UNITED CO v. GURUNG SHYAM PRASAD

LDPD 689/2025

[2025] HKLdT 76

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPD 689 OF 2025

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BETWEEN

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J U D G M E N T

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1.  This is an application by United Company. (“United”) agent of the landlord owner Yu Shu Kuen Denis (“Mr Yue”, “Landlord”) of the suit premises 2/F, No. 318 Nathan Road, Yau Ma Tei, Kowloon, Hong Kong (“Property”) to recover arrears of rent and vacant possession from the tenant Gurung Shyam Prasad (“Respondent”).

2.  United was represented by Ng Long Chi (“Madam Ng”) as duly authorised representative of the Landlord. The Respondent is a Nepalese man who appeared in person with the assistance of a Nepali/English interpreter.

Notice of Application

3.  The Form 22 Notice of Application dated 23 May 2025 (“NOA”) particulars include:

(1) Duration of tenancy: From 1/12/2023 to 30/11/2025.

(2) Existing rent: $12,000 / month.

(3) Application for recovery of possession of the suit premises and rent as the Respondent has failed to pay rent from 1 October 2024 and an application for mesne profits to the date of delivery of vacant possession of the suit premises and costs.

(4) Other grounds: The Respondent did not pay $7,000 for 12 September 2024 to 30 September 2024 rental.

4.  The NOA is signed by Hui Kwok Sum (“Mr Hui”), as the authorised representative, with the United chop. Mr Hui signed the Statement of Truth.

Notice of Opposition

5.  The Respondent’s Form 7 Notice of Opposition dated 28 May 2025 (“NOO”) particulars include:

(1) Rent Payment History: I have been living at the same address for 13 years and have never been late with the rent payments before. Current rent issue: My son mistakenly deposited the rent in the old account, to which the Landlord/agency did not respond. I along with the Landlord/agency enquired with the DBS Bank however, they did not respond. My case is currently under investigation by the police.

Tenancy Agreements

6.  The Respondent had lived in the Property for approximately 13 years. Two Tenancy Agreements were adduced:

(1) Tenancy Agreement dated 26 November 2020 for a term of two years from 1 December 2020 to 30 November 2022.The monthly rent was $11,000 (inclusive of rates) (“2020 TA”).

(2) Tenancy Agreement dated 28 November 2023 for a term of two years from 1 December 2023 to 30 November 2025. The monthly rent was $12,000 (inclusive of rates) (“2023 TA”). Under Remarks it provides that “Tenant shall pay monthly rent to landlords A/C No DBS 016- ************, Wan Siew Moi & Yu Shu Dennis” (“Landlord’s Account”).

March 2023 Notice

7.  By letter dated 30 March 2023 to “The Tenant” from “Hui Kwok Sum, United Company” tenants were informed that Mr Yu, the owner of the property had appointed them as his property agency “replacing Mr Cheung”. The Tenant was welcome to contact them at any time by calling Mr Hui’s mobile number 922***** or Miss Ng’s at 977***** (“March 2023 Notice”). The Respondent received the March 2023 Notice. It expressly provides for payment to the Landlord’s Account as follows:

“Start from April 01 2023, please pay your month rental on time on your landlord’s bank account directly:

Name of bank: DBS (Hong Kong) Limited

Bank Account Number: 016-********

Name of account holder: Wan Siew Moi & Yu Shu Dennis”

Rental Schedule

8.  The Applicant set out particulars of rental payments in a schedule of payments from 1 April 2023 to 30 June 2025 (“Rental Schedule”) as attachment (3), pages 9 and 10 of 11, of Madam Ng’s Witness Statement. The Rental Schedule lists all payments made to the Landlord’s Account at DBS Bank. On the date of a payment the sum paid is credited first to the longest outstanding arrears, not to the month the payment was made. The Total Rent (April 1 2023 – July 31 2025) due was $328,000. The Rental Schedule concludes “The tenant deposits the monthly rent directly into landlord’s DBS bank account. As of July 2025, a total of $213,000 in rent has been paid, with an outstanding balance of $115,000 yet to be settled”.

