KUNG LING YEN v. 林慧翔 AND OTHERS

HCSA 35/2022 &
HCSA 36/2022
(Heard together)

[2023] HKCFI 139

HCSA 35/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 35 OF 2022

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO. 27685 OF 2021)

____________________

____________________

AND

HCSA 36/2022

SMALL CLAIMS TRIBUNAL APPEAL NO. 36 OF 2022

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO. 31293 OF 2021)

____________________

____________________

(Heard Together)

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D E C I S I O N

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A.  INTRODUCTION

1.  Kung Ling Yen (“Mr Kung”), the claimant in SCTC 27685/21 and the defendant in SCTC 31293/21, applies for leave to appeal against the orders of 13^th September 2022 (“the Orders”) made by the Deputy Adjudicator (“the Deputy Adjudicator”) that, essentially:

1.1  Mr Kung’s claim against the second and third defendants in SCTC 27685/21 (“Ms Tsao” and “Cheong Shing” respectively) be dismissed;

1.2  Mr Kung is to pay Ms Tsao’s costs in SCTC 27685/21;

1.3  Mr Kung is to pay $23,500 and costs to Cheong Shing in respect of the latter’s successful claim in SCTC 31293/21.

B.  THE BACKGROUND

2.  The background to the claim is that Mr Kung was to rent a flat at a development known as The Orchards from Ms Tsao, through Cheong Shing as estate agent. The three parties signed a provisional tenancy agreement dated 27^th June 2021 (“the PTA”). However, Mr Kung refused to sign the formal tenancy agreement (“the FTA”) on 25^th July 2021 on the grounds that Ms Tsao had not provided her address on the FTA. Ms Tsao then forfeited the deposit of $27,000 paid by Mr Kung.

3.  In SCTC 27685/21, Mr Kung claimed that Ms Tsao was in breach of the PTA, so that she was liable to refund the deposit of $27,000 and pay a further $27,000 to Mr Kung as agreed damages. Mr Kung also made a claim against Cheong Shing for damages for breach of duties as estate agent.

4.  In SCTC 31293/21, Cheong Shing claimed against Mr Kung for agreed damages for his failure to take up the tenancy.

5.  The two claims were heard together on 31^st August 2022.

6.  The Deputy Adjudicator’s reasons for making the Orders were set out in her Brief Reasons for Decision of 13^th September 2022 (“the Reasons”). She had to consider two main issues. The first was whether Ms Tsao had an obligation to provide her address on the FTA; the Deputy Adjudicator found that she did not. The second was whether Cheong Shing was in breach of its duties as estate agent in failing, inter alia, to obtain the landlord’s address; the Deputy Adjudicator found that there was no breach.

C.  THE GROUNDS OF THE INTENDED APPEAL

7.  By two applications for leave to appeal on point of law dated 23^rd September 2022 (in SCTC 27685/21) and 26^th September 2022 (in SCTC 31293/21), Mr Kung seeks leave to appeal. Prior to the hearing before me, Mr Kung submitted written amended statements of grounds of intended appeal in both cases, dated 2^nd November 2022, which he indicated were to supersede the statements earlier filed. His grounds of intended appeal may be summarised as follows.

7.1  The Deputy Adjudicator erred in holding that Beitov Properties Ltd v Elliston Martin [2012] L & TR 23, which dealt with the proper construction of s.47(1) of the Landlord and Tenant Act 1987 (which has no equivalent in Hong Kong), does not apply in Hong Kong.[1]

7.2  The Deputy Adjudicator erred in holding that Ms Tsao was not in anticipatory breach of s.119RA of the Landlord and Tenant (Consolidation) Ordinance (Cap.7) (“LTCO”) (which provides that a landlord should give his tenant a receipt for rent paid which contains, inter alia, the name and address of the landlord).[2]

7.3  The Deputy Adjudicator erred in failing to rule that Ms Tsao had no intention to enter into a contract on 25^th July 2021, and that this constituted a default.[3]

7.4  The Deputy Adjudicator erred in interpreting s.119L LTCO and the requirement on landlords to file Form CR-109 as being an administrative measure (and not relevant to whether a landlord has to provide an address when signing a tenancy agreement).[4]

7.5  The Deputy Adjudicator erred in holding that an address was not required for the FTA, contrary to the parties’ agreement that the landlord’s address was essential for the FTA.[5]

7.6  The Deputy Adjudicator erred in failing to rule on whether Ms Tsao’s email address was sufficient for the purpose of the FTA.[6]

7.7  The FTA was not enforceable without the landlord’s address.[7]

7.8  The Deputy Adjudicator erred in ruling that Cheong Shing did not have to disclose the name of the lawyer and his/her firm who advised Cheong Shing that the landlord’s address was not required in a tenancy agreement.[8]

