LAU SUN KIU v. CHAN SUK GAY

CAMP 47/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 47OF 2017

(ON AN INTENDED APPEAL FROM LDPD NO 1145 of 2017)

______________________

______________________

___________________________________

REASONS FOR JUDGMENT

___________________________________

Hon Lam VP (giving the Reasons for Judgment of the Court):

1.  This is an application for leave to appeal against the judgment given by a member of the Lands Tribunal in a possession case LDPD 1145 of 2017. By the judgment of 6 July 2017, the member granted possession of the subject premises situated at Kam Sun Yuen, Wang Toi Shan Sun Tsuen, Yuen Long, the New Territories. The judgment was given on the basis that the tenancy for the premises had expired in accordance with the terms of the tenancy agreement of 23 November 2016. The agreement was for a term of 3 months and it expired on 31 January 2017. The agreement contained the following handwritten term in Chinese:

“ (註) 甲、乙雙方訂明此乃最後叁個月之短期租約，純為方便乙方在此叁個月期間另覓地方。如乙方到期仍不搬走，甲方將會採取法律行動，乙方不得異議。約滿後乙方承諾搬清所有不屬於甲方的物品，而所有搬、拆費，甲、乙方不得要求甲方負責。於約滿後乙方仍不清拆僭建之物品，事後清拆費用甲方有權追討。”

2.  The member also granted a stay of execution until 30 September 2017 in order to give more time to the respondent to vacate from the premises. 

3.  The respondent applied for leave to appeal out of time on 27 September 2017.  The application was refused by the member on 9 October 2017.  Reasons for decision was given by the member on 16 October 2017.

4.  By two summonses of 24 October 2017, the respondent applied for leave from this Court and stay of execution.

5.  Under Rule 30B(2)(a) of the Lands Tribunal Rules, Cap 17A, leave to appeal from a final judgment should be applied within 28 days.  Hence, in the instant case, the time for making such application expired on 3 August 2017. 

6.  The respondent explained that she ticked the incorrect box in the form when she made an application on 25 July 2017.  By that application she asked for a further stay of execution but did not ask for leave to appeal just right above the box for designated for other unspecified applications.  She said she actually intended to seek leave to appeal. 

7.  We do not accept this explanation.  The form used for the application was a proforma form and there was a box for seeking leave to appeal just right above the box designated for other unspecified applications.  If she intended to seek leave to appeal she could simply tick the that box.  Instead she ticked the box for unspecified applications and filled in the blank by stating that the application was for stay of execution.  Her affirmation of 25 July 2017 in support of the application merely set out the reason why she needed more time instead of setting out any proposed grounds of appeal.  Obviously, the applicant did not intend to seek leave to appeal in that application.

8.  She only applied for leave to appeal on 27 September 2017 when the original stay (granted by the member on 6 July 2017) almost expired.  The delay is substantial. 

9.  Hence, this is an application for leave to appeal brought out of time without good excuse.  In accordance with established practice, this Court should only grant such leave when there is a real prospect of success in the intended appeal, see Secretary for Justice v Hong Kong & Yaumati Fery Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217 of 2015, 22 Jan 2016.   

10.  Having heard counsel and considered the submissions on the merits of the intended appeal carefully, we do not see any real prospect of success in the respondent’s intended appeal. 

11.  By reason of Section 11(2) of the Lands Tribunal Ordinance, Cap 17, appeal from the judgment of the Tribunal can only brought on the ground that the judgment is erroneous on point of law.

12.  The main ground relied upon by Mr Lam (appearing with Mr Chau for the respondent before us) was that the member erred in respect of his conclusion on the oral promises allegedly given by the applicant.  He also relied upon the concept of equitable estoppel.

13.  Having read the transcript of the proceedings of 6 July 2017, we are satisfied that the member had heard the respondent on her case on the oral promises.  According to the respondent, there were actually two occasions on which oral promises were allegedly made.  After some clarification by the member, she agreed that the first promise was irrelevant[1]. Hence, the witnesses which she now said the member deprived her of calling on the first promise could not be of any avail. Though Mr Lam informed us that his instructions were that the witnesses could also give evidence on the second oral promise, this was not based on anything said in the course of hearing before the member. In the absence of any proper evidential basis for this submission, we cannot entertain the argument. In any event, as explained below, neither the first nor the second oral promises could give rise to any defence in the present case.

14.  At the Tribunal, the respondent also confirmed with the member that the oral promise was her only defence[2]. There was no suggestion whatsoever that she would rely on any defence of estoppel in her Notice of Opposition or in her oral evidence. In the end, the member concluded that there was no credible evidence on such oral promises[3]. It is a finding on the evidence which this Court will not intervene.

15.  Mr Lam drew our attention to [18] of the Reasons for Decision of 16 October 2017. At that paragraph, the member said he did not make any finding on whether the oral promises had been made. What the member actually said at the hearing of 6 July 2017 by way of reasons for giving the judgment for possession were as follows:

