CHAN MEI PO v. 簡逸帆

DCCJ 4147/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4147 OF 2002

--------------------

--------------------

_____________

Judgment

_____________

This is an action for possession of premises and for recovery of arrears of rent and mesne profits.

Background

2. The Plaintiff Wong Ah Kwang, deceased was the Landlady of the Defendant.

3. The Defendant rented a room from the Plaintiff and her late husband Chan Chun Fan at 12th Floor, 294 Lockhart Road, Hong Kong ("the suit premises") on around 20 July 1993 at a monthly rent of HK$2,500.00 inclusive of rates and management fees.

4. The Plaintiff and Chan Chun Fan were the registered owners of the premises. Chan Chun Fan passed away on or about 12th May 1997. The Plaintiff then became the sole owner of the premises by the operation of the right of survivorship.

5. The Defendant did not pay the rent after 20th September 2000. The Defendant's case is that the Plaintiff promised him that he could enjoy living in the suit premises rent-free forever.

6. The Plaintiff commenced these proceedings on 5th July 2002. The cause of action of the Plaintiff is that the Defendant failed to pay rent from 20th September 2000.

7. The Plaintiff purported to forfeit the tenancy by the service of the Writ of Summons.

8. The Plaintiff in this action claimed against the Defendant for :

(a) Arrears of rental;

(b) Mense profits;

(c) Vacation possession of the subject room in the premises; and

(d) Interest.

9. The Plaintiff passed away on 11th January 2003. Two days before the Plaintiff passed away, she made a Witness Statement on 9th January 2003 at pages 20-32 of the Bundle of Court Documents ("BD1"). The Statement was in English and there was no indication in the document that the contents had been explained and interpreted to the Plaintiff.

10. By an Order dated 24th January 2003 made by Master Tam of the District Court in Chambers, it was ordered that the future conduct of the proceedings be given to the Plaintiff's foster daughter Chan Mei Po.

11. It was the Defendant's case that he paid the expenses as set out in the Schedule set out hereunder for and on behalf of the Plaintiff after the commencement of these legal proceedings.

Schedule

12. The Defence case is that at the request of Madam Wong deceased, the Defendant rendered daily care and assistance to her from time to time. In around August 2000, the Defendant intended to move away from the suit premises. In order to persuade the Defendant to stay at the suit premises and in consideration of the care and assistance rendered by the Defendant, Madam Wong orally promised the Defendant that the Defendant did not have to pay any rent forever and that Madam Wong would pay the Defendant a sum of HK$100,000.00 if the Defendant did not move out from the suit premises at the time when Madam Wong died.

13. In reliance of the aforesaid Agreement, the Defendant continued to stay in the suit premises and continued to render daily care and assistance to Madam Wong Deceased. The Defendant relies on promissory estoppel in defence of the action.

14. The promise by Madam Wong aforesaid was subsequently reduced into writing in a Chinese Agreement (hereinafter referred to as "Agreement") dated 5 September 2000 at page 70 of BD2.

15. Further, the Defendant pleaded in his Re-Amended Defence that the Plaintiff has failed to comply with s. 119L(1)(a) of the Landlord and Tenant Consolidation Ordinance Cap 7 (hereinafter referred to as the "Ordinance") and by virtue of s. 119L (2) of the said Ordinance is not entitled to claim any rent from the Defendant.

16. The Plaintiff asserts that the permission to stay even were the Agreement proved, amounted only to a license granted by Madam Wong. Secondly it was the Plaintiff's contention that the "care and assistance" proffered by the Defendant to Madam Wong did not amount to consideration as it could only be past consideration for Madam Wong's promise. Therefore the license is only a bare license as distinguished from a contractual license and is therefore revocable at any time after its creation. Even if the license did exist, the letter of demand for rent dated 16 January 2002 at page 71 of BD2 would have revoked the license. In relation to the promissory estoppel raised as a defence, it is the Plaintiff's contention that since it is only suspensory in effect, the same letter at page 71 of BD2 constituted reasonable notice for Madam Wong to enforce the rental payment obligation on the part of the Defendant.

