HONG KONG HOUSING SOCIETY v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF FUNG YIM TOI, DECEASED AND ANOTHER

DCCJ 4626/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4626 OF 2013

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J U D G M E N T

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1.  Late Madam Fung Yim Toi (“Madam Fung”) was the tenant of the rented housing unit at Flat 206, Hong Lok Lau, No 50 Hoi Pa Street, Tsuen Wan, New Territories (“the Unit”) of the plaintiff (“HS”). She passed away in 2008. Hence her personal representative being named as the 1^st defendant. The 2^nd defendant (“Liu”) is Madam Fung’s grandson and has been occupying the Unit since before the passing of Madam Fung. HS commenced this action to recover possession of the Unit. This is its application for summary judgment.

2.  The applicable principles are trite.  It is the plaintiff’s burden to prove the claim.  Judgment will be entered if the defendant cannot demonstrate a credible defence or any other reason that this matter should go to trial.  A view has to be formed on the merits, but this will not be a trial of complex factual and legal dispute on affidavits.

3.  Madam Fung became the tenant of the Unit by virtue of a tenancy agreement with HS as the landlord dated 4 September 1980 (“the Tenancy Agreement”).  The Tenancy Agreement provides, among other things, that:

(1) HS let the Unit to Madam Fung from 1 to 30 September 1980 at the rent of HK$170 and thereafter from month to month until the tenancy is determined by either party giving to the other party one month’s previous notice in writing to determine the same, such notice to expire only at the end of the month of the tenancy, or until the tenancy is determined under Clause 5(a), whichever takes place earlier (clause 2);

(2) the tenant agrees not to permit or suffer any person to occupy or use the Unit or any part thereof for any period of time other than those persons whose names had been written on the Schedule to the Tenancy Agreement and such other person or persons whose name or names may be added to the Tenancy Agreement subsequently by HS (clause 3(h));

(3) if the tenant shall fail personally to live at the Unit for a continuous period of more than a month, it shall be lawful for HS at any time thereafter to re-enter upon the Unit; and upon that, the Tenancy Agreement shall absolutely determine (clause 4);

(4) any notice required to be served shall be sufficiently served on the tenant if delivered to him by post or left addressed to him at Unit or at his last known address in Hong Kong.

4.  Besides Madam Fung, her 2 daughters were permitted to occupy the Unit; and their names were entered into the schedule to the Tenancy Agreement.  Their names were subsequently removed for different reasons.

5.  There is dispute as to when Liu first came to occupy the Unit apparently with Madam Fung.  But even according to HS’ pleaded case, this happened prior to the passing of Madam Fung.  His name was never in the schedule to the Tenancy Agreement.  In other words, he was never formally permitted to occupy the Unit. Regarding this, Liu argues that he may be so added.  HS disagrees, and says that had Liu applied, he would not have been added under the current policy.

6.  Liu also argues that by the verbal assurance by various staff of HS, he was given the understanding that he could remain in the Unit.  He has applied to the Hong Kong Housing Authority (“HA”) for public rental housing, but the same was rejected for his current occupation in subsidized housing unit of HS. Relying on all these, he continued to occupy the Unit and paid the rent.  He argues that HS is estopped from exercising its power of eviction.  HS disputes the allegations of Liu.  In particular, HS argues that what Liu alleges did not amount to detriment or alteration of position, which would have been required to give rise to estoppel.

7.  I agree with HS.  It was not that Liu would have decided to move out and save the rent, had he not been led to rely on the alleged assurance.  As long as he occupies the Unit, he would have been liable for occupation rent in any event.

8.  Irrespective of whether his name would, or should, have been added to the schedule to the Tenancy Agreement as a permitted occupant, clause 5(a) empowers HS to re-enter when Madam Fung, the tenant, failed personally to live at the Unit for a continuous period of more than a month.  By written notice in September 2013 to the estate of Madam Fung, HS exercised the right of re-entry.

9.  Even assuming Liu somehow may become entitled to occupy the Unit as the tenant, or as if he were the tenant, he could not possibly claim more or better right than what Madam Fung used to have under the Tenancy Agreement.  In other words, the occupation would still be subject to termination by not less than 1 month’s notice in writing pursuant to clause 2.  Mr Kwong, appearing for Liu, accepted that.

10.  There is no dispute that HS served notices of termination back in 2013 and specifically notice to Liu on 23 August 2013 to quit the Unit by November 2013.  That would have been sufficient notice even on a proper tenant for the termination of tenancy.  Mr Kwong also accepted that.

11.  For his purpose, Liu would have to go so far as establishing not just the right as the tenant but one coupled with an equity that would prevent HS to exercise the right of termination under the Tenancy Agreement.  As to this, Liu argues that HA rejected his application for public rental housing because he was considered to be a resident of rental housing under HS.  It would now be inequitable for HS to deny him the right as such.

12.  Liu relies on a standard form of notification from HA regarding his application.  It was dated 3 December 2013, well after the alleged verbal assurance of the staff of HS and even after the expiry of HS’ notice to quit.  Further, according to the notification, his application would need to be cancelled; and he was requested to contact HA in 14 days or his application would be cancelled.  In other words, the cancellation was a prospective course.  By letter dated 7 July 2014, HA answered HS’ inquiry and confirmed that Liu’s application has been included in the Quota and Points System for Non-elderly One-person applicants. His application has scored insufficient points for investigation as at the date of this letter.  This does not suggest actual cancellation of Liu’s application by HA as alleged.

13.  Mr Kwong then argues that Liu still suffers detriment in terms of loss of priority in his application to HA; and therefore HS is estopped from recovering possession of the Unit until Liu succeeds in acquiring alternative public rental housing.  This is hardly acceptable.  First, this argument is premised on the understanding by HA that Liu is an eligible occupant of the Unit, and that HS was responsible for allowing that understanding.  But the situation was in fact brought about by Liu himself.  Second, there is no suggestion or evidence of the alleged loss of priority of Liu’s application to HA as a result.  Last, there is no justification for allowing Liu to occupy the Unit until he succeeds in acquiring alternative public rented housing, in view of his completely unknown chance of success.  Equity would not come to assist in such terms.

14.  It may be that Liu has a cause for complaint about the service of HS.  However, this venue is one for determining the rights of the parties.  In the circumstances of this case, there is no basis for finding that Liu has acquired the right of a tenant coupled with an equity that would have entitled him to occupy the Unit and immune from the HS’ rights under a normal tenancy.  He has no defence to the claim.

15.  I therefore give judgment against Liu for possession of the Unit; and until the date of delivery of vacant possession, Liu shall pay to HS mesne profits at the rate of HK$1,123 per month from 1 November 2013.  Costs of this action, including this application, shall be to HS, to be taxed, if not agreed.