“ 本席嘅裁決，就係申請人可以以租約完結嚟申請收樓，雖然答辯人話聲稱有個口頭承諾，但係從答辯人證供，我睇唔到佢所講，就算有承諾，呢個係一個可以執行嘅承諾。答辯人亦都知道，從答辯人證供，其實答辯人都清楚知道佢唔可以依賴呢個所為之口頭承諾，答辯人係從佢--從答辯人證供，就係咁多年嚟簽嘅約，從無寫過佢哋雙方面所講嘅口頭承諾，反而申請--答辯人同意，申請人存檔嘅租約裡面，講到明唔會再續租，但係答辯人知道有咁嘅條款之下，仍然簽定一份咁樣嘅書面租約，在相對可能性之下，就算我倚賴答辯人嘅證供，我睇唔到一個可信性嘅證供。再者，答辯人所聲稱嘅口頭承諾，根本唔係一個完整嘅承諾，我睇唔到可以執行，响法律上，既然每兩年期或者其後再縮短年期嘅情形出現咗，對於係咪加租、續租或者嗰個機制點樣，全無嗰個承諾裡面去概括。頭先本席提出一個極端例子，如果加租加到好多，1,000,000一個月，咁又點呢，咁係咪個口頭承諾仍然運行呢，唔可以收樓或者重建收樓。種種此類，其實就算我相信晒答辯人所有嘅證供都好喇，我睇唔到呢個係可以運行到嘅承諾令到申請人唔可以以終止租約嚟申請到收樓。

所以本席裁決，申請人可以以租約完結嚟申請收樓，呢個係本席嘅裁決同埋裁決理由。”

16.  It has to be borne in mind that the reasons for judgment were those set out orally by the member on 6 July 2017. It is not legally permissible, unless the member expressly reserved his reasons at the time he gave judgment and gave written reasons later, for the member to add to, or subtract anything from the oral reasons by means of a subsequent decision, see Happy Dragon Restaurant Ltd v The Director of Lands [2010] 2 HKLRD 727.

17.  In the context of an application for leave to appeal, the member (as does this Court in a renewed application for leave) has to consider if the appeal has any reasonable prospect of success (or, if it is an inexcusable late application, real prospect of success). In the making of such assessment, if there are points not addressed in the original judgment but duly canvassed in the course of the application for leave, it could be appropriate for the member to refer to such points (if they are clearly irrefutable and the parties would not be prejudiced by the same being taken only after judgment) as part of the reasons for granting or refusing leave. But this should not be confused with providing additional reasons for the original judgment which is not legally permissible. The soundness of the original judgment has to be determined by the reasons already given at the time when judgment was pronounced.

18.  We are aware that the usual practice of the Lands Tribunal in possession cases is that the Tribunal would not give any written judgments. From time to time, we have cases coming before us that the Tribunal only gave written decisions or written reasons for decision in the context of applications for review or applications for leave to appeal. Provided that oral reasons have been given at the time when the original decisions were made, such a course is permissible. The oral reasons would be recorded in the DARTS recording system. If a party requested for a written copy of such reasons, the transcript of that part of the hearing could be prepared and given to the party.

19.  When there is an application for leave to appeal, we are of the view that the written transcript of the oral reasons for judgment should be prepared and made available to the parties. As explained in the authorities, one of the purposes requiring reasons to be given is to facilitate the losing party to understand the decision properly and to consider if he has valid grounds of appeal, see Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority [1998] 2 HKLRD 857 at p.867D; Zhuo Cui Hao v Ting Fung Yee [1999] 3 HKC 634 at p.639; Leung Wing Yi Asther v Kwok Yu Wah (2015) 18 HKCFAR 605 at [59]. A losing party must have access to a copy of the reasons given by a judge and, if those reasons were given orally, written transcript should be provided to facilitate his consideration of exercise of his right of appeal. The transcript would also facilitate this Court in processing any renewed application for leave before us.  

20.  For these reasons, we should focus on the oral reasons given by the member at the hearing. What he said at [18] in the written Reasons for Decision of 16 October 2017 cannot alter what he had already said on 6 July 2017.

21.  In his oral reasons given on 6 July 2017, the member took the view that on the balance of probabilities he could not find credible evidence supporting the existence of the oral promises in light of the other evidence, including the terms in the written tenancy agreements. This is a finding of fact which this Court cannot intervene in an appeal on points of law.          

22.  Further, the member was also correct in holding that the promise (if any) must have been overtaken by the written terms of the tenancy agreement. The last tenancy agreement of 20 November 2016 contained a handwritten term (as set out at [1] above) that this would be the last short term tenancy granted to the respondent to enable her to find alternative accommodation. The same appeared in an earlier tenancy agreement.  

23.  The defence of estoppel was not relied upon before the member.  Further, up to now, the respondent did not place before us any credible and concrete evidence to support any detriment suffered by her in reliance of the alleged oral promise.  There is no evidential basis to support any defence of equitable estoppel.  Actually, in light of the explicit handwritten term in the last two tenancy agreements signed and agreed to by the respondent, whatever the position would have been prior to those agreements must have ceased to have further effect.

24.  The case cited by Mr Lam on proprietary estoppel, Inwards v Baker [1965] 2 QB 29 could not give rise to any defence in the present case because there is no evidential basis for any proprietary estoppel. The best that Mr Lam could do was to refer to the poor state of the premises when the Respondent took the lease. This is not enough, by any stretch of imagination, to give rise to any proprietary estoppel.

25.  Hence, at the highest, even if a case of estoppel could be run on the basis of the oral promises, it could only be promissory estoppel. The suspensory effect of such promissory estoppel could not survive the express agreements of the parties in the written term in the tenancy agreements signed and agreed by the respondent, see Chitty on Contracts 32^nd Edn para 4-097. In this connection, the case cited by Mr Lam, Siew Soon Wah v Yong Tong Hong [1973] AC 836 is not relevant as it was a case on a written contract supported by consideration rather than estoppel.

26.  For these reasons, we refused to grant leave and dismissed the summons of 24 October 2017 with costs at $79,000 as agreed by the parties.