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DCMP 4551/2023
[2024] HKDC 1574
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 4551 OF 2023
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IN THE MATTER OF Order 17 of the Rules of the District Court (Cap.336H)
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and
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IN THE MATTER OF an application by The Secretary for Justice for interpleader relief against the claims between the 1st and 2nd Claimants herein
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BETWEEN
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SECRETARY FOR JUSTICE for and on behalf of
THE COMMISSIONER OF POLICE |
Applicant |
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and
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TANG HUI JENNY MAN TING
(鄧敏婷) |
1st Claimant |
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LAM KA HING (林家興) |
2nd Claimant |
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| Before: |
His Honour Judge Alan Kwong in Court |
| Dates of Hearing: |
16 September 2024 |
| Date of Judgment: |
16 September 2024 |
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JUDGMENT
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Introduction
1. The present interpleader proceedings arose from a bitter tenancy dispute. The 1st Claimant was the former landlord, and the 2nd Claimant was the former tenant.
2. The subject matter of the parties’ dispute is the furniture (the “Furniture”) set out in the originating summons herein dated 28 September 2023. The Furniture consists of:-
(1) Two white shoe cabinets (items 1-2);
(2) One white TV cabinet (item 3);
(3) One white IKEA wardrobe (item 4);
(4) One wooden colour shelf (item 6); and
(5) One black colour Samsung television and one Samsung television (hereinafter collectively the “Samsung TVs”) (items 7-8).
3. The originating summons came before me on 2 August 2024. The 1st Claimant and the 2nd Claimant, through their respective legal representatives, lodged substantive written submissions. However, shortly before the hearing took place, the 2nd Claimant’s solicitors ceased to represent him[1].
4. At the hearing on 2nd August 2024, I pointed out that the parties had not filed sufficient evidence in regard to the dispute in relation to the Samsung TVs. As such, I gave directions for the parties to file further evidence on this specific topic. I also ordered that the originating summons be adjourned for further argument at the present hearing.
5. Pursuant to my directions given on 2 August 2024, the 1st Claimant filed and served her 2nd affidavit on 23 August 2024.
6. The solicitors for the 1st Claimant have filed an affirmation of service[2]. I am satisfied that the 2nd Claimant ought to be aware of my directions as well as the further evidence from the 1st Claimant. However, for reasons best known to himself, the 2nd Claimant has not filed further evidence.
7. At the present hearing, the 1st Claimant is represented by Ms Angel Wong, and the 2nd Defendant does not appear. The attendance of the Applicant (ie the Secretary for Justice) has been excused.
Material Background
8. The 1st Claimant is the registered owner of Flat B, 10th Floor, Tower 11, Avignon, No 1 Kwun Chui Road, Tuen Muen[3] (the “Property”).
9. Pursuant to a tenancy agreement dated 7 August 2019 (the “Tenancy Agreement”), the 1st Claimant leased the Property to the 2nd Claimant at a monthly rental of HK$30,000.
10. It is the 1st Claimant’s case that she owns the Furniture, and she placed the Furniture in the Property, such that 2nd Claimant and her family could use the same during the tenancy period. In the circumstances, it was agreed and/or understood that the Furniture should be returned to her when tenancy in respect of the Property ended.
11. It transpired that the relationship between the 1st Claimant on the one hand and on the other hand the 2nd Claimant and his wife, namely madame Chau Mun Lin (the “2nd Claimant’s Wife”), turned sour.
12. On 19 May 2020, the 1st Claimant commenced DCCJ 2063/2020 against the 2nd Claiming seeking, inter alios, payment of outstanding rental and vacant possession of the Property.
13. On 26 June 2020, summary judgment was entered against the 2nd Claimant in DCCJ 2063/2020. He was ordered to, inter alios, deliver vacant possession of the Property to the 1st Claimant.
14. On 26 November 2020, the 1st Claimant recovered possession of the Property with bailiffs’ assistance.
15. Upon recovering the Property, the 1st Claimant discovered that the Furniture as well as some other items that she provided were taken away from the Property. Subsequently, the 1st Claimant further discovered that the 2nd Claimant and his family moved to another property within the same residential estate, ie Flat 9, 9th Floor of Tower 3, Avignon (the “Tower 3 Property”).
