CHIN CHI WEN v. YEUNG CHI SING

LDPE 1502/2020

[2021] HKLdT 64

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPE 1502 OF 2020

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BETWEEN

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JUDGMENT

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BACKGROUND

1.  This is the 2^nd application dated 16 December 2020 filed by the applicant as landlord (“Ms Chin”) for recovery of possession of the suit premises [i.e. DD 87 Lots 38 and 37 (partial), New Territories; the “Property”] and rent, which is opposed by the respondent as tenant (“Mr Yeung”).

2.  The applicant contends that the respondent has not paid rent since 1 September 2020, has used the Property for residential purpose, has cut the water supply to her land immediately next to the Property and/or has failed to assist the applicant in using and maintaining the water supply and storage system, which breach the Tenancy Agreement between the parties. The respondent argues that the respondent has already paid rent before the application, has not used the Property for residential purpose, has not cut the water supply and has also assisted the applicant in using and maintaining the water supply and storage system.

3.  The case was originally fixed for trial on 17 June 2021. Mr Yeung was absent at trial, and the tribunal upon hearing Mr Leung, counsel for the applicant, entered into judgment against the respondent. Nevertheless, the respondent subsequently filed an interlocutory application on 5 July 2021 to set aside the judgment of 17 June 2021. At the hearing of the interlocutory application on 14 July 2021, the tribunal accepted that Mr Yeung could not attend the trial on 17 June 2021 because he was admitted to the hospital on the same day, and therefore agreed to set aside the Orders made on 17 June 2021 and re-fixed the trial to 12 August 2021.

4.  In fact, the applicant had based on similar grounds of this application and filed the 1^st application on 7 October 2020, which was subsequently discontinued by the applicant at the further call-over hearing on 2 December 2020.  In the 1^st application, the applicant relied on 2 warning letters dated 7 and 12 November 2020 issued by the applicant after the 1^st application on 7 October 2020, which appear not to comply with section 58 of the Conveyancing and Property Ordinance, Cap 219.

UNDISPUTED EVENTS

5.  The following events are not in dispute and/or should not be in dispute between the parties: -

(1) The parties signed the Tenancy Agreement, which contains inter alia the following clauses: -

(i) Clauses 1, 2 and 11(a) – the tenant is obliged to pay annual rent in advance in the sum of $5,000 from 1 September 2019 to 31 August 2022, and if the rent payment is overdue for 15 days, the landlord can re-enter the Property and terminate the Tenancy Agreement.

(ii) Clause 6(i) – the tenant is not allowed to reside at the Property or perform any activities which make the Property to be used for residential purposes.

(iii) Clause 6(c) – the water and electricity facilities on the land under the management of the landlord including the Property are to be used by the parties and the other tenants.

(iv) Clause 3 – the tenant agrees to assist the landlord to use and maintain the existing facilities at the Property including but not limited to water supply and storage system and keep them in operational condition.

(2) The applicant is the principle tenant of a large piece of land including the Property, and sub-let part of it, the Property, to the respondent.

(3) It was the respondent who assisted the applicant to enter into the principle tenancy with the landowner of that large piece of land for 3 years in 2019 at $20,000 per annum, and the parties had also signed an agreement for assignment of the structures and farm facilities on the said land at $2,200,000 on 24 May 2019, and $200,000 of the $2,200,000 will be paid to the respondent only if the respondent can assist the applicant to further renew the principle tenancy after the initial 3-year lease term.

(4) The applicant had sent a legal letter dated 17 September 2020 to the respondent and informed the respondent that the Tenancy Agreement had been terminated due to arrears of rent payment for more than 15 days and that the applicant would institute legal proceedings against the respondent if the respondent did not deliver vacant possession of the Property and pay the applicant solicitor fee of $5,000 within the next 14 days.

(5) After the respondent received the applicant’s legal letter dated 17 September 2020, the respondent had sent by registered post a cheque dated 21 September 2020 payable to Ms Chin in the sum of $5,000 to the solicitor of the applicant.

