THE ISLAMIC UNION OF H.K. v. KHANAM NOOR KHAN

1994 No. A5767

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The Plaintiff is the owner of premises on the ground floor, 16 Leighton Road, Hong Kong ("the premises"). By a tenancy agreement dated 31st May 1988, the Plaintiff granted to the Defendant a tenancy of the premises for a period of six years from 1st May 1988 to 30th April 1994. The tenancy agreement gave the Defendant the right to terminate the tenancy at any time during the last three years of the tenancy, and the tenancy was, therefore, one to which Part V of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) applied. That meant that the tenancy could not be determined unless a written notice of termination had been served not less than six months before the date on which the notice was to take effect.

2. The Plaintiff claims that such a notice was served on the Defendant. It has produced the office copy of the notice which it claims was served. The notice is dated 20th September 1993, and gives the Defendant notice of termination of her tenancy on 30th April 1994. The Plaintiff claims that it served the notice on the Defendant by sending it by ordinary post to her at the premises. Having heard the evidence of Mr. Tong Chung Ho, the Estate Manager of the Plaintiff's managing agents, I am satisfied that the notice was sent by post to her at the premises. There is no direct evidence to that effect, by way, for example, of a certificate of recorded delivery, but I can infer that it was sent from Mr. Tong's evidence (a) that the notice to quit was prepared, and (b) of the practice of his company relating to the posting of documents.

3. The Defendant, who has not appeared and is not represented, contended in her Amended Defence that she had never received that letter. I do not have to decide whether that is true or not, because even if she did not receive it, clause 4(a) of the tenancy agreement provided that any notice required to be served on her would be sufficiently served if addressed to her at the premises.

4. Since the tenancy was duly determined, therefore, on 30th April 1994, and since I am satisfied that the Defendant, by failing to return the keys of the premises to the Plaintiff's managing agents, has remained in occupation of the premises notwithstanding the termination of the tenancy, the Plaintiff is entitled to an order for possession of the premises. In view of Mr. Tong's evidence that the premises now look as if the Defendant is no longer there even though she has not returned the keys, I propose to make an order for possession forthwith.

5. The Plaintiff has been refusing to accept rent since 1st May 1994, and it is entitled to mesne profits for the Defendant's use and occupation of the premises since then. The rent immediately before the termination of the tenancy was $12,523.50 a month. The Plaintiff asks for the mesne profits to include the rates which the Defendant was obliged, by reason of clause 3(s) of the tenancy agreement, to pay to the Plaintiff. Mr. Tong tells me that the rates were about $9,500.00 a quarter, but that is unsatisfactory for three reasons : (i) the figure should be a precise one, (ii) the approximate figure given by Mr. Tong is not the figure stated in the Amended Statement of Claim which was $9,252.00 a quarter, and (iii) no rate demand has been produced. In the absence of satisfactory evidence of the amount of the rates, I am not prepared to assume that the rates were in excess of $8,000.00 a quarter. In the circumstances, I give judgment for the Plaintiff for mesne profits from 1st May 1994 until possession is delivered up at the rate of $15,190.17 a month (being $12,523.50 plus 1/3 of $8,000.00, i.e. $2,666.67).