BRIGHT REGION ENTERPRISE LTD AND OTHERS v. WELL PRESTIGE INVESTMENT LTD t/a IGARASHI JAPANESE RESTAURANT

HCA860/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 860 OF 2006

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JUDGMENT

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Overview

1. Tseung Kwan O Plaza (“TKO Plaza”) is a shopping arcade in No. 1, Tong Tak Street, Tseung Kwan O, New Territories.  A food court (“the Food Court”) is located on Level 2 of the Commercial Portion.  The plaintiffs are the registered owners of the Food Court.

2. By a Tenancy Agreement dated 3 January 2005 between Nan Fung Development Limited acting as agent for the plaintiffs as the landlord and the defendant (“the TA”), Well Prestige Investment Limited (“Well Prestige”) as tenant, Shop No. 2-021a of the Food Court (“Shop 2-021a”) was let to Well Prestige for use as a food shop for a term of three years from 14 December 2004 to 14 December 2007 both days inclusive.  The monthly rental was HK$39,000 inclusive of government rent, rates, management fees and air conditioning charges.

3. Under the TA, Shop 021a was leased to Well Prestige expressly for the purpose of a food shop for retail sale of food and drinks as per Appendix 1 attached to the TA and for no other purpose.  Well Prestige was to trade under the trade name of “Igarashi Japanese Restaurant” (“五十嵐日本料理”).

4. Apart from Shop 2-021a, there were six other stalls in the Food Court.  They were leased to six other tenants who sold different types of cuisine, namely (i) Thai, (ii) Shanghainese, (iii) Western, (iv) Taiwanese, (v) Congee/noodles and (vi) Cantonese.

5. Clause 11(e) of the TA provided that Well Prestige was not to sell any types of items other than the food and drinks listed in Appendix 1 attached to the TA without the previous consent in writing of the plaintiffs.  Appendix 1 of the TA consisted of a list of food and drinks (in the form of printed menus).

6. Clause 11(e) of the TA went on to provide that if Well Prestige was to sold any food or drinks which were not listed in Appendix 1 and without the plaintiffs’ prior consent in writing, the plaintiffs would be entitled to absolutely cease and determine the TA in its absolute discretion but without prejudice to any right of action by the plaintiffs in respect of any outstanding breach or non-observance or non-performance of any of the provisions in the TA.

7. As a matter of proper interpretation of the TA (in particular clause 11(e) and Appendix 1), the types of food and drinks which Well Prestige was permitted to sell in五十嵐日本料理is not defined by reference to whether it could be characterised as Japanese food or not.  The types of “permitted food” are defined by reference to their appearance in Appendix 1 of the TA (or such prior written consent as might be given by the plaintiffs from time to time).

8. In the context of a food court, I can readily understand the rationale for such a requirement.  Where a food court has a number of outlets selling different types of food, it is in the interest of both the landlord and the tenants that the types of food sold in the outlets were subject to some form of control.  It would be in the interest of the landlord, because this can ensure a proper and appropriate “spread” of the available choices.  It would also be in the interest of the tenants because each of them could operate without competition in connection with its specialty cuisine from any neighbouring stalls in the same food court.  There is nothing in the documents before me which suggests that a tenant had a right of action directly against a neighbouring tenant who sold unauthorised food or drinks, but if he were to refer the matter to the landlord or to make a complaint, he could look to the landlord to take the matter up with the “offending” tenant.  Irrespective of whether a landlord had any legal obligation to take up a complaint or to enforce the requirement against the “offending” tenant, as a matter of commercial reality one would expect a landlord to do so.

9. I do not think I need any form of positive witness testimony or evidence to support the points set out in the previous paragraph.  All of them are obvious as a matter of plain common and commercial sense.  I make these observations here in order to put the debate in this case in context.

The respective cases of the parties

10. It is the plaintiffs’ case that towards the end of 2005, Well Prestige began to sell food and drinks which were not listed in Appendix 1 of the TA without obtaining the prior consent in writing of the plaintiffs.