9.  Madam Ng confirmed that the Respondent made a payment of $12,000 on 7 July 2025. Therefore, the total arrears was then $103,000.

Witnesses

Ng Long Chi

10.  Madam Ng gave evidence for the Applicant. Her witness statement dated 10 October 2025 stood as evidence-in-chief and states:

(1) She with United representative Mr Hui were entrusted by the Property owner, Mr Yue, on 16 March 2023 exclusively to handle rental and tenancy matters for the Property concerning the Respondent from 1 April 2023. Mr Yu, terminated the services of the previous agent, Kingsway Professional Management Limited (“Kingsway”) before 1 April, 2023.

(2) She and Mr Hui met the Respondent before 30 March 2023. The Respondent was notified not to pay rent to Kingsway. He was told to deposit the monthly rent directly into the joint bank account of Mr Yu and his wife Wan Siew Moi (“Madam Wan”). The bank account details of the Landlord’s Account were provide, namely DBS account number 016************ with account holders Mr Yu and Madam Wan. They gave the Respondent the written March 2023 Notice, signed by Mr Hui.

(3) The Respondent’s explanation is that the payments were mistakenly deposited into the account of the previous agent, Kingsway (“Kingsway Account”). Neither Madam Ng, nor Mr Hui, knew or had any connection with the representatives of, nor had any dealings with Kingsway.

(4) On 28 November 2023, a new tenancy was entered with the Respondent. The rent was adjusted from $11,000 to $12,000 per month, to be paid directly into the Landlord’s Account. The 2023 TA was in both Chinese and English and contained no incorrect bank account information.

(5) The outstanding rent was $115,000, as at July 2025,. The particulars of rental payments from 1 April 2023 to 30 June 2025 were set out in the Rental Schedule.

11.  Madam Ng confirmed that the Respondent made a payment of $12,000 on 7 July 2025. Therefore, the total arrears was then $103,000.

12.  The Respondent put to her that he had paid every month for over 10 years to the estate agent and that he had been paying rent up to date. Previously, when he paid the other agent there was no need to send the slip or receipt confirming payment. When Madam Ng came they had to send the slip or receipt. They sent WhatsApp messages attaching all the Customer Advice payment slips showing that rent had been deposited every month, either by Niraj or his sister (“receipts”). Madam Ng agreed that for all payments made the Respondent had sent photographs of the receipt by WhatsApp to Mr Hui. But the only account number on the 2023 TA was the Landlord’s Account. The Respondent accepted that was the account number, but Mr Hui and Madam Ng should have checked. Madam Ng replied that it was not possible because the payment was made direct to the Landlord. The Landlord was elderly, aged 93 and lived in the UK.

13.  Although the Respondent had sent them a picture of the Payment Advice by WhatsApp each month, Madam Ng claimed they had no way to verify if payment was made or not. He suggested that the agent Mr Hui and Madam Ng should cross check, if the first month a mistake, thereafter the agent should inform the Respondent, and asked her “wouldn’t that have been possible?” Madam Ng said that the first payment was 1 April 2023. That payment was made direct to the Landlord.  The 1 April 2023 payment  amount and the account number was checked, and the money was paid into the correct account, the Landlord’s Account. The Respondent agreed that the first payment was made by his daughter correctly. It was the son who paid into the wrong account. From then on it was zig-zag between them. His daughter was correct, his son made the mistake. Madam Ng said it was nothing to do with the Landlord. They made payment direct to the Landlord not to Mr Hui, Madam Ng or Unity. 

14.  The Respondent’s point was that if the money had gone to the wrong account then they could have informed him, as the agent they have to notify him.  Madam Ng disagreed as this is his problem.

15.  In November 2024 the Landlord was notified by DBS Bank that the money in the account was insufficient to make a tax payment. So the Landlord checked with DBS Bank in January 2025.  He returned to Hong Kong in April 2025 and this was discovered.

