LEE WAN TSUEN v. DRKOS, MIROSLAV

LDPD 1898/ 2011

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATIONNUMBER LDPD 1898 OF 2011

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BETWEEN

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JUDGMENT

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Introduction

1.  This case concerns whether the Respondent (i) has failed to pay rental; and (ii) kept a dog in breach of the tenancy agreement.

Background

2.  The property in question is situated at 1/F, No. 27B San Tau Kok, New Territories, Hong Kong (“the Suit Premises”).

3.  By a Chinese Tenancy Agreement in writing entered by the parties herein, the Suit Premises was leased to the Respondent for a term of 2 years commencing 25 March 2010 at the monthly rental of HK$ 5,600 (“the Tenancy”).

4.  The Tenancy was signed by a Mrs. Li, the mother and lawful attorney of the Applicant, on the one part and the Respondent on the other part.

5.  Clause 3 of the Tenancy (as per the certified translation) provides that

“The said rent shall be paid in advance on the first day of each calendar month and shall not be delayed under any pretense. If the said rent shall be overdue for payment for ten days, the landlord shall have the right to post a notice at a conspicuous place at the entrance of the said premises to urge the Tenant for payment of rent. If the Tenant fails to observe and perform any of the terms and conditions of the Tenancy Agreement, it shall be lawful for the Landlord to terminate this Tenancy Agreement and shall construe the Tenant having been in breach of the Tenancy Agreement and withdrawn from the Tenancy Agreement whereby the Landlord shall be entitled to let the said premises to another person, and to claim against the Tenant for all arrears of rent and the Tenant shall not oppose it. ”

6.  Clause 11 of the Tenancy (as per the certified translation) provides that

“The Tenant shall not keep any cat, dog and annoying bird and animal in the said premises.”

The Applicant’s Case

7.  The Applicant’s case is that the Respondent has failed to pay rental since 25 May 2011. Further, the Respondent has kept and is still keeping a dog at the Suit Premises in breach of Clause 11 of the Tenancy Agreement. Thus, the Applicant took out these proceedings.

8.  Mrs. Li is the only witness for the Applicant.

9.  She told the Tribunal that she refused to accept rental in April 2011 pursuant to the instruction of the Applicant. Nevertheless, she asked for rental again in June 2011.

10.  That is however not what she stated in her witness statement, dated 16 September 2011, the contents of which she adopted as her evidence in chief. At paragraph 5 of the witness statement, she stated that she “had never refused monthly payment of rent”.

11.  Under cross-examination, Mrs. Li agreed with the Respondent that the Tenancy was executed on 15 March 2011.  However, in her witness statement, she said that the Tenancy was executed on 20 March 2011 (paragraph 1) and that the Respondent “asked the estate agent, a Mr. Ying, to provide him with an English version of the Tenancy Agreement which Mr. Ying did immediately prepareand ask [her] to sign it.” (paragraph 4)

12.  Indeed, Mrs. Li doubted the authenticity of her signature appended on the so-called English version of the Tenancy dated 20 March 2011 which was produced by her as an exhibit to her witness statement. The document produced is in fact a bi-lingual tenancy agreement the contents of which are not identical to the Tenancy (“the Bi-Lingual Agreement”). Therefore, it cannot be regarded as the English version of the Tenancy.

13.  It was not until the last question of the re-examination that Mrs. Li suddenly recalled that she had signed on the Bi-Lingual Agreement.

The Respondent’s Case

14.  The Respondent gave evidence and called Ms. Ku, his wife, as his witness.

15.  The Respondent admitted that he had not paid rent since 25 May 2011 and that he kept a dog at the Suit Premises.

16.  The Respondent told the Tribunal that Mrs. Li refused to accept rent on 25 April 2011. Mrs. Li however demanded for rent in early May 2011 and the Respondent paid up the same. Mrs. Li refused to accept rent on 25 May 2011 again. On or about 10 June 2011, Mrs. Li demanded for rental for 3 months. The Respondent refused to pay anything.