11. Well Prestige takes issue with this.  It says that the list of food and drinks in Appendix 1 to the TA had been supplemented by a document dated 6 December 2006.  This document (which I shall call the “Supplemental List”) set out further items of food (i.e. on top of those listed in Appendix 1).  It was faxed to Miss Hillary Lam, a leasing officer in the Leasing Department of Nan Fung Development Limited (“Nan Fung”), the plaintiffs’ agent (I should add that there is no dispute that Nan Fung was the plaintiffs’ agent in relevant matters concerning this action).  Miss Lam put a tick on a number (but not all) of the items on the Supplemental List to signify the plaintiffs’ approval.

12. Well Prestige says that at all material times, the food and drinks sold at五十嵐日本料理were those listed in either Appendix 1 or the Supplemental List.  The plaintiffs do not dispute that additional items of food had been approved by way of the Supplemental List, but say that五十嵐日本料理had been selling food and drinks which were listed in neither Appendix 1 nor the Supplemental List.

13. The plaintiffs claim that Well Prestige’s sale of unauthorised items of food and drinks entitled the plaintiffs to forfeit the lease.  A letter was sent by the plaintiffs’ solicitors to Well Prestige dated 14 February 2006 requesting Well Prestige to cease selling unauthorised food failing which the plaintiffs would take further legal action against Well Prestige.  By the issuance of the writ herein the plaintiffs claim to have forfeited the lease.  The plaintiffs also claimed mesne profits.

14. Well Prestige contests the claim by denying sale of unauthorised items of food and drinks.  Initially Well Prestige’s pleading consisted of a counterclaim against the plaintiffs for (i) alleged misrepresentation and (ii) relief against forfeiture.  Shortly before the commencement of the trial, counsel for Well Prestige informed counsel for the plaintiffs that the counterclaim (on both counts) would not be pursued.  This was confirmed to me on the first day of the trial.  I granted leave to Well Prestige to withdraw its counterclaim, with costs of and occasioned by the counterclaim to the plaintiffs to be taxed if not agreed.

15. The dispute before me at this trial therefore boils down to the single issue of fact as to whether Well Prestige had, as alleged by the plaintiffs, been selling unauthorised items of food and drinks which were not covered by Appendix 1 or the Supplemental List.  The burden of proving this is on the plaintiffs.

The evidence

16. Two witnesses were called for the plaintiffs : Miss Hilary Lam who, as I said above, was the leasing officer of Nan Fung, the plaintiffs’ agent; and Mr Frendi Leung, an estate officer of Vineberg Property Management Limited (“Vineberg”) which was the estate manager of TKO Plaza.  One witness was called for Well Prestige, Mr Chan Ying Kai, the managing director of Well Prestige.

