TANG WING SHING v. KWOK CHI WAI

DCCJ 3654/2023

[2025] HKDC 911

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3654 OF 2023

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is the hearing for assessment of damages of the claim of the Plaintiff arising from the tenancy agreement entered between the parties on 20 April 2020 (“the Agreement”).

2.  The Plaintiff is the registered title owner of Lo Uk Tsuen Lot No 50 in DD 125 (“the Premises”).

3.  On 13 December 2023, in the absence of any notice of intention to defend, the Plaintiff obtained judgment against the Defendant, leaving damages to be assessed.

4.  In short, the Plaintiff alleges the Defendant to have breached the Agreement by failing to (i) keep the interior of the Premises in good and tenantable condition and (ii) deliver up vacant possession in the same repair and condition upon early termination of the lease.

5.  The Plaintiff’s damages can be summarised in 2 categories: (i) reinstatement costs and replacement of damaged furniture, and (ii) loss of monthly rent for the period 17 October 2021 to 18 July 2022.

6.  The Defendant was absent at the hearing on 23 May 2025. Having read the affirmation of service filed on 16 March 2025, I was satisfied that notice of assessment hearing had been duly given to the Defendant prior to the hearing. It was the Defendant’s election not to attend the assessment hearing. I proceeded with the assessment of damages in the absence of him.

The Plaintiff’s case

7.  Since April 2018, the Defendant had been renting and residing in the Premises. Upon expiration of previous lease on 29 April 2020, the Plaintiff (represented by Madam Ng, his daughter-in-law) entered into the Agreement with the Defendant at the monthly rent of HK$17,000.

8.  The Plaintiff relies on the following clauses of the Agreement:

“The Tenant shall during the Term keep the interior of the Premises in good and tenantable repair and condition (fair wear and tear and damage caused by inherent defects excepted) and shall deliver up vacant possession of the Premises in the same repair and condition on the expiration or sooner determination of this Agreement.” (Clause 6)

“The Tenant shall pay to the Landlord the Security Deposit set out in Schedule I for the due observance and performance of the term and conditions herein contained and on his part to be observed and performed … if the Tenant shall commit a breach of any of the terms and conditions herein contained … the Landlord may deduct any loss or damage suffered by the Landlord as a result of the Tenant’s breach from the Security Deposit without prejudice to any other right of action or any remedy of the Landlord in respect of such breach of the Tenant.” (Clause 7)

9.  It had come to the Plaintiff’s attention from neighbours’ complaints and a technician’s inspection that the interior of the Premises was in a state of extreme disarray, with a foul odour wafting out from it. Being deeply concerned about the hygiene and condition, Madam Ng made requests to the Defendant for an inspection, but in vain. On 19 September 2021, the Plaintiff invoked the break clause and terminated the Agreement early with one-month notice.

10.  On 17 October 2021, Madam Ng was told that the Defendant had already vacated the Premises. She attended the Premises to retrieve the keys and discovered the disastrous conditions therein. Reinstatement work was then being carried out, which was completed on 18 July 2022.

The Evidence

11.  In the present hearing, the Plaintiff called 2 factual witnesses, namely the Plaintiff himself and Madam Ng. Also, expert evidence from a surveyor Mr Lam Yuen Ki (“Mr Lam”) is adduced in the form of two reports. All of the above were not subject to any challenge from the Defendant who had adduced no documentary evidence and witness evidence for the purpose of assessment of damages and was absent during the hearing. I accept and find the evidence of all witnesses straightforward, credible, and reliable.

Reinstatement costs and replacement of damaged furniture

12.  This Court finds it fair and reasonable to restore the Plaintiff to the position that he would have been in, had the Agreement been satisfactorily performed. The Plaintiff has produced a bundle of quotations, invoices, and receipts in support of the claim for reinstatement and replacement. Mr Lam, who conducted inspection at the Premises, also commented that the expenses involved are reasonable, given the deplorable conditions of the Premises consisting of 3 floors (including the rooftop).

13.  In view of the documentary proof of expenses incurred, this Court has considered the detailed observations by Mr Lam on the extensive stain on walls, undesirable condition of the tiles, large-scale peeling off of wall paint, offensive odour, clogging of toilet, serious damage to doors and wardrobes as well as other damage recorded. Mr Lam further opined that all the facilities in the Premises have been damaged which was due to improper use. In particular, he noticed strong smell of cat urine in the curtain and various places, which, in his view, require deep disinfection.

14.  In light of the breach committed by the Defendant, this Court, being satisfied with the evidence adduced in support of this head of loss, will adopt the costs of repairs as the measure of damages and allow the entire sum of HK$341,998 recoverable from the Defendant.

Loss of monthly rent from 17 October 2021 to 18 July 2022

15.  The Plaintiff relies on Fujitsu Hong Kong Ltd v Kwan Sit Cham [1991] HKDCLR 23 and submits that where the premises is left in a completely dilapidated state, the damages for the loss of use of the premises could be equated with rent loss.

16.  This Court has compared the photos taken before and after the Premises was leased to the Defendant, in assessing the alleged damage caused by the Defendant at various spots of the Premises.

17.  I accept the Plaintiff’s proposition that he would not have been able to lease the Premises out again, had no substantial amount of remedial work been undertaken.

18.  Given the fact that all facilities in the Premises were seriously damaged, coupled with Madam Ng’s oral testimony on the magnitude of the loss, specifically how the stain required complete removal of tiles and wall paints, in my judgment, the length of the renovation work, despite being relatively long, is justified.

19.  Hence, by adopting the agreed rent in the Agreement (ie HK$17,000 per month), I multiply this sum by the time in which remedial work was being carried out in the Premises:

(HK$17,000/31) x 275 days = HK$150,806.45.

20.  This Court finds it reasonable to allow the aforesaid sum to be recoverable from the Defendant as loss of rent.

Conclusion

21.  The Plaintiff is entitled to recover from the Defendant the following:

(1)  Reinstatement costs and replacement of furniture
(2)  Loss of monthly rent	HK$341,998.00
	HK$150,806.45 ______________
TOTAL:	HK$492,804.45 ===============

22.  Counsel for the Plaintiff confirmed that the fee of engaging Mr Lam (ie HK$8,500) should be sought under disbursement instead of as a distinct head of loss.

23.  I order that the Defendant do pay the sum of HK$492,804.45 to the Plaintiff with interest on the said sum at the best lending rate of HSBC plus 1% from the date of Writ, ie 25 August 2023 to the date of the judgment and thereafter at judgment rate to the date of full payment.

24.  Costs should follow the event in the present case. Having considered the statement of costs, I order the Defendant to pay the Plaintiff’s costs, with Certificate for Counsel, summarily assessed at HK$106,264 (which has included the fee in paragraph 22 above).