CHOW KIN YING v. HUSSAIN, SHOUKAT

HCMP 1535/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1535 OF 2016

(ON AN INTENDED APPEAL FROM LDPE NO. 498 OF 2016)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.  This is the application of Hussain Shoukat for leave to appeal against the judgment of Mr Lawrence Pang, member of the Lands Tribunal, given on 27 May 2016. By the judgment, Mr Hussain was ordered to deliver up vacant possession of the suit premises known as Shop A, 29 Hung Kwong Street, To Kwa Wan, Kowloon to the landlord Chow Kin Ying. Further, he was ordered to pay Mr Chow arrears of rent or mesne profits at the rate of $4,000 per month from 5 May 2016 until the delivery up of vacant possession.

2.  On 1 June 2016, Mr Hussain filed an application for leave to appeal against the judgment to the Court of Appeal.  This was heard by Member Pang on 13 June 2016 and leave was refused in a decision given on the same day.

3.  Mr Hussain renewed his leave application to the Court of Appeal by a summons issued in these proceedings on 17 June 2016.  He also sought a stay of execution of delivery up of vacant possession of the premises pending the outcome of the appeal.  An interim stay was granted to him on 4 July pending the outcome of the present application.

4.  Having considered the relevant documents, we decided to exercise the power under Order 59 rule 2A(5)(a) to determine his application without a hearing on the basis of the written materials before us.

5.  Section 11(2) of the Lands Tribunal Ordinance, Cap 17 provides that subject to inter alia section 11AA, any party to the proceedings before the Tribunal may appeal to the Court of Appeal against a judgment of the Tribunal on the ground that it is erroneous in point of law.  Under section 11AA(6), leave to appeal shall not be granted unless the Court of Appeal is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard.  Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

6.  Mr Hussain entered into a landlord and tenant relationship with Mr Chow for quite a number of years.  The latest tenancy agreement of the suit premises, dated 17 April 2014, was for a fixed term of two years from 5 May 2014 to 4 May 2016 at a monthly rent of $4,000 inclusive of rates and management fees.  On 5 May 2016, Mr Chow applied to the Lands Tribunal to recover possession of the premises on the ground that Mr Hussain failed to deliver up vacant possession on the expiry of the tenancy.

7.  Mr Hussain opposed the application on these grounds: (1) Mr Chow failed to give notice to him to vacate the premises; (2) he was in negotiation with Mr Chow for a new tenancy agreement at an increased rent; and (3) he should be given sufficient time to vacate the premises as he had been running his business there for the past eight to nine years.

8.  The Tribunal found that Mr Chow had not served any notice on Mr Hussain to terminate the tenancy.  However, there was no need for Mr Chow to serve a notice to terminate in this instance, as the tenancy would have come to an end when the fixed term expired.  The fact that the parties were in negotiation of a new tenancy agreement did not have the effect of prolonging the tenancy.

9.  It was not in dispute that since 8 February 2016, some three months before the expiry of the tenancy, Mr Chow had made an offer to let the premises to Mr Hussain for a new term of two years at the increased rent of $4,800 a month.  Mr Hussain made a counter-offer of $4,500 but this was rejected by Mr Chow. When the tenancy expired, Mr Hussain tried to revert to Mr Chow that he was willing to pay $4,800 a month.  But Mr Chow no longer wished to let the premises to Mr Hussain at $4,800.  The Tribunal held that at law the counter-offer of $4,500 amounted to rejection of the offer of $4,800, and once the offer was rejected, it could not be revived unilaterally by Mr Hussain.

10.  In the grounds of the proposed appeal set out in the summons before us, Mr Hussain repeated his three grounds of opposition before the Tribunal.  No error of law was raised in any of the grounds.  The proposed appeal has no prospect of success, nor is there any reason in the interests of justice why such appeal should be heard.

11.  We refuse to grant leave to appeal.  The application for stay of execution of delivery up of vacant possession pending appeal is also dismissed.

12.  As this application is wholly without merits, we make an order under Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

13.  As Mr Chow is acting in person, we make an order nisi that there should be no order as to the costs of this application.  Any party who seeks to vary the order nisi on costs may lodge a written submission within seven days hereof, with permission to the other party to lodge a response within seven days thereafter.  In the absence of any application to vary the order nisi on costs, it will become absolute after seven days hereof.