17. The key points of the evidence given by the respective witnesses are as follows.

18. Miss Hillary Lam :

(1)	She worked in Nan Fung’s office in Central.  However, she would regularly attend the properties leased by Nan Fung.  She would attend TKO Plaza about every two to three weeks.
(2)	Part of her responsibilities was to attend to complaints from tenants in relation to leased property.
(3)	On 24 November 2005, Vineberg sent a letter to all the tenants of the Food Court reminding them that unauthorised food and drinks should not be sold (should not be sold, and that prior permission of the leasing office must be obtained before any such food could be sold).  This was because there had from time to time been occasions when tenants sold unauthorised food, and when this came to the notice of Vineberg and Nan Fung, a letter was sent to all tenants reminding them not to sell unauthorised food.
(4)	In about early December 2005 she received a complaint about the sale of unauthorised food and drinks by Well Prestige from a tenant of Shop 2-021g, namely甜心美食.  The stall of甜心美食was opposite that of Well Prestige.  Apparently a number of tenants (such as甜心美食，吉&嬌and the Shanghainese stall) had said that if Well Prestige was selling unauthorised food, then they would follow suit and sell unauthorised food as well.
(5)	She then went to the Food Court to take a look.  Her visits to the Food Court were part of her usual routine, and were not made specifically because a complaint has been made against a particular tenant.
(6)	On this visit she went to Well Prestige’s stall.  The stall appeared like the one depicted in the photographs in trial bundle B107 (which was a photograph adduced by Well Prestige for the purpose of this trial).  Well Prestige was selling set meals of “two in one’ and “three in one”(雙餸飯 and三餸飯).  As I understand it, this took the form of different types of food being placed inside a number of trays in the food counter.  The customer would then choose two to three types of food from those trays to accompany the rice.  There would be no sign or label to indicate the names of the food inside the trays.
(7)	She saw some Chinese style food in the counter. She recalled seeing翠玉瓜炒肉片and蒜蓉菜心.  She then gave an oral warning to Mr Peter Chan of Well Prestige.
(8)	In response, Mr Chan said that he would give her a new menu for her to approve.  This led to the sending of a fax by Well Prestige to Miss Lam on 6 December 2005.  Miss Lam put ticks against most but not all the items of food contained in that fax.  That fax became what I had called the “Supplemental List” above.
(9)	Afterwards Well Prestige continued to sell unauthorised food.  甜心美食also continued to engage in the practice of selling unauthorised food.  A warning letter dated 12 January 2006 was therefore sent to Well Prestige.  She recalled that a warning letter was also sent to甜心美食but she was not sure whether it was around this time (I would note that in the trial bundles, there were warning letters to甜心美食but the first one in time was in May 2006).
(10)	After that, a meeting was held on 26 January 2006 to discuss the issue of the sale of unauthorised food.  At that time it was Miss Lam’s understanding that all tenants were selling unauthorised food but it was Well Prestige who started such sales first.
(11)	Before the meeting she went to visit Shop 2-021a with her superior Mr Wut.  Again she saw unauthorised food being sold.  She recalled seeing something which looked like咕嚕肉and also seeing蒜蓉菜心.
(12)	At the meeting, Mr Peter Chan of Well Prestige suggested that the authorised menus of the tenants should be displayed in an open area where customers could see the dishes which could properly be sold.  That suggestion was, however, not taken up.
(13)	The contents of the meeting were recorded in a set of minutes compiled by Frendi Leung (I pause here to note that while Miss Lam’s witness statement stated that the purpose of such proposed display was to enable the customers to see the dishes that could properly be sold; I would have thought that to the customers, it would be a matter of irrelevance whether an item of food had been approved by the landlord; I would have thought that the purpose of such proposed display would be for the tenants to cross-monitor one another to see if anyone’s food was outside the list of approved food — this interpretation of the purpose of the proposed display was also the way Frendi Leung understood it, for this is the way he described it in the minutes).

