LEUNG WAH FUNG v. WONG TAK SHING

IN THE COURT OF APPEAL

1997, No. 117
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. This is an appeal by the appellant, Leung Wah-fung ("the tenant"), against the order made by Her Honour Judge Kwan on 13th May 1996, which he seeks to have set aside.

2. The order appears to have been made upon the application of the respondent, Wong Tak-shing ("the landlord"), for possession of the suit premises for non-payment of rent. Those premises are the Mezzanine Floor of 26 Junction Road. The judge found for the landlord and ordered the tenant to pay rent arrears of $2,302 per month for a period of 14 months (from 1st October 1995 to 30th November 1996) and mesne profits of $4,332 per month from 1st December 1996 until delivery up of vacant possession. The order of possession was not to take effect if all arrears of rent and mesne profits were paid up within four weeks.

3. The tenant being in poor health and the landlord having no objection, we granted leave to the appellant's daughter to speak for him. She made it clear that what the tenant sought was the return to him of excess rental paid to the landlord in compliance with the order which the tenant contended stipulated amounts that were wrong.

4. To understand the basis upon which the appellant made that contention, it is necessary to outline the background to the matter. In her concise judgment, Judge Kwan dealt with the matter of the amount of the rent in the following way:

"The Rating and Valuation Department's assessment [of rent] was already dealt with in the Lands Tribunal hearing before Mr Poon in July of 1996. The Lands Tribunal confirmed the rent increase to be $4,332 from 1 October 1995."

5. The tenant contended that Judge Kwan was wrong in adopting the amount of $4,332 because it was based upon an out-dated assessment by the Rating and Valuation Department, which had been superseded by a notice of interim valuation issued by the Commissioner on 15th March 1996 with effect from 1st March 1996, setting a rateable value of $42,960 which should have produced a lower rental.

6. The tenant in fact applied to Judge Kwan to review her order which the judge did on 13th May 1997, altering the amount of $2,302 to $1,907 and the amount of $4,332 to $3,937.

7. But, the tenant contended before us that even these reduced amounts were wrong. When queried as to the correct reduced amounts, successively lower amounts, no less than 3, were contended for. As will be seen it is not necessary to enter into the detail of those.

8. Now it is plain that the Commissioner's notice of interim valuation issued with the date 15th March 1996 preceded Mr Poon's hearing and judgment given on 8th July 1996. But that interim valuation was a valuation of rateable value, not e.g. a certificate of increase in rent. Moreover, it is plain from Mr Poon's judgment that he was concerned not with the rateable value of the premises but rather the prevailing market rent and the consequent increase. The former rateable value would not only necessarily coincide with the prevailing market rent of the day, but plainly must have been assessed by reference to a date considerably earlier than March 1996. The notice of interim valuation, therefore, does not , in my view, undermine Judge Kwan's assessment of the amount of rent due, or of mesne profits. It can also be seen that Mr Poon rested his judgment not merely upon the rental certificate but upon other matters including some raised before us by the tenant. In any case, had there been any merit in the tenants complaint about the acceptance of the amounts determined by Mr Poon, it seems that it should have been Mr Poon's determination that should have been appealed not Judge Kwan's - particularly as the notice of interim valuation was sent to the tenant several months prior to the hearing before Mr Poon.

9. In these circumstances I see no good reason to fault Judge Kwan's acceptance of Mr Poon's confirmation of the Commissioner's increased rental at the amount of $4,332. The main complaint in the appellant's appeal therefore fails.

10. The tenant also raised the matter of dilapidations. The Commissioner and the Tribunal of which Mr Poon was a member plainly were aware of these in addressing the amount of rent, which disposes of the latter matter insofar as dilapidations are concerned. As to whether they entitled the tenant to withhold rent, that is no longer a live issue since the tenant has apparently paid all that he has been ordered to, and there is therefore no question of dispossession on that account. So that even if the judge overlooked the Rating and Valuation Department's notice to the landlord to attend to the dilapidations in holding that the tenant had failed to show them to the landlord (as the tenant complained to us), this would not avail the tenant in his appeal.

11. The other matters in the Notice of Appeal and the written submission were not pursued.

12. I, therefore, find no merit in the appellant's grounds.

13. I would add that having heard the parties, it seemed that no error of law had been raised by the appellant. That is the only basis upon which he could appeal under s.68A of the Landlord and Tenant Ordinance (Cap. 7). Nevertheless, the submissions and documentation, having been prepared by parties who were not represented, this Court had to contend with areas of obscurity. Having in that light reserved judgment to give full consideration to those, I am now satisfied that no ground has been disclosed that the judge's determination is erroneous in point of law. Upon that additional basis too, the appeal must be dismissed.

14. For all the reasons I have given, I would dismiss the appeal.

15. I wish, however, to add that the tenant complained also of the Rating and Valuation Department's failure to separate the valuation of the ground floor of No. 26 Junction Road, which are commercial premises that attract higher rents, from that of the mezzanine floor until March 1996 when it did so by the interim notice mentioned. The tenant appears thereby to have been subjected to excess rental and may have good cause for complaint. But that is not a matter for this Court nor does it arise within the scope of the appeal.

Godfrey, J.A.:

16. I have had the advantage of reading in draft the judgments of Nazareth, V-P and Liu, JA, with both of which I agree. I too would dismiss this appeal.

Liu, J.A.:

17. The Notice of Interim Valuation dated 15 March 1996 and the permitted increase of rent upheld by the Lands Tribunal's decision in July 1996, albeit both relating to the appellant's mezzanine floor of 26 Junction Road, were assessed on the market rent prevailing at different times. The rental from the rateable value in one cannot be properly compared with the lawful rent in the other. The permitted increase affirmed by the Lands Tribunal and relied upon by Her Honour Judge Kwan has not been shown to be wrong by reference to the Notice of Interim Valuation or at all. There is no appellable error of law. I would also dismiss this appeal.

Nazareth, V.-P.:

18. The appeal is accordingly dismissed.