THE ISSUES

6.  The parties agree that the following 3 issues are in dispute: -

(1) Whether the respondent had already paid the annual rent from 1 September 2020 to 31 August 2021 in the sum of $5,000 to the applicant before the applicant filed the subject application?

(2) Whether the respondent had used the Property for residential purposes that breaches Clause 6(i) of the Tenancy Agreement?

(3) Whether the respondent had failed to assist the applicant to use and maintain the water supply and storage system at the Property that breaches Clause 3 of the Tenancy Agreement and/or the respondent had not allowed the applicant to use the shared water facilities that breaches Clause 6(c) of the Tenancy Agreement?

7.  In addition, the respondent intends bring in new evidence, including photos of the Property, electricity and water bills of his residence in Tuen Mun, a tenancy agreement of DD 87 Lot 246, a plan showing the environment of Chow Tin Tsuen and a written note showing the police report number, at trial on 12 August 2021, which is objected by the applicant. Mr Yeung submits that he is a layman and does not know law and court procedures, and in any event he was late to receive Ms Chin’s supplemental witness statement and he was then unwell and therefore could not respond on time. With a view not to disturb the trial that is listed for 1 day only, I agree to accept the new evidence on a de bene esse basis only subject to the determination of the tribunal.

Payment of Annual Rent

8.  The respondent had paid $5,000 to the applicant in September 2020, but the parties argue about whether this $5,000 was the payment of annual rent or the payment of solicitor fee as demanded by the applicant.

9.  Ms Chin said that her solicitor received a cheque of $5,000 by way of registered post from Mr Yeung without any accompanying letter and explanation, and she treated it as the payment of solicitor fee only. Mr Leung submits that the respondent had not paid the annual rent and that the respondent’s cheque for $5,000 ought to be for the applicant’s legal costs.

10.  Mr Yeung said that he had paid the annual rent in the sum of $5,000 and had never agreed to pay the solicitor fee also in the sum of $5,000 as demanded by the applicant. Mr Yeung submits if the applicant demands for solicitor fee the applicant may make such claim in Small Claims Tribunal, but the applicant could not treat his payment as the solicitor fee as she wishes.

11.  The parties have not argued over appropriation of payment in law. Nonetheless, having considered the backgrounds and circumstances in these proceedings, I consider that from the perspective of a reasonable person the said $5,000 should be the payment of annual rent instead of solicitor fee. While I accept that the respondent had never agreed to pay solicitor fee that was demanded by the applicant unilaterally, it is odd for the respondent to pay the solicitor fee only and not the annual rent when there was clearly arrear in rent payment.

Residential Use

12.  In order to prove that Mr Yeung has been residing at the Property, the applicant relies on the CCTV recordings for the period from 23 September 2020 to 4 January 2021 and the period from 20 April 2021 to 19 May 2021, which show the times when Mr Yeung left and returned to the Property by car and the times when Mr Yeung switched off the lights in the structure at the Property. Mr Yeung usually left the Property in the morning or around noon and returned after around 10:30pm, and switched off the lights after midnight.

13.  In addition to the legal letter dated 17 September 2020 which put on record that the respondent had breached the Tenancy Agreement by using the Property for residential purposes, the applicant had also served on the respondent warning letters of 7 November 2020, 12 November 2020 and 4 December 2020, which demanded the respondent to cease residing at the Property.

14.  Mr Yeung denies that he has been residing at the Property. He explains that the relationship between the parties has deteriorated since December 2019 because Ms Chin dissatisfies him not to assist her securing a longer principle lease term, while she is losing money in her coffee farm and plans to install a solar electricity system on her land. Subsequently, there were also disputes over the rental collection for another sub-lease, the death of Ms Chin’s goats and the injury of Mr Yeung’s dog.

