CHENG CHO NG v. ADAMS GEORGE HARPER

LDPD 1593/2016

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 1593 OF 2016

_________________

_________________

_________________

REASONS FOR JUDGMENT

_________________

1.  This is an application by the applicant for recovery of possession of the premises situated at 2/F, 72 Stanley Main Street, Hong Kong (“the Premises”) on the ground that the respondent has failed to pay rent from 15 July 2016.

2.  Having heard the submissions by the parties, I made the following order (“the Judgment”):

(1)  Subject to paragraph (5) below, the respondent do deliver vacant possession of the Premises to the applicant;

(2)  The respondent do pay the applicant arrears of rent/mesne profits at the rate of $7,500 per month from 15 July 2016 until delivery up of vacant possession;

(3)  The respondent do pay the applicant the water charges as determined by the Water Supplies Department in the sum of $114.20;

(4)  The respondent do pay the applicant the costs of this application which is summarily assessed at $600;

(5)  If the respondent should on or before 12 September 2016 (“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) together with the costs referred to in paragraph (4) above, the respondent be relieved from the forfeiture incurred herein, and the lease of the Premises be reinstated.

(6)  Unless otherwise ordered, all sums ordered to be paid under this judgment shall be paid into the Tribunal in cash, 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.

3.  I said I would provide the reasons for the Judgment in due course. Here are the reasons.

Background

4.  The applicant is the registered owner of the Premises and it is undisputed that the respondent has been the tenant of the Premises for some 11 years. 

5.  For instance, the respondent produced two tenancy agreements, one dated 13 May 2014 for a term of 12 calendar months (ie 1 year) from 15 May 2014 and another dated 20 April 2015 for a term of 12 calendar months (ie 1 year)  from 15 May 2015. The monthly rent inclusive of rates and service charges were $6,500 and $7,000 respectively.

6.  When latter tenancy expired, according to Mr Cheung Wai Ming (“Mr Cheung”), the son of the applicant, the parties signed a new tenancy for a term of 12 calendar months (ie 1 year)  from  15 May 2016 (“2016 tenancy”) as they usually did. The monthly rent inclusive of rates and service charges has been increased to $7,500 and therefore the deposit becomes $15,000 according to Clause 2 of the 2016 tenancy.

7.  Like its two predecessors, Clause 11 of the 2016 tenancy states:

“The Tenant shall himself cover insurance for his own belongings against Typhoon, Depression Storm, Flood, Fire, Theft and Accidents in relation to this Tenancy. The Landlord shall not be responsible for any damage or loss under all circumstances.”

8.  Also like its two predecessors, Clause 14 of the 2016 tenancy states:

“The Tenant is solely responsible for the repair of doors, windows kitchen and bathroom fittings, pipings, drains etc during the continuence of this Tenancy.”

9.  On the other hand, the 2016 tenancy as well as its two predecessors provide for no landlord’s covenant save at Clause 12 which states:

“The Tenant shall permit the Landlord and its agents with or without workmen or others and with or without appliances at all reasonable times to enter upon the said premises and to view the condition thereof and to take inventories of the fixtures therein and to carry out any repairs to the premises which the Landlord considers necessary or proper to be done.”[1]

10.  Initially at the beginning of the hearing the respondent denied the existence of this 2016 tenancy, suggesting for example there was no legal intention by the applicant to enter into contract when the 2016 tenancy was not stamped. But when he was presented with a copy of the 2016 tenancy which was stamped on 2 June 2016, the respondent submitted that a copy of the 2016 tenancy was never sent to him.

11.  As it turned out from the evidence, the respondent refused to pay his share of stamp duty and agency fee, and therefore the estate agent (who will be hereinafter referred to as “Regina”) did not pass him a copy of the 2016 tenancy. The respondent submitted it was illegal for the applicant or the estate agent concerned not to serve him with the 2016 tenancy but I found he was bound by what he signed and his allegation of illegality is not supported in law.

12.  The respondent also queried that the 2016 tenancy was not signed by the applicant and would therefore be of no legal effect. With respect, the respondent failed to recognise that the applicant signed the tenancy as well as its predecessors by signature stamp (in red).

Water Flooding on 6 July 2016

13.  Both in his Notice of Opposition and in court, the respondent submitted that on 6 July 2016, during a storm, a tap in the kitchen burst and the Premises became waterlogged, causing damages to his chattels including his CDs; water continued streaming down the staircase. It was not possible to stop the water flow by turning off the stop cock.

14.  The respondent submitted this was not the first time such bursting of water tap occurred; some 4 to 5 years ago after the applicant had installed the new water supplies system, as far as he can remember, similar incidence took place causing the teakwood floor boards to soak, becoming warped, disintegrated and rotten. While he suspected that the incident was resulted from the high water pressure, he had informed the applicant or Mr Cheung to remedy the water supplies pressure but of no avail.

