MAN FONG HANG v. 蔡武光 AS KNOWN AS (蔡光)

HCMP 150/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 150OF 2014

(On an intended Appeal from LDPD No. 996 of 2012)

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JUDGMENT

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

1. On 15 October 2013, after a trial which spanned over three days, the Presiding Officer of the Lands Tribunal found that the Respondent was a periodic tenant of the Applicant. He dismissed the Applicant’s claim for possession because of the defect in the Transitional Termination Notice [“TTN”] issued by the Applicant. He ordered the Respondent to pay the Applicant the sum of $2,800 by way of arrears of rent since 1 Jan 2010.

2. The Respondent sought a review of that decision.  It was dismissed by the Presiding Officer on 14 November 2013. 

3. The Respondent then sought leave to appeal. That application was also refused by the Presiding Officer on 13 January 2014.

4. The Respondent seeks leave to appeal from this court.

5. Pursuant to Order 59 Rule 2A, parties have filed statement and counter-statement in respect of the application for leave to appeal.  The Applicant opposes the application for leave.

6. Section 11(2) of the Lands Tribunal Ordinance sets out the permissible scope of an appeal from the decision or judgment of the Lands Tribunal.  In short, there can only be appeals on point of law. 

7. Further, Section 11AA of the Lands Tribunal Ordinance provides that leave to appeal is required and it should only be granted if the court is satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interest of justice that the appeal should be heard.

8. In the draft notice of appeal attached to the Respondent’s summons of 20 January 2014, 8 grounds are set out.  The first 2 grounds challenged the jurisdiction of the Tribunal.  The question of law, set out as the question of great general or public importance at the end of the draft notice of appeal, is as follows:

“Does the Lands Tribunal have jurisdiction to deal with an application for payment of rent based on a claim initially framed as being a claim for possession of the premises in respect of a tenancy and outstanding rent when it was manifestly obvious at the beginning of the proceedings that the possession limb of the application would fail in limine?”

9. The question arises in this way: at the trial, it was conceded on behalf of the Applicant that the TTN was invalid.  However, the trial continued and there was no application for the striking out of the claim for possession.  Mr Yau submitted that the claim for possession should fail in limine and the jurisdiction of the Tribunal to order payment for arrears of rent under Section 8(8) of the Lands Tribunal Ordinance is ancillary to a claim for possession.  That being the case, he said the Tribunal either has no jurisdiction to deal with the claim for arrears of rent or that the jurisdiction should not be exercised.

10. Section 8(8) is in the following terms:

“(8) The Tribunal shall have jurisdiction, in any application for possession or for ejectment, under the Landlord and Tenant (Consolidation) Ordinance (Cap 7) or otherwise, and in any application for a new tenancy under Part IV of that Ordinance, whether or not it grants any such application, to make one or more of the following orders- (Amended 3 of 2008 s. 36)

(a) an order for the payment of rent and mesne profits (including interim payments of rent and mesne profits);

(b) an order for the payment of any other money which is due under the tenancy or sub-tenancy;

(c) an order for the disposal of any property left in the premises concerned by the tenant or sub-tenant; and

(d) an order for the payment of damages in respect of any breach of a condition of the tenancy or sub-tenancy. (Added 30 of 1983 s. 2. Amended 32 of 2002 s. 40; 3 of 2008 s. 36)”

11. As a matter of construction, we are of the clear view that the Presiding Officer was correct in holding that the Tribunal has jurisdiction to deal with the claim for arrears of rent.  As he said in his judgment of 14 November 2013, the section itself clearly provides that the Tribunal can make an order for payment of arrears of rent even though it dismisses a claim for possession.  So long as the claim is advanced in an application in which there is also a claim for possession, we cannot see any difficulty with the jurisdiction of the Tribunal.

12. As regards the question whether the jurisdiction should be exercised, Mr Yau has not referred us to any authority to suggest that why in the circumstances of the present case it is wrong in principle to exercise the jurisdiction.  It must after all be a matter of discretion.  On the facts of the present case, given that there was no dismissal of the claim for possession before the end of the trial, and given that the parties had proceeded with the trial on the basis that the issues relevant to the payment of rent (including the question of adverse possession) were before the Tribunal, we cannot see how one can fault the Presiding Officer for exercising his jurisdiction.

13. Grounds 3 to 5 relate to the findings of fact by the Tribunal.  No question of law has been identified.  In any event, we are of the view that the Presiding Officer was entitled to weigh the permission from the Government (which the Respondent called MOT) in the way he did at para 30 of his judgment of 15 Oct 2013.  There was also ample evidence apart from the permission to support the Presiding Officer’s finding that the Respondent was a tenant instead of a squatter.

14. Grounds 6 to 7 relates to the period to which the periodic tenancy started to run in each year.  As the Presiding Officer pointed out at para 11 of his judgment of 14 November 2013, it was not a point raised at the trial.  In any event, on the state of evidence before the Tribunal and the arguments advanced at the trial, he was entitled to act upon the table produced by Mr Chung. 

15. For these reasons, we refuse to grant leave to appeal.

16. We are of the view that the application is totally without merit and we make an order pursuant to Order 59 Rule 2A(8) that no party may request the determination to be reconsidered at an oral hearing inter partes.

17. As for costs of the application, the Respondent shall pay the costs of the Applicant.  The Court of Appeal usually deals with costs of paper applications for leave by way of summary assessment. Unfortunately, solicitors have not submitted statement of costs for our consideration in the present case.  Doing the best we can, we would assess the costs of the Applicant at $30,000.  This assessment would be our costs order nisi.  Parties may write to the court within 7 days setting out their objections to the quantum as assessed, failing which this would become an order absolute.