16. On 25 February 2021, the 1st Claimant reported the matter to the Police.
17. On 23 March 2021, the Police seized the Furniture from the 2nd Claimant’s new residence, ie the aforesaid Tower 3 Property.
18. Since the 1st Claimant and 2nd Claimant were unable to resolve the dispute in respect of the Furniture, on 28 September 2023 the Secretary for Justice (on behalf of the Commissioner of Police) commenced the present interpleader proceedings.
Deliberation
19. For the following reasons, I find that the 1st Claimant owns the Furniture. I also accept the 1st Claimant’s submissions that the 2nd Claimant owes her a tortious duty and a contractual duty to return the Furniture.
20. Whilst the 1st Claimant makes it clear that she was the one who acquired the Furniture and provided the same for the 2nd Claimant and his family to use during the subsistence of the tenancy in respect of the Property[4], the 2nd Claimant does not assert that the Furniture was purchased or acquired by himself or his Wife. Had the 2nd Claimant and/or his Wife purchased or acquired the Furniture, the 2nd Claimant would have said so in his affirmation filed in these proceedings.
21. It is the 2nd Claimant’s case that he owns the Furniture now because the same was not spelled out in the furniture list annexed to the Tenancy Agreement.
22. In my view, the 2nd Claimant does not pursue this contention in good faith. In this connection, it is pertinent to refer to the following WhatsApp messages from the 2nd Claimant’s Wife:-
(1) In her WhatsApp messages to the 1st Claimant on 27 June 2020, the 2nd Claimant’s Wife said that her side (ie she and/or her husband) did not attend the court hearing on 26 June 2020 due to carelessness or oversight, and this was why the 1st Claimant managed to enter judgment. After warning the 1st Claimant not to enter into the Property by force and indicating that the legal proceedings ahead would be lengthy, the 2nd Claimant’s Wife said: “特意送上給你一盤吉啦，希望你日后做人要講禮節，講究事實。”.
(2) The phrase “吉” can mean “empty” in Cantonese. This is a common colloquial expression. There is no evidence showing that the 2nd Claimant and/or his Wife would gift or deliver a pot of tangerine to the 1st Claimant, and it would be surprising if they sought to do so bearing in mind the bad relationship between the parties. Plainly, the 2nd Claimant’s Wife implied that the Property would be emptied. This was to be done because the 1st Claimant was allegedly uncourteous and untruthful. The underlying message was plainly provocative and cynical.
(3) In her subsequent WhatsApp message on 29 July 2020, the 2nd Claimant’s Wife further said to the 1st Claimant: “你最失敗的地方就是不清不楚，你留下的東西在租約上沒有列出的，租方都有權丟掉。所以你好好全面看清楚在租約內列出的物品內容，在裏面是否寫有客廳電視櫃的存在。”.
(4) This WhatsApp message shows the 2nd Claimant’s Wife was excited about fact that the furniture list annexed to the Tenancy Agreement did not cover certain items that the 1st Claimant placed in the Property. She thought that the tenant (ie the 2nd Claimant) could make use of this purported loophole and dispose of the items provided by the 1st Claimant. Thus, she mocked the 1st Claimant for not paying attention to the contents of the Tenancy Agreement and not making sure that the contents of the Tenancy Agreement were clear.
23. It is apparent that the 2nd Claimant and his Wife have been playing games with the 1st Claimant by exploiting a purported loophole in the Tenancy Agreement. They think that they are entitled to cause harm and/or inconvenience to the 1st Claimant by removing the chattels or items that are not covered by the furniture list annexed to the Tenancy Agreement. This is a malicious personal vendetta. The conduct of the 2nd Claimant and his Wife is deplorable.
24. In any event, the 2nd Claimant’s contention is plainly misconceived and bad in law.
25. As pointed out in Personal Property Law (4th Ed) by Michael Bridge at pp153 and 171, where there is a contract for sale and purchase of chattels, the transfer is based on the intention of the contractual parties. Where a gift is involved, a transfer is only effective if the donor displays a clear intention to transfer to the donee his interest in the object that is being given.