16.  The Respondent, Mr Hui and Madam Ng went together to the DBS Bank Jordan branch and then the DBS Bank headquarters. Madam Ng said they accompanied the Respondent to DBS Bank on 19 February 2025 to assist addressing the issue of him mistakenly transferring rent to the previous agent, Kingsway. However, DBS Bank did not provide any response afterwards. Subsequently they went to Tsim Sha Tsui Police Station (“Police Station”) to seek assistance.

17.  When the Landlord returned to Hong Kong in April 2025 these amounts could not be checked. The Respondent said the money had been paid, but the Landlord could not trace such amounts at DBS Bank. Madam Ng clarified that the landlady only went to the Police Station with them on 23 March 2025, not to DBS Bank. The police said it was nothing to do with the Landlord. It was the problem to be faced by the tenant. The police said that the tenant had the right to make money transfer to A or B. The 2023 TA account stated the Landlord’s Account. The police said that since the tenant had mistakenly deposited the funds into the wrong account, the incident was not directly related to the Property owner. They would not accept the Landlord’s report or take the case lodged by the agent. The police advised seeking assistance from the Lands Tribunal.

18.  Madam Ng agreed all the documents provided to DBS Bank branch, and Headquarters, and to the Police Station, were produced by her. She did so because the Respondent does not understand Chinese. She was there to have them translated. All occasions they visited DBS Bank it was because he did not know how to go there to handle the case and the funds.

19.  On the first occasion they went to the Police Station the old agent, Mr Cheung’s account number given to the police was incorrect. The wrong Kingsway DBS Bank account number given was 016463631026451. The Kingsway Account, DBS Bank number 915006493 should have been given. She agreed that Mr Cheung is the old agent.

20.  Madam Ng denied that she gave the police the wrong account number for Kingsway. She did not know who gave them the wrong account number.  While Madam Ng agreed that she provided all the documents in the Police Station and DBS Bank, the materials were provided by the tenant. The Landlord was unable to verify the amount so they resorted to assist and Mr Hui asked the Respondent for the payment receipts. Madam Ng agreed that she had written Exhibit R1, which is her account of all payments, updated. She provided the then current particulars to the police. She variously claimed that she was just there to assist in jotting down the amount due, also balance all these figures and to have the materials translated into Chinese. She was just accompanying the Respondent to the Police Station out of good will and because he did not understand Chinese, she was there to assist him understand the conversation. 

21.  The Respondent questioned for whom did she go to give translation, because the bank staff and the police spoke English? She agreed that was so and that the other 2 people spoke English. Mr Hui spoke English well. As did the landlady, Madam Wan because she was from Malaysia.

22.  She was not familiar with the agreement with the previous agent. She does not know, had not met and has no information on Mr Cheung.  

23.  Madam Ng is a friend of the Landlord, not an estate agent of Unity, but confirmed that all the questions should be directed to her and no one else. The March 2023 Notice given to the Respondent did contain her telephone number. Exhibit R1 was furnished by Madam Ng.

24.  Police officers were told by DBS Bank that the first account number of Mr Cheung given was incorrect. The Respondent explained that since the first police report Kingsway account number was wrong, the investigation stopped. It was corrected on 16 June 2025. All that time the wrong account number was given or a typo. Madam Ng had no idea because it was provided by the Respondent to her. The Respondent denied he provided the wrong account number, it was in the screenshot sent via WhatsApp. She did not provide the incorrect account number of Mr Cheung. She only provided the police with the Landlord’s Account. 

25.  Madam Ng agreed that the police investigation is still on going. The case has not stopped, but the police said it was nothing to do with the Landlord or her, so she could do nothing else. Any money recovered would go to the Respondent, not to the Landlord.

Gurung Niraj

26.  The Respondent called one witness, his son Gurung Niraj (“Niraj”). He confirmed the content of the NOO and the truth of his witness statement dated 23 July 2025, that stood as his evidence-in-chief. He was cross-examined by Madam Ng.

