HING SHING CO v. MEHMOOD ADIL AND ANOTHER

LDPD 1762/2019

[2020] HKLdT 2

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. 1762 OF 2019

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D E C I S I O N

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1.  This is an interlocutory application by the 1^st and 2^nd respondents for leave to appeal against my judgment dated 18 December 2019, contents of my judgment are set out in paragraph 15 below.

2.  The applicant, as the landlord, entered into a tenancy agreement with the respondents, as the tenants, in relation to a property situated at Room D, 5^th Floor, 275 Tai Nam Street, Sham Shui Po, Kowloon (九龍大南街275號唐六樓D房) (“the suit premises”) for the period from 22 March 2019 to 21 March 2020.

Procedural History

3.  On 30 September 2019, the applicant filed a Notice of Application (Form 22) to apply for recovery of possession of the suit premises and rent/mesne profits on the ground that the respondents have failed to pay rent from 22 March 2019.

4.  The respondents did not file any Notice of Opposition. On 14 October 2019, the applicant filed an application for judgment in default of opposition pursuant to Rule 15 of the Lands Tribunal Rules, Cap.17A together with some updated information in support of their application.

5.  Upon assessing the evidence available to the Tribunal, on 16 October 2019, His Honour Judge M. Wong ordered, inter alia, that the respondents do deliver vacant possession of the suit premises to the applicant subject to a relief from forfeiture of tenancy if the arrears of rent/mesne profits at the rate of $4,500 per month from 22 July 2019 until delivery up of vacant possession together with the costs of $1,200 were paid by the respondents on or before 30 October 2019.

6.  On 31 October 2019, the respondents filed an interlocutory application seeking to set aside the said judgment dated 16 October 2019.

7.  In the hearing of the respondents’ set aside application before me on 11 November 2019, the respondents confirmed that they did receive the applicant’s Notice of Application (Form 22) but did not file any Notice of Opposition. The respondents said that they did not pay rent because there was water leakage problem in the suit premises.

8.  The respondents could not provide any explanation as to why they had failed to file their Notice of Opposition. I gave the respondents one more chance to oppose the application and ordered that: -

(i)	Judgment dated 16 October 2019 be set aside with no order as to costs[1];
(ii)	The 1st and 2nd respondents do file and serve their Notice of Opposition within 14 days from the date of order, i.e. on or before 25 November 2019;
(iii)	The applicant do file and serve a Reply thereto, if any, within 7 days thereafter, i.e. on or before 2 December 2019;
(iv)	The parties do file and serve their respective witness statements together with all documentary evidence within 14 days thereafter, i.e. on or before 16 December 2019; and
(v)	The case be set down for trial on 18 December 2019 at 10:00 a.m., 1 day reserved.

9.  The respondents did not file any Notice of Opposition, witness statements or documentary evidence whether in accordance with the timetable of the above order or at all. No application was made by the respondents for time extension to file Notice of Opposition or evidence.

10.  As no Notice of Opposition was filed by the respondents, the applicant did not file any Reply thereto or any witness statements/documentary evidence in addition to those already filed in support of the Rule 15 application.

Scheduled Trial Date

11.  The trial was scheduled to take place on 18 December 2019. On the date of trial, the respondents still had not made ready any Notice of Opposition or witness statements with a view to seeking leave from the Tribunal for them to file and adduce the same right away. The respondents merely placed a mobile phone on the bench, saying that all evidence was stored inside the phone and requested the Tribunal to view the evidence from the mobile phone. The respondents explained that no witness statement was filed because they had tried to file the mobile phone to the staff at the Tribunal registry but the staff refused to accept the same.

12.  I found the respondents’ explanation wholly unacceptable. The respondents should be fully aware of the manner in which evidence should be filed that is, in the form of witness statement(s) together with all evidence attached thereto[2]. Even if what the respondents said about the court staff refusing to accept the phone is true, I considered it right and proper for the court staff not to accept a mobile phone being filed as evidence as it was apparently inappropriate, practicably infeasible and also inconsistent with the direction given by me on 11 November 2019.

