my knowledge and information and verily believe that save for the Respondent and the abovementioned persons served with the said Notice, there is no other person who is in actual possession of the whole or any part of the said premises.''

16. This rigmarole seems to us to be a thoroughly unsatisfactory and inadmissible as evidence, even in the case of a Tribunal which is not bound by the rules of evidence. No means of knowledge is disclosed and it is an abuse of a form of words in the standard form of affidavit which is clearly intended to be used where the solicitors have properly ascertained who is in actual occupation of the premises and served them individually with notice of the order for possession and a warning...

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