15.  It is undisputed that Mr Cheung and Regina did attend the scene on 6 July 2016. According to the respondent, however, they did not do anything positive except promising to reduce the water pressure. Then the respondent claimed somebody cut his water supplies save for trickles which are not adequate for taking showers or for  flushing.

16.  In respect of the latter, the respondent once again alleged illegality by referring to section 45 and 70B of the Landlord and Tenant (Consolidation) Ordinance (“the Ordinance”). Section 45 is in respect of “prohibition of acts done mala fide with intent to induce a lessee to quit” but it falls within Part I of the Ordinance which only applies to pre-war premises (ie built on or before 16 August 1945) if not so excluded under section 4 of the Ordinance.

17.  Section 70B is related to harassment by landlord against tenants but it falls within Part II of the Ordinance which applies only to a tenancy or sub-tenancy created before 10 June 1983 of post-war premises. Thus both section 45 and 70B are not applicable to the 2016 tenancy.

18.  Perhaps, the respondent should refer to section 119V which comes under Part IV of the Ordinance within which the 2016 tenancy falls. This section states:

“(1) Any person who unlawfully deprives a tenant or sub-tenant of occupation of any premises commits an offence and is liable on conviction on indictment by the court….”

19.  I have no evidence before me that either the applicant or Mr Cheung has breached this section as the respondent conceded he could not identify who has “cut” his water supply though he suspected Mr Cheung’s kindred brother who resides at two floors above did it. At most, the evidence is shadowy. Neither has the respondent called a plumber to fix the situation. In any event, he conceded that he is still residing at the Premises on and off since the incidence and that he even slept at the Premises occasionally.

20.  In McCall v. Abelesz and Another [1976] 1 QB 597, Ormrod LJ in considering the provision in s.1 of the Protection from Eviction Act 1977 which is similar in wording to section 119V of the Ordinance said:

"Subsection (2) is even more clearly a penal provision. First, a specific intent or mens rea must be proved before the offence is complete; that is, the intent to cause a residential occupier either to give up the premises or to refrain from exercising some right in respect of the premises. Secondly, the actus reus of the subsection is the doing of acts calculated to interfere with the peace or comfort of the occupier or the persistent withholding or withdrawal of services reasonably required for the occupation of the premises."

21.  Thus there must be proof of the specific intent in the subsection accompanying the act of persistent withdrawal of a service such specific intent may be to cause the tenant to give possession or to refrain from exercising any right or pursuing any remedy in respect of the Premises.

22.  The failure of the water supplies by itself could not be proof of the specific intent required under the section. To support a conviction under section 119V(2) of the Ordinance, it is necessary that there be proof beyond reasonable doubt of the element of specific intent required under subsections 2(a) or (b). Even what amounts to withdrawal of service is not proof of the specific intent required.

23.  Notwithstanding the above, “the court” under the Ordinance means the District Court; the Tribunal has no jurisdiction under the Ordinance to adjudicate on the matter.

Evidence of Wong Yin Wing

24.  The respondent called his friend Ms Wong Yin Wing (hereinafter referred to as “Tiffany”) to give evidence.

25.  Tiffany visited the respondent on and off. On 6 July 2016, she was called to the scene by the respondent. There she found the presence of Mr Cheung and Regina but according to her impression, they had so serious intention of remedying the flooding situation.

26.  In cross-examination by Mr Cheung, Tiffany did not deny that she heard Mr Cheung suggest to the respondent to make appointment to fix the hanging window as well as the water flooding problem. She could however not remember if somebody did answer to that suggestion but it was her impression that Mr Cheung was not helpful. Soon then the respondent was not in good mood and both Mr Cheung and Regina was asked to leave.

27.  It was also the evidence of Tiffany that the teakwood floor boards were warped, disintegrated and rotten owing to a similar flooding that occurred some 4 or 5 years ago. Mr Cheung did not challenge that but he accused the respondent of responsible for the flooding.

Other Evidence of Respondent

28.  The respondent stated in his Notice of Opposition the following:

“Over the course of last ten years’ tenancy, (the applicant has) not spent one cent on urgent fixture or fitting repairs essential to the enjoyment of the leased premises despite my repeated and urgent entreaties for you to do so.

These now and previously include:

No supply of fresh or flushing water

No flushing toilet

An unusable dangerously hanging bathroom basin

Unusable water heater

No useable post box

No light on the stairwell

No lock on the main door

Hanging and insecure metal barrier lock

A warped, rotten and dangerously disintegrated floor

Rotten doors

Peeling moulded paintwork on all surfaces

Unserviceable light sockets in all areas

Blocked water outlets

Insecure kitchen stove extractor fan ….

In view of the above demonstrable examples of breach of covenant, breach of contract and unconscionable denial reasonable enjoyment of the leased premises, I am now withholding further rental payments, seeking rescission of the tenancy agreement and the immediate return of my HK$15,000 deposit[2], plus a sum of Damages to be determined … which I however would set at HK$50,000.00.”

