YEUNG KWAI YING v. JAMES TANYA JACQUALINE

LDPD 1451/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Lands Tribunal Application No. LDPD 1451 of 2000

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Judgment

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1. The Applicant is the landlady of the premises known as G/F and 1/F, No. 16A Tai Wan Old Village, Lamma Island ("the premises"), whilst the 1st and the 2nd Respondents were the tenants of the same. On 29.6.2000, the Applicant instituted proceedings in the Lands Tribunal for an order of possession of the premises on the grounds that the 1st and the 2nd Respondents had not made full payment of rents every month since December 1999 and that they had subletted the premises without her consent. On 22.8.2000 I entered judgment in her favour.

2. On 11.1.2001 the 3rd Respondent applied to be joined in this application as a Respondent. On 23.1.2001 after hearing his evidence, I allowed him to be joined as the 3rd Respondent.

3. On 9.2.2001 the case between the Applicant and the 3rd Respondent was tried. The Applicant testified that on 1.11.1999, she entered into a tenancy agreement in respect of the premises with the 1st and the 2nd Respondents.

4. One month prior to the signing of the tenancy agreement, Mr. To, an estate agent, told her that a couple wanted to rent her place for $3,000 or so. Then he proceeded to make an arrangement for the signing of the tenancy agreement.

5. Before the signing of the contract, she told Mr. To that if the unit upstairs was also let to the Respondents as well, the premises could not be subletted to other people. Mr. To said that he would tell the 2nd Respondent the same thing.

6. On 1.11.1999, Mr. To and the Respondents met in Yung Sue Wan to have the tenancy agreement signed. The Respondents could speak Chinese. She told the 2nd Respondent not to sublet the premises to other persons. But about 20 days later, she found that another person (the 3rd Respondent) was on the 1st floor. The 2nd Respondent said that the 3rd Respondent was his friend; he had rented another place, and his lease had expired. Once he found another house, he would move away.

7. In or about March, she asked the 1st and the 2nd Respondents to give back the 1st floor to her since they did not live there. Initially the 2nd Respondent agreed to do so, but this never materialized.

8. The premises belonged to her paternal uncle, who was sick. About 1 month prior to the signing of the tenancy agreement, her uncle instructed her to tell the potential tenant the prohibition against subletting of the premises.

9. The 3rd Respondent testified that he moved into the 1/F on 4th Nov., 1999. He had deposited $2,500 each month into the account of the Applicant up to Feb., 2001.

10. I find that the 1st and the 2nd Respondents subletted the 1/F to the 3rd Respondent at a monthly rate of $2,500, and the 3rd Respondent has deposited this amount into the Applicant's bank account up to Feb., 2001.

11. The tenancy agreement entered into between the Applicant and the 1st and the 2nd Respondents does not contain any clause relating to the prohibition of subletting by the tenant.

12. According to the Applicant, her uncle told her to tell the potential tenant not to sublet the premises, and she told Mr. To about this. On the occasion when the tenancy agreement was signed, she told the 2nd Respondent not to sublet the premises. Obviously the issue of prohibition against subletting was important to her. The tenancy agreement contains the Chinese version of the agreement as well. She could read Chinese, and yet when this agreement was signed, she did not read its content to find out if it contained a clause prohibiting subletting. She gave the excuse that she was negligent at that time. No evidence was adduced to the effect that at that time she asked Mr. To if the tenancy agreement contained a clause prohibiting subletting. I find that her evidence in this respect is incredible. I do not accept her evidence. I find that there was no prohibition against the 1st and the 2nd Respondents in subletting the 1st floor to the 3rd Respondent. Accordingly the 3rd Respondent now becomes the direct tenant of the Applicant.

13. I make the following orders:-

1. Commencing on 1st March, 2001, the 3rd Respondent do pay to the Applicant $2,500 per month, being the rental for 1st floor, No. 16A, Tai Wan Old Village, Lamma Island.

2. Other terms of the tenancy similar to those between the 1st and the 2nd Respondents and the 3rd Respondent.

3. The Applicant is entitled to proceed to recover possession of G/F., No. 16A, Tai Wan Old Village, Lamma Island against the 1st and the 2nd Respondents.

4. Item 2 of the order dated 22.8.2000 be deleted and substituted by the following order:-

"The 1st and the 2nd Respondents do pay to the Applicant arrears of rent/mesne profit for the period from 1.11.1999 to 28.2.2001 in the total amount of $41,500 ($88,000-$46,500)."

5. The rate of mesne profit payable by the 1st and 2nd Respondents to the Applicant, commencing from 1st March 2001 to the date of recovery of possession of G/F, No. 16A, Tai Wan Old Village is $3,000 per month.