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CACV000123/1986
IN THE COURT OF APPEAL
BETWEEN
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AU YIN WONG YEE CHUN, NAOMI
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Applicants(Appellants)
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and
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WONG LAI TIM
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Respondent
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Coram: Cons, V.-P., Silke & Kempster, JJ.A.
Date of Hearing: 24th October 1986
Date of Judgment: 24th October 1986
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JUDGMENT
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Silke, J.A.:
1. Madam Au Yin and Miss Wong Yee Chun are the landlords of a flat on the eighth floor of No. 316, Sai Yeung Choi Street.
2. Wong Lai Tim is the domestic tenant of those premises. He pays a monthly rent of $1,604. He has lived there for 18 years and with him lives his wife, his daughters aged 19 and 11 and his son aged 16.
3. Miss Wong, a 36 years old nurse, is employed at the Prince of Wales Hospital, Shatin and she purchased the tenanted premises in 1985.
4. By a Deed of Gift of the 8th January 1986 she assigned a half interest in it to Madam Au who was said to be a friend of her late mother. Madam Au has a daughter and lives in a cubicle 50 sq ft in area.
5. Miss Wong resides in the Nurses Quarters at the hospital in a premises about 700 sq ft., the same size as the suit premises.
6. The landlords jointly applied for possession of the premises on the ground that they reasonably required them as a residence for themselves; an application under the provisions of section 53(2)(b) of the Landlord and Tenant Ordinance, Cap.7.
7. Originally, a Notice to Quit had been issued in 1985 solely in the name of Miss Wong and, subsequent to the transfer by Deed of Gift, a fresh Notice to Quit was issued in the names of both of the Applicants. No issue was taken as to the validity of those Notices.
8. The Presiding Officer, His Honour Judge Ryan, having heard evidence from both the landlords and from the tenant, found that the ground of reasonable requirement had-not been made out, he said at page 28:
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"The first applicant's evidence established that she is living in difficult circumstances and if the transfer to her is accepted as genuine then a reasonable requirement on her behalf has been established. However having regard to the history of the transaction and the demeanour of the witnesses I find on the balance of probabilities that the transfer by way of gift is a sham, a device used by the second applicant to try to establish grounds for possession which in her own right she realised did not exist."
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9. Of Miss Wong he said her evidence, at its highest, related only to "convenience".
10. In an appeal to this Court his Reasons are attacked on the basis that his factual findings, and the inferences which he drew from them, were riot justified by the evidence nor, indeed, did he apply the proper test in relation to reasonable requirement; that is the test of more than desire but not absolute necessity.
11. Mr. Cheung, for the landlords, has suggested to us that even if he were right about the device being a sham and we isolate Madam Au from the application, Miss Wong, in her own right, has shown sufficient reasonable requirement for the decision of the trial judge to be reversed.
12. He suggests that the reasons given by Miss Wong, which were, first, that she was lonely in the premises in Shatin; second, she would be closer to relatives if she lives in the suit premises; third, that she did not wish to work and live at the same place at the same time; fourth, that she wished to have Madam Au live with her and, fifth, that she was unable to see her friends because of her isolation in the premises in Shatin, are sufficient to give her the right to possession within the meaning of the Ordinance. The judge in effect found these grounds, having considered them, to amount to no more than mere desire.
13. The judge clearly took the view that joining Madam Au in the application was an attempt to assist Miss Wong for, if she was able to show that there was another applicant with her, aged 55 who was living in the difficult circumstances of a windowless cubicle, when making the basic application for possession of the suit premises she would be in a better position. The trial judge was entitled to take the view which he did that had Miss Wong really wished Madam Au to live with her, it would be a simple matter, as it was put to Miss Wong in evidence, to ask her to live with her as a family friend. I note that Miss Wong's knowledge of Madam Au only extended for 4 years despite the fact that Madam Au was said to have been a family friend for a considerable period of time and that their meetings were no more than casual ones in the street. It was a matter for the trial judge in applying the correct test, which he did, as a factual matter to draw the inferences which he also did. I am not prepared to upset the findings he made and the appeal will, therefore, be dismissed.
Cons, V.-P.:
14. I agree entirely with what my Lord has said and I do not wish to add anything.
Kempster, J.A.:
15. I too agree that the appeal should be dismissed for the reasons given by my Lord, Silke, J.A., to which there is nothing I can usefully add.
Representation:
Peter Cheung, Esq. (Poon, Yeung & Li) for Appellants/ Applicants.
Adrian Hell, Esq. (Hampton, Winter & Glynn) for Respondent.
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