26. The intention of the parties is of crucial importance. In this connection, it is pertinent to refer to Biel Crystal (HK) Manufactory Ltd v U-Borne Environmental Limited [2021] HKCFI 2097 at paras 59 to 61. There, Queeny Au-Yeung J stated:-
“59. On ownership of rubbish, it was held in Williams v Phillips (1957) 41 Cr App Rep 5 (a case on larceny), at p 8 that:
“If I put refuse in my dustbin outside my house, I am not abandoning it in the sense that I am leaving it for anybody to take it away. I am putting it out so that it may be collected and taken away by the local authority, and until it has been taken away by the local authority it is my property. It is my property and I can take it back and prevent anybody else from taking it away … Once the Corporation come and clear it away, it seems to me that because I intended it to pass from myself to them, it becomes their property. Therefore, there is no ground for saying that this is abandoned property.” (underline added)
60. An owner may abandon his property, without any intention of resuming possession or ownership and as such put an end to their liabilities: The Crystal [1894] AC 508: Lord McNaughten (at 532):
“They [the original owners] had lost possession of the vessel already; all that remained to them was the property in the vessel — that is to say, the right to retake or resume possession of her. This right they abandoned as plainly and as unequivocally as it was possible for them to do, and they abandoned it before the commissioners began their operations or even took possession. They disowned the wreck.”
61. However, abandonment requires evidence. In Robot Arenas Ltd v Waterfield [2010] EWHC 115 (QB), at §88, Edelman QC, it was held that once the claimant has proved its ownership of the equipment, the burden of proving abandonment as a defence to a claim in conversion must be on the defendants and, in that case, the defendants have not discharged the burden of proving on the balance of probabilities that the claimant had the necessary subjective intent to abandon whatever remained in the object.”
27. In the present case, there is not a shred of evidence showing that the 1st Claimant has evinced an intention to transfer the ownership or title of the Furniture to the 2nd Claimant; nor is there any evidence showing that the 1st Claimant has abandoned the Furniture, such that the 2nd Claimant is in a position to assume ownership and/or title in respect thereof. I cannot see how it can be said that the 2nd Claimant has acquired the interest in the Furniture from the 1st Claimant.
28. In my view, the mere fact that the Furniture is omitted from the furniture list annexed to the Tenancy Agreement is equivocal, and thus neither here nor there. The omission could be attributed to the carelessness, oversight or incompetence on the part of the estate agent who handled the matter. I cannot, and I refuse to, draw an inference that 1st Claimant intended to transfer or abandon the Furniture.
29. In the premises, the ownership and title of the Furniture was at all material times, and still is, vested with the 1st Claimant. There is no basis for the 2nd Claimant to appropriate the Furniture.
30. Mr Angel Wong (for the 1st Claimant) further contends that the 2nd Claimant is under a tortious duty as well as a contractual duty to return the Furniture. For the following reasons, I accept Ms Wong’s submissions.
31. Insofar as tortious duty is concerned:-
(1) Ms Wong refers me to Knorr-Bremse Asia Pacitici (Holding) Ltd v Ng Lai Ching Lucia (DCCJ 3796/2011, 7 January 2014) at para 41. There, Deputy District Judge Ada Yim (as she then was) held that regardless of whether the chattels in question were listed in the appendix of tenancy agreement or not, a tenant had a duty in tort to return the chattels to the landlord upon the expiry of the lease.
(2) With respect, I agree.
(3) If the landlord retains title over the chattels in question, the tenant’s act of appropriating such chattels would constitute conversion: see Biel Crystal (supra) at para 56. In the premises, the tenant must return the chattels to the landlord, failing which he would be liable tortiously.
32. As regards contractual duty:-
(1) Clause 6 of the Tenancy Agreement provides that the 2nd Claimant “shall deliver up vacant possession of the [Property] in the same repair and condition on the expiration or sooner determination of this tenancy”.
(2) According to Hong Kong Tenancy Law (6th Ed) by Malcom Merry at p 222:-
“Strictly speaking the obligation to return the premises in the same condition as when let requires the tenant to … restore any additions or decorations which were placed in the place at the beginning of the lease.”
(3) I agree that the 2nd Claimant is under a contractual duty to return or restore the Furniture when the Tenancy Agreement comes to an end. Without the Furniture (which is “addition” to the Property), it cannot be said that the Property is in the same condition as when let.