17. In the course of the Re-Examination of Chan Mei Po the issue of authenticity of the Agreement and fraud on the Defendant's part was raised for the first time.

The Issues

1) Did Madam Wong promise the Defendant that if he would stay in the suit premises and care for her he would not have to pay rent to her forever as evidenced by the Agreement?

2) Could the issue of authenticity of the Agreement be raised and if so was the Agreement authentic?

3) Is Promissory Estoppel a Defence available to the Defendant?

4) Is the Plaintiff entitled to recover arrears of rent from the Defendant?

5) Is the Plaintiff entitled to forfeit the tenancy and recover possession of the suit premises from the Defendant?

The Evidence

18. The Plaintiff's evidence came from the oral testimony of Chan Mei Po and the hearsay witness statement of Madam Wong Deceased.

19. Chan Mei Po is the adopted daughter of the Plaintiff. She adduced her witness statement into evidence and verified the truth of its contents. She also gave oral testimony in addition to that.

20. In her evidence she stated that she moved out of the suit premises in May 1993 but before that from 1991 up till then she was in a Correctional Services Institution. In effect she had not lived in the suit premises since 1991. She stated that the relationship of the Defendant to her late parents before her father passed away was merely that of landlord and tenant. When her late father passed away, the relationship between Madam Wong and the Defendant was also simply that of a landlord and tenant. She denied that the Defendant had cared for Madam Wong in the way stated by him. She is a single mother with a young child who is of school age. She resides in rented premises in Tokwawan, Kowloon with her daughter who is attending school in the area. She was not able to move back into the suit premises to care for Madam Wong as the Defendant would not agree to move out of the suit premises and her former room namely the suit premises had been let to him.

21. As she had to take and collect her daughter from school and cook for her and do other housework, she could not go to see Madam Wong except weekends. She would visit Madam Wong on a Saturday or a Sunday together with her daughter. She denied the Defendant's evidence that Madam Wong was depressed to the extent of expressing a desire to join her late husband in death. She said that when she knew that her late mother felt lonely she would bring her daughter home for her late mother to play with whenever she could. She stated that her relationship with her late mother before her death was good. She pointed to the Will prepared by her late mother at page 27 of BD1 wherein she was appointed executrix and was the sole beneficiary. She also pointed to the Power of Attorney executed by her late mother appointing her to be to Donee of such.

22. She stated that after her late mother had her second eye operation in 1999, the doctor stated that her mother needed time to recover and needed full time care. So she arranged for her late mother to move into an old people's home. In August or September 1999, her late mother's condition improved and she wanted to return home. Before that whilst Madam Wong was staying in the old peoples' home, she had arranged on Madam Wong's instructions to send the Notice of Increase of Rent to the Defendant in September 1999. The reason why this was done was because it was expensive staying in an Old People's Home and her late mother needed the additional income. However after she received the letter from the Defendant in response, at page 65 to 67 of BD2 they did not proceed with this. She did not know that there had been a prior increase in rent in February 1999 before.

23. After her late mother returned home she needed help. Chan Mei Po arranged for a home-helper to bathe her late mother, to purchase food for her and to take her to the medical clinic for treatment.

24. She stated that she did not agree to the contents of the Agreement at page 70 of BD2 and its allegations.

25. In relation to the allegations of the Defendant that her late mother was suicidal, she stated that she knew that her late mother was not happy but did not know that she wanted to commit suicide.

26. She stated that she did not agree to the allegations of the Defendant related to his care of her at page 45 of his witness statement, such as taking her to see the doctor and taking her into and out of hospital, purchasing food and other things for her, cooking for her when she was unwell, cleaning the common parts of the suit premises and the bathroom, paying for miscellaneous expenses for her including telephone electricity water charges, and helping her at critical times. The Defendant's statement that he helped Madam Wong up when she fell on the floor, assisted her with ointment when she fainted, extracted food from her throat when she choked on her food, or saved her when she fell in the course of her bath was also disputed by her.