19. Frendi Leung :

(1)	He had been assigned with the responsibility of overseeing the operation of the Food Court since June 2005.  He would patrol the Food Court to see if the tenants were selling unauthorised food.
(2)	To enable him to perform his duties, he had been given copies of the approved menus of the tenants of the Food Court.  In the course of time, he became familiar with the food in Appendix 1 (and though he had not expressly said this, I take it that he became familiar with the Supplemental List later also).
(3)	Since the commencement of his duties in the Food Court, there had been incidents of sale of unauthorised food by certain tenants (including Well Prestige).
(4)	At first, Well Prestige only sold one or two unapproved dishes.  It was not so serious at that time.  When he saw unauthorised food being sold, he would inform the manager on site, one Mr Shum (who was no longer working there), as well as Miss Hillary Lam.  He would also orally tell the relevant tenants not to do it again.
(5)	The situation deteriorated later, and this led to the warning letter dated 24 November 2005, referred to above.
(6)	In about December 2005 Well Prestige began to sell unauthorised food in the form of雙餸飯and三餸飯.  In the beginning, the available food (to be chosen from) would be set out on a list.  However, as time went by, the list of food grew and they would not be listed out.  There were also unauthorised dishes which could be ordered separately, and these would be listed out for the customers to choose.
(7)	When he saw unauthorised food being sold at Shop 2-021a, if the number was large he would copy their names; if the number was small, there was no need for him to copy.  In other words he could remember them.
(8)	By way of examples of the “unauthorised” dishes forming the choices for雙餸飯and三餸飯, he named the following, namely豉油王雞脾，芙蓉蛋，魚香茄子，蒜蓉菜心，豆豉排骨and甜酸排骨.
(9)	Since it was part of his duties to monitor the sale of unauthorised food and since he had to take his lunch daily anyway, he took a lot of his lunches at the Food Court.  Of the stalls in the Food Court, he mostly ate at五十嵐日本料理.  He had tried all the above unauthorised dishes named in the previous sub-paragraph.  Over the period of a year and a half before May 2007 (the date of his witness statement) he had eaten at五十嵐日本料理for about 100 times.
(10)	甜心美食was located opposite Shop2-021a.  It mainly sold Cantonese dishes in the form of雙餸飯and三餸飯.
(11)	He took the minutes of the meeting on 26 January 2006.  In his recollection, at that time not all seven tenants of the Food Court were selling unauthorised food.  Well Prestige was, however, one of those who were selling unauthorised food.
(12)	The question of unauthorised food was raised at the meeting.  Mr Chan of Well Prestige disputed this by saying — by reference to a kind of food using the ingredient of turnip — that this was also a kind of Japanese cuisine.  Mr Leung’s view is that the test was not whether the food could be characterised as a kind of Japanese cuisine, but whether the food was listed as a kind of approved food.
(13)	Subsequently the monitoring of unauthorised food became more vigilant.  Miss Hillary Lam also asked that photographs be taken of the unauthorised food.
(14)	He then started taking photographs of unauthorised good at the Food Court.  The first photographs of unauthorised food at the Food Court in the initial trial bundle related to the period 16 February 2006 to 20 February 2006 [B/49].  The broad methodology of taking these photographs (and the compilation of these photographs by way of records) was as follows :- Mr Leung or his colleague would use cameras (either a private camera or a “communal” camera of the management company — it does not really matter which one or ones were used) to take photographs of the unauthorised food.  They would either see the name of the food being displayed at the food stall or, if there was no such display, they would ask the staff for the name of the food.  Afterwards he or his colleague would input the photographs and the names of the food into the office computer server by way of record.  If the record was compiled by his colleague, he would look at it and cross check that it tallied with his understanding.
(15)	The format of a typical record is at [B/49].  The records did not just relate to unauthorised food sold by Well Prestige.  Other food stalls were also covered.  For each “infringing stall” (save for the exception of Shop 2-021a, on which I will say more below) the list of unauthorised food would be typed out, accompanied by photographs of some of the unauthorised dishes.
(16)	The exception was Shop 2-021a, which was五十嵐日本料理operated by Well Prestige.  In the trial bundles initially placed before me, for the period from 16 February 2006 to 10 May 2007 there were no photographs showing the appearance of the unauthorised food sold by Well Prestige.  The entries for this period relating to五十嵐日本料理contained only verbal descriptions of the unauthorised food being sold.
(17)	For example, for the record covering the period from 16 to 20 February 2006, the list of unauthorised food for五十嵐日本料理consisted of : 豉油王雞脾，清炒時菜，和風咖喱雞飯，日式叉燒炒飯，秋刀魚拉麵and七味豬頸肉拉麵.  He said that for the first two items, their names were not displayed and they were part of the choices for雙餸飯and三餸飯.  Mr Leung got the names for these two food items by asking the staff.  For the rest, their names were displayed.  Mr Leung had actually tried the first two items and they tasted like chicken drumstick and vegetables.
(18)	According to Mr Leung, for all the records during this period, some of those names were not displayed at the counter (and these would mostly be food for the雙餸飯and三餸飯 — save and except that in the earlier days, when there were not so many choices, when the actual names of the food for雙餸飯and三餸飯would also be written out and displayed).  For these, Mr Leung or his colleague had to ask the staff for their names.  As time went by, however, when some of the food items began to repeat themselves, Mr Leung would not ask but would form his own judgment as to what that food was.  Also, for some days, Mr Leung would not eat a particular type of food (e.g. beef) and he would take the trouble of specifically asking what the food was.
(19)	Mr Leung was taken through the records for this period and he confirmed that the unauthorised food listed in the record were in fact sold by Well Prestige at the relevant time.  For some of them he confirmed that he had actually ordered and eaten them and he confirmed that the food he ate actually tallied with the names listed in the records.
(20)	For the records relating to五十嵐日本料理during this period, there would be a notation that no photographs were taken because of difficulties in taking photographs.
(21)	Mr Leung explained such difficulties.  He said that there were difficulties because he and his colleague would be stopped verbally by the staff of Well Prestige.  Sometimes the staff would even come out.  Mr Leung and his colleague did not insist on taking photographs in these circumstances, because they did not want to strain the relationship with the tenant.
(22)	Mr Leung explained that on 10 and 11 May 2007 he and his colleague were able to take photographs of the unauthorised food at Shop 2-021a.  These photographs are in the trial bundle at [B/113-119] (all of them were taken by Mr Leung except the one at the bottom of [B/115] which was taken by his colleague and passed to him).  Mr Leung took his photographs by using the camera on his mobile telephone.  He took them quite openly, though the staff at Shop 2-021a did not notice him taking photographs.  Some of these photographs depicted the actual food ordered by Mr Leung (see e.g. [B/115 & 119]).
(23)	During the course of cross-examination, when he was tested on why no photographs were taken of Shop 2-021a for the period prior to 10 May 2007, he recalled that a photograph might have been taken in February 2006.  During the course of his evidence (and with the agreement of Well Prestige’s legal advisors) he was able to liaise with his colleagues and obtain a copy of the photograph (in the form of a record in the same format as [B/49]).  That photograph was taken on 3 February 2006 and was marked exhibit P1 (magnified versions were also produced marked as P1A and P1B).  It was taken by a colleague of his but he could not recall whom.  It was stored in the server and he had seen it before.  He reckoned that the photograph was not placed among the other records of unauthorised food because of the state of the photograph (I took that to mean that the photograph at P1 was not as clear as the other photographs).

