THE BANK OF EAST ASIA LTD v. LEUNG NIE CHUNG CHARLES

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J U D G M E N T

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Clough, J.A. :

1. This is a tenant's appeal against the order of the Lands Tribunal, (presided over by His Honour Judge Wesley Wong), forfeiting the tenancy of a flat in Hong Kong for non-payment of rent and ordering the tenant to give up possession of the flat and to pay arrears of rent and mesne profits to his landlord, the respondent Bank.

2. The tenancy in question was a domestic tenancy governed by Part IV of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7). It was created by a written tenancy agreement dated 19th January 1987 made between the Bank and the tenant. The term of the tenancy was two years from the 1st February 1987 to 31st January 1989. The monthly rent was $2,200 payable by the tenant together with rates in advance on the first day of each month.

3. The tenancy agreement contained the usual proviso for re-entry in the event of default by the tenant in payment of rent. Under section 8(7) of the Lands Tribunal Ordinance (Cap. 17) the Lands Tribunal had jurisdiction to enforce the forfeiture of the tenancy for non-payment of rent.

4. It is common ground that the tenant fell into arrears of rent. He paid no rent after the 1st March 1987. The Bank first distrained for rent on the 3rd June 1987 but did not recover sufficient to cover its costs. I should mention that the tenant sought to raise an issue regarding that matter in the proceedings which followed. The Bank then gave the appropriate notice of demand to the tenant and when the tenant defaulted it forefeited the tenancy. On the 21st December 1987 the Bank brought proceedings in the Lands Tribunal to enforce the forfeiture and recover arrears of rent and mesne profits.

5. The tenant filed a notice of opposition to the Bank's application. He did not admit the Bank's title to the flat but admitted the tenancy agreement. On the issue of non-payment of rent he relied on waiver, pleading that a bank official had agreed) that he need not pay rent until his financial position improved. He also alleged that the Bank had relied on a false appraisement in the distraint proceedings.

6. On 26th January 1988 the tenant applied by letter to the registrar of the Tribunal for an adjournment of the hearing of the Bank's application to a date after the 15th August 1989 because he intended to be out of Hong Kong between the 28th January and the 15th August 1988. His letter gave no reason for his intended absence from Hong Kong.

7. The hearing was nevertheless fixed for the 20th April 1988 when the Bank appeared by counsel and the tenant appeared in person. The tenant appears in person on this appeal.

8. According to the presiding officer's notes of proceedings the tenant told the presiding officer that his defence was that of wavier and false distraint outlined in his pleading but admitted that he was in arrears of rent, adding that he would pay when he had the money.

9. The notes of proceedings indicate that the Bank called an assistant mananger to establish the tenant's default. The tenant appears to have made no attempt at effective cross-examination of this witness and he is recorded as declining to give any evidence himself when given the opportunity to do so by the presiding officer.

10. On the face of the record it seems hardly surprising that the Tribunal granted the Bank's application. It is difficult to see what else the Tribunal could have done in the circumstances recorded in the notes of proceedings.

11. However the tenant has a right of appeal against the tribunal's order on a point of law and he has exercised that right. He has raised five grounds of appeal in his notice of appeal. Two of those grounds are clearly without substance. In his first ground of appeal the tenant contends that the Bank failed to adduce evidence of its claim to be the registered owner of the flat in question. But the notes of proceedings record the unchallenged evidence of the Bank's witness to the effect that it was the owner of the flat. Furthermore the tenant had admitted the tenancy in his notice of opposition and he did not allege that he had been disturbed by any adverse claimant. He is therefore estopped from disputing the Bank's title: see Industrial Properties (Barton Hill) Ltd. v. Associated Electrical Industries Ltd. [1977] O.B. 580 (C.A.).

12. In another ground of appeal the tenant complains that he was refused the adjournment of hearing before the Tribunal which he sought by his letter dated the 26th January 1988 and asserts that if the application had been granted he would not have lost the case. In the absence of any allegation of special circumstances as the basis for the tenant's request for a substantial adjournment, while he remained in occupation of the flat without paying rent, he can have no valid grounds of complaint. Indeed he seems to have employed the same tactic with this appeal which he sought unsuccessfully to have adjourned to a date after the 25th November 1988.

