LAI YI v. TSUI KIN CHUNG

LDPD 1406/2015

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 1406 OF 2015

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Reasons for Decision

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1. This is the hearing of the respondent’s summons of 3 November 2015 (“leave to appeal summons”). By the leave to appeal summons, the respondent seeks leave to appeal against my decisions contained in my following 3 written Reasons for Decisions/Judgment all handed down on 5 October 2015, and for a stay of execution of the mesne profits and costs award pursuant to these reasons for decisions/judgment:

i)  Reasons for Decision (1);

ii)  Reasons for Decision (2); and

iii)  判案書 (“Judgment”).  

2. At the conclusion of the hearing, this tribunal dismissed the respondent’s leave to appeal application with costs to the applicant summarily assessed at $200. At the start of the hearing on 23 December 2015, this tribunal indicated to him whether or not there be a stay of execution depended entirely on whether leave to appeal would be granted. As leave to appeal was refused, the stay of execution is also hereby dismissed.

3. At the conclusion of the hearing, this tribunal also indicated that brief reasons for decision would be handed down, and they are as follows.

Brief Background

4. The applicant and the respondent were respectively landlord and tenant. Towards the end of their 2-year term, they failed to reach agreement on the renewal of the tenancy. At the same time, the applicant said that the respondent had failed to pay rent for the last month when it fell due. By the application (i.e. LDPD1406/2015), the applicant asked for vacant possession of the suit premises and mesne profits. The respondent filed a Notice of Opposition raising various defence including, inter alia, that the application was outside this tribunal’s jurisdiction and it being an abuse of process. The applicant’s claim of rent being in arrears was, however, not expressly denied.

5. Prior to the first call-over on 21 July 2015, the respondent issued a first summons on 3 July 2015 asking to strike out the applicant’s claims and for an anonymity order (respectively the “striking out application” and “anonymity order application”).

6. At the first call-over on 21 July 2015 for the applicant’s application and the respondent’s first summons, the respondent agreed to return vacant possession of the suit premises to the applicant. By way of undertakings to the tribunal, the respondent agreed to hand over and the applicant agreed to accept vacant possession of the suit premises a few days later.

7. Unfortunately, the handover was unsuccessful. At the second call-over hearing on 30 July 2015, when the tribunal was enquiring into reasons for the failure, there was a sudden change of attitude on the part of the respondent. He alleged that I was being biased against him. He immediately switched from Punti to English, and left before the interpreter arrived. The proceedings continued after the arrival of the interpreter. An order for possession of the suit premises was granted against the respondent in his absence. At the same time, the tribunal also made directions for trial of the applicant’s application and set the trial down on 4 September 2015.

8. That triggered off another round of 4 applications from the respondent comprised in 3 summonses. His applications were subsequently reduced to 3, namely:

i)  That I should recuse myself in adjudicating the dispute between the parties on the ground that I have been biased against him (“recusal application”);

ii)  That all directions or orders made by me against him, including case management directions and the possession order should be set aside (“setting aside application”);

iii)  That all proceedings then in the tribunal should be transferred to the Court of First Instance (“transfer application”).

9. The recusal, setting aside and the transfer applications were heard on 27 August 2015. The striking out and the anonymity order applications were heard on 21 July 2015 and 4 September 2015. At the commencement of trial on 4 September 2015, this tribunal dismissed all the 5 applications and proceeded to trial. The reasons for decision of the 5 applications together with the judgment for the applicant’s application were all handed down on 5 October 2015. Since the respondent insisted on using English for the 5 interlocutory applications, the 2 written decisions on these applications were written in English. As the respondent elected to use Punti for trial, the judgment for the applicant’s application was written in Chinese.

10. My Reasons for Decision (1) deals with the respondent’s recusal, setting aside and transfer applications. My Reasons for Decision (2) deals with the respondent’s striking out and anonymity order applications. My Judgment written in Chinese deals with the applicant’s main application.

11. This decision is written in English because the respondent elected to use English in his affidavit and made submission in English. The applicant put in no affirmation, though she opposed the leave to appeal summons in Punti orally.  

A Preliminary Issue

12. The respondent raises a preliminary issue that since leave to appeal is interlocutory in nature, the hearing of such application should not be open to public. He relies on rule 17 of the Lands Tribunal Rules, Cap 17A (“LTR”), which provides as follows:

“The sitting of the tribunal, other than on interlocutory matters, shall be open to the public.”

