THE CHEONG SHING INVESTMENT LOAN & EXCHANGE CO LTD v. HO WAN CHEUNG AND ANOTHER

CACV 395/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 395 OF 2006

(ON APPEAL FROM LDPD NO. 3485 OF 2005)

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REASONS FOR JUDGMENT

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Hon Lam J (giving reasons for judgment of the Court)

1.  There are two applications before us :

(a)	The Applicant’s application to strike out the Notice of Appeal;
(b)	The 2nd Respondent’s application to stay the execution of the order for possession granted at the court below pending appeal.

2.  The 2^nd Respondent did not turn up at the hearing on 17  October 2007. She requested by fax for a short adjournment to 11:00  am. Though we have some concern about this being a delaying tactics (as she had adopted similar tactics before), we granted her the indulgence and she was notified by phone that we would proceed to hear the matter in her absence if she still failed to appear at 11:00 am. As it happened, she did not appear at 11:00 am. After considering the merits of the applications, we struck out the Notice of Appeal and her application to stay execution. We also ordered costs against the 2^nd Respondent. The following are our reasons. 

3.  We shall deal with the strike out application first. If it is successful, there will not be any appeal and the stay application must be struck out as well.

4.  The appeal is against an order made by the Lands Tribunal for possession of the premises known as Ground Floor, No.5 Hing Hon Road, Hong Kong.  The Applicant was the landlord and the 1st Respondent was the principal tenant. The 2^nd Respondent was a sub-tenant.

5.  The Applicant served a Transitional Notice of Termination on 4 November 2004 terminating the tenancy on 30 November 2005 under Section 5(2) of the Landlord & Tenant (Consolidation) (Amendment) Ordinance 2004 [“the 2004 Ordinance”]. Copy of the notice was posted at the main entrance of the premises for three consecutive days in November  2004.

6.  The 2004 Ordinance abolishes security of tenure for Part IV premises. Section 5 is a transitional provision. It provides for the termination of Part IV tenancy by the service of a transitional termination notice in accordance with Section 6 of the 2004 Ordinance.

7.  Section 6(5) of the 2004 Ordinance specifically provides that a transitional termination notice served on a tenant and posted on 3  successive days upon the main door or entrance of the premises shall take effect terminating also any sub-tenancies created out of the tenancy to which it relates.

8.  After the expiry of the notice, vacant possession of the premises was not delivered and the Applicant therefore commenced possession proceedings in the Lands Tribunal.

9.  The 2^nd Respondent filed a Notice of Opposition on 19  January 2006. In that Notice of Opposition, the 2^nd Respondent did not dispute that the Transitional Notice of Termination had been served and posted in accordance with Section 6 of the 2004 Ordinance. She only asserted that the 1^st Respondent did not have any proper authority to serve a Transitional Notice of Termination on her. That is quite beside the point. So long as the Applicant having served the notice on the 1^st Respondent and posted the same at the entrance of the premises, the notice was effective in terminating the tenancy. The dealings between the 2^nd  Respondent and the 1^st Respondent as alleged in the grounds of opposition are matters of no moment as far as the Applicant’s right to possession is concerned. The matters set out in the grounds of objection do not afford any valid ground of defence to the Applicant’s application for possession.

10.  The case was heard by the Lands Tribunal. On 30  August  2006, in the middle of the trial, the 2^nd Respondent did not appear on time even though she was well aware of the time of the hearing, having attended the trial on previous days. An order for possession was made in her absence.

11.  The 2^nd Respondent said she arrived at the Tribunal after the case had been finished. She said she was late because she was engaged in her application for legal aid. She made an application for review. The application was heard and dismissed by the Tribunal on 18 October 2006.

12.  The 2^nd Respondent applied for stay of execution pending appeal on 18 October 2006. The application was dismissed by the Tribunal on 1^st November 2006.

13.  The 2^nd Respondent filed a Notice of Appeal on 1^st  November  2006. In the Notice of Appeal, she sets out 17 grounds of appeal (identified as Grounds A to Q in her Notice of Appeal).

14.  Section 11(2) of the Lands Tribunal Ordinance Cap.17 restricted appeals from the Tribunal to this court to appeals on points of law. Order 60A Rule 2(2) of the Rules of the High Court prescribes that a notice of appeal in such circumstances must specify the question of law to be decided by the Court of Appeal.

15.  A notice of appeal for an appeal from the Tribunal which does not set out any question of law should be struck out, see Chan Cheuk Tong v Director of Lands [1996] 3 HKC 485; 德喜大廈業主立案法團與黎明光CACV 171 of 2006, 30 July 2007. 

16.  Of the numerous grounds set out in the Notice of Appeal, none of them set out a question of law for the decision of this court. Several grounds touch upon dealings between the 1^st and the 2^nd Respondents and the 2^nd Respondent’s dispute with regard to the estate of her late father which are of no relevance to the claims of the Applicant. Some other grounds are bare assertions attacking the Tribunal.

17.  The 2^nd Respondent also attacked the hearing of 30  August  2006 asserting that she had been denied a fair hearing. The attack does not have any merits.  She was aware of the time of the hearing and it was incumbent upon her to arrive at the hearing on time. There was no reason why she could not make her application of legal aid well in advance. In any event, as observed above, her Notice of Opposition did not disclose any merit in her opposition.  Further, she had sought a review and the Tribunal had heard her.  Despite that she failed.

18.  In our view, the Tribunal was correct in rejecting her opposition and dismissing her review. Whilst it is correct that she should be given a fair opportunity to adduce evidence, it is also the Tribunal’s duty to ensure only relevant matters were canvassed. The 2^nd Respondent had her chance to put forward relevant matters to the Tribunal and it was plain and obvious that she did not have any valid defence. The 2^nd Respondent’s right to a fair trial does not enjoin the Tribunal to waste time on irrelevant matters.

19.  It is crystal clear that the 2^nd Respondent has no merits in the appeal. Further, the appeal is incompetent since the Notice of Appeal does not specify any question of law for determination and the appeal does not involve any question of law.

20.  It is plain and obvious to us that the Notice of Appeal should be struck out on these grounds alone.

21.  Mr Wong also relied on the fact that the 2^nd Respondent is a bankrupt and she has taken out this appeal without the consent of the trustee in bankruptcy. We were referred to the decision of Chu J in Tai Yu Ting v Inland Revenue Board of Review [2006] 3 HKLRD 297.

22.  A bankruptcy order was made against the 2^nd Respondent on 3  January 2006. All along she had proceeded in the Lands Tribunal without disclosing her bankruptcy.

23.  The appeal is about the right to possession pursuant to the sub-tenancy of the 2^nd Respondent in the premises. Applying the test set out in Chung Kau v Hong Kong Housing Authority [2004] 2 HKLRD 650, the appeal is not in respect of claims personal to the 2^nd Respondent: it does not relate to her body, mind or character without immediate reference to her rights of property. The subject matter of the appeal concerns the 2^nd  Respondent’s property and pursuant to Sections 12 and 58 of the Bankruptcy Ordinance, she has no locus to bring the appeal by reason of her bankruptcy.

24.  Hence, we agree that the appeal is also incompetent and the Notice of Appeal should also be struck out on this ground.

25.  We therefore ordered that the Notice of Appeal be struck out.

26.  Having come to this conclusion, it follows that the application for stay of execution pending appeal must also be struck out.

27.  We also made an order that the 2^nd Respondent to pay the costs of the Applicant in and occasioned by these applications, such costs is to be taxed if not agreed.