7.9  The Deputy Adjudicator erred in ruling that Cheong Shing’s witness Ms Lam misreading of a sentence in a letter from the Estate Agents Authority (“the EAA”) when giving evidence was a careless mistake rather than a willful fabrication.[9]

7.10  The Deputy Adjudicator erred in interrupting Mr Kung in his cross examination of Ms Lam.[10]

7.11  The Deputy Adjudicator erred in applying inconsistent standards, applying the letter of the law in her Reasons but accepting mere oral testimony from Cheong Shing’s untrustworthy witnesses including Ms Lam.[11]

7.12  The Deputy Adjudicator erred in failing to have regard to the Estate Agents Ordinance (Cap.511) (“EAO”) together with the EAA’s circular 15-04 (“the EAA Circular”) and the PTA as a whole in determining whether Cheong Shing failed to provide the required level of service required by the EAA Circular, which failure resulted in monetary damage to Mr Kung in having his deposit forfeited by Ms Tsao.[12]

D.  THE CRITERIA FOR LEAVE

8.  Section 28(1) of the Small Claims Tribunal Ordinance (Cap.338), provides as follows:

“Any party who is aggrieved by a decision of the tribunal –

(a) on any ground involving a question of law alone; or

(b) on the ground that the claim was outside the jurisdiction of the tribunal,

may apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave if it thinks fit.”

9.  Leave will not be granted unless there is a reasonable prospect of success: Tse Kwok Wai v San Wui Commercial Society YMCA of Hong Kong Christian School [2022] HKCFI 3287 at [13].

E.  THE GROUNDS OF INTENDED APPEAL

E1.  Grounds relating to the landlord’s address

10.  It seems to me that all the grounds of appeal which relate in one way or the other to Ms Tsao’s failure to provide an address cannot have any prospect of success for the simple reason that there is an unchallenged finding of fact by the Deputy Adjudicator that Ms Tsao did, in fact, provide various addresses, including her work address: see Reasons paragraphs 33 to 36, 41. Mr Kung did not in fact deny that these were given at the time, but he refused to accept them.[13]

11.  Thus, as the Deputy Adjudicator observed, Ms Tsao did provide her address, irrespective of whether she had a legal obligation to do so.

12.  In the circumstances, it is not necessary to go further into the grounds of appeal relating to the landlord’s address, but for completeness, I will make the following observations as to why none of the grounds, in my view, has any prospect of success in any event.

13.  Beitov Properties. Beitov Properties Ltd v Elliston Martin was concerned with s.47 of the Landlord and Tenant Act 1987 of England and Wales. That section provides that where a written demand is given to a tenant, the demand must contain, inter alia, the name and address of the landlord. Beitov Properties Ltd is authority for the proposition that providing the address of the estate agent does not suffice. It does not assist Mr Kung in the present case since (a) as the Deputy Adjudicator observed, the provision has no equivalent in Hong Kong legislation, (b) it is apparent from Beitov that a work address would suffice, and this was provided by Ms Tsao in the present case.

14.  Section 119RA LTCO. Section 119RA LTCO did not form part of the PTA, so Ms Tsao was not in anticipatory breach of the PTA. Nor did it form part of the intended FTA, but in any event, Ms Tsao could not have been in anticipatory breach of the FTA, which was never concluded. There is no such doctrine as anticipatory breach of legislation, insofar as this is what Mr Kung seeks to argue.

15.  No intention to sign FTA. As to the complaint that Ms Tsao had no intention to sign the FTA on 25^th July 2021 and that she signed it only to avoid paying commission and returning the initial deposit to Mr Kung, I do not agree that this constitutes a “default” or breach of the FTA. The fact remains that she signed it but Mr Kung did not.

16.  Section 119L LTCO. Nothing in the wording of s.119L LTCO gives rise to an obligation on a landlord to provide an address in a tenancy agreement.

17.  Parties’ prior agreement that landlord’s address essential. Mr Kung complains that the Deputy Adjudicator wrongly “overturned” the agreement[14] between Ms Tsao and Mr Kung that the landlord’s address was essential for the FTA, and that they merely disagreed as to the form which the address should take. It seems to me that this is merely a matter of semantics. Clearly the parties were not in agreement that (for example) Ms Tsao should provide her residential address. There was no overturning of the parties’ agreement by the Deputy Adjudicator.

18.  Email address. It was not necessary for the Deputy Adjudicator to rule on whether Ms Tsao’s email address was sufficient for the purpose of the FTA, so it cannot be said that she erred in law in failing to do so. The Deputy Adjudicator had already found that Ms Tsao had provided a number of other physical addresses but that Mr Kung had rejected them.