27.  Niraj gave evidence, inter alia, that he is the adult son of the Respondent. His father had been living in the Property for 13 or 14 years. Niraj and his sister pay the rent of the Property. The arrangement was that they would pay the rental sum on alternative months. Either he or his sister would deposit the month’s rent of $11,000, and from November 2024 $12,000 per month, into an account for the Landlord.

28.  Under the tenancy agreements, until April 2023, the rent had to be paid into the account of the agent, namely the Kingsway Account. Thereafter, the rent was supposed to be paid into the Landlord’s Account.

29.  On 1 April 2023 the Kingsway agent contract expired. It was taken over by a new agent, Mr Hui and Union. Niraj accepted that the new agent told his father from then onwards he needed to pay to the changed account number, although the message between the father and others did not reach him. At the time there was a miscommunication. He did not know about it. When it was his turn to pay rent he just paid it into the old agent Kingsway’s Account. At that time they were told to pay on the 10^th of the month. The rent was $11,000 per month until 28 November 2023 when the new agent changed it to $12,000 per month.

30.  His sister paid the April 2023 rent into the Landlord’s Account. Niraj was unaware of the change of account. So from 9 May 2023, when it was his turn to pay the rent, he continued mistakenly to pay the month’s rent into the Kingsway Account. The mistake started in May 2023. His sister paid the month of June to the Landlord’s Account. July was his turn, so he put it in to the old agent’s account.

31.  The March 2023 Notice, sent through WhatsApp, told the Respondent to send them a receipt. At that time they did send the receipt. They sent Mr Hui proof of payment each month as requested via WhatsApp, attaching all the Customer Advice payment slips showing that rent had been deposited every month, either by Niraj or his sister, namely the receipts. They sent the receipts every month, including for the months which the Applicant says rent is outstanding. Madam Ng agreed that the WhatsApp receipts had been sent to Mr Hui of United, who is the person named to contact at the telephone number 922**** in the March 2023 Notice.

32.  The Customer Advice slips showed that his sister was depositing the rent into an account with “RECIPIENT NAME: WAN S***M** & Y*S**K***D”, from her account 773******. Whereas, the Customer Advice payment slips show that “KINGSWAY P*******M**L**” was the recipient of Niraj’s deposits from his account 915******.

33.  Niraj accepts that the wrong account number was not provided by United. Madam Ng said it is not their fault that his father did not give him the right account number.  Niraj said:

“I agree to what you just said. I just put the money into the old agent account. This Kingsway person has been with the landlord for the past 10 years, so must be known to him. I do take responsibility. I made a mistake. In the beginning, I agree. Put it this way. 1st month was my mistake, I agree. But then going on for a year or so. Then you informed us. I am perplexed. You are the agent. You could have informed us. It has been going on for a year. Just say ‘Where is the money?’ With that payment we also sent receipt to you through WhatsApp.”

34.  There was a miscommunication within his family. Niraj accepts they made a mistake, but they did inform United of the payments. It was also United’s responsibility to tell the Respondent what is going on. After payments the receipts were sent. They could have checked the account number. He said “I would like you to put yourself in my position. After a year you come up with $103,000 arrears. Even you would be surprised.”

35.  He continued, they are the agent, they are supposed to know which account money was coming in to and which it was not. That’s their job. They did not check on line and now say it nothing to do with them. Niraj was not saying “we will not return it to you … if the Bank and police investigation return the money.” Niraj agreed that the first, or one or two times, they made a mistake, but it went on for a long time. They are the agent and also need to take a part of it. The Respondent got the house through an agent working for the Landlord, there should be responsibility on their side. Not all of the mistake was by his family.

36.  In April 2023 payment was made into the Landlord’s Account, Madam Ng did check against the account number and found it correct. They had no idea about the one thereafter.

37.  The Landlord returned to the UK. He was in his 90s and did not know how to check accounts on line. They were unable to check it. Niraj asked if she meant that the agent’s work is limited to one month checking and then finished? 2 years they had done nothing.