20. Mr Chan Ying Kai :

(1)	He was the managing director of Well Prestige.  Up to the date of writ in this action Well Prestige was the owner of seven Japanese restaurants in Hong Kong by the name of五十嵐日本料理.
(2)	He accepted that Well Prestige had been selling food at Shop 2-021a in the form of雙餸飯and三餸飯.  However, he disputes that the available choices consisted of unauthorised food.
(3)	雙餸飯and三餸飯was also the mode of business of甜心美食.  Well Prestige adopted this mode because this mode of operation brought good business.
(4)	For food items alleged by the plaintiff to be unauthorised food sold by Well Prestige but which were unsupported by photographic evidence, he denied that those food items had been sold at Shop 2-021a.
(5)	For those alleged unauthorised food items which were supported by photographic evidence, he gave explanations for a number of them by saying that they were in fact covered either by Appendix 1 or the Supplemental List.
(6)	By way of example, it was pointed out to him that in a photograph taken on 11 May 2007, the name豬柳三絲拉麵was written on a white board next to the cashier under the heading “special priced set meals”, he explained that this was intended to be a reference to豚肉生薑燒(which was an item listed in the Supplemental List).  He said it was cooked with pork and three types of shredded vegetables namely carrot, onion and韮菜.  It would be cooked with ginger sauce (and I take it that this is where the生薑element would come from).
(7)	In the same photograph, another entry on the white board was蓮藕肉餅餃子拉麵.  This was not in Appendix 1 or the Supplemental List.  Mr Chan, however, said that this simply described the stuffing inside Japanese style dumplings, and the dish was covered by日式餃子(in Appendix 1).
(8)	By way of further example, on the right hand side in the photograph at the bottom of [B/117], there were brown meat balls in a tray.  The plaintiffs suggested that those were獅子頭 (meat balls made with pork), which was unauthorised.  Mr Chan said that they were日式燒魚餅(which was within the Supplemental List).  By way of another example, when the photograph at the top right hand corner of [B/113] (which depicted something resembling fried egg mixed with some red meat-like substance), he explained that the food was actually豚肉(meaning pork)煮蛋, which was an item listed in the Supplemental List.

Discussion

21. As I said above, the case turns on one issue of fact namely whether Well Prestige had been selling unauthorised food at Shop 2-021a in breach of the TA.  More specifically, in view of the timing of the writ and in view of the way the pleadings had been framed, the issue is whether prior to the issuance of the writ, namely 19 April 2006 Well Prestige had sold any of the items of unauthorised good particularised in paragraph 1 of the Further and Better Particulars of the Statement of Claim supplied by a letter from the plaintiffs’ solicitors of that date.

22. In this connection, the key witnesses are Mr Leung and Mr Chan.  Miss Lam gave evidence about two occasions where she directly observed what was sold by Well Prestige at Shop 2-021a; in other aspects her evidence as to receipt of complaints and reports were in the nature of hearsay.  Though hearsay is generally admissible nowadays it is abundantly clear that the plaintiffs are relying on Mr Leung to prove their case.  Miss Lam’s evidence is more in the nature of providing the background to how the dispute began to develop and how it was handled by the management of Nan Fung.  That said, I have also taken her evidence into account in resolving the relevant factual issue in this case.