13.  In any event, the respondents were specifically ordered to file the Notice of Opposition on or before 25 November 2019 before the parties were to file evidence on or before 16 December 2019. The respondents could not explain the reason why no Notice of Opposition was filed at all.

14.  It is a statutory requirement under Rule 69(1) of the Lands Tribunal Rules, Cap.17A that any respondent who wishes to oppose the application shall file and serve a Notice of Opposition to state his grounds of opposition and that he wishes to be heard.

15.  In the absence of any Notice of Opposition, witness statements or other evidence filed by the respondents to oppose the applicant’s application for recovery of possession and arrears of rent, based on all evidence available to the Tribunal and upon the applicant’s confirmation that monthly rent of $4,500 has remained unpaid since 22 July 2019 (i.e. the situation has not changed[3] since the previous default judgment of His Honour Judge M. Wong dated 16 October 2019), I ordered that: -

1.	Subject to paragraph 4 below, the 1st and 2nd respondents do deliver vacant possession of the suit premises to the applicant;
2.	The 1st and 2nd respondents do pay the applicant arrears of rent/mesne profits at the rate of $4,500 per month from 22 July 2019 until delivery up of vacant possession;
3.	As the applicant does not ask for costs, there be no order as to costs;
4.	If the 1st and 2nd respondents should on or before 31 December 2019 (“Relief Expiration Date) pay into the Tribunal all the arrears of rent/mesne profits as stated in paragraph 2 above (including all arrears of rent/mesne profits due on or before the date of payment), the 1st and 2nd respondents be relieved from the forfeiture incurred herein, and the lease of the suit premises be reinstated; and
5.	Unless otherwise ordered, all sums ordered to be paid under this judgment shall be paid into the Tribunal in cash, by EPS, by cashier orders issued by banks in Hong Kong or by cheques drawn by firms of solicitors in Hong Kong, and such sums received by the Tribunal shall be released to the applicant.

16.  The above order was made on the basis that the application for possession and rent was not met with an opposition from the respondents by way of filing a Notice of Opposition.

17.  Upon hearing my ruling, the respondents indicated that they would appeal against my judgment. I suggested the respondents seek independent legal advice as to the suitable course to take.

Leave To Appeal

18.  On 24 December 2019, the respondents filed an interlocutory application (Form 1) to apply for leave to appeal against my judgment dated 18 December 2019. The grounds of application as stated in the affirmation in support were mainly that the applicant refused to fix the water leakage problem despite the respondents’ repeated requests, that the International Social Service Hong Kong Branch (“ISS”) would pay some rent on their behalf and that they would pay their share only if the applicant could fix the water leakage problem. Some documents were attached to the application for leave to appeal, observation thereon will be elaborated in paragraphs 29 to 31 below.

19.  In the hearing of the leave application, the respondents verbally added that they did not file Notice of Opposition or evidence because the court did not provide interpreter to them in the previous hearings and as a result, they did not understand the legal requirement and the previous court directions on the filing of documents.

Discussion

20.  Section 11(2) of the Lands Tribunal Ordinance, Cap.17 (“the Ordinance”) stipulates that any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law.

21.  Section 11AA(6) of the Ordinance provides that leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave is satisfied that: (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.

22.  The respondents did not raise any point of law in their application for leave to appeal. For completeness, I shall also deal with the respondents’ alleged misunderstanding of the requirement or court directions regarding filing of Notice of Opposition and evidence.

23.  To begin with, it is a statutory requirement under Rule 69(1) of the Lands Tribunal Rules, Cap. 17A that any respondent who wishes to oppose and to be heard must file a Notice of Opposition. The respondents shall not rely on the applicant or the Tribunal to advise them of the law but shall count on themselves to know the rules and comply with them in the first place.

24.  As a note of caution, the prescribed form Notice of Application (Form 22), which was duly served on the respondents, was made to contain the following note on the first page to remind respondents of the need to file Notice of Opposition:

“Note: If you (the respondent) intend to oppose the application, you must personally attend the Lands Tribunal Registry within 7 days or within the time as ordered by the Tribunal, to file a Notice of Opposition (i.e. Form 7).”