38.  Niraj said the agent should take responsibility and follow up on this matter. She could have helped, informed them, because that is the work of the agent. They got the house through the agent, the Landlord was not there, everything was through the agent so it is between her and them.

39.  Madam Ng countered that on 17 March 2023 the Landlord returned and meet the tenants all over the building, because he owns the entire building. The Respondent was not in Hong Kong. The Landlord did meet Niraj’s sister.  Niraj accepted that may be so.

40.  Niraj admits that he was wrong in the beginning but all the while they were the agent. Niraj asked if she was appearing as the agent, does she have the right to say they have nothing to do with it?  United did the renewal agreement. Madam Ng clarified that she did not mean nothing to do with the case. She was authorised by the Landlord to handle all the matters relating to the Property.

41.  Niraj questioned who is at fault, because Mr Hui required they send payment information via WhatsApp. They sent the receipts that showed payment to the wrong account. Niraj’s witness statement states the months that payment wrongly went to the old agent. Right away when they knew it was wrong, they need to let the Respondent know. Madam Ng checked April 2023 and then 2025 January. Niraj asked who takes responsibility for such a long period? The Landlord did not check. The Agent did not check. Who is going to help them? From 2023 the Respondent sent Mr Hui the Customer Advice payment slips of rental payment. They saw the receipts and did not find anything wrong with that account name or number? Then in January 2025 they say all the money went to the wrong account. They could have informed the Respondent. She said it was all because in January a tax payment had to be made and the Landlord discovered the account was short of funds. He thought it odd, prompting him to make an investigation. The Landlord found out and told the Respondent, but it was too late. The Respondent answered their questions and sent the receipts as sought. They checked, informed the Respondent, then reported it. Madam Ng prepared a document, which she gave to the police stating which months were then outstanding.

42.  From 8 February 2025 all monthly rent was paid into the correct account of Mr Yu, namely the Landlord’s Account.

43.  The outstanding payments to the Landlord are those mistakenly paid to the Kingsway Account. The actual months where rental was not paid to the Landlord’s Account were 9/5, 8/7, 10/9 and 11/9/2023, 16/1, 10/7, 13/9 and 13/11/2024 and 12/1/2025.

44.  Madam Ng said first, when the Landlord came back to Hong Kong he attempted to contact Mr Cheung, but in vain so resorted to contact the agent Mr Hui to ask for rent to be recovered.

45.  DBS Bank could not assist. Niraj attached an email to the Respondent from Eunice Hui of DBS Bank. She was sorry for his loss, they had reported to the related department, the money was already deposited to “Kingsway”, they had tried to seek the company account side to assist to no avail, they could not interfere with their customer’s a/c through 3^rd party information. If the police contact DBS Bank they would provide investigation assistance to the police.

46.  Madam Ng said that the entire building belongs to the Landlord. They were just to check one property. They do not take part in collecting rents for the rest of the units. They have to cooperate with the Respondent going to the Police Station. The landlady, Madam Wan accompanied the Respondent to report the case at the Police Station. There was no mistake made to the Landlord’s Account number on the documents and the police did not take up the case lodged by the Landlord. The Landlord was just hoping to collect the rent from them. Now it is his turn to chase after the person he wrongly paid.  Niraj said that this is already under investigation by the police.

47.  The Police Statement/Report made by the Respondent on 11 March 2025 at the Police Station, is attached to his Witness Statement. The Police Statement, paragraph 3 shows the Kingsway DBS Bank account number as 016463631026451. Whereas the Kingsway Account number 915006493 should have been given. The police were given the wrong account number so could not investigate. They did call DBS Bank but were told that the account number did not exist. Madam Ng asked if no such account how did he make payment? Niraj made it clear he was referring to the Police Statement that stated the wrong account number.

48.  Madam Ng said that it was the Respondent who provided the statement to DBS Bank and the police. She was there to do the translation for him. Niraj disputed that. His father could speak English. She claimed all the answers were provided by the Respondent.  The Respondent claims that she did all the speaking in the Police Station. Niraj fairly said that he was not there, but his father had said that he did not give the wrong account number. The police investigation could not go forward because a wrong Kingsway DBS Bank account number was given to the police.