23. Mr Leung came across as a straightforward witness.  There is nothing inherently incredible about his evidence.  There is no incentive for him to fabricate evidence.  His responsibility was to monitor the tenants’ compliance with the requirements in their respective tenancy agreements but there is no evidence (and it has not been suggested) that he would have anything to gain by falsely accusing Well Prestige of selling unauthorised food.  It has not been suggested that somehow he had any grudge against Well Prestige.  His reports on unauthorised food covered not just Well Prestige, but other tenants as well.

24. Further, in the context of the evidence in this case there is little scope for mistake or misunderstanding as to what food he saw and what they actually were.  Either the food names would be displayed, or he would be told what they were by the staff of Well Prestige, or the types of food would be so easily recognisable (either by sight or by taste) that there would be little scope for mistaking what they were.  After all, we are not talking about very esoteric types of food.

25. Counsel for Well Prestige pressed the point that there was no photographic evidence to support Mr Leung’s evidence for the relevant period (save and except exhibit P1 which as disclosed during trial), and it was argued that if indeed unauthorised food had been sold it would have been easy for photographs to be taken (even in the face of objections from the staff of Well Prestige).

26. I have taken this point into account.  However, I accept Mr Leung’s explanation as to why there were no photographs for the relevant period.  I accept his evidence that there had been objections to photo-taking.  In retrospect it may well be said that he could have taken photographs surreptitiously (whether with a digital camera or a mobile telephone), or have taken photographs of food that he actually ordered.  However, people do not always think or conduct themselves on the basis that they should always try every means to obtain what a court might regard as “better evidence”.  Here we have a staff of a management company who had tried to take photographs and who had been “told off” by the staff.  He had personally seen the food and tried the food and he had said in cross-examination that he could rely on what he had eaten and seen.  I do not regard that as an unreasonable attitude to taken and the absence of any photographic evidence has not undermined the weight that I place on his evidence as to what he had seen and eaten.

27. Mr Chan, on the other hand, was not an impressive witness.  In particular, his attempts to explain away the photographic evidence were unconvincing and unsatisfactory.  He was at times shifty and evasive, mostly when he realised that he was being pushed into a corner in cross-examination.  Where his evidence conflicts with that of Mr Leung I have little hesitation in preferring Mr Leung’s evidence over his evidence.

28. His evidence summarised in paragraphs 20(6) to (8) is an example of the unsatisfactory features of his testimony.

29. Take the case of豬柳三絲拉麵and豚肉生薑燒for example, he was asked specifically why, if豬柳三絲拉麵was actually meant to be a reference to豚肉生薑燒the white board did not simply say豚肉生薑燒.  His answer was that if the white board had said豚肉生薑燒, a lot of people would not know what it was.  This explanation had just to be stated to be rejected :  First of all I cannot see what was so difficult about the name豚肉生薑燒that it would not be understood by the staff or customers.  Secondly, it is natural that a Japanese style restaurant would have a lot of food names that carry a Japanese flavour, and it has not been suggested that Well Prestige had changed the names of all its food to “user friendly” Chinese style names.  Thirdly if豬柳三絲拉麵were truly an “understandable” way of referring to豚肉生薑燒then the easiest way to deal with it would be to apply for approval to sell a food called豬柳三絲拉麵.  Fourthly, there is no hint of the ginger element in the name of豬柳三絲拉麵.  Lastly the approved item豚肉生薑燒did not have the ramen (拉麵)element in it.  I reject this explanation completely.

30. Take獅子頭and日式燒魚餅as another example.  I have taken a look at the relevant photograph.  I cannot see any resemblance between the food in the relevant tray and any form of fishcake.  The contents of the relevant tray appear spherical rather than flat, cake-like.  There also appeared to be some gravy in the tray, something which naturally went with獅子頭, yet he persisted in his evidence that they were燒魚餅.  I accept Mr Leung’s evidence and I regard Mr Chan’s attempted explanation to be disingenuous.

31. Likewise for the food depicted in exhibit P1 :

(1)

It is reasonably apparent (despite the quality of the photograph) that the food on the right hand side was清炒時菜, a Chinese style food with green vegetables.  However, Mr Chan maintained that it was和風炒野菜.