25.  However, it seems that neither the rules nor the reminder in Form 22 could catch the respondents’ attention to these proceedings. They only took step to apply for set aside upon receiving the default judgment ordering them to deliver up possession of the suit premises.

26.  In the hearing on 11 November 2019 and on the scheduled trial date on 18 December 2019 where directions were given, English/Punti interpretation was provided. Whether before or during the said proceedings, the respondents never raised that they could not understand what the interpreter said nor did they require interpretation in the language of Urdu[4]. To the contrary, the respondents appeared content with the interpretation service provided. There was effective communication between the parties and the Tribunal throughout the proceedings[5].

27.  According to the court’s records, in the hearing on 11 November 2019, I repeatedly reminded the respondents for about 6 times that Notice of Opposition must be filed if they wished to oppose the application and be heard. It was after having consulted the respondents the time they needed to prepare the Notice of Opposition then I allowed them 14 days to file the same. As for the filing of evidence, parties were specifically told that witness statements shall be filed and served in written form, all evidence shall be attached thereto, and that all the materials inside the mobile phone should be printed out. Parties were reminded for about 3 times to write down the directions. More than 17 minutes were spent on giving and explaining the directions to the parties. After directions were given and explained, parties were specifically asked whether there was any direction or anything about the directions that they were unclear about. They positively confirmed that they well understood the directions and had nothing to ask further before the hearing ended. The hearing lasted for about 45 minutes.

28.  If, despite the rules and the written reminder in Form 22, and despite the oral directions given and the explanations to the parties, the respondents still had genuine doubt or question as to what documents should be filed by what time, it was highly doubtful why the respondents, at any time after the hearing, did not take out any application or in any way correspond with the court to have the doubts clarified. The respondents chose to represent to the applicant and the Tribunal during the proceedings that they well understood the directions but claimed the contrary only when things went south due to their own fault, this rendered their alleged misunderstanding of the directions highly incredible.

29.  I set out lastly a brief note of observation on the documents attached to the respondents’ application for leave to appeal. The documents mainly consist of:- (i) an “Agreement on Administering and Delivery of Assistance” seemingly signed on 17 December 2019; (ii) a copy of tenancy agreement; (iii) copies of recognizance issued to the respondents by the Immigration Department; (iv) some photos showing the condition of a premises; and (v) a copy of a previous letter from the Tribunal.

30.  It is noted that document (i) which is an “Agreement on Administering and Delivery of Assistance” was seemingly signed only on 17 December 2019, just one day before the scheduled date of trial, see page 4 of this document. Paragraph 1 on page 1 of this document states that assistance would be granted to the “service user” from 17 December 2019, again just one day before the scheduled date of trial, until 20 January 2020. In the last paragraph on page 1 of this document, the service user declared that he shall take sole and absolute responsibility for all obligations as tenant for the entire period of the tenancy. I do not see how this document would have any real impact on the merits of the case even if such evidence (and also the Notice of Opposition) had been filed for the purpose of trial. I hold the same view in relation document (ii), document (iii), and document (v).

31.  As regards document (iv) which are some photos showing the condition of a premises, even assuming that these photos do depict the situation of the suit premises, it is questionable whether the alleged water leakage problem, even if proved, would justify the respondents’ non-payment of rent. In any case, fair opportunities had already been given for the respondents to contest the application. The respondents who repeatedly ignored the rules and the court’s directions should take the consequences of having an adverse judgment as a result of their own deed. I do not see that any injustice would be done to the respondents as there is nothing to prevent the respondents from starting a claim against the applicant at a court of proper jurisdiction if they genuinely consider that the landlord was in breach of the tenancy agreement due to the alleged water leakage problem and shall compensate them for the loss they suffered.

32.  By reason of the foregoing, I dismiss the respondents’ application for leave to appeal as the intended appeal does not concern any point of law and has no reasonable prospect of success. I do not see any reason in the interests of justice why the appeal should be heard.

Costs

33.  As the applicant does not ask for costs, I make no order as to costs of this application for leave to appeal.