27. Chan Mei Po stated that the relationship of Madam Wong with the Defendant was not that close. She stated that the Defendant brought a woman to his home and called her his god daughter. He gave her the key to the front door of the suit premises. Madam Wong did not like that and asked her to ask the Defendant to take back the keys from his god daughter. The Defendant said to her that it was none of her business.

28. She stated that in relation to the payment of miscellaneous expenses, Madam Wong would give money to the Defendant to ask him to pay these for her. These would include water, electricity and telephone charges. In relation to the receipts from the Hospital Authority at pages 77, 78 and 81 of BD2, they were in the Defendant's hands because Madam Wong received these and asked the Defendant to pay for them. She stated that Madam Wong always gave him money to pay for her bills.

29. Related to the Witness Statement of Madam Wong at pages 20 to 37, she stated that this was prepared at Ruttonjee Hospital and she and Solicitor Lam were present. It was interpreted to Madam Wong before she signed it. At page 36 of BD1, is a "X" mark. It was made by Madam Wong. Madam Wong could write her name though she was not fully literate. The reason why she signed with a "X" was because she did not bring her glasses. She died a few days after signing her witness statement. She had an operation to cleanse her leg from infection. She died because she could not take the anaesthesia.

30. Chan Mei Po impressed me as an honest witness. She gave her evidence in a straightforward and honest manner and she was not afraid to state those facts which were disadvantageous to herself such as the fact that she did not go to her late father's funeral, and the reason why. She also stated honestly that she had been residing at a Correctional Services Institute. However in relation to the nature of the relationship of Madam Wong and the Defendant, she was not present when Madam Wong was alone with the Defendant. Hence she could not tell what that relationship was like from actual observation of their relationship when Madam Wong had no other help.

The Witness Statement of Wong Ah Kwang

31. As Madam Wong had died before the trial the contents of her witness statement had not been verified by her on oath. Nor had she been subjected to cross-examination on its contents. Much of its contents are similar to the evidence contained in the witness statement of Chan Mei Po. There is no evidence as to how Madam Wong gave her instructions related to the preparation of her witness statement. In view of the aforesaid, I give it very little weight.

Evidence of the Defendant

32. He adduced his witness statement into evidence and confirmed the truth of the contents therein. He also gave oral testimony to substantiate his witness statement.

33. He stated that he entered into an oral tenancy agreement with the late Chan Chun Fan and his late wife Madam Wong on about 20 July 1993. The rent was $2,300 p.m. and he had to pay for the electricity used by him as shown on a separate meter.

34. He stated that Madam Wong had heart problem, diabetes and weak knees. She was always afraid of fainting. He was working as an office assistant for an Accountant's firm near to the suit premises. He started work at 9:15 a.m. and finished work at 6 p.m.

35. He stated that after her husband died, Madam Wong's emotions were unstable. She was often frantic and felt helpless because she had no relatives. He stated that although Madam Wong had a daughter Chan Mei Po, yet Chan Mei Po was distant and cold. She was less than a friend. She did not attend the funeral of her late father.

36. After the death of Chan Chun Fai, he was sympathetic towards Madam Wong and her plight. She was often in a depressed mood. He would help her and talk to her as he found her crying in the living room. She was unwell. She relied on a cane to move about in the flat and when she went out she had to use a wheelchair. Her eye-sight was not good. When she went to the toilet to dispose of the contents of her urine pot she had to empty that into the wash basin as she was not able to throw it into the toilet bowl. He had to clean after her. She was incontinent and sometimes he had to clean after her because she had dirtied the corridor. When she ate she had difficulty swallowing. When she choked, he had to help her get the food out of her throat. When she fell she could not get up and he had to help her up. She bathed in a basin and sometimes she would fall into the basin and could not get up. She had called him innumerable times to help her. In the middle of the night he would hear her fall down and he would go to her room to help her up. When she could not take off her woollen garment, she would call to him for help and he would help her to take it off.