49.  On 16 July 2025 Niraj went to the Police Station and corrected the Kingsway account number. Then his mother informed Madam Ng. Madam Ng agreed she was informed, but this has nothing to do with her. Niraj said that they have to update her.

50.  Madam Ng said the police told them if they get the money the sum recovered would be deposited into Niraj’s account, as he deposited it.  Niraj replied, but that money has not yet come.  If money is given to their account they would of course give it to the Landlord. Madam Ng replied even if the money is not recovered he still has to make payment of rental. He made payment into the wrong account. They ask the tenant to pay the arrears. If the account holder to which the payment incorrectly made could be located they may be able to offer assistance.

51.  Niraj was questioned on Madam Ng’s Rental Schedule. He pointed out that payments were made some months that say “pending”. His witness statement shows his record of the period of 2023 to 2024 with the months not paid because it went to the wrong account, but the Rental Schedule says it is all paid. The Rental Schedule, page 10/11 is not correct.   November 1-30 2024 “pending” is correct, that does not contradict his statement. They paid December 2024 and they have a receipt. He agreed that January 1 to 31 2025 was “pending”, but onwards from February, March 2025 payments were made to the correct account number, the new account, but they wrote “pending” on the Rental Schedule. From February all payments were made in to the correct account. He produced the photograph shots of the receipts, stating the months where paid to the correct account. So he was confused by their allegation. They told the Applicant that Madam Ng’s witness statement page 10/11 Rental Schedule was not correct. 

52.  April 2023 was paid to the right account when his sister paid. 9 May 2023 his turn, paid to old agent’s account. The payment slip says “Kingsway”, who is the old agent. Madam Ng explained that the month April 2023 rent $11,000 paid. The Rental Schedule records May payment was made on 9 June. She attributed payments to the earlier month’s arrears, not the month actually paid. Niraj had not know they had done it that way. He considered her Rental Schedule very confusing. She said the payments made were for prior unpaid months. The Respondent is not to make payments on alternate months. He has to make continuous payments and these arrears have to be paid.

53.  The sum the Respondent had not paid from 1 December 2024 to 30 July 2025 was $96,000, plus $7,000 arrears from 2023. The total is $103,000. Niraj confirmed the figure was correct. Madam Ng asked the Respondent to make payment. It seems that the Respondent may find it difficult, because such a large sum of money, so they allow the Respondent to make payment by installments, if they continue to stay in the flat. She proposed monthly installments of $30,000, on top of paying the existing rent each month.  He could not do that. If they recover from the police then they must make full payment to the Landlord.

Assessment of evidence

54.  I have considered all of the evidence, including that given by each witness, both written and oral. The principles applicable in accessing witness evidence are well settled and set out in Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at §53. In assessing the credibility of a party's case on a particular issue, I have regard to the following principles:-

(1) Whether the party's case is inherently plausible or implausible;

(2) Whether the party's case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, this is relevant to the assessment of his overall credibility; and

(4) The demeanour of the witnesses.

55.  Madam Ng was determined to deflect any blame whatsoever from herself and Unity. She is a friend of the Landlord and had a personal interest in achieving a favourable outcome. Madam Ng gave contradictory accounts of her reason for and role in attending DBS Bank and the Police Station with the Respondent. There was no satisfactory explanation as to why Mr Hui did not give evidence. Otherwise, overall I did not find Madam Ng to be dishonest. Subject to matters specifically found to the contrary, I accept her evidence.

56.  Niraj gave evidence in a straight forward manner. He frankly admitted his own mistake. He did not try to shrink from his responsibility. He did not accuse Madam Ng or United of failings unduly or make allegations absent evidence. He genuinely questioned whether, and if so, what responsibility they should bear on the basis of the undisputed facts. The Respondent’s case is inherently plausible. Niraj’s evidence was consistent internally and with the documentary and indisputable evidence. It was not undermined by cross-examination, nor was he discredited. I found Niraj to be an honest witness. I accept his evidence.

