LUI HON KWONG v. KAN YUK YING

CACV 452/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 452 OF 2002

(ON APPEAL FROM LDPE NO. 802 OF 2002)

_________________________

_________________________

_________________________

REASONS FOR JUDGMENT

_________________________

Hon Rogers VP:

1. This is an appeal from a decision of HH Judge Chow, sitting as the Presiding Officer of the Lands Tribunal, given on 2 December 2002. By that decision the judge refused the application on behalf of Tam Muk Hing to be joined as a co-respondent in these proceedings and consequently also refused an application for a stay of execution of an order for possession of the relevant premises, namely, "stair entrance on Ground Floor, No. 22 Kimberley Street, Tsimshatsui, Kowloon" ("the premises").

2. At the conclusion of the hearing of this appeal, this court set aside the order of the judge below, ordered that the appellant be joined as a co-respondent in the present proceedings in the Lands Tribunal, ordered that there be a stay of execution of the order for possession of the premises, ordered that there be a stay of these proceedings in the Lands Tribunal pending final determination of High Court Action No. 1428 of 2002 or further order, ordered that the bailiff be directed to give back possession of the premises to the appellant and, finally, ordered that the costs of this appeal and the application heard on 2 December in the Lands Tribunal be to the appellant on an indemnity basis.

Background

3. The applicant in this case, Lui Hon Kwong ("Lui") is the owner of the 2nd floor of the building No. 22 Kimberley Street, Tsimshatsui ("the building"). He is also an owner of one equal undivided fourth part or share of the land. It is his case that on 1 January 2002, with the authority of at least the owner of the 3rd floor of the building, he rented the entrance hall of the building to Kan Yuk Ying ("Kan") at a monthly rental of $2,000. It is his case that those premises subsequently came into the possession of the appellant. On 16 April 2002, a writ was issued naming Lui and Kan as plaintiffs and "譚玉慶 and the occupier(s) of the entrance hall and/or stairway of No. 22 Kimberley Street" as the defendants. The writ sought possession of the premises. An application for an interlocutory injunction was also made. That was due to be heard on 19 April. Apparently, the appellant, who had been misnamed in the writ, applied for legal aid. The proceedings were accordingly stayed. The application for an interlocutory injunction seeking an order for possession was never restored. This court was informed that legal aid was refused on 31 May. According to a written statement produced at the hearing of this appeal by Lui, the appellant left the premises on the following day, namely, 1 June. He also says that, on 4 June, the appellant asked him to rent the premises to her. He says he refused that.

4. At the hearing of this appeal, Kan told this court that the premises then came to be occupied by her former husband, Ng Kam Wah ("Ng"). She told this court that she was unable to gain access to the entrance and ground floor of the building because they had been locked by Ng. As a result of the adverse occupation by the appellant and then by Ng she did not pay the rent for eight months. She told this court that she then advised Lui to commence these proceedings in the Lands Tribunal against her for non-payment of rent and to seek an order for possession. It is quite clear from what she told this court that the intention behind these proceedings was not that Lui should gain possession of the premises from Kan but that Lui should gain possession of the premises from the person or persons who were in possession of them at the time.

5. According to Kan it was Ng who was in possession. According to the appellant it was the appellant who was in possession. Be that as it may, when these proceedings were commenced on 13 August 2002 there was no intention on the part of Lui and Kan, who were cooperating in the matter, to obtain possession from Kan. The intention was to obtain possession of the premises from some other person who was not named as a party to the proceedings. At this juncture it might be added that Kan told this court that at the time of the hearing of this appeal she was presently in occupation of the premises although she was not the tenant.

6. These proceedings in the Lands Tribunal proceeded without any delay. There was an order for possession on 13 September and a writ of possession was issued on 7 October. On 17 October, there was a notice to the occupiers pursuant to the writ of possession. These matters then came to the attention of the appellant.

7. On 30 October, an application was made by the appellant for an interlocutory stay in the Lands Tribunal. On 5 November, the appellant filed an acknowledgement of service in the High Court proceedings and served a defence and counterclaim. The basis of the counterclaim was that, because of the long occupation of the premises by the appellant and previously by her son, the appellant, both in her own name and as intended administratrix of the estate of her son, was entitled to the benefit of the provisions of the Limitation Ordinance, Cap. 347 and had acquired rights in the premises.

8. On 6 November, the appellant made application in the Lands Tribunal to be joined as a third party. That was rejected by the judge below on the ground that only a defendant could issue a third party notice. There was an application for a review of that decision on 26 November which was rejected. Consequent on that, a different application was made before HH Judge Yung on 28 November, who granted an interim stay of the order for possession but adjourned the application of the appellant to be made a co-respondent to be heard by HH Judge Chow. The decision given on 2 December refused the application on behalf of the appellant on the basis that the appellant's case was "not a matter concerning landlord and tenant covered by sections 8(7) and (8) of the Lands Tribunal Ordinance".

9. Although it is correct that the appellant does not claim to be either a landlord or a tenant, she is undoubtedly immediately concerned with the outcome of these proceedings in the Lands Tribunal. The order obtained by Lui in the Lands Tribunal was an order for possession which would, and this court was informed did, operate to evict the appellant from the premises. It is quite clear from what has been said in this court by Lui and Kan that these proceedings were commenced in the Lands Tribunal not for the purpose of evicting a tenant who had not paid rent, but for the purpose of obtaining an order for possession against other parties who were not named in the proceedings. What is even more serious is that the appellant, who was seeking the stay, had already filed a counterclaim in the High Court seeking, amongst other things, a declaration that she was entitled to possession of the premises. In those circumstances, the commencement of these proceedings amounted to little more than collusion between Lui and Kan and was, in my view, an abuse of the process. A court always has power to prevent its process being abused.

10. The correct course in the present circumstances appears to me to be that the dispute between Lui and Kan on the one hand and the appellant on the other hand, as to who has been in possession of the premises for 30 years or more, should be resolved as soon as possible. That would entail a trial of the High Court action. The sooner that can happen the better. In the meantime it would be quite wrong that the situation prevailing prior to the writ of possession be disturbed. If that were to happen rights of the parties could be affected. In particular, the rights claimed by the appellant could be disturbed.

11. In those circumstances, the order sought on this appeal appeared to be the proper order. In view of the fact that these proceedings in the Lands Tribunal amounted to an abuse, as has already been explained, this court considered that it was correct to order costs on an indemnity basis, albeit when he made the application for costs, Mr Shum, who appeared on behalf of the appellant, informed this court that he appeared on a complimentary basis.

Hon Le Pichon JA:

12. I agree.