WONG KAI LEUNG v. WAI KWOK CHI AND ANOTHER

1994, NO. 150
(Civil)

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

(On appeal from Lands Tribunal Application LT1438/93)

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J U D G M E N T

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Barnett, J. :

1. This is an appeal from a decision of His Honour Judge Wong sitting as a Presiding Officer in the Lands Tribunal. The judge dismissed the Appellant's application for possession of his flat.

2. The Appellant is an elderly man with two sons and a daughter. He required possession of the flat for residence by one of his sons and his daughter. The Appellant is unable to be present today and is, in fact, represented by his other son. The application was made on 7th April 1993. It was made under Section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance. It sought, as I have said, possession of the flat because it was said to be reasonably required for the residence of the two children. The two children, the son and the daughter, are in fact aged 27 and 26. The 1st Respondent, Mr. Wai Kwok Chi, filed his Notice of Opposition on the 16th of April. On 26th February this year, the proceedings were amended, so that the 2nd Respondent, Mr. Cheung Chuen, was added as a party.

3. The hearing took place on 20th June. The Presiding Officer heard evidence from the Appellant and also his son who, I think, appears before us today. He also heard evidence from the 1st Respondent, Mr. Wai. During the evidence, it emerged that the Appellant had made a previous but unsuccessful application to recover possession of the same flat. The Appellant, when asked, was unable to recall the number in that application, but did indicate to the Presiding Officer that the circumstances remained roughly the same. The judge then reserved his decision. He delivered his judgment on 30th June. He reviewed the evidence which had been given, but then went on,

"I adjourn for judgment so that I can retrieve the file in respect of the previous application. The previous application being No. 2035 of 1992 was heard by Judge Downey on 8th December 1992. He dismissed the application. One of his reasons for dismissing the application was that he was not satisfied that there was a genuine requirement in the sense of a present need for the two children. I asked the Applicant whether the situation is the same as at the time of the application and he said it was roughly so. Since there was no change in circumstances and the Presiding Officer had already made a finding, the Applicant should not have taken out this application unless there is a change of circumstances. The application is therefore dismissed."

4. Arising out of that judgment, the Appellant has placed before us five grounds of appeal. In effect, the complaint is that the judge failed properly to consider and weigh up the evidence. The Appellant's son has added little to those grounds of appeal before us today. He has shown us two photographs which undoubtedly confirm the crowded conditions in which the Appellant and his family live. He explained that his father had purchased this flat to enable his children to leave home and live on their own. In the mind of the Appellant and his family, no doubt, these are very compelling reasons.

5. The judge, it is true, did not weigh up and consider the evidence. In the circumstances, however, that is understandable. The matter had already been litigated and decided against the Appellant by a Presiding Officer in earlier proceedings. Whether or not the Appellant reasonably required the flat for the residence of his children had been decided against him. It was not open to the Appellant to renew his application upon the same basis. If he was dissatisfied with the earlier decision, he should have appealed against it. Accordingly, the judge was correct in his approach to the Appellant's second application. I would dismiss this appeal.

Rhind, J.:

6. I agree and have nothing to add.

Litton, J.A.:

7. I too agree and have nothing to add. The appeal is, accordingly, dismissed.