17.  There is no dispute that the Respondent did receive a letter from Messrs. Donald Yap, Cheng & Kong, solicitors for the Applicant, dated 20 June 2011 (“the Letter”). In this letter, the Applicant demanded for the rent payable on 25 May 2011 and gave notice to the Respondent that he was in breach of the Tenancy by keeping a dog and requested him to rectify the breach.

18.  The Respondent did not pay the outstanding rental and did not make any reply or enquiry with the solicitors for the Applicant. The Respondent’s explanation was that he did not trust Mrs. Li or her representatives since she demanded for more than what she was entitled to and that she refused to issue rental receipt.

19.  The Respondent accepted that he signed the Tenancy voluntarily. However, he said he did so upon the promise of Mr. Ying to provide him an English version. While Ms. Ku has explained and interpreted the key points of the Tenancy including the duration of the lease and the amount of rental, he was not aware of the contents of Clause 11 of the Tenancy when he signed the same. Further, Mr. Ying had failed to provide any English version.

20.  Ms. Ku’s evidence corroborated the Respondent’s version.

21.  She explained to the Court that it was Mr. Ying who asked her, and she agreed, to interpret the important parts of the Tenancy to the Respondent. While Mr. Ying did read out the contents of the Tenancy to the party, she did not pay attention to the same since she was not the tenant. She only interpreted the important parts as identified by Mr. Ying.

22.  Ms. Ku emphasized that she was not acting as an interpreter and if she was asked to act as an interpreter, she would have refused to do so.

Discussion

23.  I do not accept so much of the evidence of Mrs. Li which is disputed by the Respondent. Mrs. Li is not a credible witness. Her evidence in the Court is different from what she said in her witness statement and there is no satisfactory explanation for that. On the other hand, I find the Respondent and Ms. Ku honest and reliable. I accept their evidence.

24.  In particular, I find that Mr. Ying did not prepare the Bi-Lingual Agreement shortly after the execution of the Tenancy. It is because if Mr. Ying did have the Bi-Lingual Agreement at that time, there is no reason for the parties to execute the Tenancy at the first instance and the parties should have concluded the deal by using the Bi-Lingual Agreement.

25.  Nevertheless, the Applicant’s case does not rely solely on the evidence of Mrs. Li. The factual basis of the application is not in dispute.

(i)        Failure to pay rent

26.  The Respondent admitted this. He fully appreciated that he owed the Applicant rental for one month at the time when he received the Letter. Yet, he chose not to do anything.  The fact that Mrs. Li demanded for 3 months while the solicitor asked for 1 month and thus causing him confusion is not a valid defence. The Respondent ought to have paid so much he accepted as overdue.

27.  No rental receipt is also not a defence here. There is simply no reason for the Respondent not paying the solicitors who will definitely issue a receipt for the payment.

28.  On this point, I have to rule in favour of the Applicant.

(ii)     Keeping a dog in breach of Clause 11

29.  The tenancy agreement between the parties herein concluded at the time when they executed the Tenancy. The Respondent also paid the deposit as required by the Tenancy. While the Respondent is not aware of the contents of Clause 11 of the Tenancy, he is still bound by it (L’Estrange v F Graucob Ltd [1934] 2 KB 39).

30.  The Respondent should note that if the deal is not a completed one as he submitted, then there will be no tenancy agreement between him and the Applicant. It means that the Applicant can ask him to deliver vacant possession of the Suit Premises at any time.

31.  The Applicant has already given the requisite notice to the Respondent by the Letter.

32.  On this point, I also rule in favour of the Applicant.

Conclusion

33.  I make the following order:

(i)  The Respondent do within 21 days from today deliver vacant possession of the Suit Premises to the Applicant.

(ii)  The Respondent do pay arrears of rent/mesne profits from 25 May 2011 till delivery of vacant possession of the Suit Premises at the rate of HK$5,600 per month.

(iii) The Respondent do pay costs of this action together with all costs reserved, if any, to the Applicant to be taxed (on District Court scale) if not agreed.