TAM YUK HA v. CHIU CHUK FUN

[English Translation – 英譯本]
CACV 63/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 63 OF 2008

(ON APPEAL FROM LDPD NO. 2465 OF 2007)

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JUDGMENT

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Hon Cheung JA (giving the Judgment of the Court):

1. The applicant was the landlord of Flat C4, 15/F., New Lucky House, No. 298-306, Nathan Road, Kowloon (‘the premises’). On 7 February 2007, the applicant let the premises to the respondent. The applicant filed a notice of application with the Lands Tribunal on 11 October 2007, applying to recover possession of the premises for occupation as a residence for her son while not demanding payment of rent from the respondent. The respondent opposed the application. Judge Yung of the Lands Tribunal made the following order on 13 February 2008 after hearing the case:

(1) The respondent shall deliver up vacant possession of the premises;

(2) The respondent shall pay to the applicant mesne profits at the rate of HK$2,000 per month for the period from 13 February 2008 to the delivery up of vacant possession of the premises to the applicant;

(3) Each party shall bear its own costs.

2. The respondent now appeals against the order.

3. Apart from making the above order, Judge Yung imposed a fine of HK$50 on a witness of the respondent’s for contempt of court. As the witness had not appealed against the matter of contempt of court, we need only to deal with the appeal of the respondent.

The trial judge's reasons for decision

4. Judge Yung did not accept the defence put forward by the respondent that the term of the tenancy agreed between the parties was such that would run until the respondent obtained the allocation of public housing. But the ground on which Judge Yung ordered recovery of possession of the premises by the applicant was not the one put forward by the applicant, namely, the ground of occupation as a residence for her son. Judge Yung determined that the tenancy between the parties was a ‘tenancy without a definite period’. As the tenancy was not under any statutory protection, the applicant could determine the tenancy after giving notice to the respondent. Judge Yung ruled that the applicant had given notice to the respondent of the termination of the tenancy.

Erroneous in point of law

5. An appeal brought from the Lands Tribunal must be on the ground of an error in a point of law. If the findings of fact made by the Tribunal were not supported by evidence, such findings were also erroneous in point of law.

Periodic tenancy

6. A ‘tenancy without a definite period’ as stated by Judge Yung is a reference to a ‘periodic tenancy’ which is defined as a tenancy that does not expire at the end of the first period or at the end of each succeeding period in the absence of notice; and that there is no reletting at the beginning of every such period. But the interest which arises therefrom may be determined by a proper notice to quit, which should, subject to the statutory requirements, specify a time limit that is equal to the length of the period of the tenancy: Mellows v Low [1923] 1 KB 522. In a monthly tenancy a month’s notice should be given. Halsbury’s Laws of Hong Kong, Volume 17: ‘Landlord and Tenant’, paras. [235.182] & [235.183].

7. In the present case, the point of law is whether the applicant had given notice to the respondent to determine the tenancy. The applicant let the premises to the respondent on a monthly basis at a monthly rent of HK$2,000. We are of the view that the ‘periodic tenancy’ in the instant case was a monthly tenancy and therefore, the applicant must give at least one month’s prior notice to the respondent to determine the tenancy.

Notice to determine tenancy

8. The applicant stated in the notice of application that ‘one month’s prior notice of the oral agreement was already given’. The respondent stated clearly in the notice of opposition that the applicant told her on 10 October 2007 (i.e. one day prior to her filing of notice of application) that she had to quit immediately, and that the applicant had not given her any notice of termination of the tenancy whatsoever before that day.

9. We are of the view that the applicant had to have a complete cause of action when she filed the notice of application with the Lands Tribunal for recovery of possession of the premises, that is to say, if the ground on which she relied was that she had given one month’s notice of termination of tenancy to the respondent, she must have given notice of termination of tenancy to the respondent one month prior to her filing of the notice of application.

10. At trial, the applicant did not produce any evidence to prove that prior to 10 October 2007 she had given, in whatever manner, notice of termination of tenancy to the respondent. At the appeal hearing, she prevaricated when asked of this question. The applicant said that she had already given notice of termination of tenancy to the respondent in September 2007, but she finally admitted that she did not give notice of termination of tenancy to the respondent until the day of filing of notice of application.

11. The issue in the present case is whether the applicant had given notice of termination of tenancy to the respondent. But Judge Yung erred in point of law when he found it as a fact while there was no supporting evidence that the applicant had given valid notice of termination of tenancy to the respondent. In the result, we must allow the appeal and set aside the order made by Judge Yung.

12. Since the facts of the case showed that the applicant did not give notice of termination of tenancy to the respondent until one day prior to her filing of the notice of application, and the applicant admitted at the appeal hearing that she did not give notice of termination of tenancy to the respondent until the filing of the notice of application, we are, therefore, of the view that it would not be beneficial to the application of the applicant even if we ordered a retrial.

Deposit

13. The respondent is an old lady of advanced years. Her daughter handled the present appeal on her behalf. She told the court that since the applicant and her son came into the premises, threatened her and forced her to quit on 10 October 2007, she quitted the premises on the very night. She lodged with a friend for the subsequent four months before moving in to stay with her daughter.

14. The representative of the respondent told the court that her mother did not intend to move back into the premises. She lodged the appeal merely to seek justice. She said that the applicant had not returned the deposit of HK$2,000 to the respondent. She also said that after Judge Yung had made the order on 13 February 2008, the respondent went back to the premises in the company of police officers to collect her belongings. However, she found that her belongings in the premises had been taken away. Since the applicant had promised the police that she would return the deposit of HK$2,000 to her, she therefore told the police that she would not pursue the matter of her belongings being taken away. The respondent admitted that she did owe the applicant water and electricity charges in the sum of about HK$200.

15. The applicant said that she did not have to return the deposit to the respondent because the air-conditioner and wardrobe in the premises had been damaged and the wall had been defaced.

16. Whether the applicant has to return the deposit to the respondent is an issue involving evidence, and we therefore would not deal with this matter. We do not encourage litigation. But if the respondent thinks that the applicant has no reason not to return the deposit to her, the only course open to her is to make an application to the Lands Tribunal.

Conclusion

17. We allow the appeal of the respondent and set aside the order made by Judge Yung. As the appeal is allowed, we order the applicant to pay to the respondent the costs of the appeal, the amount of which is assessed at HK$3,000, and which include the costs of filing the notice of appeal, the application for audio-recording of the trial in CD format and the transcript thereof, photocopying and the attendance of the respondent at the appeal hearing.