CHEUNG KA HING v. HOO TWAN TJIU

[English Translation — 英譯本]
HCMP 1582/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1582 OF 2014

(ON AN INTENDED APPEAL FROM LDPD 81 OF 2014)

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JUDGMENT

Hon Chu JA (giving the judgment of the Court):

1.  The respondent Mr Hoo Twan Tjiu applies for leave to appeal to the Court of Appeal against the decision made by Deputy Judge Tracy Chan of the Lands Tribunal (“the trial judge”) on 3 April 2014.

LDPD 81/2014

2.  The applicant Mr Cheung Ka Hing was the manager of an association called Cheung Kwan Tai Ui（張關帝會）, which was the registered owner of Lot No. 1332 in Demarcation District No. 119 in the New Territories (“the suit premises”).

3.  The applicant and the respondent entered into a tenancy agreement on 1 November [sic] 2011, whereby the suit premises were let to the respondent.  The term of the tenancy commenced on 1 January 2011 and expired on 31 December 2013.

4.  On 8 January 2014 the applicant took out a Notice of Application at the Lands Tribunal, in which he stated that the said tenancy agreement had expired and applied for an order that the respondent was to deliver up vacant possession and to pay mesne profits arising from his occupation of the suit premises up to the time he moved out.  On the same day the applicant filed a letter of authorization in the Tribunal, authorizing Mr Man Chun Wai [transliteration of 文震威] to be his representative to deal with the legal proceedings and matters referred to therein.

5.  The respondent opposed to the application on the grounds that he and the applicant had made a new tenancy agreement orally, and that according to clause 14 of the tenancy agreement he had the priority over others in taking a new tenancy for his continued occupation of the suit premises.

6.  The case was originally fixed for hearing on 24 February 2014.  However, on 20 February the respondent took out an interlocutory application to strike out the applicant’s Notice of Application. The grounds relied on by the respondent were that since the owner of the suit premises was Cheung Kwan Tai Ui, the applicant was not entitled to sue in his own capacity and that the applicant had no authority to authorize Mr Man to be his representative to deal with the application in the Lands Tribunal, because he did not sign the letter of authorization in the presence of the Secretary of Home Affairs as required by section 15 of the New Territories Ordinance, Cap 97, Laws of Hong Kong.

7.  Having heard the application, the trial judge handed down her decision on 3 April 2014.  She dismissed the respondent’s application, ordered him to pay the applicant’s costs and fixed a date for the hearing of the case.

8.  On 16 April 2014, the respondent applied for a review of the trial judge’s decision.  The trial judge handed down another decision on 23 April 2014.  She dismissed the respondent’s application for review and made no order as to costs.

9.  Subsequently, the respondent applied to the trial judge for leave to appeal to the Court of Appeal.  After hearing, the trial judge handed down her decision on 16 June 2014 in which she refused to grant leave.

10.  The applicant now applies to this court for leave to appeal against the decision made on 3 April 2014.  No written submission in relation to this application has been submitted by the applicant.  Having considered the documents filed in this case, we are of the view that we can, by virtue of rule 2A(5)(a) of Order 59 of the Rules of the High Court, Cap 4A, Laws of Hong Kong, determine this application without a hearing on the basis of documents only.

Criteria for judging whether to grant leave to appeal

11.  According to section 11(2) of the Lands Tribunal Ordinance, Cap 17, Laws of Hong Kong, any party to proceedings before the Lands Tribunal may appeal to the Court of Appeal against a decision of the Tribunal only on the ground that such decision is erroneous in point of law.

12.  At the same time, section 11AA(6) of the Ordinance provides that leave to appeal shall not be granted unless the court is satisfied that (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interests of justice why the appeal should be heard.  The reasonable prospect of success referred to in the Ordinance means that the prospect of succeeding must be more than “fanciful” or “just arguable”, though without having to be “probable”: see SMSE v KL [2009] 4 HKLRD 125 at paragraph 17.

Respondent’s intended grounds of appeal

13.  In the summons for application for leave to appeal, the respondent put forward two intended grounds of appeal as follows:

“ (1) The decision was unfair in that the court did not consider matters which were behind the scenes in this case.

(2) It is hoped that the Court of Appeal could set the limit of the authority exercisable by the manager of a tso or tong when he acts in his personal capacity.”

14.  The respondent stated in his written submission that the applicant was only the registered manager of Cheung Kwan Tai Ui but not the landlord, that all along he rented the suit premises from Cheung Kwan Tai Ui, that the applicant signed the tenancy agreement only as the representative of Cheung Kwan Tai Ui, and that therefore the applicant had no authority to sue in his personal capacity or authorize Mr Man in his personal capacity to deal with the proceedings in the Lands Tribunal.  The respondent submitted that the applicant should have sued on behalf of Cheung Kwan Tai Ui in his status and capacity as the manager, and should have signed the letter of authorization on behalf of Cheung Kwan Tai Ui in his capacity as the manager and that that was the only way to validly authorize Mr Man to deal with the proceedings.

