FORT CROWN INVESTMENTS LTD v. TAM VIRGINIA V. t/a STAR LIGHT INTERNATIONAL AGENCY & TRADING SERVICES

cacv 173/2005 AND 174/2005

CACV 173/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 173 of 2005

(on appeal from DCDT NO. 5993 of 2004)

CACV 174/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 174 of 2005

(on appeal from DCDT NO. 5993 of 2004)

BETWEEN

Date of Hearing: 5 January 2006

Date of Judgment: 5 January 2006

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J U D G M E N T

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Hon Rogers VP:

1.  This is an appeal from two decisions of His Honour Judge Chow in respect of applications by the Claimant after a distress for rent.  There were two applications.  The first was made immediately; the second was made later.  But the issues which arise on this appeal, which is in a very short compass, do not involve the fact that a second application was made.

2.  The first objection taken on this appeal by Miss Po, on behalf of the landlord, was that there was an absence of affidavit which was required for making of any application, under section 96 of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7.  What there was, however, were two documents and they are headed “Declaration”.  They are obviously homemade documents to the extent that, although they were typed, they were not drafted by lawyers and, given the amounts involved on this application, which only amount to a few thousand dollars, one is not surprised that lawyers were not engaged for the purpose of recovering the goods. 

3.  But two matters emerge from that.  The first is that one can discern, quite clearly, a claim to ownership of the relevant items.  The second is that the declarations were properly made in accordance with the Oaths and Declarations Ordinance.  Now it is said that these do not therefore constitute affidavits and a declaration is a different matter to an affidavit.  That may be so but the effect of a declaration is very much the same as an affidavit.  One can make an affirmation instead of an affidavit and a declaration is very little different from an affirmation.  Coupled with that, the Claimant in fact gave evidence before the judge and the judge was perfectly entitled to short-circuit matters, if he saw fit.  He might, for example, have said to the Claimant, if he was being fastidious, “Well, you must go and remake your declaration as an affirmation and then come back in five minutes’ time and I will listen to you”.  He did not do that but he accepted his oral evidence.  In fact, in the course of the hearing, it was referred to as being his affirmation.  So in that respect, I see no difficulty as a matter of practicality.  The Rules of Court, under Order 41 rule 4, allow or permit the use of an affidavit which might be in a defective or irregular form.  In my view, the judge was, in the circumstances of a case like this, perfectly entitled to treat these declarations as affidavits.  It is also said that there was no documentary evidence of title exhibited to the first declaration but that, in my view, is not a requisite.  It is certainly not required by the Ordinance. 

4.  The other point which is taken on this appeal is that the judge was wrong to hold in favour of the Claimant because it is said that, at the time that the bailiff entered the premises, the goods were not shown to be in the apparent possession of the Claimant.  In this respect, reference has been made to a number of cases but, in my view, the question of apparent possession in a situation such as this has been dealt with in the case of French and Another v Gething [1922] KB 236.  At page 247, Atkin LJ said this:

“I think that the case implies that ‘possession’ and ‘apparent possession’ mean sole possession and apparent sole possession just as ‘possession’ and ‘reputed ownership’ were held to mean sole possession and sole reputed ownership when it was a question whether goods were in the order and disposition clause of the Bankruptcy Act, 1869, s.15:  Ex parte Dorman.  During the argument I put this case by way of illustration:  If there are three men in a boat belonging to one of them, the boat is in the possession of the owner and not in the possession of the two visitors or either of them, and is in his apparent possession and not in that of them or either of them; and if the owner sells the boat to one of the visitors, intending to pass the property in it to him, then possession and apparent possession are in the purchaser and not in the former owner.” 

5.  Applying that to the facts of this case, it is apparent that the Claimant was the subtenant of the tenant of the premises against whom the distraint was made.  It would appear that both the Claimant and his intermediate landlord had their names at the premises.  In that situation, applying the law as set out by Atkin LJ, it seems to me that what has to be determined is who was the owner, since the goods in question - and they have been listed in the schedules - were, at the most, in the apparent possession of both the intermediate landlord and the Claimant, but since the Claimant has established ownership, it seems to me that the apparent possession was the Claimant’s. 

6.  The argument in this court amounted very much, it seems to me, to one that the bailiff had to be apprised of all the necessary evidence at the time that the seizure was made.  I cannot see that that can be right because the bailiff may enter premises at any time, whether the true owner of the goods is there or not, and it is a question of fact as to whether the Claimant was in apparent possession or not. 

7.  In the circumstances of this case, I consider that the matter is clear.  Even given the unsatisfactory nature of the claim that was made by the person who happened to be at the premises, I consider that was sufficient to put the bailiff on notice that, in fact, the Claimant would be claiming many of the items on the premises and it was not right to hold that the intermediate landlord was in apparent possession. 

8.  In those circumstances, I can see no way to allowing these appeals and I consider these appeals should be dismissed.

Hon Cheung JA:

9.  I agree.

Hon Tang JA:

10.  I also agree.