LEUNG NAI CHUNG v. TUNG WING HON

IN THE COURT OF APPEAL

1995, No. 99
(Civil)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. Mr Tung, who is respondent before us, let a flat to Mr Leung who is the appellant before us.

2. There came a time when Mr Tung took out an application in the Lands Tribunal for possession of that flat. He did so on the grounds of non-payment of rent and management fees. And his application succeeded.

3. What happened was that on the day of the hearing before the tribunal, Mr Leung did not turn up before the tribunal although he had been served.

4. Mr Tung gave evidence before the tribunal. The tribunal accepted that evidence, and rightly took such evidence as sufficient to establish Mr Tung's right to a possession order.

5. Now Mr Leung appeals to this Court against that order. And he puts forward two "grounds".

6. The first is that Mr Tung is not the real owner of the flat. And the second is that he, Mr Leung, denies all the claims made by Mr Tung.

7. That second so-called ground is no ground at all. The tribunal knew full well that Mr Leung was denying the claims, and called upon Mr Tung to prove his case: which Mr Tung managed to do to the tribunal's satisfaction. So it is only the first ground that is any ground at all.

8. Before we come it, we have to say this about Mr Leung's failure to turn up before tribunal. He told us that he could not turn up before the tribunal because he had some urgent matters to attend to. That is all he said as to why he did not turn up. What the urgent matters were he did not say.

9. What he asserts is that the tribunal should have adjourned the case simply because he had not turned up. That is an impossible suggestion. Access to the court would be valueless if the opposite party could bring everything to a halt simply by failing to turn up.

10. What is there in support of the assertion that Mr Tung is not the real owner of the flat?

11. Mr Leung says that Mr Tung had chased him to pay the management fees. And Mr Leung says that if Mr Tung was the real owner he would have paid the management fees himself. So, he says, he suspects that Mr Tung is not the real owner of the flat.

12. First of all, there is no evidence to support any of that. But in any event, it is simply not so that a landlord who calls upon his tenant to pay the management fees is not the real owner.

13. Mr Leung also says that the reason why Mr Tung was chasing him for the rent was possibly because he needed the money to pay the real owner. What that comes to is the impossible suggestion that any landlord who wants to be paid rent is not the real owner.

14. It all comes to this. Mr Tung had an application which was properly served on Mr Leung. Mr Leung failed to turn up for no good reason that we can see. And the tribunal, as it was entitled to do, heard the case in his absence. Mr Tung did not succeed just because Mr Leung was not there. He succeeded because he gave evidence which was acceptable to the tribunal.

15. These are unfortunate cases. Neither of these men look like they have a lot of money. The tribunal was entitled to come to the decision to which it came. And that being so, our duty - there being no basis for upsetting that decision - is to uphold it.

16. The appeal is dismissed.