13. This tribunal considers the “applications test” adopted by the Appeal Committee of the Court of Final Appeal (‘CFA”) in Onway Engineering Ltd v Shun Wing Construction and Engineering Co Ltd[1]  applicable in determining whether or not leave to appeal application is interlocutory. The test is: the matter is “interlocutory” unless determination of the application will finally dispose of the action or finally determine a substantial issue in the action, whichever party succeeds on the application. In the tribunal’s view, leave to appeal application in this tribunal is an interlocutory matter, just as an application for leave to appeal to the CFA[2].

14. Having decided that leave to appeal application is an interlocutory matter, in the tribunal’s view, the aforesaid r.17 of the LTR only provides that all matters other than interlocutory matters, e.g. trial, appeal from Registrar, and perhaps matters set out in rule 30E(1) & (2) of the LTR must be heard in hearings open to public. It does not follow, on a proper construction of the said provision, that interlocutory matters should therefore not be open to public. With the principles of open justice entrenched by the Hong Kong Bill of Rights, court hearings should be conducted in open hearing as far as possible. This is in line with Articles 10 and 16 which provide for respectively rights to a fair and public hearing and freedom of opinion and expression including a freedom to seek, receive and impart information and ideas of all kinds. Necessarily it includes a right for the public and the press to be present at the court’s hearing and report the proceedings and the outcome. These rights should only be curtailed when they are in conflict with other competing rights such as for reasons of national security or when interest of the private lives so requires or when publicity would prejudice the interests of justice[3]. It will be a balancing exercise of different rights in play at the end of the day. The tribunal lends support from the court of Appeal decision in In the Matter BU[4].

15. The Chief Justice, by Practice Direction 25.1 dated 18 September 2015 (“PD25.1”), provides[5] that all chambers hearings (interlocutory or otherwise) shall be held in public except in the instances set out in paragraphs 3, 4(a) and 5 of PD25.1.

16. For the hearing of the leave to appeal summons, apart from documents exhibiting in his 2 affidavits sworn on 3 November 2015 and 16 December 2015 respectively comprising basically bundles of complaint letters against me and the Judiciary, the various replies and photocopy of a chapter entitled “Open justice, privacy and suppressing identity in legal proceedings: ‘what’s in a name?’ and would anonymity ‘smell as sweet’?” by Sharon Rodrick of, presumably, a book, the respondent put in nothing about his personal circumstances justifying the hearing not to be open to public.

17. Paragraph 3 of PD25.1 provides that the hearing should not be open to public if the statutory provisions say so. Schedule 1 of the said PD provides a non-exhaustive list. Given the tribunal’s construction of r.17 of LTR and that leave to appeal hearing in the tribunal is not listed in Schedule 1, paragraph 3 of PD25.1 is inapplicable.

18. Paragraph 4(a) and Schedule 2 of PD25.1 provide that if one or more of the reasons for excluding the press and the public laid down in Article 10 of the Hong Kong Bill of Rights can be satisfied, the hearing should not be held in public. As said above, the respondent put in no evidence about his personal circumstances to support his application. Apart from knowing that he was suffering from a medical condition, there is no evidence as to how and to what extent an open to public hearing would adversely affect him. It appears he comes to his view that leave to appeal hearing should not be open to public purely upon his own construction of the statutory provision. In the tribunal’s view the exemption provided under paragraph 4(a) of PD25.1 does not engage.

19. The hearing lasted for about 30 minutes. The respondent relied totally on the material enclosed with his 2 affidavits. It does not appear to the tribunal that there is any special circumstance popping up during the hearing justifying a review resulting in the leave to appeal hearing or part thereof to be conducted in closed door. Paragraph 5 of PD25.1 is not of any assistance to the respondent.

The Leave to Appeal Application  

20. This tribunal does not intend to repeat the reasons for decision for dismissing the respondent’s 5 applications aforesaid and entering judgment against him as they have all been set out in the said 3 Reasons for Decision/Judgment.

21. The respondent’s grounds of appeal can be gathered from his 2 affidavits. In the respondent’s affidavit of 3 November 2015, he listed out the following 14 points:

i)  Whether I have shown actual/apparent bias against him at the hearings on 30 July 2015, 27 August 2015 and at the trial on 6(sic) 4 September 2015;

ii)  Whether I have relied on promise never made by him;

iii)  Whether I can make an award of costs subject to section 119R of the Landlord and Tenant (Consolidation) Ordinance (“LTCO”), Cap 7;

iv)  Whether I should pay costs to the applicant or vice versa;

v)  Whether I have been acting as the applicant’s legal counsel in the proceedings;

vi)  Whether I can make a possession order on 30 July 2015 in favour of the applicant in his absence;

vii)  Whether I have discussion with the applicant on 30 July 2015 when he was absence;

viii)  Whether I have threatened him;

ix)  Whether I acted in good faith;

x)  Whether I have interrupted him when he is giving evidence or oral submission;

xi)  Whether I can disclose his identity in my decisions even though the Administrative Appeals Tribunal(sic) Board (“AAB”) granted him an anonymity order;

xii)  Whether I have mistook s.117 of LTCO and common law as the applicant’s cause of action;

xiii)  Whether I was wrong when the hearings on 21 July 2015, 30 July 2015 and 27 August 2015 were conducted in public;

xiv)  Whether I can relied on Re BU[6] without any submission from any parties hereto.

