AU KIN CHONG AND ANOTHER v. MUHAMMAD-ASHFAQ

LDPE 726/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPE 726 OF 2014

________________

_______________

REASONS FOR DECISION

_______________

1.  This is an interlocutory application on 1 December 2014 by the respondent for (1) leave to appeal the Order made on 19 November 2014; and (2) stay of execution of the Writ of Possession issued on 15 October 2014.

2.  At the conclusion of the hearing on 8 December 2014, I ordered (1) the interlocutory application filed by the respondent on 1 December 2014 be dismissed; and (ii) the respondent do pay the applicant the costs of this interlocutory application which is summarily assessed at $10, with reasons to be handed down in writing.  I now do so.

Background

3.  The applicantsare the landlord of the premises known asShop G75, Ground Floor, Pak Tin Shopping Center, 1-3 Wai Chi Lane, Pak Tin, Kowloon (“the Suit Premises”) and the respondent is the tenant.

4.  By a tenancy agreement dated 26 June 2012 (“the Tenancy Agreement”), the Suit Premises was leased to the respondent for the period from 10 July 2012 to 9July 2014 at the monthly rent of $5,200.  By a supplemental agreement dated 10 September 2012, both parties agreed to revise the monthly rent from 10 September 2012 to $5,000.

5.  Before the expiry of the tenancy, the applicants had sent a notice dated 11 June 2014 to the respondent on 14 June 2014 reminding the respondent the lease expiry on 9 July 2014 and requiring the respondent to quit on or before 31 July 2014.  The applicants subsequently filed a Notice of Application to the Lands Tribunal on 1 August 2014 for recovery of possession of the Suit Premises and the ground was expiry of the tenancy.

6.  The respondent filed a Notice of Opposition on 4 August 2014.  The respondent stated that he had invested $100,000 to improve the Suit Premises and had never been late in rent payment.  He contended that in such circumstances the applicants should renew the lease or pay him compensation upon lease termination, which should be equivalent to what he had invested in the Suit Premises.

Order made on 20 August 2014

7.  At the hearing on 20 August 2014, the respondent confirmed that the Tenancy Agreement had no provisions for lease renewal and compensation and both parties had no agreement in this regard too.  Nevertheless, he claimed and insisted that on a fair basis the applicants should renew the lease or pay him the compensation.

8.  In Hong Kong, there is currently no security of tenure.  Although domestic tenancy would have security of tenure about 10 years ago, this had been abolished by the legislative amendments on 9 July 2004.

9.  Since there is no security of tenure and the parties had no mutual agreement for lease renewal, the fixed term tenancy would end upon expiry (i.e. 9 July 2014).  Further, I accepted there was no agreement on compensation for improvements if any upon lease termination.  I therefore ordered on 20 August 2014 (1) the respondent do deliver vacant possession of the Suit Premises to the applicant; and (2) the respondent do pay the applicant the costs of this application which is summarily assessed at $182.50.

Order made on 19 November 2014

10.  The respondent subsequently filed an interlocutory application on 12 November 2014 for leave to appeal out of time of the Order made on 20 August 2014 and stay of execution.  At the hearing on 19 November 2014, the respondent repeated his submissions that the lease should be renewed or the applicants should pay him the compensation for his investment. Although the respondent also advised the tribunal he is an uneducated minority unfamiliar with the law of Hong Kong and the earnings from his business at the Suit Premises are the sole source of support for his family, these submissions are not the acceptable grounds for appeal.

11.  According to section 11(2) of the Lands Tribunal Ordinance (“the Ordinance”), 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.  Nevertheless, according to section 11AA(1) of the Ordinance, no appeal may be made under section 11(2) unless leave to appeal has been granted by the Tribunal or the Court of Appeal.

12.  Section 11AA(6) of the Ordinance stipulates 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.

13.  Since the respondent had not provided any ground of appeal on point of law and the appeal does not has a reasonable prospect of success too, I ordered on 19 November 2014 (1) the interlocutory application filed by the respondent on 12 November 2014 be dismissed; and (2) there be no order as to costs of this interlocutory application.

14.  I also refused to grant leave for stay of execution of the Writ of Possession because the respondent was well aware of the lease expiry date and he had already refused to vacate for more than 4 months.  Further, I did not find the refusal would cause any irrecoverable damages to the respondent.

Hearing on 8 December 2014

15.  The interlocutory application on 1 December 2014 by the respondent was heard on 8 December 2014. In the affirmation filed together with this interlocutory application and at the hearing, the respondent had just repeated his submissions for the hearings on 20 August 2014 and 19 November 2014.  The respondent had also not been able to provide any acceptable ground for leave to appeal.

16.  After the tribunal refuses to grant leave to appeal, if a party do insist to appeal a judgment of the tribunal, the party should then file an application to Court of Appeal for leave to appeal.  However, in the subject case, the respondent filed an interlocutory application to the tribunal for leave to appeal the decision of another interlocutory application, which had already refused to grant leave to appeal the judgment of the application.

17.  Although this interlocutory application was listed for hearing, I consider this interlocutory application is unnecessary and has misused the procedures.

18.  In any event, same as the reasons for the Orders made on 20 August 2014 and 19 November 2014, I consider the respondent does not have reasonable prospect of success in the present proceedings and acceptable grounds for appeal and stay of execution.  Hence, I made the Order in paragraph 2 above.

19.  There is no reason why costs should not follow the event. The applicants asked for costs of $10 being the travelling expense of the 1^st applicant to the hearing, and I accepted this by way of summary assessment.