CHEUNG BIU v. CHEUNG HING CHEUNG AND ANOTHER

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J U D G M E N T

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Cons, V.-P.:

1. In this appeal we are concerned with the 6th Floor at 650 Nathan Road.

2. On the 12th May 1987 one Mr. Cheung Biu, representing himself as landlord of the premises, applied for an order of possession against the principal tenant, one Mr. Cheung Hing Cheung. He brought the application in the Lands Tribunal on the grounds of non payment of rent and subletting without consent. In his application he expressly determined the tenancy by way of forfeiture.

3. An order in his favour was made on the 2nd July. After that Mr. Sung, who is the Appellant today, applied to be joined in the proceedings as a subtenant. He put forwards as grounds in support of his application that Mr. Cheung Biu was not the owner of the premises or alternatively that he did consent to the subletting.

4. Mr. Sung's application to be joined in the action was refused on the 21st July. His refusal was subsequently reversed by this Court on the 19th November, and a retrial was ordered.

5. The retrial took place before His Honour Judge Yam on the 21st December. After hearing evidence from Mr. Sung and from Mr. Cheung Biu, and looking at the documents that were put before him, the judge made an order for possession in Mr. Cheung Biu's favour.

6. On the 4th January Mr Sung served a Notice of Appeal. Substantively his grounds were still that Cheung Biu was not the true owner of the premises, and that he had conspired together with the principal tenant to oust Mr. Sung from his tenancy.

7. The documents, of title showed that the property was purchased by Mr. Cheung Yan Fung in November 1964. Mr. Cheung Biu gave evidence before the judge that he and Cheung Yan Fung are.one from the same person, that it is an alias that he has always used. He also produced to the judge the photostat of a Statutory Declaration that he had made in April 1983, the effect of which is that Cheung Biu is his name and that Cheung Yan Fung is his alias. I have to observe that that Statutory Declaration was made before Mr. Sung acquired any connection With the premises, and if Mr. Cheung Biu's evidence is to be believed, before the premises had been let to any person whatsoever.

8. Mr. Cheung also produced bank accounts in the name of Cheung Biu going back as far as 1979.

9. He further produced a receipt from his solicitors when in January 1984 he mortgaged the premises in the name of "Cheung Yan Fung alias Cheung Biu".

10. He also produced a copy of the Tenancy Agreement in November 1983 by which the premises were let to the principal tenant, from whom Mr. Sung derived whatever title he had. The evidence of Cheung Biu was that the principal tenant disappeared in 1985 and has paid no rents since then. The Tenancy Agreement excluded subletting without the consent of the landlord. Cheung Biu's evidence was that he gave no permission for subletting and indeed had never seen Mr. Sung until the proceedings.

11. Mr. Sung's evidence did not agree with that of Mr. Cheung Biu in every respect. If there is a disagreement between witnesses it is for the judge below to decide who is more likely to be telling the truth. In this case, as he said in his judgment, he much preferred the evidence of Cheung Biu to that of Mr. Sung. He accepted that Mr. Cheung was telling the truth when he said Cheung Biu and Cheung Yan Fung were one and the same person. Therefore Mr. Cheung Biu was the true owner of the premises in question.

12. In his Notice of Appeal Mr. Sung said that the judge's decision was over hasty. Today he has queried whether the documentary evidence was sufficient to support the decision:

13. For my part I am quite satisfied that from the evidence before him, including the evidence of Mr. Cheung Biu, the judge was quite entitled to come to the decision that he did.

14. Mr. Sung has pointed out today what appears to be a difference between the signature on the document of 1964 by which the premises were purchased, and the signature on the document of 1959 by which the premises were mortgaged. I have some doubt as to whether the mortgage document was indeed before the judge below, for it is not mentioned in his record nor is it listed in the list of exhibits. But even so the explanation of the difference in signatures appears in the mortgage document itself, and was also mentioned by Mr. Cheung Biu in evidence. He had in the time between the two documents suffered a stroke and was no longer able to use his right hand for writing.

15. Mr. Sung today has stressed what he might call the "implausibility" of a man having two names, and in particular not using his own name in such a serious matter of purchasing a piece of property. However, I have to observe that the use of an alias is very common in this territory, even for matters as serious as purchasing property.

16. The judge in this case gave a very careful judgment. He was correct to find that Part II of the Landlord and Tenant (Consolidation) ordinance did not apply to the premises, and that Part IV of the same ordinance did apply; but that nevertheless Section 117 would not be of any assistance, because he was concerned with a tenancy that was forfeited. The judge then very properly considered whether he ought to grant relief from the forfeiture, and there can be no quarrel with his decision that relief was not appropriate. In my view there can be no fault found either in the way in which he came to his conclusion on the facts, and I would not interfere.

17. Mr. Sung has asked us to adjourn the case so that he can make further inquiries, he hopes with the assistance of the Commercial Crimes Bureau. For my part I do not think anything useful would be obtained by adjourning the matter, and I would refuse the adjournment and dismiss the appeal.

Kempster, J.A.:

18. I agree.

Power, J.A.:

19. I also agree.