37. He stated that in his working day in between work he would go home many times to see how she was. She had his mobile phone number and when she encountered any problems she would call him. Sometimes, she would call him to buy food for her. His office was situated near to the supermarket and dispensary. Before she had home help, he shopped for her food.

38. He took her into hospital many times and took her out on her discharge. Chan Mei Po was not there to help her. He stated that even when she had home help he still helped her. The home help would come only about 2 to 3 times a week for 1 hour to buy food. They just left the food behind and left.

39. He cleaned the common areas of the flat because the home help would not do it. Madam Wong could not do it as she was not able to walk steadily.

40. When he received the Notice of Increase in Rent, he was very angry. He went to the hospital to ask Madam Wong. She told him to ignore it. So when he went home he wrote a letter in reply and sent it by double registered post to Chan Mei Po and Madam Wong.

41. In August 2000, he told Madam Wong that he wanted to move out. He told her to ask her daughter to come back to care for her. Madam Wong stated that her daughter would not come back. Madam Wong persuaded him to stay. She asked him to stay there to care for her. She stated that she would not charge him rent forever. He would have to care for her. She said that she could not look to her daughter to care for her. She even promised to give him $100,000.00 when she passed away. He agreed with her not to move.

42. Subsequently in early September, he asked her if she would put in writing her promise not to charge him rent so that when her daughter would not cause trouble to him. He asked her if he could have a photocopy of her I.D. card as her name chop was not sufficient. In relation to the $100,000.00, he asked her whether he should write that. She said "yes". So he wrote it and she applied her name chop to it.

43. He prepared a draft of the Agreement. She gave him her I.D. card to photocopy. He explained the contents to her and she put her name chop on the Agreement. The Agreement is at page 70 of BD1. When she put the name chop on it she brought the Agreement to her room to apply the name chop on it and he was in his own room. Then she gave the Agreement to him.

44. He stated that he had no chance to get her name chop as she was very careful and he would not know where she kept it.

45. He stated that after he received the solicitors' letter at page 71 of BD2, he was very angry to think that Madam Wong would not tell him before hand that she wanted to recover vacant possession. He went to the hospital to ask her, "why did you instruct solicitors to issue proceedings against me to recover possession?" She stated that she did not do it. Her daughter did it on her own.

46. After receiving the Writ, he was very angry with her and he was not so close to her. He still helped her as he took pity on her.

47. In relation to the bills at page 74, 75, 76, he stated that Madam Wong asked him to pay these bills. He kept photocopies of these because she issued proceedings against him. He stated that he paid the electricity bills out of his own money.

48. In relation to his god-daughter he stated that she is 20 odd years old and is the daughter of his friend. His god-daughter's mother asked her to cook for him. He stated that she would cook for him as he was elderly. He was 67 years old.

49. In relation to his credibility, I am of the view that he grossly exaggerated the care that he gave to Madam Wong although I am of the view that he must have given her some care. The undisputed evidence was that Madam Wong had heart problem, diabetes and her eye-sight was not good. She walked with a cane. She was not happy after her late husband died. In view of the fact that she was elderly, with the aforesaid ailments, I am of the view that it was highly likely that she was needy and because of that the Defendant did help her, care for her, support her and did certain things for her including helping her to pay her bills. I also find that Madam Wong found comfort from the support and care given to her by the Defendant. I also find that the relationship between Chan Mei Po and Madam Wong was not that close but I do not attribute fault to Chan Mei Po. Often things happen in a mother and daughter relationship that could have caused this to come about. To have been adopted would not have been easy for some children to accept, particularly if this was not handled well by the adoptive parents. In my view, there were real issues within Chan Mei Po and even Madam Wong that could have caused the relationship between them to have been distant. Doubtless, Madam Wong loved Chan Mei Po. This is seen in the Power of Attorney whereby Madam Wong appointed Chan Mei Po as her attorney and also in the Will of Madam Wong whereby she appointed Chan Mei Po as the executrix and trustee of her Will and sole beneficiary of her estate.