Discussion

57.  There are few factual disputes. I find the facts as set out above, subject to the matters found below.

58.  Why the Kingsway Account number recorded by the police was incorrect is in issue. The Police Report/Statement of the Respondent dated 11 March 2025 provided information that broadly accords with the evidence given here. The Respondent stated that the rental was deposited into the previous property agent Mr Cheung’s company Kingsway. The Kingsway DBS Bank account number was wrongly recorded as 016463631026451. The Kingsway Account, that rental payments had been paid into, was actually DBS Bank account number 915006493. Unfortunately, the investigation was unable to proceed timeously because of that error. Who provided the incorrect account number is disputed. I find that Madam Ng provided documents to the police, including the then current particulars in terms of Exhibit R1. The Respondent provided his own statement. That statement recorded the incorrect account number. Even if the number was correctly provided, but mistakenly recorded, the error was not spotted before he signed his statement. However, it makes no difference at all to the present proceedings and determination. The Kingsway Account number was corrected on 16 July 2025. The police were then able to investigate with the correct account number. The investigation was still ongoing at the date of trial.

59.  The Respondent had been living at the Property for over a decade. The agent company had been Kingsway. The individual agent was a Mr Cheung. The Respondent was required by his tenancy agreements, the Landlord and the agent Kingsway, to pay the monthly rental into the Kingsway Account at DBS Bank. The Respondent had done so. At the material time the Respondent’s son and daughter were responsible for paying the rent for the Property, on alternative months. Until March 2023 the rent had been paid into the Kingsway Account without incident. In March 2023 the Landlord changed agent. He no longer engaged Kingsway. Unity was appointed in its place. The individuals responsible were Mr Hui, of Unity and Madam Ng, a friend of the Landlord.

60.  In March 2023 the Landlord visited the Property and met with the Respondent’s daughter. The Respondent was also informed of the change in writing by the March 2023 Notice. That is a letter dated 30 March 2023 from Mr Hui of United informing the tenants, including the Respondent, that the owner Mr Yu had appointed them as his property agency “replacing Mr Cheung”. Tenants were welcome to call Mr Hui’s or Miss Ng’s mobile numbers, which were provided. The March 2023 Notice expressly provides that “Start from April 01 2023” pay monthly rental to the Landlord’s Account directly, giving the particulars.

61.  I find that the Respondent knew that the rent had to be paid into the Landlord’s Account from April 2023. The daughter actually made the April 2023 payment into the Landlord’s Account. Unfortunately, the son, Niraj did not know of the change of account, so when it was his turn to pay the monthly rent for May 2023, he still made payment into the Kingsway Account. Thereafter, when it was his turn he continued to pay the rent into the Kingsway Account, until 2025. He agreed the total sum wrongly paid into the Kingsway account.

62.  The Rental Schedule was confusing to the Respondent and Niraj because it did not explain that when payments were made they were first credited to the longest outstanding arrears, not to the month in which the payment was made, as intended by the Respondent. Once this was explained the amount due was accepted as correct. The sum of arrears claimed at the date of the hearing was $103,000. Niraj admitted, and I find, that the arrears at that time were $103,000.

63.  The defence the Respondent sought to raise to payment of arrears was as to the apportionment of blame. While the Respondent, and Niraj personally, took responsibility for their mistake, they believed that the agent Unity should also bear some responsibility. Every month the Respondent had sent via WhatsApp to Mr Hui proof of payment, being a photograph of the Customer Advice deposit payment slip. They show either that the payment was made to:

(1) “RECIPIENT NAME: WAN S***M** & Y*S**K***D*****”; or

(2) “RECIPIENT NAME: KINGSWAY P*******M**L**”.