Reasons for judgment of this court

15.  We shall first deal with the issue of the applicant making the application in the Lands Tribunal in his personal capacity.  The undisputed facts were that the applicant signed the tenancy agreement dated 1 January 2011 in his personal capacity, that therein he was called the “lessor” and “the person who makes the tenancy agreement”, and that there was no mention of Cheung Kwan Tai Ui at all in the tenancy agreement.  In relation to the application in the Tribunal for striking out the applicant’s application, counsel acting for the respondent clearly said that he did not take issue with whether the applicant could sign the tenancy agreement in his personal capacity, and he submitted that under section 15 of the New Territories Ordinance, the applicant was entitled to sign the agreement in his personal capacity, but he argued that section 15 did not empower a manager to sue in his personal capacity, and that therefore his application should be struck out[1].

16.  Based on the doctrine of estoppel by tenancy and the judgment of the Court of Appeal in Tang Man Kit and Foo Tak Ching (suing as Managers of Wah Yan Mo Fan Heung (華人模範鄉) v Hip Hing Timber Company Limited (協興木業有限公司) CACV 137/2002 (Date of Judgment: 13 May 2005), the trial judge found that the ground relied on by the respondent for striking out the application, namely that the applicant was not entitled to sue in his personal capacity, was not substantiated.  The trial judge pointed out[2] that since the applicant was a signatory of the tenancy agreement, he could certainly sue under the tenancy agreement to recover possession of the suit premises from the other party to the agreement (i.e. the respondent), and that since the applicant made the agreement in his own capacity, he could also sue in his own name.

17.  When the trial judge refused to grant leave to appeal, she further pointed out[3] that section 2 of the Landlord and Tenant (Consolidation) Ordinance, Cap 7, Laws of Hong Kong provided that in relation to a particular tenant, “landlord” means the person entitled to receive rent from such tenant, and that the applicant, being a “landlord” within the meaning of section 2 and one of the parties who signed the tenancy agreement, was entitled to sue in his personal capacity.  In addition, the trial judge stated that according to the tenancy agreement, the applicant was the lessor and the person who made the tenancy agreement.  He made the agreement in his personal capacity and the agreement did not mention that he collected the rent on behalf of Cheung Kwan Tai Ui.  The respondent was aware of these circumstances when he signed the agreement, so he could not object to the applicant’s making the application in his personal capacity.

18.  We agree with the views taken by the trial judge.  The arguments advanced by the respondent in his written submission were only a repetition of the submission made by his counsel previously before the trial judge, who had already unequivocally and properly dealt with these arguments in her two decisions respectively dated 3 April and 16 June 2014.  We stress that the respondent’s contention that the applicant signed the tenancy agreement on behalf of Cheung Kwan Tai Ui in his capacity as its manager is obviously inconsistent with the content of the tenancy agreement and contradicts his counsel’s submission made previously that the applicant was entitled to sign the tenancy agreement with the respondent in his personal capacity.

19.  The respondent also raised the point that if the capacity used by the applicant in instituting these proceedings was not corrected, proceedings might be brought in future again for making claims against him.  As the trial judge stated in paragraph 16 of her decision dated 3 April 2014, the Court of Final Appeal in paragraph 20 of the judgment dated 15 June 2004 of Hip Hing Timber Limited v Tang Man Kit and Foo Tak Ching (suing as Managers of Wah Yan Mo Fan Heung) FACV 11/2003 remarked that the proper way to protect the respondent from exposing to the risk of being made the subject of a second claim was not to seek to strike out the proceedings.

20.  As to the issue of whether the applicant could authorize Mr Man by way of the letter of authorization which had been filed to act for him in the proceedings in the Lands Tribunal, the trial judge found[4] that since the applicant could sue in his own name, naturally he was entitled to authorize Mr Man to act for him and did not need to comply with section 15 of the New Territories Ordinance to sign the letter of authorization in the presence of the Secretary for Home Affairs, and that since the applicant had properly made out the letter of authorization according to rule 26 of the Lands Tribunal Rules, Mr Man was validly authorized.

21.  In refusing to grant leave to appeal the trial judge also stated[5] that the argument of the respondent’s counsel that the applicant, being the manager, was required to obtain the consent of Cheung Kwan Tai Ui before he could validly grant the authorization was incorrect, because the applicant, who signed the tenancy agreement and brought the proceedings in his own capacity, was a party to the agreement and a party to the proceedings; he therefore was entitled to validly authorize Mr Man to act for him in the proceedings and was not required to obtain the consent of the members of Cheung Kwan Tai Ui.

22.  We endorse the reasons for the trial judge’s decision. The respondent in his written submission just repeated his counsel’s arguments.  Given that the respondent’s argument that the applicant is suing on behalf of Cheung Kwan Tai Ui is not established, his intended ground of appeal concerning the issue of authorization cannot be established either.

Conclusion

23.  For the reasons and analysis set out above, the intended appeal of the respondent does not have a reasonable prospect of success. Nor is there any other reason in the interests of justice why the appeal should be heard. We therefore refuse to grant leave to appeal.  Since the applicant did not submit any submission in relation to this application, we make no order as to costs.

24.  Furthermore, because the application made by the applicant is totally without merit, pursuant to rule 2A(8) of Order 59 of the Rules of the High Court, we make an order that he may not under rule 2A(7) request the court to reconsider his application at a hearing inter partes.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P.Y. Lo, Barrister-at-law

[1] Paragraph 5 of the decision dated 3 April 2014.

[2] Paragraph 15 of the decision dated 3 April 2014.

[3] Paragraphs 9 to 11 of the decision dated 16 June 2014.

[4] Paragraph 17 of the decision dated 3 April 2014.

[5] Paragraph 12 of the decision dated 16 June 2014.