13. The three remaining grounds of appeal are bound up with the tenant's allegations regarding the conduct of the hearing before the Tribunal which the tenant claimed was unfair to him and prevented him from putting his case. Thus one ground is that the presiding officer lost his temper several times with the tenant whereas his manner towards the Bank's counsel was polite. Another ground is that at the beginning and near the end of the hearing the presiding officer refused to let him submit an appraisement relating to the distraint proceedings. Finally the tenant seeks to rely on appeal on the defence of waiver outlined in his notice of opposition.

14. On the first day of the hearing of this appeal, on the 22nd September, the tenant renewed his allegations against the presiding officer. He went further and challenged the validity of the record, asserting that he had not been given the right to give evidence in his defence. Indeed he asserted that the presiding officer had frightened him to such an extent that he was afraid to give evidence and that the presiding officer's notes recorded untruthfully that he had been given the opportunity to give evidence.

15. Accordingly the court adjourned the hearing of the appeal to enable both sides to file evidence on oath or affirmation regarding the conduct of the hearing below and to allow the court the opportunity to invite comments thereon from the presiding officer.

16. The tenant has now filed an affirmation in which he has repeated his allegations regarding the presiding officer's discriminating manner towards him compared with his manner towards the Bank's counsel and regarding the alleged refusal to allow the tenant to submit his appraisement. As regards the tenant's right to be heard, he now affirms that at the hearing he heard the interpreter saying "Do you want to say" but not "Do you want to give evidence".

17. Mr. Choi Yiu Hung, a litigation clerk of the Bank's solicitors, who attended the hearing below, has made an affirmation which gives an account of the hearing which is wholly consistent with the notes of the proceedings and does not support the tenant's allegation of discrimination and impoliteness. He also brings out the fact (of which this court was unaware on the first day of the appeal) that the tenant is hard of hearing and told the Tribunal about this shortly after the beginning of the hearing. Mr. Choi affirms that the tenant asked the interpreter to speak more loudly, whereupon both the interpreter and the presiding officer raised their voices when speaking to him.

18. In his comments the presiding officer has explained that he had the impression that the tenant knew and understood both the Punti dialect and English and that, when the tenant said he had a hearing difficulty, both the presiding officer and the interpreter spoke louder to accommodate him.

19. Mr. Choi's evidence is further to the effect that after the close of the Bank's case the tenant started to address the Tribunal, repeating what he had already told the Tribunal about his defence at the beginning of the hearing. Mr. Choi went on to affirm as follows:

"I remember that the Presiding Officer then asked the Respondent whether he wanted to say anything, and if so, he would have to go to the witness box. I cannot now recall whether the word 'evidence' was mentioned, but I remember clearly that the Respondent had been invited to go to the witness box if he wanted to say something. The Respondent then replied 'no'."

20. The presiding officer has reported that he cannot remember what the interpreter said at this stage, but he confirms that, as recorded in his notes, he did ask the tenant if he wanted to give evidence. To-day the appellant has repeated his allegations in more elaborate but similar terms to those previously made by him.

21. In all the circumstances I am far from satisfied, for my part, that the tenant has established any irregularity in the conduct of the hearing before the Tribunal so as to justify this court going behind the certified record of the proceedings. In particular it seems to me to be clear that the tenant was given the opportunity to give evidence in his defence. If he had taken that opportunity he could have produced any appraisement or other document relied upon by him. His failure to take that opportunity is not to be attributed to any act or omission of the presiding officer.

22. In the absence of any evidence to support the tenant's defences of waiver and irregular distraint (as to the validity of which I express no view) the Tribunal had no alternative but to make the order it did

23. I would therefore dismiss this appeal.

Cons, V.-P.:

24. I agree entirely with all that my Lord has said and I too would dismiss the appeal.

Fuad, V.-P.:

25. I also agree.