15.  Mr Yeung said that the Property do not have a toilet and cannot be used for residential purpose, but Ms Chin said that Mr Yeung had showed her the toilet and shower system at the Property in or around mid-2019. Nonetheless, the parties do not have any further evidence on this point.

16.  Mr Yeung also said that he is living at his flat in Tuen Mun, which can be proved by the utility bills. He needs to go back to the Property every day looking after his dogs, bees, turtles and plants there, and he can use the nearby footpath to leave the Property and go back to Tuen Mun via Chow Tin Tsuen and / or Lot 246 rented by him, which are not far away. He can also park his another car at Lot 246 and the village for ease of transportation.

17.  When Mr Yeung was asked at trial whether or not his said transport arrangement between the Property and his flat in Tuen Mun is reasonable, he agreed that it looks unreasonable, but he explained that he made such transport arrangement just because he needs to protect his dogs at the Property. One of his dogs was badly hurt before. Together with the auto switch for lighting at the Property, those intend to injure his dogs would misunderstand that he always stays at the Property and they would then keep away from his dogs.

18.  I agree with Ms Chin that it is unbelievable for Mr Yeung to allege that he has at all material times been parking his car outside the Property, through the night, and then travelling back to his flat in Tuen Mun. I also consider his explanations on installation of auto switch for lighting and protection of his dogs are unreasonable. Although Mr Yeung challenges that Ms Chin’s CCTV might not be operated all the time, he has other cars for transport and Ms Chin has never seen him cooking at the Property, I consider on balance of probabilities the respondent should have been using the Property for residential purposes and breaches the Tenancy Agreement.

Water Supply

19.  The parties argue who had cut a water pipe and whether and when Mr Yeung had been in contact with the contractor appointed by Ms Chin. However, except for the respective allegations, there is no other acceptable evidence in this connection.

20.  Nonetheless, Mr Yeung said that the water pump purchased and owned by the applicant and installed for the water well at the Property was broken. He had then bought one new water pump for his own use, and he had once supplied water to the applicant. He also said that he had requested Ms Chin to buy a non-Chinese water pump for replacement of her water pump but she has never bought one. Since the new water pump was bought by him, he would not supply water to the applicant by using his new water pump.

21.  Ms Chin said that Mr Yeung knows that she would require copious amounts of water for her farm but Mr Yeung maliciously cut off the water supply from the shared water facilities, even after she had paid the related electricity fees. She suspects whether the water pump owned by her, which is one of the shared facilities, was really broken, but she agrees that Mr Yueng, in replying to her written note dated 29 June 2020, had asked her in writing to buy a non-Chinese 380-watt water pump for replacement. She had tried to buy one water pump as requested by Mr Yeung but failed. Mr Yeung had then not assisted her in finding the correct water pump, or assisted her in arranging a time for her contractor to inspect and/or fix the water supply problem. After the dispute over the death of her goats, Ms Chin communicated with Mr Yeung by way of letters only, but Mr Yeung just ignored her letters. Mr Yeung also kept guard dogs to deter her and her contractor to visit the Property.

22.  Ms Chin had taken photos to show that her land next to the Property was not supplied with water. In addition to the complaint about the breach for residential use, she had also mentioned the breach in relation to water supply in her warning letters of 7 November 2020, 12 November 2020 and 4 December 2020.

23.  Mr Leung submits that the definition of “assistance”, according to Black’s Law Dictionary Eleventh Edition, p150, is “1, The act of helping or aiding. 2. The aid or help given”. The definition of “assist”, according to the Shorter Oxford English Dictionary on Historical Principles Sixth Edition Volume 1. A-M, p136, is “Help (a person in, to do, with, etc.; a person in necessity; an action, process, or result); support, further, promote.” … or … “Give help or support …”.

24.  Mr Leung further submits that (1) the natural and ordinary meaning of the words in the Tenancy Agreement, particularly Clauses 3 and 6(c); (2) the circumstances and context in which the Tenancy Agreement was signed; (3) the understanding of the Tenancy Agreement by a reasonable person; (4) and the applicable business common sense prevailing at the time, can be interpreted to show that the respondent, by his ignorant conduct, has breached his duty in the Tenancy Agreement by failing to assist the applicant in using and maintaining the water supply and storage system and/or failing to allow the applicant in using the shared water facilities.

