許肖梅及另一人 v. 李綺紅

LDPE 1057/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPE 1057 OF 2014

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JUDGMENT

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1.  This is a case about recovery of possession of a shop premises on Government land. At the hearing, the parties argued over (i) the physical location of the shop premises; and (ii) the locus standi of the applicants in the present proceedings.

The Applicants’ Case

2.  The applicants filed an application to the tribunal on 25 October 2014[1] against the respondent, Li Yee Hung (“Ms Li”), for recovery of possession of a shop premises at Ground Floor Back Lane, 302 Portland Street, Kowloon (alias Shop E, Ground Floor, 302 Portland Street, Kowloon or Side Shop, Ground Floor, 302 Portland Street, Kowloon) (the “Suit Premises”) and rent and order for  mesne  profits and costs.

3.  The applicants submitted that there was a tenancy of the Suit Premises, which is located on Government land, between Hui Koon Ting (“Mr Hui”, deceased) as landlord and Ms Li as tenant for a fixed term from 17 July 2012 to 17 July 2014 at the monthly rent of $6,800 (“Tenancy Agreement”) and Ms Li has failed to pay rent from 18 July 2014.

The Respondent’s Case

4.  Ms Li filed a Notice of Opposition on 20 July 2015.  Ms Li contended that (i) the tenancy agreement entered into with Mr Hui concerns another premises, not the Suit Premises; and (ii) the Suit Premises is not owned by the applicants. 

5.  Mr Foster Yim (“Mr Yim”), counsel for the respondent, submitted that the applicants have no locus standi to bring about the present proceedings.  He said that even if the physical location of the Suit Premises from which the applicants are seeking possession is the same as the premises of which Ms Li is presently occupying, Ms Li has a better “right” than the applicants being the executors for the estate of Mr Hui.  It is because Mr Hui’s right of possession was far from being a proprietary interest and such right from the deceased cannot be transferred by way of probate.

Physical location of the Suit Premises

6.  Hui Chiu Mui (“Ms Hui”), factual witness of the applicants, said that her late father Mr Hui purchased the Suit Premises from a third party in or about 1993 and ran his Chinese calligraphy business there between 1993 and 2008.  In or about 2008, Mr Hui let the Suit Premises to Ms Li, who had then been running a printing business at the Suit Premises.  In December 2013, Mr Hui passed away.

7.  The applicants submitted, inter alia, the following documents that are relevant to the subject issue: -

(1) An expert report dated 27 August 2015 prepared by a professional building surveyor verifying the location of the Suit Premises;

(2) 3 tenancy agreements: the first with lease term from 17 July 2008 to 17 July 2010, the second with lease term from 17 July 2010 to 17 July 2012 and the third, the Tenancy Agreement, with lease term from 17 July 2012 to 17 July 2014;

(3) Photos kept by the applicants and photos of publications showing that Mr Hui had operated his Chinese calligraphy business at the Suit Premises;

(4) Various demand notes for Rates of the Suit Premises that were addressed to Mr Hui from 2011 to 2014;

(5) A reply letter of Rating and Valuation Department dated 16 April 2015 with attachment of a layout plan showing the location of the Suit Premises, a photo taken in April 2000 showing the operation of a Chinese calligraphy business at the Suit Premises and another photo taken in September 2013 showing the operation of a printing business at the Suit Premises; and

(6) Records of payment by Ms Li in 2012, 2013 and 2014, including five bank transfer records between 22 January 2014 and 23 June 2014 from the account or joint account of Ms Li to the account of the applicants in the name of Hui Chiu Han and each transaction amount was $6,800.

8.  Lam Yuet Ping, another factual witness of the applicants, affirmed that Mr Hui was operating his Chinese calligraphy business at the Suit Premises and the Suit Premises was let by Mr Hui to Ms Li in or about 2008.

9.  Nevertheless, Ms Li said that the Suit Premises had long been occupied by his father for operation of a printing business, and in about 2008 she relocated her printing business nearby to the Suit Premises and then operated her printing business together with her father at the Suit Premises.  She also said that since the Suit Premises was not large enough to accommodate their printing business, she rented a side shop next to the Suit Premises from Mr Hui for 2 years from 17 July 2008 to 17 July 2010 and this tenancy was renewed for another 2 years from 17 July 2010 to 17 July 2012.  However, when Mr Hui discussed with her about further lease renewal from 17 July 2012 to 17 July 2014, she refused to sign on a new tenancy agreement and had also proposed to Mr Hui that she would continue the tenancy on monthly basis only.

10.  Ms Li alleged that Mr Hui had subsequently asked her to vacate from this side shop and she had delivered vacant possession of this side shop to Mr Hui in November 2012.  Ms Li contended that this side shop is not the Suit Premises.