33. Insofar as the dispute in relation to the Samsung TVs is concerned:-
(1) The 2nd Claimant alleges that he agreed to exchange his own television for the Samsung TVs which belonged to the 1st Claimant. The 2nd Claimant says that this exchange arrangement was permanent and irreversible.
(2) Having considered the objective circumstances, the WhatsApp messages, the models of the televisions and the inherent probabilities, I prefer the 1st Claimant’s evidence and the version of the events set out in her 2nd affidavit.
(3) I am of the view what happened was that instead of taking the trouble to remove her Samsung TVs (which had been installed and set up in the Property already), the 1st Claimant allowed the 2nd Claimant and his family to use her Samsung TVs while the tenancy subsisted. In consideration therefor, the 2nd Claimant and/or his Wife delivered their television (which was an older version produced by Samsung) to the 1st Claimant. It was also agreed that when the tenancy in respect of the Property ended, the 2nd Claimant should return the Samsung TVs to the 1st Claimant, and likewise the 1st Claimant should return the television owned by the 1st Claimant and/or his Wife.
(4) The 1st Claimant has been keeping the television belonging to the 2nd Claimant and/or his Wife, and she is willing and able to deliver the same to them upon reasonable notice.
(5) In the premises, the Samsung TVs should be returned to the 1st Claimant.
Disposition and Order
34. For all the above reasons, I order that the Furniture set out in the originating summons herein dated 28 September 2023 be returned and delivered to the 1st Claimant forthwith.
35. Out of abundance of caution, I also order that there be liberty to apply for consequential directions.
36. Under paragraph 6 of the Order made by His Honour Judge Harold Leong herein dated 4 December 2023, the 1st Claimant and the 2nd Claimant agreed to pay the costs of the Applicant (ie the Secretary for Justice) incurred in these proceedings (ie HK$15,300), and such costs be costs in the cause as between the 1st Claimant and the 2nd Claimant.
37. There is no reason why costs should not follow the event. The 1st Claimant, as the successful party, is entitled to recover her own costs as well as the costs that she paid the Applicant.
38. As pointed out, the 2nd Claimant’s contention is wholly unmeritorious and not pursued in good faith. Further, his conduct relating to the dispute in these proceedings has been unreasonable and deplorable.
39. In the premises, I order that the 2nd Claimant should pay the 1st Claimant’s costs in these proceedings (including all costs previously reserved) on an indemnity basis, summarily assessed at HK$100,000[5].
40. I thank Ms Angel Wong for her helpful assistance.
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( Alan Kwong ) |
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District Judge |
Ms Angel Wong, instructed by Raymond T L Tse & Co, for the 1st Claimant
The 2nd Claimant is not represented and did not appear
[1] The 2nd Claimant’s solicitors instructed counsel to attend the hearing on 2 August 2024. In the beginning of the hearing, I was not aware that the 2nd Claimant’s solicitors had already ceased to act, and as such I heard submissions from counsel instructed by them in regard to the directions for filing further evidence. I was only aware that the 2nd Claimant’s solicitors had already ceased to act towards the end of the hearing. Had I been aware of the situation earlier, I would not have allowed the counsel engaged by the 2nd Claimant’s former solicitors to address me at all. I was skeptical about counsel’s suggestion that he attended the hearing with a view to assisting the court when he was plainly seeking to cause delay and complication to the present proceedings by contending that there should be cross-examination and that the 2nd Claimant should be allowed to file further evidence without restriction. I was unimpressed by the conduct of the former legal representatives of the 2nd Claimant. Be that as it may, the directions that I proposed to make at the hearing on 2 August 2024 were in principle agreeable to the 1st Claimant’s representatives.
[2] This is the affirmation of service dated 26 August 2024 made by Kwan Yuk Kin. It is confirmed on oath that on 23 August 2024, copies of my order dated 2 August 2024 and the 1st Claimant’s 2nd affidavit dated 22 August 2024 were served on the 2nd Claimant at the letter box of his residential address as the 2nd Claimant did not answer the door.
[3] This is together with a carpark space.
[4] The 1st Claimant has produced some photographs to show that some of the Furniture was already placed at the Property at the time when the same was just fully furnished.
[5] This includes the costs that the 1st Claimant paid the Applicant, ie HK$7,650 (ie HK$15,300 x ½)
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