The Issues

The 1st Issue

50. In my view, Madam Wong in her pitiful state, request the Defendant to stay in the suit premises to care for her and did promise the Defendant that he did not have to pay rent forever as stated by the Defendant. This is stated by the Defendant to be evidenced by the Agreement. It is not disputed that Madam Wong had the ailments stated by the Defendant. She had to walk with a cane. She was unhappy. Chan Mei Po at most saw her only once a week, perhaps even less. She was in a position of needing care and had no one to turn to. Although I am of the view that the evidence of the Defendant grossly exaggerated the closeness of his relationship with the Madam Wong, yet in the circumstances of Madam Wong, being lonely and emotionally low, it is easy to get into the situation of dependence and reliance of someone who would be available to help her. The Notice of Increase in rent was issued by Chan Mei Po. Although she said she had the consent of Madam Wong, it is likely that Madam Wong was too unwell to be concerned about this and left it to her daughter. It is likely that Madam Wong would have been afraid to tell her daughter that she had made such a promise or was in such a close relationship with the Defendant. It seems to me that Madam Wong must have gone along with the suggestions of Chan Mei Po related to the increase in rent and the issue of the Writ out of a wish to have her daughter close to her and working on her behalf. In relation to the contents of the witness statement of Madam Wong, although in the statement she denied she placed her name chop on the Agreement, yet I had found that little weight could be put on that witness statement for the reasons referred to. My view is that Madam Wong wanted to please her daughter Chan Mei Po and did not have the courage to state the truth to her. This explains the existence of her witness statement and its contents.

2nd Issue

51. The issue of authenticity of the Agreement had not been raised in the pleadings. The Plaintiff could put the Defendant to proof in relation to the Agreement but there had been no issue of fraud pleaded in relation to the Agreement and hence this could not be raised as an issue of this case. In my view the authenticity of the Agreement is not an issue in these proceedings. Further there is no positive evidence to challenge its authenticity.

3rd Issue

52. Chitty on Contract para 3-081 state the requirements for the doctrine of promissory estoppel to operate. These are:-

1) A legal relationship giving rise to rights and duties between the parties;

2) a promise by one party not to enforce his strict legal rights arising from the legal relationship against the other.

3) An intention on the part of the former party that the latter will rely on the representation;

4) Such reliance by the latter party.

53. All four of the requirements are in existence in the facts found by me in Issue 1. The Defendant did rely on the promise. In my view promissory estoppel is a defence available to the Defendant. According to the Defendant, he gave consideration for the promise by Madam Wong. It seems that the consideration is not past consideration as the Defendant according to his evidence performed his services to Madam Wong at her request and continued to do so after the Agreement was entered into. The Agreement was not only in respect of past services but for future care, attention and services. In my view consideration was given by the Defendant.

4th Issue

54. The Defendant stated that he had not received a copy of the notice endorsed by the Commissioner of Rating & Valuation pursuant to s. 119L(1)(c) of the Landlord & Tenant Consolidation Ordinance Cap 7. The Plaintiff is not able to establish that the Plaintiff had complied with s.119L(1) of the Ordinance. Under s. 119L(2) of the Ordinance, "a landlord shall not be entitled to maintain an action to recover rent under an agreement mentioned in subsection (1) unless a notice relating to that agreement is endorsed by the Commissioner under that subsection".

55. I find that by virtue of s.119(2) the Plaintiff is not able to seek recovery of rent from the Defendant.

5th Issue

56. The Defendant's Solicitor refers to Halsbury's Laws of Hong Kong Vol. 17 at para. 235.507 which states that,

"A landlord is not entitled to maintain an action to recover rent under the lease or agreement unless the document has been indorsed by the Commissioner although the landlord may still forfeit the lease or tenancy for non-payment of rent provided that there is a forfeiture clause in the lease or agreement."

