NG TAM YUE v. HO HON FU ALEXANDER

LDPD2854/2004

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No. 2854 of 2004

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REASONS FOR DECISION

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Background

1. The Applicant is the landlord and the Respondent the tenant of the subject premises known as Flat A, Ground Floor, 95 Po Wah Yuen, Yung Shue Wan (“the Premises”) in Lamma Island.  On 25 October 2004, the Applicant filed an application in the Tribunal seeking recovery of possession of the Premises and claiming against the Respondent arrears of rent/mesne profits and costs.  The Deputy Registrar of the Tribunal granted on 22 November 2004 a default judgment in favour of the Applicant under Rule 15 of Lands Tribunal Ordinance (Cap. 17).  The Respondent filed an interlocutory application on 29 November 2004 seeking to set aside the order of 22 November 2004 and applying for leave to file a Notice of Opposition.  This application was heard by me on 15 December 2004 after which I granted leave for the Respondent to file a Notice of Opposition (Form 7). Hearing continued on 17 January 2005, 7 February 2005 and 28 February 2005 after which a written judgment was handed down to the parties on 4 March 2005.  In the meantime, the Applicant was represented by Solicitors, Messrs Raymond C. P. Lo & Co. for the period from 24 January 2005 to 17 March 2005.  I granted orders for possession and payment for arrears of rent/mesne profits from 1 September 2002 to the date of delivery up of vacant possession at the rate of $3,500 per month and costs, subject to the usual Cap. 4 section 21F relief against forfeiture condition.  It is common ground that up to the time of the hearing on 7 June 2005, the Respondent has not paid any rent/mesne profits to the Applicant.  

2. On 14 March 2005, the Director of Legal Aid issued a Memorandum of Notification of an application for legal aid under Section 15 and Regulation 7A of Legal Aid Ordinance (Cap. 91).  Only a few days later, on 22 March 2005, the Director of Legal Aid notified all again that the said application by the Respondent for Legal Aid to prosecute an appeal against the judgment dated 4 March 2005 was refused.  The Applicant made an interlocutory application on 4 April 2005 to uplift the 42 days’ stay restriction provided for under Cap. 91.  I heard this application on 13 April 2005 during which the Respondent submitted that he was appealing against the decision of the Director of Legal Aid for refusing his application.  At the end, I refused to up-lift the 42 days’ stay restriction, which would expire on 25 April 2005.

3. Meanwhile, the Applicant made on 30 March 2005 an application to the Tribunal to issue a writ of possession, which was, after the lapse of the 42 days’ stay period, approved on 5 May 2005.  Also, the Respondent made an ex parte summons application on 19 May 2005 seeking further interim stay of execution, pending the outcome of his appeal against the decision of the Director of Legal Aid as well as his appeal against the judgment of this Tribunal dated 4 March 2005.  Deputy Judge Wong of the Tribunal heard the summons on 23 May 2005, adjourned to 7 June 2005 for another hearing before me and granted an interim stay up to 7 June 2005.

The Respondent’s ground for further stay

4. During the hearing on 7 June 2005, the Respondent’s only ground for stay was that he had been following the rules of High Court and the directions of the Master handling his appeal against the Tribunal’s judgment dated 4 March 2005.  However, the hearing date has not yet been fixed for his appeal even though the notice of appeal (case No. CACV109/2005) was set down on 30 March 2005.  He admitted that this was partly because he himself had on 19 April 2005 applied for and was granted an extension of time of one month for filing the Appeal Bundle.

5. As to the appeal against the decision of the Director of Legal Aid in refusing to accept his application for Legal Aid, the Respondent said that the Deputy Registrar, High Court had agreed with the reasons for refusal of the Director and therefore had dismissed his appeal on 20 May 2005.

6. On being questioned as to whether he would be prepared to pay into Court any sum of arrears of rent/mesne profits for the period from 1 September 2002 as decided in the judgment of this Tribunal on 4 March 2005, the Respondent gave a definite reply that he would not pay into Court anything.

