SIN SHEUNG MO v. ELTHAF CHAUDHRY MUHAMMAD

LDPD 1329/2015

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPD 1329 OF 2015

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REASONS FOR DECISION
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1.  This is an interlocutory application by the respondent for (1) leave to appeal the judgment and decision on 20 July 2015; and (2) stay of execution of the Writ of Possession. Both the application for recovery of possession filed by the applicant and the interlocutory application for change of Judge / Judicial Officer to hear the application filed by the respondent were heard by me on 20 July 2015 and I made the judgment and decision on the same date.

2.  The reasons for the judgment and decision were handed down on 27 July 2015.  I do not repeat backgrounds of the case here.

3.  At the conclusion of the hearing on 3 August 2015, I ordered (1) the interlocutory application filed by the respondent on 24 July 2015 be dismissed; and (2) the respondent do pay the applicant the costs of this interlocutory application which is summarily assessed at $100, with reasons to be handed down in writing.  I now do so.

Leave to appeal the decision on 20 July 2015

4.  In addition to the grounds submitted at the hearing on 20 July 2015, the respondent contended that he suspected it was the applicant who asked for change of Judge / Judicial Officer in the case LDPD 157/2015 and therefore he could also ask for change of Judge / Judicial Officer in this case.  The respondent also submitted he dissatisfied with my conducts in the other two cases which were previously heard before me, though this ground had not been stated and presented at the hearing on 20 July 2015.  The respondent said he did not trust this court since then.

5.  The applicant confirmed at this hearing he had not asked for change of Judge / Judicial Officer in the case LDPD 157/2015, and I found no record of such request in the file too.  On the balance of probabilities, I do not believe this allegation.  In any event, this ground is ill-founded because it is injustice for a party to choose Judge / Judicial Officer at his / her will.

6.  Further, I consider discontent of the respondent in the other two cases is not an acceptable ground for change of Judge / Judicial Officer in this case.  If the respondent dissatisfied with my conducts in the other two cases, he could make complaints to the court leader of the tribunal or Chief District Court Judge.  If the respondent did not agree with the then decisions, he could file application for leave to appeal to the Court of Appeal.  In fact, before I made my then decision, there was no evidence of prejudice and I had already reviewed whether I should continue to hear the application and the answer was affirmative with reasons. This ground is unsubstantiated too.

7.  The other grounds of the respondent had been discussed at the last hearing.  I do not repeat the reasons for my decision here.

Leave to appeal the judgment on 20 July 2015

8.  Similar to the interlocutory application for leave to appeal the decision on 20 July 2015, the respondent had just repeated his grounds of opposition to the application, which had already been discussed at the last hearing.

9.  At this hearing, the respondent provided copies of WhatsApp messages between the parties and his (five) medical reports to support his opposition.  It is doubtful whether the respondent could provide new evidence at the hearing for leave to appeal.  Nevertheless, even if the said new evidence was accepted, I consider it could not affect the then judgment. 

10.  The respondent contended the WhatsApp messages could prove he had not refused to pay rent.  However, even if the respondent had not refused to pay rent, I found the respondent had failed to pay rent, and this was the main reason of my judgment.  In fact, the applicant had not queried whether the respondent had not refused to pay rent.

11.  Moreover, the five medical reports, all issued in 2014, reported some incidents and medical treatments in the past only, and had not explained why or proved how the respondent could not pay rent on time in June 2015.  Even if the then medical condition of the respondent might affect his mobility to pay rent, this is a consideration for grant of relief only and is not an acceptable defense for non-payment of rent. 

12.  The respondent submitted at the last hearing he was out of Hong Kong for a period before June 2015 when he asked his friend to pay rent for him, and he was then busy after he reported duty to his office.  Although the respondent had mentioned about his medical condition, the respondent had mainly emphasized how and why he was then busy.  

13.  The respondent might then be busy and therefore he asked the applicant to collect rent and had not paid rent to the applicant directly, but he blamed the applicant for all the faults.  The respondent considered he should be entitled to a 2^nd relief because he had not refused to pay rent and he was willing to pay arrears of rent too.  At the hearing for leave to appeal, the respondent maintained his view that he was willing to pay arrears of rent, but he refused to pay the costs of the application as ordered by the tribunal. I consider such standpoint and ground of the respondent is not a good cause for grant of a 2^nd relief. 

14.  Anyhow, the applicant submitted at both hearings he was disturbed by the repetitive breaches of the tenancy agreement.  The applicant said he lost trust in the respondent and objected to the grant of a 2^nd relief.

Conclusion

15.  According to section 11(2) of the Lands Tribunal Ordinance (“the Ordinance”), any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law. 

16.  Section 11AA(6) of the Ordinance stipulates that leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave 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.

17.  Since the respondent had not provided any ground of appeal on point of law and the appeals have neither a reasonable prospect of success nor any reason in the interests of justice, the interlocutory application for leave to appeal the judgment and decision on 20 July 2015 was refused.

Stay of execution

18.  The respondent applied for stay of execution until lease expiry instead of extension of relief period.  Nonetheless, the respondent refused to pay the costs of the application as ordered by the tribunal.   Further, apart from the grounds for leave to appeal, the respondent had not provided any particular ground for stay of execution, whilst the applicant objected to the grant of stay of execution and asked for recovery of possession at the earliest.

19.  On the condition that the interlocutory application for leave to appeal was refused, I also dismissed the interlocutory application for stay of execution of the Writ of Possession.

Costs

20.  The applicant asked for costs of $600 being his salary for half day leave, and the respondent had not commented on the costs as claimed.  After considering the time for the hearing, I summarily assessed the costs at $100 only, payable by the respondent to the applicant.