LEUNG KIN HUNG v. CHENG MUI

HCMP000730/1982

Headnote

1. The Court of Appeal, Civil Division, will in future insist upon strict compliance with Order 59 r. 3(2).

2. It is not necessary for a District Judge to be “absolutely sure” of facts supporting the reasonableness of a plaintiff’srequirements under Sec. 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance.

3. Little, if any, consideration in regard to manifest injustice, ought to be given now to the fact that a landlord purchased the premisesover the heads of sitting tenants.

IN THE COURT OF APPEAL Miscellaneous Proceedings
No. 730 of 1982

BETWEEN

Leung Kin Hung Appellant
(Plaintiff)
AND
Cheng Mui Respondent
(Defendant)

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Coram: Hon. Cons, Zimmern & Barker, JJ.A.

Date: 11 June 1982

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JUDGMENT

__________

Cons, J. A. :

1. This is an application for leave to appeal despite the refusal of the District Judge below.

2. Before dealing with the merits of the application I would like to draw attention to the Notice of Motion which sets out the proposedgrounds of appeal.

1.

That the learned trial judge erred in law in holding that the plaintiff does not reasonably require the suit premises as a residencefor himself”;

2.

That the learned trial judge erred in law in holding that to make an order for possession would be manifestly unjust or inequitableto the Defendant”.

Neither gives any indication as to how it is suggested that the judge did err or what the questions of law would be for our consideration.

3. Time and time again this court has emphasized the need to comply with Order 59 r. 3(2) and directed attention to the notes in theWhite Book at 59/3/6. Nevertheless we continue to find Notices that do not comply, even though they have been drafted by counselor solicitor.

4. In the instant case there were questions worthy of-consideration and for the sake of the lay client we gave leave to appeal and,proceeding to hear the appeal itself by the consent of both parties, we treated the Notice of Appeal as though those questions hadbeen specifically set out.

5. But I would like to give due notice that, in this division at least, such laxity is unlikely to be repeated once this final warninghas received due currency.

6. The appeal is against the refusal, in March this year, of an application for possession under Section 53(2)(b). The principle, and possibly the only reason, behind the plaintiff’s application is that he intends to marry this October.

7. The judge refused an order because, as he said :

“I cannot be absolutely sure that the intending, marriage will take place in October this year. And so I cannot say that I am satisfiedthat the premises are yet reasonably required by the plaintiff.”

He does hot say what caused those doubts. The plaintiff said in his evidence that he was “very certain of getting married” and hecalled his fiancee to confirm their joint intention.

8. Of course no one can be absolutely sure that a wedding will take place until the bride actually starts her walk up the aisle or throughthe door of the Registry Office. Some might even say not until the best man produces the ring. But absolute certainty is not requiredin a matter of this kind. The judge ought to look at the evidence, which will of course include his impression of the witnesses,and then makeup his mind as to the likelihood that he event in question will occur. Judges do this frequently in other branches ofthe law, as for example, when assessing damages.

9. Naturally the likelihood of a marriage’s taking place is less the further in advance it is planned. One or both of the younger couplemay have a change of mind, or perhaps I should say heart.

10. Seven months, however, is not too long a period. There is nothing in the evidence itself to indicate that the couple are likely notto mean what they say. And if the judge thought them personally untrustworthy for any reason; he does not mention it.

11. In my view he was not justified in taking that point against the plaintiff, and had he not done so, it would seem that he would havesaid that the requirement was reasonable.

12. He went on, very properly, to consider further the position with regard to manifest injustice. He said:

“… to make an order for possession to a young landlord by a recent purchase, against so many people living for so long in thosepremises would be manifestly unjust,”

The reference to ‘so many people living for so long in these premises’ is a reference to the sub-tenants and their families. All toldthere were apparently some 22 beings living there, only four of whom were the defendant and her family.

13. With respect to the learned judge below he misunderstood the evidence of the defendant in this respect. She and her children hadbeen there for thirteen years. But there is no evidence that anyone else tad been there for more than ten months.

14. The situation of the sub-tenants and their families is something to be considered under the bracket of “all the circumstances ofthe case”. However with respect to the judge he really had no evidence as to their situation. All he knew was that they added upto 18 and that one of them was in hospital. For my part I do not think that is much to support a finding of manifest injustice.

15. I think that he also failed to appreciate that the plaintiff had not purchased the flat in the normal sense of the word. The evidenceimplied that it was a gift from his Aunt. Possibly she anticipated his marriage.

16. Moreover I have some doubt whether great weight ought now to be attached to the fact that a landlord has purchased over the headsof sitting tenants. When this particular legislation was originally passed, there was no restriction imposed upon a landlord in thisrespect. It was introduced by amendment in 1973, which excluded from the benefit of Sec. 53(2)(b) any landlord who had purchased after the 15th December of that year. Then when the legislation was again amended in 1980, replacingas between landlord and principal tenant the old test of greater hardship by the present test of manifest injustice, the restrictionas to the time of purchase was omitted.

17. I do not think that omission can have been accidental, and it indicates to my mind the intention of the Legislature that purchaseover the heads of the sitting tenants should thereafter be given little if any weight in consideration of whether an order wouldmanifestly not be just and equitable. It was therefore wrong for the judge to attach to it the great weight which he did.

18. For these reasons I would allow the appeal and set aside the judgment.

19. At the trial below, counsel for the plaintiff observed that he did not need the defendants witnesses as he did not challenge whatshe said. I appreciate that had there been counsel on the other side he would have immediately realised that this remark would notobviate his need to call the sub-tenants. But the defendant was not represented, and I think that in the circumstances justice canonly be done by remitting the matter back to the District Court for a new trial before another judge.

(D. Cons)
Justice of Appeal

Zimmern, J. A.:

20. I agree.

(A. Zimmern)
Justice of Appeal

Barker, J. A. :

21. I agree with both the reasoning and the order proposed.

(Dennis Barker)
Justice of Appeal

Representation:

Mr. Benjamin Chain (M/S H.M. So & Co.) for Applicant/Plaintiff.

Ms. Cheng Mui, Respondent in person.