22. Since the respondent has not spelt out which ground is levied against which of my decision(s), this tribunal therefore tries to group the aforesaid grounds under the following heads so far as can be discerned from the circumstances:

i)  Recusal application: 8 grounds, namely, i, ii, iv, v, vii, viii, ix & x;

ii)  Anonymity order application: 2 grounds, namely, xi & xiv;

iii)  Setting Aside application: 1 ground, i.e. vi;

iv)  Applicant’s main application: 2 grounds, namely, grounds iii & xii; and

v)  Procedure generally: 1 ground, i.e. ground xiii.

Grounds in respect of the Recusal Application - Reasons for Decision (1)

23. Apart from enclosing a bundle of correspondence comprising his complaint letters and replies from the Judiciary as well as the chapter on open justice by Sharon Rodrick, the respondent made no explanation on why he considers that leave to appeal should be granted in respect of my decision on his recusal application. Neither has he made any oral submission to supplement his grounds despite invitation. The allegation that I should pay costs to the applicant or vice versa, is, I believe, a sarcastic way of alleging that I have given advice to the applicant or that I have ruled against him. In any event, it will be quite impossible for this tribunal to guess by the aforesaid grounds what exactly he would like to say, save and except that he is dissatisfied with my said decision. He is basically repeating the same grounds when he lodged the recusal application.

24. Concerning the trial on 4 September 2015, he was given full opportunity to give his evidence under oath and made his submission orally. Further he has not identified which part of the trial or the particular circumstances which he alleges having a bearing on the suggestion of bias for the purpose of this leave to appeal application.

25. In my Reasons for Decision (1) handed down on 5 October 2015, I relied on the 2-stage “real possibility test” set out by the Appeal Committee of the CFA in Deacons v White & Case[7] for determining whether there is apparent bias. I also set out the attributes of a fair-minded and informed observer through whom the judge is to be assessed[8]. It is noted that apart from asserting that he was being prejudiced against the respondent raised no objection to the applicable legal principles for assessing bias.

Grounds in respect of the Anonymity Order Application - Reasons for Decision (2)

26. In my Reasons for Decision (2) handed down on 5 October 2015, I relied on the principles enunciated by the Court of Appeal in In the Matter of BU[9] to consider whether an anonymity order should be granted. The respondent does not challenge the applicable principles. In fact in paragraph 45 of my said decision (2) the tribunal had gone through the 2 cases relied on by him, and considered that they added nothing further. It is because the principles set out in his 2 cases are along the same line of principles set out in In the Matter of BU. What the respondent would like to challenge is whether the tribunal can rely on it without having invited the parties to make prior submission.

27. The respondent appears to have research ability into legal principles. In the tribunal’s view, the invitation of submission from parties on a case brought up by the court, particularly when parties are legally represented, will help ventilate parties’ view on the principles and issues. However, this tribunal does not consider its failure to invite submission from parties will bar the tribunal generally from relying on a legal principle enunciated in an authority, particularly when both parties are unrepresented. In any event as discussed in the preceding paragraph, the principles in In the Matter of BU are good principles and are basically the same as advocated by the respondent in his 2 cases. Neither is there allegation that such principles have been applied erroneously.  

28. I have gone through the chapter by Sharon Rodrick. I do not think the principles adopted in various jurisdictions discussed therein are inconsistent with those applied in my Reasons for Decision (2).

29. This tribunal agrees that generally, when dealing with personal information submitted for adjudication for anonymity order or otherwise, care should be exercised so that only those which are necessary in the discussion would be referred to in the written decision. In the present case, the allegations that the respondent were granted such order by the AAB together with the supporting documents were contained in his witness statement which had been served on the applicant. The respondent relied on the statement and adopted its contents as his evidence at the open trial on 4 September 2015. Any privilege and confidentiality which he may have enjoyed would have already been waived.

