Chan King Tong v. Henry Frances Lue and Others

HCA 828/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 828 OF 1997

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ASSESSMENT OF DAMAGES

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1. The subject matter giving rise to the present litigation was the right to ownership in respect of the ground floor and the 2nd floor of 50 Tung Choi Street in Kowloon. The property was originally owned by Mr. and Mrs. Lue who acquired the property in joint names in 1964. Mr. and Mrs. Lue resided in Jamaica.

2. The interest of Mr. Lue devolved upon Mrs. Lue in 1978 upon the death of Mr. Lue. In July 1979 Mrs. Lue in turn passed away and the defendants were appointed the executors of Mrs. Lue on 25 April 1997 upon the grant of probate by the Supreme Court of Jamaica. The plaintiff was the younger brother of Mrs. Lue.

3. The plaintiff claimed adverse possession against the executors of his elder sister on the ground that he has entered into occupation of the premises since 1964. After hearing 9 witnesses over a period of 6 days, the trial judge decided in May 2001 that:-

(i) In or about 1964, the plaintiff and his family moved into the 2nd floor of the subject premises and were allowed by Madam Lue to live there rent-free. The plaintiff stayed on as a licensee at will.

(ii) At no time between 1964 and 1992 had the plaintiff collected rent for the premises on the 2nd floor. The trial judge, on the evidence before him, was unable to make any finding on who collected the rent after Madam Fong, the plaintiff's ex-wife, left Hong Kong for UK in 1992;

(iii) Sometime before 1994 the plaintiff was not living at the 2nd floor premises. During this visit, the plaintiff asked Selma (Mrs. Lue's daughter) and was granted permission to stay at 2nd floor rent-free.

(iv) Mr. Chung Wah, the plaintiff's son was appointed Lue's attorney to deal with the ground floor premises prior to the death of the Lues.

(v) The plaintiff purported to act as the Lues' agent to deal with the ground floor premises sometime after the Lues' death. In doing so the plaintiff acted without the requisite authority and was intermeddling with the Lues' estate since July 1987. In accordance with Mara v Browne [1896] 1 Ch 199 the plaintiff was liable to account to the estate for the rental he received as a result of his intermeddling act.

(vi) The occupation of the 2nd floor premises by the plaintiff and the staircase shop through Madam Chu was wrongful.

4. In his decision, the trial judge granted the following order in favour of the defendant:-

(i) An order for the delivery up of vacant possession of the part of the 2nd floor premises the plaintiff occupies.

(ii) An order for the delivery of vacant possession of the staircase shop the plaintiff occupied through Madam Chu.

(iii) An account of rentals in respect of the ground floor premises received by the plaintiff since 1 July 1987 and payment of the same by the plaintiff with interest to be determined by the master taking the account.

(iv) Mense profit for wrongful occupation of that part of the 2nd floor premises by the plaintiff from 19 July 1994, the date on which the plaintiff's license at will was terminated in writing, to the date of delivery of vacant possession to be assessed; and

(v) an order for payment out to the defendants of the sums paid into court by the plaintiff since January 1998 to April 2001 being the monthly rental for the main shop with interest accrued thereon.

5. The assessment was originally set down for hearing on 16 Jan 2002. As the plaintiff failed to give instruction to his own solicitor and maintained that he could not understand the information in the documents supplied to him, an adjournment was granted to him to enable him to prepare for the assessment hearing.

6. The hearing resumed on 13 May 2002 during which the plaintiff insisted that he has applied for legal aid. Solicitor on behalf of the defendant informed court that the plaintiff has appealed against the decision of the trial judge. The appeal was heard on 23 April 2002 and was dismissed in CACV-942/2001. The defendant's solicitor only received notification of the plaintiff's application for legal aid in respect of the Court of Appeal decision. As this court was not informed of any legal aid application in the present assessment hearing, I do not consider it appropriate to order a stay of the proceeding.