29.  The respondent also produced a total of 17 photographs in support of the above assertions.

30.  As opposed to his assertion of rescission of the tenancy agreement, the respondent confirmed he was not prepared to deliver vacant possession of the Premises to the applicant anyway.

Liability for Damages

31.  I am afraid that I do not have to deal with these assertions or complaints of the respondent.

32.  Firstly, there is in general no implied warranty on the part of a landlord that the demised premises are fit for the purpose for which they are taken (when they signed the 2016 tenancy) and therefore, on the letting of an unfurnished dwelling house or flat, there is no implied warranty on the part of the landlord that it is in a reasonably fit state for habitation[3]. As per Lord Atkinson in Cavalier v Pope [1906] AC 428, “it is well established that no duty is, at law, cast upon a landlord not to let a house in a dangerous or dilapidated condition”

33.  Similarly, it is clear from the judgment of Lord Justice Lawton in Quick v Taff-Ely Borough Council [1986] QB 809 that a tenant like the respondent here must have taken the Premises as he found it at the commencement of tenancy.  Neither the landlord or the tenant is bound to provide the other with a better home than there was to start with.

34.  Furthermore, in Charmway Development Ltd v Long China Engineering Ltd [2001] 3 HKC 515 at p.519D-I, Chu J (as she then was) recited the common law principle that the covenant to pay rent is independent of the other covenants or obligations under a lease. It is generally of no defence in saying that the tenant is not obliged to pay rent or the landlord is not entitled to rent by reason of alleged breach of the tenancy agreement on the landlord’s part. The principle applied to the facts of that case where the obligation of the tenant to pay rent was not expressed to be subject to or conditional upon compliance by the landlord of its obligations thereunder.

35.  In the present case, the respondent’s obligation to pay rent (under Clause 1) was not expressed to be subject to or conditional upon the applicant’s compliance of its obligation thereunder, if any. In effect there exists no such obligation under the 2016 tenancy or its two predecessors. On the other hand, most of the liabilities, if any, have been shifted to the respondent by Clause11 and 14 of the 2016 tenancy recited at §§7 & 8 above.

36.  As regards any related counterclaim by the respondent, it has been held in黃英對譚炳新, HCMP 2049/2000 (unreported, dated 1 August 2000), 陳燕群對黃金海, CACV 223/2007 (reported as [2008] 1 HKCLRT 27) and Ngai Ngok Pang & Another v Lee Syn Yuk, Michelle, LDPD 3030/2012 (unreported, dated 10 May 2013) that under section 8 of the Lands Tribunal Ordinance, the Lands Tribunal does not have jurisdiction to entertain such counterclaim by the respondent. I agree with the authorities as cited that the Lands Tribunal does not have jurisdiction to entertain its claim for damages.

37.  Even when section 8 of the Lands Tribunal Ordinance was amended in 2008 to award damages solely, as well as in addition to rent and mesne profits, it was explained to the Legislative Council that the amendment did not seek to empower the Lands Tribunal to award damages that may go beyond its jurisdictional limit on the types of cases it can entertain.[4]

38.  Thus, returning to陳燕群對黃金海, supra, at §36:

“Regarding the Respondent’s counterclaim in DCCJ 809/2004, he is claiming for damages arising from the alleged breach of the tenancy agreement by the Applicant. If the counterclaim succeeds, the Applicant is of course liable to pay compensation, but it does not mean that the Respondent can continue to reside in or occupy the Property without having to pay any rent or outgoings. Therefore, in relation to the Applicant’s action for recovery of rent in arrears and repossession of the Property, the Respondent has failed to raise a defence recognized by the law. For this reason, on 8 June 2007, having dismissed the Respondent’s interlocutory application, the Lands Tribunal should have proceeded with the trial of the Applicant’s application as scheduled.”

Conclusion

39.  Having considered all the above, particularly as the respondent is still occupying the Premises, I find the respondent is liable to pay rent under the 2016 tenancy, failing which the applicant is entitled to vacant possession of the Premises subject to the relief under section 21F of the High Court Ordinance.

Costs

40.  As costs follow the event, I also ordered the respondent to pay the applicant's costs of this application.  Order was made as per §2 above.

[1] In respect of the latter, it was Mr Cheung’s evidence that he sent a registered mail to the respondent in April 2016 relating to a statutory notice issued by the Building Authority requiring the applicant to carry out the prescribed inspection and repair works of the windows at the Premises within specified time frame. No response was received from the respondent though the respondent rebutted that he had never received the mail.

[2] The amount of $15,000 accords with Clause 2 of the 2016 tenancy.

[3] Halsbury’s Laws of Hong Kong, Volume 36, Landlord and Tenant, 2^nd  Edition, 2014, [235.300].

[4] See for instance, the response by the Judiciary to the Bills Committee on Civil Justice (Miscellaneous Amendments) Bill 2007 in September 2007:

http://www.legco.gov.hk/yr06-07/english/panels/ajls/papers/aj1127cb2-430-2-e.pdf