CHU MAN ON v. TAM YU HUNG

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JUDGMENT

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Godfrey, J.A. (giving the judgment of the court at the invitation of Nazareth, V.P.):

Introduction

1. This is an appeal against an order dated 13 November 1995 made by the Lands Tribunal, presided over by Mr. Li Zong-er. By his order the Presiding Officer granted the tenant's claim to a new tenancy of the premises the subject matter of the proceedings before him, namely 1st Floor, 23 Shing On Street, Shaukiwan, Hong Kong. The premises are occupied for domestic purposes and the tenant's claim is governed by the provisions of Part IV of the Landlord and Tenant (Consolidation) Ordinance, Cap.7.

The legislation

2. Before turning to the facts, I propose to read the material parts of the relevant section of the Ordinance, s.119E(1)(b), which provides as follows:

3. In the instant case, the Presiding Officer seems to have come to the conclusion, as we read his judgment, that the requirement of possession expressed by the landlord was not genuine. If the Presiding Officer was right about that, no question arises as to whether the landlord's requirement was reasonable; and no question arises whether it would, or would not, manifestly be unjust and inequitable to refuse to grant the tenant a new tenancy. The requirement contemplated by s.119E(1)(b) must, of course, be a genuine requirement. If no such genuine requirement is established, the landlord's objection to the grant of a new tenancy must fail.

The facts

4. I now turn to the facts of the instant case.

5. The tenant's situation is simple. He lives in the premises with his wife and three teenage children, who are all at secondary school. He is a cook, and obviously is not of substantial means.

6. The landlord's situation is very different. The landlord is a man of 78 years of age, living with his wife of 70 years of age in another flat in the building which he also owns. There live with the landlord and his wife, a son aged 50, who is divorced and who is a marine engineer; a married daughter aged 45, with two children, one a son of 10, and the other a daughter of 8 (the husband is a teacher, living in Tsuen Wan); and another daughter, aged 41, divorcee with a daughter of 14. There are thus 8 people living in these premises, three of whom are small children. The landlord's means are substantial (at any rate in comparison with the tenant's means).

7. The landlord is infirm. A ground floor, or first floor, flat would suit his requirements better. The tenant was prepared to exchange his 1st floor flat with the landlord; but the landlord, as he was entitled to do, rejected this offer. The arrangements in the flat occupied by the landlord and his wife, and his children and grandchildren, are obviously unsatisfactory.

8. The Presiding Officer's conclusion

9. The Presiding Officer was plainly surprised at the picture which the landlord sought to paint before him. He said this:

"The Tribunal should be slow to find the requirement for the subject property reasonable if it is not genuine in the sense that it is not really to meet the need of the persons stated in the CR101, but rather some other members of the family."

10. He went on to describe the impression with the evidence had made on his mind. He said this:

"It is true that five adults and three small children living in a flat of About 500 sq. ft. is quite crowded. However, I found the sleeping arrangement for the respondent's family incredible. If there are indeed so many of them living in the flat on the 5th floor, the only partitioned room in there would not be used as a storeroom. I believed the crowdedness is contrived and unreal. The son is single and a professional. I have yet to be convinced why he cannot live elsewhere instead of having to squeeze himself into his parents' flat. The elder daughter with two children has her matrimonial home in Tsuen Wan. It is baffling why she should see fit to base herself in her parents home and to send her daughters to live and to attend school in Shaukiwan just so that they can be looked after by the 70 year old maternal grandmother. If the crowded condition is real, it is the result of unreasonable domestic arrangements thereby rendering the requirement for the subject property as additional accommodation unreasonable. In fact, when giving evidence, the respondent himself did not say what he wanted. Of course, the opposition is conducted in the name and on behalf of the respondent, but I had to the distinct impression that the respondent was being paraded to make case for repossession for the benefit of his other children only. In effect, it was the son, the elder daughter and her two children who require accommodation; their case for accommodation in the building is unreasonable and does not justify repossession of the subject property, so they displace the respondent and his wife who then have to force the applicant's family out ! Accordingly, I had no difficulty in finding that the respondent does not reasonably require the subject property."

The landlord's appeal

11. What the landlord asks us to do is to reverse the inference drawn by the judge from his findings of primary fact, namely the inference that the landlord's requirement for possession of the premises was not genuine. It seems to us impossible to read the Presiding Officer's judgment as a whole without coming to the conclusion that he did indeed infer that the landlord's requirement for possession was not genuine. The landlord says he was wrong to do so, and that we should now reject the claim of the tenant to a new tenancy.

The proper approach

12. On such a matter as this, we bear in mind that a distinction must be drawn between the judge's view of conflicting testimony and the inferences to be drawn from facts not in controversy, as Lord Dunedin points out in Dominion Trust Co. v. New York life Insurance Co. [1919] AC 254 at p.255; or between facts deposed to by witnesses and found by the court and inferences of fact drawn therefrom, as Viscount Simmonds points out in Benmax v. Austin Motor Co. Ltd. [1954] 1 All ER 326 at p.327. So, while this court is always reluctant to reject the finding by a judge of specific or primary facts deposed to by the witnesses, especially when the finding is based on the credibility or bearing of a witness, it is willing to form an independent opinion on the proper inference to be drawn from the evidence. Even where an appeal turns on a question of fact, this court appreciates that its duty is to re-hear the case; it must make up his own mind, not disregarding the judgment appealed from, but carefully weighing and considering it and not shrinking from overruling it, if on full consideration, it comes to the conclusion that it is wrong.

The present case

13. This court has considered the judgment of the Presiding Officer with care, especially in the light of the fact that the tenant appeared before the Presiding Officer, and before us, in person. We have formed the view that the course which the trial seems to have taken was profoundly unsatisfactory. It was submitted to us, and so far as we can see the submission is borne out by the notes of the evidence, the suggestion that the story put forward by the landlord was not genuine was not put to the landlord or to his witnesses, either by the tenant or by the Presiding Officer himself. So the landlord may have suffered an injustice. On the other hand, it also seems to this court that the story told by the landlord is so extraordinary that it does merit proper investigation. The real issue in the case is, not whether the landlord's requirement is reasonable, not whether it would be manifestly unjust or inequitable to refuse to grant the tenant a new tenancy, but whether the landlord's requirement is genuine at all. This issue ought to be tried and ought to be tried properly. An injustice may be done, either to the landlord or to the tenant, if at this stage we allow this appeal or if we dismiss it. We have come to the conclusion that the only safe course to take is to send the case back to the Lands Tribunal for re-hearing before a different Presiding Officer. The other issues, that is to say, whether the landlord's requirement is reasonable, and whether it would manifestly not be just and equitable to refuse to grant the tenant a new tenancy, can be considered if the Presiding Officer then comes to the conclusion, if he does come to that conclusion, that the landlord's requirement is a genuine requirement.

The court's order

14. We therefore order, pursuant to O.59 r. 11 of the Rules of the Supreme Court, that the case be remitted to the Lands Tribunal, to be heard de novo before a different Presiding Officer. We will hear the landlord's counsel on the question of the costs of the present appeal; but it may be helpful if we indicate now that it seems to us that the right order to make as to the costs of this appeal would be an order that those costs be costs in the proceedings before the Lands Tribunal, so that the landlord will get his costs of the appeal if he ultimately succeeds in the Lands Tribunal but will not get those costs if he fails. There is nothing we would wish to add.