57. There is no express forfeiture clause in the oral tenancy agreement. The tenancy is a tenancy under Part IV of the Ordinance. The Defendant's Solicitor referred me to Hong Kong Tenancy Law 3rd Edition at page 243 in the 3rd paragraph which states,

"In order to forfeit the tenancy, the landlord must, however, rely upon a forfeiture clause in the tenancy agreement. If there is no such clause as where the tenancy is oral, there can be no forfeiture, since the ordinance does not imply a right to forfeit a Part IV tenancy, even in cases of non-payment of rent."

58. The Defence Solicitor further submitted by reference to Ho Wai Fung v Tang Mei Lin [1987] 3 HKC 458 in para (3) in Held that "A right of forfeiture or re-entry for non-payment of rent was not implied at common law. It had to be agreed upon expressly, and such clauses were construed strictly against the landlord".

59. The Plaintiff's Counsel referred to Sung Hing-chuen and Cheng Tsui [1978] DCLR 67. That case relates to an oral tenancy which contained a term that the flat was to be used as a domestic dwelling. The DMC related to the said flat prohibited business user. The Defendant had used the flat for business use. The agreement contained no proviso for re-entry by the landlord in the event of breach. The learned Judge stated in the 3rd paragraph at page 70 of the Judgment that,

"If the term in question amounted to a condition subsequent, the omission is immaterial but if it was merely a covenant, there can, in the absence of such a proviso, be no ejectment. See Bashir v. Commissioner of Lands (1959) 3 W.L.R. 996.

The learned Judge went on to state,

"A condition is a clause which shows a clear intention on the part of the landlord, not merely that the tenant shall be personally liable if he fails in his contractual duties, but that the lease shall determine in the event of such a failure. It may be express or implied. No precise form of words is necessary: It is sufficient if the words used were intended to have the effect of creating a condition. Where a stipulation amounts to a covenant or a condition depends entirely upon the intention of the parties. Maley v.Fearn (1947) L.J.R.276. The court however leans towards a literal or strict construction of a forfeiture clause, that is to say, against the landlord. See Doe d. Spencer v. Godwin (1815) 4 M. & S. 265."

60. In that case Judge Bewley, came to the conclusion that,

"in the circumstances of Hong Kong, where rents and protected tenancies are in the forefront of public consciousness, when the parties to an oral tenancy agreement specify that the letting is to be domestic, without further embellishment, their bargain should be interpreted as if they intended the term to be a condition subsequent, which automatically carries with it a right of re-entry."

61. In my view, the conclusion drawn turned on the special circumstances of the case. This included the fact that the DMC stipulated that the flat could not be used for business purposes. The Landlord would be in breach of the DMC were the tenant to breach the term as to user agreed between them. Further, the learned judge came to the conclusion he did in view of the legislation in force at the time for the protection of rents and security of tenure. Because of that he formed the view that where the parties in an oral tenancy agreement specified that the letting was to be for domestic use they must have intended the term to be a condition subsequent which automatically carried with it a right of re-entry.

62. The present case refers to a term for payment of rent, not user of the suit premises. In my view, it is not possible to infer such an intention into the parties for non-payment of rent. Further, the court leans towards a literal or strict construction of a forfeiture clause as against the landlord.

63. I therefore find that there was no right of re-entry or forfeiture upon non-payment of rent. The Plaintiff has to comply with the provisions of Part IV of the Landlord and Tenant Consolidation Ordinance related to termination of Part IV tenancies.

64. Having so found, I have to dismiss the claim. I grant an order nisi for costs of the action to the Defendant to be taxed if not agreed. The Defendant's own costs be taxed in accordance with the Legal Aid Regulations.