WONG HONG v. CHAN LAI CHUN

IN THE LANDS TRIBUNAL OF HONG KONG

LANDS TRIBUNAL APPLICATION NO. L.T. 296/84

BETWEEN:

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DECISION

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Sir Denys Roberts:

1. This is an application under section 51(8) of the Landlord and Tenant (Consolidation) Ordinance Cap. 7, by Mr. WONG Hong, the tenant of a cockloft at No. 8A Water Street, Mezzanine Floor, to determine whether or not his tenancy of those premises is domestic.

2. Mr. Wong entered the premises in 1965, according to the evidence of the respondent, Mrs. CHAN Lai Chun, on a three year tenancy of those premises for use as domestic premises only. The agreement itself, she said, had been lost and there has been no written agreement about the premises since then.

3. The applicant has continued to occupy the premises on a monthly tenancy, at a rent which increased from $280 a month, at which it was let in 1965, to $442 which is the current rent.

4. We had before us a certificate from the Rating and Valuation Department of Primary User of the Premises dated 17th April, 1984 which certified the primary user of the premises concerned as being non-domestic. It has been established in past cases that a Certificate of Primary User of the Rating and Valuation Department is not conclusive; but is prima facie evidence of its contents and throws upon a person who wishes to dispute it the burden of showing that it is wrong. This means that it is for Mr. Wong, the applicant, to show that the primary user of the premises is domestic, not non- domestic as specified in the certificate.

5. The applicant does not dispute the evidence of Mr. Kwan, the Rating and Valuation Department Officer who inspected the premises on 3rd April, 1984, that they were being used for non-domestic purposes, that is to say, as Mr. Kwan described it, as a "paper goods workshop and for the storage of paper products". Mr. Kwan produced in evidence a very useful sketch, showing what he found on the premises and the positions and size of the articles he saw. His sketch shows that the whole of the main floor of the cockloft was occupied by machinery, table and articles which are referable to Mr. Wong's business, namely the manufacture of envelopes.

6. In addition to what we might call the "main cockloft floor" of about 230 square feet, there was a subsidiary cockloft above it of about 125 square feet. Mr. Kwan says that the two sides of the upper cockloft which were visible to him from the main cockloft floor were lined with boxes of goods, closely packed together, with insufficient room to get between them to the back part of the upper cockloft, which he himself did not attempt to inspect.

7. It is worth noting that no cooking utensils were found inside that part of the premises at the top left-hand corner of the lower cockloft where they might be expected to be found and that Mr. Wong instructed his daughter to go out and bring back an electric cooker while Mr. Kwan was there.

8. As we have said, therefore, the evidence clearly establishes that on 3rd April, 1984, the primary user of the premises was non-domestic. Mr. Wong, however, seeks to persuade us that this was an unusual situation which had occurred because his ordinary business premises at Ground Floor, 160 Third Street were being redecorated, as a result of which he moved his equipment and goods from there to the suit premises.

9. Since the inspection by the Rating and Valuation Department, he had removed all the goods and was now using the premises for domestic purposes only. He conceded, however, that this was not the first time on which goods had been stored by him in the cockloft. He said, as I understand it, that he was tenant of the two premises, in Third Street and in Water Street, and that it was up to him to use them as he wished. If there were too many goods in one place he would store them in the other. He added that nothing had been said to him by the respondent when she let the premises to him restricting them to being used for domestic purposes only.

10. He seemed to think that storing his goods, as he described it, in the premises did not count as using the premises for business purposes, though this is a distinction which we find it difficult to understand.

11. We accept that it is not sufficient merely to look at what was happening on the premises on the day of the inspection, though the evidence of Mr. Kwan, and the certificate of the Rating and Valuation Department, establish a prima facie case that the primary user of the premises was non-domestic.

12. What other evidence is there about the user of the premises before the date of inspection? The landlord, Mrs. Chan, gave evidence that she had been collecting the rent for these premises, by visiting them every month. During the last ten years or so she had noticed that the premises were being used as a workshop and that goods were being placed there. She said that she had protested on a number of occasions to Mr. Wong against the user of domestic premises for business purposes but that he had continued to use them in defiance of what she had said. She explained that he had, as she described it, "bullied her" and paid no attention to what she said, that she really did not know what to do next, and that was why she had never taken any further steps to try and prevent him from misusing the premises.

13. We accept her evidence as being honest and accurate.

14. There is also, against Mr. Wong, the business certificate issued under the Business Regulations Rules 1952. This certificate is based upon information supplied by him and it states that he was carrying on the business of stationery under the name of "Wong Hong" at No. 8A Water Street, Mezzanine Floor.

15. The evidence of Mr. Kwan is also significant in trying to assess the past history of these premises in that he was satisfied that when he visited the premises on 3rd April, the process of production was in progress, that is to say Mr. Wong's daughter was engaged in work on the manufacture of envelopes. This, again, is difficult to match with Mr. Wong's evidence that he was doing no more than storing goods on the premises on the 3rd April.

16. For all these reasons we are satisfied that the primary user of the suit premises has been a non-domestic user. It is no doubt the case that since the Rating and Valuation inspection all evidence of the use of the premises as a business has been removed, but in our view this is not sufficient to remove from the tenancy the label of non-domestic user which we think should properly be attached to it.

17. In the result, therefore, we determine, for the purposes of Part II of the Landlord and Tenant (Consolidation) Ordinance, that the tenancy of Mr. Wong Hong in the Mezzanine Floor of No. 8A Water Street is non-domestic and that the primary user of them is for non-domestic purposes.