64.  I find that the Customer Advice payment slips clearly show that the material payments were made to Kingsway, not to Mr Yue and Madam Wan. The Respondent’s point is that Unity is the agent, who was provided with the necessary information and could have checked and informed the Respondent that the payment was made to the wrong account. This was obvious, simply by looking at the Customer Advice slips, and also when payment was not received by the Landlord. Niraj questioned why it took so long to tell them, when the agent could simply have just said “Where is the money?” It should not have taken more than a year for them to notify the Respondent that payment had not been received.

65.  In my view Mr Hui should have seen that the Customer Advice payment slips state the wrong name on each occasion he was sent the WhatsApp of the deposits made by the son, Niraj. The agent has failed to spot a glaringly obvious error. It would appear that Unity has failed to perform this basic check of simply looking at the WhatsApp messages. The terms of the agency agreement between the Landlord and Unity are unknown. Any recourse the Landlord may have against the agent Unity for breach of duty is not a matter before the Tribunal.

66.  Both the Respondent and the Landlord are victims of a dishonest agent or individual. Whether this was an opportunistic act of dishonesty, a failure to alert the Respondent and/or Landlord that the payments to which they were not entitled were received, and refusal to return the payments to the Respondent, or transmit them to the Landlord is not a matter for determination here. The evidence did not address the Landlord’s reasons for terminating the agency agreement with Kingsway and/or Mr Cheung and whether Kingsway issues are isolated to the Respondent. If Mr Cheung is located the Landlord and Madam Ng are willing to assist the police with further information. Be that as it may, at time of trial no sum had been recovered from Kingsway or Mr Cheung.

Determination

67.  The issue raised by the Respondent is whether Unity should bear some responsibility? The question is whether the loss lies where it falls? The Respondent has not established that he was owed any duty by Unity such that he would be entitled to apportion liability or hold Unity responsible for any part of the arrears of rent.

68.  I find both on the facts and as a matter of law, the loss must be borne by the Respondent. The 2020 TA, clause 3 provides that the tenant shall pay rent monthly to the Landlord during the term without any deductions. The 2023 TA, clause 1 provides that the tenant shall pay to the Landlord the rent each and every calendar month during the term. If the tenant shall fail to pay the Landlord shall have the right, inter alia, to institute an action and recover the rent. The Respondent was bound to pay monthly rent to the Landlord. He was duly notified by the March 2023 Notice and the 2023 TA that the rent must be paid into the Landlord’s Account. For the material months it was not. The reason was a mistake caused by a failure to communicate the changed account number and holder to his son. This mistake was exploited by a dishonest third party, who has retained the mistakenly paid sums and disappeared. If, and when, the police are able to locate Mr Cheung and if any sum were to be recovered, it would be returned to the payor, Niraj. In the meantime the Respondent must pay the arrears of rent of $103,000.

69.  The Landlord was well aware that the arrears may be a large sum for the Respondent and was amenable to payment being made over time. Notwithstanding this decision and the Judgment, the Landlord may still consider an installment plan for repayment of arrears that is manageable for the Respondent. Given the circumstances, where both the Landlord and the tenant are the victims of the dishonestly of the Landlord’s former agent, and the failure of the Landlord’s current agent to spot an obvious mistake, it is certainly hoped that the parties may be able to come to an arrangement that is acceptable to them both. The Respondent is a long standing tenant. The 2023 TA term would expire in November 2025. It is not known whether they have entered into another tenancy agreement.

Order

70.  I make the following order:

(1) The Respondent do deliver vacant possession of the suit premises known as “2/F NO 318 NATHAN ROAD YAU MA TEI KOWLOON” to the Applicant.

(2) The Respondent do pay the Applicant arrears of rent/mesne profits as follows:

(a) Balance of arrears of rent from 1 November 2024 to 31 July 2025 in the sum of HK$103,000.

(b) Arrears of rent/mesne profits at the rate of HK$12,000.00 per month from 1 August 2025 until delivery up of vacant possession.

Costs

71.  The costs shall follow the event. I make a costs order nisi that the Respondent do pay the Applicant the costs of this Application, which are summarily assessed at HK$1,200.00. Either party may apply to the Tribunal within 14 days hereof to vary the nisi order, failing which it shall be made absolute.