(2)

It is reasonably clear that the food on the left hand side was in the shape of chicken drumsticks; yet he maintained that they were the upper part of chicken wings.  In any event he was pressed on where one could find chicken wings in Appendix 1 or the Supplemental List.  He referred to Appendix 1 where it provided for “chicken wing skewers” as well as石狩煱(which, according to him, was simply a casserole/hotpot with chicken wings, fishball, turnip and crabmeat).  However, (i) the food in the photograph did not look like the top, or any part, of chicken wing; they look like drumsticks; (ii) it did not look like anything sold on skewers; and (iii) it did not look like anything sold as a casserole/hotpot with the sort of ingredients he mentioned.

32. He was shown a photograph at [B/119] :

(1)	That was a dish ordered by Mr Leung on 11 May 2007.  One of the items of food was something which looked like fried egg with red circular bits of meat in it.  On the face of the photograph they looked like sausages (or perhaps luncheon meat) cut into small pieces.
(2)	He maintained that the dish was豚肉煮蛋.  He said that neither sausage not luncheon meat would be used in making this dish, and when pressed on what the red pieces of meat could be, he said that the meat looked like名門卷 (a kind of Japanese food made with fishmeat), which was used merely as an accessory food item here.
(3)	Quite apart from the fact that I cannot find名門卷in Appendix 1 or Supplemental List, it has not been seriously explained to me why, in making豚肉煮蛋 (which, as its name suggests, used egg and pork as its main ingredients), one would have to use名門卷 (Mr Chan did not say that there was any pork element in名門卷) to such an extent that it appeared so dominantly in the photograph.
(4)	The truth of the matter, I find, is that the food depicted in that photograph was egg fried with either sliced sausage or luncheon meat.  It was an unauthorised item.

33. Another example of the unsatisfactory and evasive nature of his evidence comes in the photograph at [B/116] (magnified to become exhibit P2) :

(1)	By way of background, there was an allegation in Mr Leung’s witness statement that Shop 2-021a had been selling Cantonese style long boiled soup(老火湯)which was not an approved item (there was in fact a banner at the top of Shop 2-021a at the material time advertising the availability of老火湯).
(2)	Mr Chan, however, explained that this simply meant soup boiled for a very long time and that Well Prestige had used some materials such as beancurd, seaweed and miso for its老火湯and that it was certainly not Cantonese in nature.
(3)	I am not persuaded by his explanation of the use of the phrase 老火湯 as meaning “any” soup boiled for a long time.  The phrase has a distinct Chinese / Cantonese element about it.  But even assuming, for the sake of argument, that老火湯could bear the more general meaning of “any” soup boiled for a long time (and therefore one could have老火湯boiled with miso, seaweed, clams or any ingredient with a Japanese “flavour”), this certainly was not what was depicted in [B/116].  Right next to the cashier in the middle right hand side of the photograph) there was a sign which read“是日靚湯”followed by (in the next line)“青紅蘿…” (and then the words which followed were not included in the photograph).  It was glaringly obvious that the soup in question was the familiar type of Chinese soup with青紅蘿蔔as part of its main ingredients.  No one had suggested that there was a kind of Japanese soup with this sort of ingredients.
(4)	All that Mr Chan could say was that he could not see clearly.  In my view he could not have failed to see those words, and he was clearly trying to dodge the unanswerable question.
(5)	I would add that he was clearly trying to dodge the un a Chinese style soup could be covered by the unqualified entry of “soup” under the menu of “午市特價定食” in Appendix 1 [B/30].  In paragraph 22 of his written closing, counsel for Well Prestige only put his case on the basis that Well Prestige was entitled to give away any kind of complimentary Japanese style soup.  But even that went a bit too far.  Under “午市特價定食” in Appendix 1, Well Prestige could only give away complimentary soup for the specified meal items under that section.

34. The list could continue, but I do not intend to burden this judgment by going through each and every explanation given by Mr Chan.  At times Mr Chan’s evidence sounded like an improvisation session where he picked up Japanese food names at will and applied them to food items which were plainly not on Appendix 1 or the Supplemental List.  He had also questioned whether there were any problems with Mr Leung’s taste-buds.  I reject all his attempts in cross-examination to explain that the food items shown to him (whether by way of photograph of actual food or photographs of the written food names written at Shop 2-021a) were covered by Appendix 1 or the Supplemental List.

35. Overall, I have considered the entirety of the evidence given by Mr Leung and Mr Chan and I prefer the evidence of Mr Leung over that of Mr Chan’s in case of conflict or inconsistency between them.  I accept Mr Leung’s evidence as to the food that was sold at Shop 2-021a, as observed by him, and as described in his evidence.

