KHEMCHANDANI ISHWARDAS TIRATHDAS AND ANOTHER v. MAHTANI SHAMDAS THAUMAL

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JUDGMENT

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Fuad, V.-P.:

1. This is an appeal from the decision of Judge Surman, sitting as a Presiding officer in the Lands Tribunal, dated 11th October 1990, whereby he granted an application by Mr. Tirathdas and his wife for possession of their flat in a block called "Far East Mansion" in Middle Road, Kowloon, under section 53(2)(b) of the Landlord and I Tenant (Consolidation) Ordinance, Cap.7. The Presiding officer ordered a stay of execution until 31st March 1991 and so, despite the decision, the tenant, Mr. Thaumal, is still in possession of the premises.

2. The only point taken as a ground of appeal is formulated as follows:

3. To understand that ground, it is necessary to refer to some of the evidence given by the male applicant. He said that he had been in business in Hong Kong for 30 years or so and had been running his own business here for the past 23 years. When asked in cross-examination by the solicitor then representing the tenant before the Tribunal whether he intended to migrate to U.S.A., he said he did not. He was then asked whether he had taken any steps to get a green card in America. He replied that one had been applied for on his behalf by his sister in 1980. Although it had been approved, he had not yet received the card. He agreed that his wife had a green card. When it was put to him that one of the conditions for having a green card was that he would reside in the U.S.A., he said he was not aware of that. He said that he had been interviewed by the U.S. Immigration Authorities in November or December 1989. He was asked whether he had given an undertaking that "[he] would reside in the United states in the future," and he answered "yes".

4. In further cross-examination, Mr. Tirathdas admitted that he had not told the immigration officials that he would not be coming to live in the U.S.A. for the next two years. He said that he had gone to the U.S.A. for in August 1990 and had stayed there for about 3 weeks in order to get his green card. He said that he had not purchased any property in the U.S.A. nor had he established any business there.

5. In re-examination the following exchange took place:

6. The Presiding Officer does not refer to the matter of the green card in his careful judgment. This must be because, as one can see from the meticulous notes of the proceedings, no mention is made of this point in the final speech of the solicitor acting for the tenant, although I note that the solicitor acting for the applicants is recorded as having asked the Presiding Officer to accept what the male applicant had said about "insurance".

7. It seems to me that the Presiding 'Officer was fully justified in granting the application on the evidence that was led before him. Clearly, he must have accepted that while the applicants both had, or would soon have, green cards they had no present intention of emigrating to the U.S.A.. In present day Hong Kong, this attitude to possible emigration in the future, is not unknown.

8. It was conceded on behalf of the tenant that he was unable to put forward a case that would satisfy proviso (i) to paragraph (b) of section 53(2) of the Ordinance, (that it would manifestly not be just and equitable to grant the order for possession).

9. In my judgment, the appeal should be dismissed.

Clough, J.A.:

10. I agree. I only wish to add my commendation to the Presiding officer for his admirably clear and succinct reasons for decision.

Penlington, J.A.:

11. I also agree that this appeal should be dismissed.