11.  Wong Yau Chung (“Mr Wong”), another factual witness of the respondent, alleged in his witness statement that Ms Li’s father had long been occupying the Suit Premises as a printing shop and in or about 2008 Ms Li had relocated her printing business to the Suit Premises, while Mr Hui was then occupying another premises next to the Suit Premises.  However, when Mr Wong was cross-examined at the hearing, he said that he is not sure, before Ms Li relocated to the Suit Premises in or about 2008, whether it was Mr Hui or the father of Ms Li was occupying the Suit Premises.

12.  During cross-examination, Ms Li said that she inherited from her father the printing business at the Suit Premises, but she could not remember the date and month of her father’s death.  Mr Yim submitted that it sounds a bit peculiar.  However, since Ms Li had a good relationship with her father it could well be a repression process, i.e. completely automatic psychological defense against emotional trauma.

13.  On balance of the probabilities, I believe that it was Mr Hui, instead of the father of Ms Li, who had been occupying the Suit Premises and Mr Hui let the Suit Premises, instead of another premises next to it, to Ms Li in 2008.  I accept the evidence submitted by the applicants.  The facts are clearly shown on the photos and in the tenancy agreements, which (except for the effectiveness of the Tenancy Agreement) had not been challenged.  The applicants’ expert has also verified the address and location of the Suit Premises.

14.  I consider that both Ms Li and Mr Wong were telling lies in their respective witness statements, and they changed their tone at the hearing only.  Even if Ms Li is really suffered from repression, her evidence would be unreliable in the present proceedings.  The evidence of Mr Wong at the hearing was vague too.

Whether the applicants have locus standi to sue

15.  Mr Yim submitted a new legal proposition to challenge the locus standi of the applicants.  Mr Yim said that even if Mr Hui had a better right than Ms Li, Ms Li has a better right than the applicants being the executors for the estate of Mr Hui.  He contended that the right of Mr Hui if any, which was far from being a proprietary interest (the Suit Premises is located on Government land without registered title), could not be transferred by way of probate.  He further contended that the will which the applicants derive their right from Mr Hui is in the form of personal contract and therefore such contractual rights which are based on personal considerations do not devolve.

16.  Mr Matthew Ngai (“Mr Ngai”), counsel for the applicants, submitted that it is not clear whether the respondent is attempting to suggest that the tenancy agreements between Mr Hui and Ms Li are matters of personal contracts or the will of Mr Hui is a personal contract between himself and the beneficiaries, but in both cases the respondent must be wrong in law.

17.  Mr Ngai said that, in the former case, nothing appears to support the respondent’s idea that a tenancy agreement is in any way a type of personal contract, and in the later case, the respondent would be suggesting a very bold idea that would result in the failure of the law on succession and probate since every will would then be a personal contract.

18.  I agree with Mr Ngai that the present case is a straightforward action only brought about by the executors whom are entitled by a grant of probate for recovery of possession pursuant to a number of tenancy agreements and the applicants have locus standi to sue.  I consider that the arguments of the respondent in this issue are unclear.  Anyhow, the respondent has not established, or has failed to establish, why the tenancy agreements between Mr Hui and Ms Li are personal contracts, or the will of Mr Hui is a personal contract, that the right of Mr Hui could not be transferred when the executors are realizing assets in the estate of the deceased.

Conclusion

19.  The parties had also argued whether the Tenancy Agreement was effective.  The respondent alleged that Ms Li had not signed the Tenancy Agreement and therefore the Tenancy Agreement was ineffective.  However, I consider that even if the Tenancy Agreement was ineffective, there was a tenancy of the Suit Premises between Mr Hui and Ms Li because it is not disputed that they had signed another two tenancy agreements.

20.  It is also not disputed that the respondent is occupying the Suit Premises, the parties have had no tenancy of the Suit Premises since 18 July 2014 and there was no arrears of rent.

21.  Since I find there was a tenancy of the Suit Premises between Mr Hui and Ms Li and the right of Mr Hui in this regard could be exercised by the applicants as executors, the applicants are entitled to recovery of possession of the Suit Premises and order for mesne profits from 18 July 2014.  

22.  The parties agree that costs should follow the event.  Since the applicants succeed in the application, the respondent should pay the applicants’ costs of the application.

Orders

23.  In the premises, this tribunal finds in favour of the applicants and makes the following orders.

(1) The respondent do deliver vacant possession of the Suit Premises to the applicants;

(2) The respondent do pay the applicants mesne profits at the rate of $6,800 per month from 18 July 2014 until delivery up of vacant possession; and

(3) Costs of this application be to the applicants, to be taxed if not agreed on the District Court scale, with certificate for counsel.