7. There was no dispute between the plaintiff and the defendant that vacant possession of the 2nd floor premises and the staircase shop has been surrendered to the defendants on 17 October 2001. A sum of HK$225,000, representing 3 months rental for the months of January, February and March of 1998 for the ground floor shops at the monthly amount of HK$75,000, have been paid into court by the plaintiff pursuant to the court order of Mr. Justice Yeung of 16 January 1998. Since May 2001 tenant of the main shop at the ground floor paid his rental direct to the defendants.

8. Based on the amount of rental stated in the various tenancy agreements supplied by the plaintiff, solicitor on behalf of the defendants compiled a table in respect of the defendants' claim:-

(a) In respect of the ground floor main shop

(i)	from 1.7.1987 to 30.6.1994 at monthlyrental of HK$8,000 ($8,000 x 84);	$672,000
(ii)	from 1.7.1994 to 31.12.1994 at monthly rental of HK$10,000 ($10,000 x 6);	$60,000
(iii)	from 1.1.1995 to 30.6.1997 at monthly rental of $25,000 ($25,000 x 30); and	$750,000
(iv)	from 1.7.1997 to 31.12.1997 at monthly rental of $25,000 ($25,000 x 6)	$150,000
		HK$1,632,000

(b) In respect of the ground floor side shop

(i)	from 1.7.1987 to 30.4.1992 at monthly rental of HK$1,000 ($1,000 x 58)	$58,000.00
(ii)	from 1.5.1992 to 30.4.1997 at monthly rental of HK$3,000 ($3,000 x 60)	$180,000.00
(iii)	from 1.5.1997 to 26.8.1997 at monthly rental of HK$3,000 ($3,000 x 3.88)	$11,640.00
(iv)	from 27.8.1997 to 31.12.1997 at monthly rental of HK$3,000 ($3,000 x 4.16)	$12,480.00
		HK$262,120.00

(c) In respect of the staircase shop

(i)	from 1.7.1987 to 30.11.1987 at monthly rental of HK$1,100 ($1,100 x 5);	$5,500
(ii)	from 1.12.1987 to 28.2.1993 at monthly rental of HK$1,100 ($1,100 x 63);	$69,300
(iii)	from 1.3.1993 to 28.2.1994 at monthly rental of HK$2,800 ($2,800 x 12)	$33,600
		HK$108,400

(d) Mesne profits in respect of the 2nd floor of 50 Tung Choi Street :-

(i)	from 19.7.1994 to 18.7.1996 at monthly market rental of HK$7,100 ($7,100 x 24);	$170,400
(ii)	from 19.7.1996 to 18.7.1998 at monthly market rental of HK$7,100 ($7,100 x 24 );	$170,400
(iii)	from 19.7.1998 to 18.7.2000 at monthly market rental of HK$7,900 ($7,900 x 24);	$189,600
(iv)	from 19.7.2000 to 16.10.2001 at monthly market rental of HK$7,900 ($7,900 x 13.9)	$109,810
		HK$640,210

8. I accept the defendants' calculation to be correct and is supported mostly by the rental receipts supplied by the plaintiff. I award judgment in favour of the defendants in the sum of HK$2,642,730 ($1,632,000 + $262,120.00 + $108,400 + $640,210).

9. The plaintiff took issue with the defendants about the ownership of land on which the staircase shop was situated. According to the plaintiff the staircase shop is situated within the common area for which the defendants do not have exclusive ownership nor exclusive right to possess. Though such proposition appeals to common sense yet it is not appropriate to re-open the issue of liability at the assessment stage. Further it was common ground between the parties at trial that the location where the staircase shop situates belongs to the defendant. Should the plaintiff succeed in establishing that the land on which the staircase shop stands belongs to all owners of the plot as opposed to the defendants, the sum of HK$108,400 would be awarded to all owner of the block.

10. I also award costs nisi of this assessment hearing to the defendant against the plaintiff, to be taxed if not agreed.