CHAN HON KWAN v. WONG CHI KEUNG

IN THE LANDS TRIBUNAL OF HONG KONG

LANDS TRIBUNAL APPLICATION NO. L.T. 226 OF 1984

BETWEEN:

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DECISION

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Sir Denys Roberts -

1. The applicant, Mr. CHAN Hon Kwan, seeks possession of premises, at Flat F, 3rd Floor, Kwai Fung Building, Kwai Chung, which form part of a post-war building; their rateable value is less than $35,000 a year.

2. Mr. Chan, the owner of the premises, let them to the respondent, Mr. WONG Chi Keung, by a written tenancy agreement, dated 1st December, 1983, for use as domestic premises, at a rent of $2,300 per month, payable in advance on the first day of each month. The agreement also provided for the payment of two months' rent by the tenant on signature.

3. There have been two main grounds of dispute between the applicant and the respondent. Firstly, as to the amount of rent which was paid by the respondent and, secondly, as to whether or not the respondent was obliged to pay any rent during the last three months of his tenancy.

4. It has not been easy to determine how many months rent were paid by the respondent, since the bank statements, receipts and receipt book counterfoils were in a state of some confusion. The respondent asserts that he gave to the applicant four cheques which represented rent for January, February, March and April, though he concedes that the final cheque dated 7th April was not met by his bank. The applicant, on the other hand, says that the four cheques related to rent for December, January, February and March and that, by reason of the rejection of the cheque dated 7th April, the March rent has not been paid to him.

5. Which version is correct appears to us to turn upon the receipt, dated 31st December, which was given by the landlord to the tenant and is expressed to be in relation to the December rent.

6. The tenant says that this is inaccurate; and that that receipt should have related to the rent for January, since he had already paid the December rent on the signature of the tenancy agreement on the 1st of that month.

7. It is correct to say that the tenancy agreement itself required the tenant to deposit two months' rent on the signature of the agreement and also to pay, monthly, one month's rent in advance.

8. The landlord agrees that the deposit of $4,600 was paid to him in cash, though he gave no receipt for it. He says that the property company, which negotiated the tenancy agreement with the tenant, told him that the tenant was not able to pay the first month's rent until after he had received his salary about 6th December and that, on the basis of this assurance, he allowed the tenant to take possession after he had paid the deposit but not the first month's rent. It was only, he added, at the end of December that he received a cheque from the tenant for the December rent. For this he gave a receipt, which was produced in evidence by the tenant; the landlord's bank statement shows that a sum of $2,300 was paid into his bank account on 6th January.

9. Mr. Chan was in some ways a difficult witness, from whom to extract answers, but we are satisfied that his evidence is credible and accurate and that, where his version disagrees with that of Mr. Wong, we prefer it.

10. We find that the tenant paid to the landlord on lst December only $4,600, not $6,900 as he alleges, and that the tenant has only paid for three months' occupation of the premises since he went into them on 1st December. This means that there is outstanding and due to the landlord rent for the five months of March, April, May, June and July.

11. This is not an end of the matter, since we must consider the tenant's assertion that the landlord promised him that he could live on the premises, rent free, for three months and would be paid a sum of $2,000 when he left, so that the landlord could recover possession of his premises for his own purposes.

12. Mr. Wong alleged that, about the middle of March, the landlord told him that he would give him, and the two sub-tenants, three months to look for other premises and move out and that he would take no rent for that period.

13. This very important variation of the tenancy agreement has not been supported by any written document. Even in his notice of opposition, the tenant merely said that the applicant had been telling lies about the rent not being paid. He did not mention the supposed variation of the tenancy agreement which would have permitted him to continue rent free for three months.

14. It is to be noted also that the landlord presented the cheque dated 7th April to his bank on 10th April, some weeks after he is supposed to have offered the tenant three months rent free occupation.

15. If the tenant's version of events were correct, this cheque would have constituted rent for the month of April, which was one of the very months during which the tenant was supposed to be living rent free.

16. We do not believe that an offer of the kind alleged by the tenant was ever made by Mr. Chan.

17. We find that the applicant is entitled to possession of the premises and order that vacant possession should be given to him at the expiration of four weeks from to-day, unless by that date the respondent has paid all arrears of rent and mesne profits. We order that the respondent shall pay arrears of rent of $6,900 (which is five months' rent less the two months deposit) and mesne profits at the rate of $2,300 per month for the period in which he remains in occupation after to-day.