19.  Enforceability of FTA in the absence of landlord’s address. Mr Kung argued that without an address for the landlord, his rights were not protected as the courts would not accept proceedings without the parties’ addresses. However, this has no bearing on whether the FTA is enforceable in the absence of the landlord’s address. In any event, Ms Tsao did provide addresses.

20.  Identity of lawyer and firm advising Cheong Shing as to landlord’s address. Mr Kung argued that Cheong Shing’s inability to name its lawyer led to the inference that no legal advice had been obtained. However, whether or not Cheong Shing acted on legal advice is not relevant to whether Ms Tsao had an obligation to provide her address.

E2.  Grounds relating to Cheong Shing’s duties

21.  Taking EAO, EAA Circular, PTA “as a whole”. The principal complaint in this series of grounds seems to be the one appearing in Statement 36, so I will address this first. It is said that the Deputy Adjudicator erred in not taking the EAO, EAA Circular and the PTA together “as a whole”. In particular, Mr Kung says that Ms Lam admitted that she had failed to follow various clauses in the EAA Circular, which meant that Cheong Shing had failed to deliver the standard of service required by the circular and the PTA.

22.  The Deputy Adjudicator explained in detail her reasons for concluding that there was no breach of the EAA Circular in relation to clauses 2, 4, and 8 (which all related to the issue of the absence of the landlord’s address).[15] She reasoned that since clause 8 of the circular anticipated and provided for the situation in which a landlord might be unwilling to provide an address, the circular did not place a mandatory requirement on estate agents to obtain the address of the address. Mr Kung has not identified any error of law in this regard.

23.  Before the Deputy Adjudicator, Mr Kung also relied on clause 5 of the EAA Circular, which provided that in the event that a party wished to amend the terms of a tenancy agreement signed by the other party, the estate agent had first to obtain the consent of the (affected) party. Mr Kung said that he did not consent to the handwritten terms added into the draft FTA.[16] The Deputy Adjudicator explained that she considered that clause 5 of the EAA Circular did not apply as it only applies to the situation where the tenancy agreement has already been executed.[17] Mr Kung has not identified any error of law in this regard.

24.  Mr Kung also relied on clause 6 of the EAA Circular, which provided that a tenancy agreement should constitute the entire agreement between the parties and that there should not be side documents setting out terms which conceal the true terms. The undisputed evidence was that there was a side arrangement between Mr Kung and Cheong Shing that the commission to be paid by Mr Kung was to be $10,000 rather than the $13,500 stated in the PTA. The Deputy Adjudicator found it unnecessary to rule as to whether Cheong Shing was in breach of clause 6 of the EAA Circular, given that the arrangement benefitted Mr Kung rather than causing him any loss.[18] Mr Kung has not identified any error of law in this regard.

25.  As Mr Kung has not identified any error of law with regard to the Deputy Adjudicator’s analysis of the provisions of the EAA Circular, it cannot be the case that an error of law would arise by virtue of taking the circular with the EAO and the PTA “as a whole”.

26.  Mistake in reading EAA letter out loud. Ms Lam read the word “不” in a letter from the EAA (in a sentence relating to whether the complaint being investigated by the EAA was the same as the proceedings in the Small Claims Tribunal), but the Deputy Adjudicator noted upon reading the letter for herself that there was no “不” in the sentence in question. Upon Mr Kung’s exclamation that the witness was lying, the Deputy Adjudicator expressed the view that it was simply a case of misreading. Even if it could be said that Mr Kung made a submission to the Deputy Adjudicator to find that Ms Lam was not an honest witness, the assessment of credibility was a matter for the Deputy Adjudicator, and I have not been able to find any basis to say that there was an error of law. In any event, no submissions have been made as to how this incident would have affected the outcome of the case.

27.  Interruption of cross examination. Mr Kung complained that when he sought to ask Ms Lam for her opinion (as an estate agent) as to whether Ms Tsao had performed the terms of the FTA by simply signing the FTA, he was interrupted by the Deputy Adjudicator. However, what Ms Lam’s opinion may have been as to whether Ms Tsao was in breach of contract was not a matter of fact as to which a witness of fact could have properly testified.

28.  Accepting oral testimony of Cheong Shing’s witnesses. It was for the Deputy Adjudicator to assess the credibility of the witnesses. Mr Kung has not identified any error of law on the part of the Deputy Adjudicator in accepting the evidence of the defendants’ witnesses.

F.  DISPOSITION

29.  For the reasons set out above, there is no merit in the intended grounds of appeal. Accordingly, I dismiss the applications for leave to appeal, and make no order as to costs.