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CACV000023/1986
| IN THE COURT OF APPEAL |
1986, No.23 |
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(Civil) |
BETWEEN
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CHU CHI CHEONG |
Appellant
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and
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FUND KONG |
1st Respondent |
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HO CHE KIN |
2nd Respondent |
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SIU MEI HUNG |
3rd Respondent |
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WONG KWOK CHUNG |
4st Respondent |
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___________________ |
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Coram: Sir Alan Huggins, V.-P., Fuad & Kempster, JJ.A.
Date of Hearing: 9th May 1986
Date of Judgment: 9th May 1986
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JUDGMENT
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Sir Alan Huggins, V.-P.:
1. This is an appeal against the dismissal of an application for possession of premises under s.53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance or the ground that the Landlord required the premises for occupation as a residence for himself.
2. There was no real dispute below as to the requirement of the premises by the Landlord: the only issue was in relation to the first proviso to that sub-section, which says: -
"Provided that the Tribunal shall not make an order by reason only that the circumstances of the case fall within this paragraph if - (i) in the case of a tenancy the tenant satisfies the Tribunal that in all the circumstances of the case it would manifestly not be just and equitable to do so."
His Honour Judge Downey, sitting as Presiding Officer, came to the conclusion that it would be manifestly unjust.
3. It has been held that it is entirely a matter for the Presiding Officer to decide whether or not there is manifest injustice, and provided that he does not consider anything which he should not have considered or some other error can be pointed to, it is not for this court to substitute its assessment of the injustice which may result. We have listened to the arguments which have been advanced and I take the view that nothing has been shown to have been considered which ought not to have been considered or that the judge came to his decision upon any wrong basis. This is not a case where he has erroneously made a mere balance of the hardship to the Tenant and the Landlord. He has applied the right test - that there must be a manifest injustice - and he found upon a consideration of all the circumstances that the result of an order for possession would be "calamitous" to the Tenant. I think he was entitled to come to that conclusion and I would dismiss this appeal.
Fuad, J.A.:
4. I agree, for I do not think that this is a case in which this court would be entitled to interfere with the decision made by the Presiding Officer.
Kempster, J.A. :
5. I, too, agree and have nothing to add.
9th May 1986
Representation:
Miss J. Pinto for Appellant.
Miss H.C. Wong for 1st Respondent
2nd, 3rd and 4th Respondents not appearing
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