LAW HUNG v. LOONG HOCK LTD

1986, No. 152
(Civil)

IN THE COURT OF APPEAL

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JUDGMENT

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Power, J.

1. In this matter, the applicant Loong Hock Limited sought an order for possession in the Lands Tribunal against the respondent (appellant) Law Hung. Mr Law was the tenant of premises situated on the 13th floor of the Sun Ring Building at 607, Na than Road, Kowloon.

2. The application stated, in paragraph (8) of the Reasons, that possession was being sought on the ground that the respondent had caused unnecessary annoyance, inconvenience or disturbance to the applicant. It gave particulars which showed that from the 2nd December 1982, the respondent had, except for satisfying one judgment for $1,495 given by the Small Claims Tribunal, made no other payments in relation to management fees for the premises. The Reasons also set out that the respondent hart been warned by letters of the 28th January 1986 and 26th February 1986 of his conduct in persisting to fail to pay the management fees. The trial judge was satisfied that the management fees had not been paid and were owing, and he stated:

“From the evidence I am satisfied that defendant resented the periodic increase in management fees to a point where he became recalcitrant and stopped paying. When Judgment was obtained, he appealed, unsuccessfully. By defaulting in payment of management fees he forced the plaintiffs into one Court action after another, they being the defendants at the instance of the Incorporated Owners. He was, to say the least, awkward as a tenant over a long period of time and I am satisfied that his conduct fell within the meaning of Section 53(2)(d) of the Landlord and Tenant Ordinance. He caused much annoyance and inconvenience.

The sums sued for by way of arrears of rent and management fees have been properly and cogently vouched."

Consequent upon this finding he entered judgment for possession for the plaintiffs and also gave them judgment for the rent and management fees which had been proved to be owed. He did not, in his judgment, make any reference to the warning letters except to say at page 2 "Letters requesting payment of balances and arrears brought no reaction from the defendant".

3. Section 53(1)(d) of the Landlord and Tenant (Consolidation) Ordinance provides that "an order shall not be made for possession unless the Court is satisfied that the tenant or sub-tenant has caused unnecessary annoyance, inconvenience; or disturbance to the Landlord" and it goes on in a proviso to state that "no order shall be made under this paragraph unless the tribunal is satisfied that the annoyance, inconvenience or disturbance had continued after a warning in writing had been served by the landlord or principal tenant, or the tenant or sub-tenant causing the same". As I have said, there was no express finding by the judge as to a warning having been served. Before this Court, Mr Wong, who appears for the respondent, relies upon three letters, all of which were before the trial judge, as constituting the warning. These letters were dated the 26th of January, 28th of February and 20th of May. This final letter contained a Notice to Quit. The only issue for this Court to determine is whether or not those letters constituted a warning in accordance with the meaning of that term as used in the Landlord and Tenant Ordinance. We have had the benefit of referring to Ho Siu Kau v. Wing Hong Investment Co. Ltd.[1] and have given careful consideration to the terms of all three letters. We are satisfied that the letters, and in particular, the final letter of the 30th of May do constitute a warning in accordance with the meaning of that term as it is used in Section 53, and that, therefore, the learned trial judge was right in giving judgment for possession. This appeal must, therefore, be dismissed.

[1]  (1980) HKLR 850