The Applicant’s submission

7. The Applicant submitted that the Respondent for further stay should be refused because firstly, as rightly pointed by the Director of Legal Aid, there was “no reasonable prospect of success” in the intended appeal; secondly, the Respondent had not paid any rent/mesne profits since 1 September 2002 and thirdly, the Respondent had exhausted all steps in delaying the Applicant’s attempt to enforce the orders of the Tribunal dated 4 March 2005.  The steps taken by the Respondent included (i) applying to the Director of Legal Aid to prosecute the appeal; (ii) appealing against the decision of the Director of Legal Aid when the application was refused; (ii) appealing against the orders of the Tribunal of 4 March 2005 and (iii) application to the Court of Appeal for extension of time for filing the Appeal Bundle and (iv) sending the Appeal documents to an incorrect address (i.e. 2^nd Floor of No. 27 Yung Shue Wan Main Street, Lamma Island, New Territories, Hong Kong) of the Applicant as inadvertently stated in the Notice to Act filed by the Applicant’s representative on 18 March 2005 even though the Respondent was fully aware of the correct address (i.e. 2^nd Floor of No. 27A of Yung Shue Wan Main Street, Lamma Street, New Territories, Hong Kong) of the Applicant thus denying the Applicant the opportunity of response.

The Tribunal’s decisions

8. There is a valid order for possession against the Respondent, made on 4 March 2005.  He had also been given the usual relief against forfeiture but he failed to comply with the condition for relief.  A writ of possession was issued on 5 May 2005 but it still had not been executed because the Respondent was granted interim stay of execution. 

9. The Respondent applied for legal aid and had the benefit of a temporary, mandatory stay of execution of 42 days by virtue of the Legal Aid Ordinance.  His legal aid application was refused as, according to the Director, he had failed to show that he had reasonable grounds for taking the proceedings and the ruling made by the Tribunal was one made on the finding of facts.  Also, the Deputy Registrar of High Court dismissed on 20 May 2005 the Respondent’s appeal against the Director of Legal Aid.

10. Meanwhile, the Respondent had appealed to the Court of Appeal against the judgment of this Tribunal made on 4 March 2005 but no hearing date has been set down as yet, probably partly because the Respondent applied for extension of time for filing the Appeal Bundle.  I find that usually, the Tribunal as well as the Court of Appeal in similar possession cases require the payment of certain sums of rents/mesne profits before granting a stay (an example of this can be found in the following unreported written decision of Hon. Yuen JA in Chambers given on 17 June 2004, in the case of Spring Enough Ltd v Limbu, Chandrakala [CACV155 of 2004] (on appeal from Lands Tribunal Application No. 1532),

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6.

The Respondent had sought from the Court of Appeal a stay pending appeal from the order for possession.  On 11 March 2004, I gave her a stay on terms that she met certain conditions of payment.  As I understand it, she failed to meet those conditions, so there was in effect no order for a stay of execution.”

11. However, I have already asked the Respondent if he was prepared to pay into Court any sum of arrears of rent/mesne profit and his answer was a flat no.  So, I find that there would not be any need for the Tribunal to grant him a stay on condition that he pays into Court a certain sum of arrears of rent/mesne profit because firstly, the Respondent had already been given the relief against forfeiture in my orders dated as early as 4 March 2005 and secondly, the Respondent had confirmed during the hearing on 7 June 2005 that he would not pay anything into Court as a condition for further stay.  In the circumstances, I grant the following orders:

Orders

(1)	The summons application filed by the Respondent on 19 May 2005 for interim stay of execution of writ of possession be dismissed.  The interim stay of execution of the writ previously granted be uplifted forthwith and the Applicant may enforce the writ of possession issued on 5 May 2005;
(2)	Costs order nisi: costs of this summons application (including the hearing on 7 June 2005 and the previous hearing on 23 May 2005) be awarded to the Applicant, to be taxed if not agreed; this costs order shall become absolute if no application is made within 21 days from today.