WONG SHUI YING v. POON MAN TAO

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an appeal against an order of His Honour Judge Henry Wong whereby he adjudged that the Plaintiff's claim for possession of a flat be dismissed. The claim was against a man who had formerly lived with the tenant as husband and wife. Originally these two persons went to the Plaintiff and a discussion arose about the taking of a tenancy. It is quite clear that at that time it was contemplated that the man and the woman would take a joint tenancy, that appears clearly from the evidence. The defence which has been put up by the Defendant is that he was a sub-tenant. The defence never gave particulars of the alleged agreement but we are told that an agreement was reached for a sub-tenancy after the tenancy had been in existence for some time and the man and the woman decided to sleep in different rooms when their respective children went to boarding school. With respect to the learned judge it seems to me that there is no evidence at all to justify the conclusion which he has reached. The Defendant said to start with: "The two of us leased those premises." "After we had agreed on the lease." They were "to share the rent" and "pay contributions". "All along Yip Wai-bor and I have leased the suit premises together, so that I feel I may not be her sub-tenant." "The suit premises were rented by Yip Wai-bor and me jointly." That is how he saw it.

2. In fact it is quite clear that the Plaintiff did not agree to a joint tenancy: she insisted that one of the two be the tenant, and she asked whose name was to go on the rent receipt - to which the Defendant replied that the woman's name should go on the rent receipt; and that is what happened. The effect of that, it seems to me, was that they agreed that Yip Wai-bor should become the tenant. Yip Wai-bor was to pay the rent, and it matters not that in fact what happened was that the Defendant eventually paid to the Plaintiff by cheque the rent which Yip Wai-bor owed to the landlord and that he collected a contribution from Yip Wai-bor. I see no evidence whatsoever that there was a subsequent sub-letting of the premises. Indeed, what is suggested now is that there was a sub-letting not of the whole premises but of part of the premises, namely a cubicle together with use of other common parts of the flat. That there was a sub-letting of part - which, as I say, has never beer pleaded - does receive some very slight support from a document purporting to be a rent receipt for rent paid by the Defendant to Yip Wai-bor in 1984, well over ten years after the alleged agreement is supposed to have taken effect. Mr. Wong has argued that the man and the woman were laymen and may have used loose language. For my part I cannot think that there can ever have been any doubt that what was originally proposed was a joint tenancy as distinct from a sub-tenancy. In the event the evidence shows conclusively that there was a letting to Yip Wai-bor and the finding that there was a subsequent letting of the whole premises to the Defendant is entirely unsupported by evidence. I would therefore allow this appeal and make an order for possession as prayed in the Statement of Claim.

Cons, J.A.:

3. I agree entirely with my Lord and would make the same order, and I presume that the Plaintiff is asking also for an order for mesne profits as in Prayer B.

Fuad, J.A.:

4. I agree that the appeal must be allowed and with the orders proposed by my Lords. I have nothing to add.

22nd November 1985