25.  Based on the evidence before the tribunal (i.e. Mr Yeung said that the original water pump was broken, and Ms Chin suspects whether it was really broken) and on balance of probabilities, I accept that the original water pump at the Property, one of the shared water facilities, had broken and therefore could not supply water to the applicant. Hence, I consider the respondent has not breached Clause 6(c) of the Tenancy Agreement.

26.  Regarding the issue of assistance, I consider that Clause 3 of the Tenancy Agreement is unclear. The word “assist” is vague. Different reasonable persons would have different conceptions of how to assist another person. The conception of how to assist at the time when the parties have relatively good relationship would also be quite different from the time when the relationship between the parties deteriorates. Clause 3 of the Tenancy Agreement has not specified the details of how to assist. It is doubtful whether the respondent should supply water to the applicant by using the water pump bought by the respondent. It is also doubtful whether the respondent should actively offer assistance up to the satisfaction of the applicant if the applicant had not asked for specific assistance.

27.  Alternatively, based on the evidence before the tribunal, I consider that the applicant had not asked for assistance that could not be refused at all by a reasonable person. At least, the applicant had not asked the respondent where the applicant can buy the water pump as requested, and in the applicant’s warning letters, the applicant had not provided the possible time slots for inspection of water facilities to the respondent for consideration and selection.

28.  It is my findings that Clause 3 of the Tenancy Agreement is void for uncertainty, and alternatively the applicant fails to prove that the respondent has breached Clause 3 of the Tenancy Agreement. It is odd for the applicant to enter into a 3-year principle tenancy with the landowner at $20,000 per annum, a 3-year sub-lease with the respondent at $5,000 per annum, and at the same time an agreement with the respondent to buy the structures and facilities at $2,000,000, unless Ms Chin then had great faith in Mr Yeung.

New Evidence at Trial

29.  Directions have been given by the tribunal on filing of witness statement(s), but the respondent asked the tribunal to consider his new evidence at trial only. The respondent just submits Mr Yeung do not know much about law and court procedures, and he was then unwell and was late to receive the supplemental witness statement of the applicant. However, even in the subsequent hearing on 14 July 2021 for re-fixing the trial on 12 August 2021, when the respondent should have received the supplemental witness statement of the applicant, the respondent had not asked for leave to file his new evidence.

30.  I am of the view the respondent’s new evidence is not admissible because the applicant did not have time to verify their accuracy and correctness at trial. Nonetheless, even if the new evidence is taken into consideration such as the lease of Lot 246, I consider the new evidence would have no effect on the judgment of the tribunal.

CONCLUSION

31.  Although the applicant fails in the issues of rent payment and water supply, the applicant succeeds in proving that the respondent had used the Property for residential purposes that breaches Clause 6(i) of the Tenancy Agreement. Accordingly, I accept that the applicant can forfeit the tenancy between the parties.

32.  The respondent submits the respondent will not ask for relief for reinstatement of the tenancy if the respondent fails to oppose the application. Accordingly, I do not consider the grant of relief in the judgment.

33.  Lastly, having considered all the circumstance and that the applicant wins 1 only of the 3 main issues but the applicant finally succeeds in this application for recovery of possession of the Property, I consider that the applicant should be awarded 60% only of her costs.

ORDERS

34.  I order that: -

(1) The respondent do deliver vacant possession of the Property to the applicant; and

(2) A costs order nisi that the respondent do pay the applicant 60% of the applicant’s costs in these proceedings, including all costs reserved, with certificate for counsel and on District Court scale, to be taxed if not agreed, and unless any parties apply by summons to vary, the costs order nisi shall be made absolute upon expiry of 14 days from the date of the judgment.