WONG CHI HOI v. MA HUNG KIM

CACV000017/1983

Landlord and Tenant (Consolidation) Ordinance – Section 53(2) (b) – “reasonably required”.

IN THE COURT OF APPEAL

1983 No. 17

(Civil)

BETWEEN

WONG CHI HOI

Plaintiff

and

MA HUNG KIM

Defendant

———-

Coram: Yang J. A., Barker J. A. and Kempster J.

Date: 28th October, 1983.

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JUDGMENT

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Yang, J. A.:

1. This is the appellant landlord’s appeal against the judgment of a District Court dismissing his claim against the tenant respondentfor possession of premises at the ground floor of No. 16 Wong Uk Tsuen, Tai Lam Chung, New Territories.

2. The question that calls for consideration in this court is the meaning of the phrase “reasonably required” as used in section 53(2)(b) of the Landlord and Tenant (Consolidation Ordinance Cap. 7.

3. It is not in dispute that the landlord, his mother and his two sisters occupied the upper floor of the suit premises. The groundfloor was let to the tenant for occupation by himself and his family at a rental of $400 per month. There is some dispute as to thedifferent areas of these two floors, but it would appear that both floors covered an area of some 300 sq.ft. each. The landlord,in addition to the use of the upper floor, also reserved one room on the ground floor for himself and that was used as a storeroom.

4. Quite clearly the two floors were separate premises occupied for domestic purposes by separate people.

5. The landlord’s case is a simple one: that he requires the ground floor for himself and his bride when he marries, and the evidenceof his fiance Miss So Choi-yee to that effect was not challenged although no evidence was adduced as to when the marriage would actuallytake place. It was expected that his mother and two sisters would continue to live on the upper floor after his marriage to MissSo.

6. In his consideration of the meaning of the phrase “reasonably required” the trial judge had in mind the decision of this court inChiu Kam Sui v. Hong Kong Polytechnic(1) where Huggins V.-P. referred to the difference between the reasonableness of a landlord’s requirement and the question as to whetherit was reasonable to make an order for possession. On reasonable requirement, the learned judge relied on the case of Aitken v. Shaw(2). This case was referred to in the case of Ma Hon v. Andy Mahtani (3) where Huggins V.-P. cited the comments of Stephenson L. J. in Kennealy v. Dunne(4) at page 844F. It would appear from Stephenson L.J. ‘s comments that –

“… for a dwelling house to be reasonably required it must be the subject of a genuine present need on the part of the landlord.”

Reasonable requirement connotes something more than desire, although at the same time something much less than absolute necessitywill do.

7. Stephenson L.J. goes on to say that-

“A tenant cannot say that his premises are not reasonably required merely because the landlord has other tenants against whom he mighthave proceeded, for as long as the landlord satisfies the court that he ‘reasonably’ requires a house to live in it must be leftto him to say which of his houses he desires to occupy.”

8. The trial judge however went on to consider the English case of Epsom Grand Stand Association v. Clarke(5), and concluded that not only did the phrase “reasonable requirement” mean that the landlord desires the premises but that he mustalso need it. He goes on to say in his judgment:

“In this respect it is also necessary to consider the Plaintiff’s ‘desire’ for possession and whether it is ‘reasonable’ as well aswhether it is reasonable to gratify that ‘desire’. Although the ‘desire’ to possession may be reasonable but that does not precludea negative answer to the reasonableness to grant it. The balance of hardship must always be considered.”

It is this last sentence where we respectfully take issue with the learned trial judge. We are of the view that he has misdirectedhimself on this point and counsel for the respondent Miss Maria Yuen is prepared to concede that.

9. In considering the question of reasonable requirement, the judge is not obliged at that point to go on to consider the question ofthe possibility of hardship. There is in section 53(2)(b) a proviso which gives the tenant the opportunity to satisfy the court that in all the circumstances of the case it would manifestlynot be just and equitable for the court to make an order for possession. Furthermore in the case before us counsel, in the finaladdresses to the trial judge, made no mention of this aspect. of the case. Indeed counsel for the applicant assumed that the respondenthad abandoned that point, and nothing further was therefore said as far as that was concerned. We were at some stage somewhat concernedas to the availability of a but known as “House No. 4” which is jointly owned by the seven sons of the landlord’s mother, but weaccept the argument advanced by Mr. Lee that this house not being in the sole ownership of the landlord in question, in all probabilityif he were to move there, he might well have to pay rent for the privilege.

10. In all the circumstances as the learned trial judge has misdirected himself on a matter of principle and the evidence that was beforehim pointed to the landlord reasonably requiring the premises for his own use we are disposed to allow the appeal and order possessionfor the landlord.

Barker, J.A.:

11. I agree. In my judgment, the learned trial judge was influenced in the test that he propounded by the English cases in which hardshipis relevant in discussing reasonable requirement. The question of hardship is irrelevant in Hong Kong in the consideration as towhether or not the landlord reasonably requires the premises. It only becomes relevant if the trial judge has found that the landlorddoes reasonably require the premises and then is going on to consider the application of the proviso i.e. whether it would be manifestlyunjust or inequitable to make an order for possession. It may well be that, as Miss Yuen has contended before us, the judge havingmisdirected himself in the way that he did as to the test to be applied, did not thereafter explicitly refer to the tenant’s needsor wants. But, in my judgment, quite clearly, this misdirection must have coloured his whole thinking on the aspect of reasonablerequirement.

12. In my judgment, the evidence was all on way that the landlord did reasonably require these premises for use by himself and that itwas quite clear and indeed there was no evidence to the contrary that he would not get married until he did get possession of thepremises.

13. For these reasons, I am of the view that the evidence points inexorably to the fact that the appellant has established d genuinepresent need for these premises and for those reasons I too would allow the appeal.

Kempster, J. :

14. I agree with what has fallen both from my Lord Mr. Justice Yang and from my Lord Mr. Justice Barker. I have nothing I can usefullyadd. I too would allow the appeal and make an order for possession in the landlord’s favour.

(1) (1981) No. 13 Civil Appeal.

(2) (1933) S. L. T. 21

(3) (1981) H. K. L. R. 570, 572

(4) (1977) 1 Q.B. 837

(5) (1919) 35 T. L. R. 525

Representation:

Mr. John Lee (Chan, Lan & Wai) for Plaintiff/Appellant.

Miss Maria Yuen (Chung & Kwan) for Defendant/Respondent.