36. I have not forgotten that Mr Leung’s photographs dated 10 and 11 May 2007 were taken after the writ.  Proving that Well Prestige had sold unauthorised food on 10 May 2007 does not, of itself, entitle the plaintiffs to forfeit the lease by issuance of the writ in April 2006.  However, the significance of Mr Chan’s evidence on the photographic evidence on 10 and 11 May 2007 is it affects my view on his overall credibility.  This has a bearing particularly when I come to assess Mr Chan’s evidence in denying the sale of unauthorised food for the relevant period namely the period prior to the issuance of the writ where, save for exhibit P1-P1B, there was no photographic evidence and where one is basically facing a your-word-against-my-word situation.

37. Further, it has not been suggested that there was somehow a change in the modus operandi of Well Prestige between the issuance of the writ and 10 May 2007.  For example, it has not been said that Well Prestige might have sold some unauthorised food but that only started after the writ and the plaintiffs had somehow jumped the gun in issuing the writ.  Well Prestige’s position on the evidence is one of denial throughout the timeframe from December 2005 to May 2007.  There was no fallback, no half way house.  Once Mr Chan’s evidence is shown to be unreliable in relation to the post-writ sale of unauthorised food, there is really nothing to persuade me to accept his denial in relation to the pre-writ period.

38. I have borne in mind that the fact a witness had given incorrect or unreliable evidence on one point does not necessarily mean that he had given incorrect or unreliable evidence on another point.  On the facts of this case, however, I am satisfied that I am entitled to take into account Mr Chan’s performance in explaining the 10 and 11 May 2007 photographs in assessing his credibility on the pre-writ period.

39. For the avoidance of doubt I also accept Miss Lam’s evidence in relation to what she observed to be sold by Well Prestige during her visits to Shop 2-021a in early December 2005 and before the meeting on 26 January 2006.

40. In the course of cross-examination, the witness on both sides had been tested on many other areas, such as why certain matters were not mentioned in the witness statement, why the specific food names were not listed out in Vineberg’s warning letter dated 12 January 2006 and Messrs Woo Kwan Lee & Lo’s letter dated 14 February 2006, why specific food names were mentioned in the warning letters to the other tenants, and the type of clientele served by the Food Court in TKO Plaza.  I have considered all the cross-examination.  Any points not covered by this judgment are points which I do not regard to be relevant or sufficiently weighty to affect or detract from my conclusions above.

41. For the avoidance of doubt I consider Messrs Woo Kwan Lee & Lo’s letter dated 14 February 2006 to be sufficiently clear to inform Well Prestige the subject matter of the complaint — the complaint was not the sale of food by the format of三餸飯; the complaint was as to the choice of food offered for三餸飯.

42. There are also some minor inconsistencies between the evidence of Mr Lam and Miss Lam.  By way of example, Mr Leung had said that by the time of the 26 January 2006 meeting, not all seven tenants were selling unauthorised food.  However, Miss Lam had said at paragraph 11 of her witness statement that all seven had been selling unauthorised food (I took this to mean that they were still selling at the time of the meeting; if not, then there was no inconsistency).  I do not regard any inconsistencies in the evidence of these two witnesses affects by assessment of their overall credibility on the crucial issues.

43. Lastly I do not think that the resolution of this case requires any expert evidence on food or cooking method.  Whatever may be the position (and I make no comment on that) if one is dealing with more esoteric or borderline type of cuisine or food, this is not such a case.  Here we are talking about common type food dishes usually seen at food courts all over Hong Kong and consumed everyday by inhabitants of Hong Kong.  All that is needed to resolve the issue is a dose of common sense.

Relief

44. I therefore find that the plaintiffs have proved their case against Well Prestige.  I now come to the question of relief.

45. The plaintiffs seek an order for vacant possession.  This follows from my finding above, given that there is no longer any claim for relief against forfeiture.

46. I would order that vacant possession be delivered within seven days.

47. As to mesne profits, the plaintiffs seek mesne profits at the rate of rental up to the date when vacant possession is delivered.  No contrary submission has been made to this and it is so ordered.

48. The plaintiffs are to have their costs, on a nisi basis, to be taxed if not agreed.