KOON WAH MIRROR HOLDINGS LTD v. TSANG HU HUNG HUMPHRY

HCA 2125/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2125 OF 2003

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J U D G M E N T

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1. This is an appeal from the order of Mr Registrar Chan giving summary judgment on the Plaintiff's claim for vacant possession of the suit premises and monetary relief against the Defendant.

2. The Plaintiff has let the suit premises to the Defendant for a period of 3 years. The term of the lease expired on 2 June 2003. The Plaintiff sued the Defendant for arrears of rent, service charges and other sums of money, as well as mesne profits after the expiry of the term. The Plaintiff also sued the Defendant for recovery of vacant possession of the suit premises after the expiry of the term. The learned Registrar gave judgment in favour of the Plaintiff on 3 November 2003, the action having been commenced by the Plaintiff on 10 June 2003.

3. On 7 November 2003, the present appeal was taken out and today's date was given as the date of the hearing of the appeal. On 20 December 2003, i.e. 2 days prior to today's hearing, the Defendant applied for legal aid. The memorandum of an application for legal aid has not yet reached the court file and thus, strictly speaking, there is as yet no automatic stay of proceedings (which will be subject to the court's power to lift the stay in any event). Nonetheless, the Defendant applies for an adjournment of the hearing of his appeal today.

4. Despite some doubts over the genuineness of the belated application for legal aid, I am minded to adjourn the hearing of the appeal by the Defendant from the order and judgment of the learned Registrar, insofar as it relates to the Plaintiff's claim for monetary relief on which the learned Registrar has given the Plaintiff judgment, although as I say, strictly speaking, there is as yet no automatic stay.

5. In my judgment, in all fairness and subject to one exception, the hearing of the Defendant's appeal should await the outcome of the Defendant's legal aid application, given the grounds now relied on by the Defendant in this appeal.

6. The one exception is this: the learned Registrar also gave judgment in favour of the Plaintiff for recovery of vacant possession of the premises. In relation to this part of the Plaintiff's claim, the Defendant's only defence is that there was an agreement reached at a meeting held on 5 June 2003, i.e. after the expiry of the term of tenancy, between the parties to the effect that he would be given an extra 3 months as a grace period to remain in the premises. As I say, the term expired on 2 June 2003, and the Defendant has been occupying the premises since the expiry of the term for over 6 months by now. In other words, rightly or wrongly he has already got his so-called grace period of 3 months without payment of anything. In those circumstances, I can see no defence whatsoever on the part of the Defendant to the Plaintiff's claim for recovery of vacant possession of the premises.

7. In other words, the disputes between the parties relate only to monetary matters. With or without legal aid, I can see no defence on the part of the Defendant even on his own case to the claim for vacant possession. Therefore in relation to that part of the Defendant's appeal concerning recovery of vacant possession of the suit premises by the Plaintiff, I refuse the application for an adjournment. I will now proceed to hear the appeal.

[Submissions on the merits of the appeal]

8. Having so decided in relation to the question of adjournment and having heard the parties on the appeal regarding vacant possession only, for the reasons already explained above, I can really see no defence to the Plaintiff's claim for vacant possession of the premises. Accordingly, I make an order dismissing the appeal insofar as it relates to the order and judgment below giving vacant possession of the premises to the Plaintiff, subject to one minor amendment of the judgment, namely, that in the last paragraph on p. 2 of the judgment entered below, the words after "at the expiry of 7 days from the date of service of this judgment on the Defendant" up to the end of that paragraph should be deleted, and I so order. As to the remainder of the appeal concerning the monetary part of the order and judgment, as I say, I adjourn the hearing to a new date to be fixed, pending the outcome of the Defendant's application for legal aid.

[Submissions on costs]

9. So far as costs of today's hearing are concerned, having heard the parties, I order that the costs be paid by the Defendant to the Plaintiff; such costs are to be taxed if not agreed.