Grounds in respect of the Setting Aside Application - Reasons for Decision (1)

30. The attack is only levied at the possession order. It is the respondent who chose to leave in the middle of the second hearing. Further, it is undisputed or uncontroverted facts that:

i)  The respondent had voluntarily agreed to return vacant possession of the suit premises to the applicant at the hearing on 21 July 2015;

ii)  The 2-year term of the tenancy between the parties expired on 16 July 2015 when the possession order was granted on 30 July 2015; and

iii)  The respondent agreed that rent for last month of the term remained unpaid when the applicant issued the application in this tribunal.

31. In light of the above, this tribunal does not consider that he has any prospect of success in convincing the appeal court to upset the possession order, which he said he was willing to deliver on 21 July 2015.

Grounds in Respect of the Applicant’s Main Application – 判案書“Judgment”

32. Ground (xii) set out above is not fully understood. Suffice to say that the tenancy was created after 9 July 2004. The security of tenure which is formerly available to Part IV premises has gone.  So basically applications by landlords for recovery of possession are no longer under the LTCO but are under common law. Since the premises is a post-war domestic premises to which Part IV of LTCO remains applicable, the implied covenants under s.117 of LTCO apply.

33. S.119R of the LTCO stipulates:

“In any proceedings under this Part, the Tribunal shall not make any order as to costs against a party unless that party has conducted his case in a frivolous or vexatious manner.”

34. Before the abolition of the security of tenure, tenants who received protection under Part IV can apply to the tribunal for a new tenancy. Parties to a Part IV tenancy might also made application to the tribunal for determination of the terms or the new market rental for their new tenancy. Those applications are “proceedings under this Part”. There may still be tenancies created before the abolition of the security of tenure provisions and are still subject to the “old protection” of Part IV, though they must be very rare now. In the tribunal’s view, the applicant’s main application herein is not proceeding under Part IV. Section 119R of the LTCO is inapplicable.

Procedural Ground – Reasons for Decision (1) and (2)

35. This ground relates to whether the hearing on 21 July 2015, 30 July 2015 and 27 August 2015 should be in camera according to the respondent by relying on r.17 of the LTR. This tribunal considers the analysis set out in paragraphs 12 to 19 applicable. It is the tribunal’s view, the hearings concerning the 5 interlocutory applications which were the subject matters of the 2 Reasons for Decision should be conducted in chambers open to public.

The Applicable Principles for Leave to Appeal 

36. Section 11(2) of the Lands Tribunal Ordinance, Cap 17 (“LTO”) provides:

“Subject to section 11AA and the provisions of any Ordinance relating to appeals from the Tribunal, 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.”

37. It is further provided in 11AA(1) and (6) of the LTO the following:

“(1) Subject to subsection (2), no appeal may be made under section 11(2) unless leave to appeal has been granted by the Tribunal or the Court of Appeal.

…

(6) 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.”

38. As discussed above there is no allegation by the respondent that the tribunal has been erroneous in applying the relevant legal principles in the 3 Reasons for Decision/Judgment. Neither does the tribunal consider that it has applied a wrong principle in determining any of the respondent’s applications and the applicant’s main application. Further, there is no suggestion that any finding of facts by this tribunal was obviously wrong, or that no reasonable tribunal would have come to. In any event, according to the documents annexed to the respondent’s affidavit of 16 December 2015, the possession order, which is the subject matter of the leave to appeal application, has been executed. Possession of the suit premises has been returned to the applicant through assistance of bailiffs. In the assessment of the tribunal, the appeal against any of my decisions does not have a real prospect of success.

39. In the judgment of the tribunal, the respondent has not made out a case under the “interests of justice” limb under section 11AA(6)(b).

40. This tribunal would like to add that under r.30B(2) of the LTR, application for leave to appeal against an interlocutory judgment, order or decision should be lodged within 14 days of the such judgment/order/decision, and that other than interlocutory judgment/order/decision, 28 days.

41. The 5 orders subject matter of the 2 Reasons for Decisions[10] are interlocutory[11]. These decisions were made on 4 September 2015. The last date for the 14-day period was 18 September 2015. Even extra time should be taken into account until my handing down of my written reasons on 5 October 2015, the 14-day should have expired after 19 October 2015. The respondent is at least 15 days if not 46 days late.

42. For the refusal to setting aside of the possession order on 4 September 2015, it cannot be regarded as interlocutory and therefore the 28-day time limit expired after 2 October 2015. The respondent is 32 days late.

43. For the applicant’s substantial claim, the decision was made on 5 October 2015 and the respondent is 1 day late.

44. Accordingly, unless there is time extension granted upon reasonable explanation given, his application should not be entertained. At the commencement of the hearing, the respondent was invited to explain, if any, his reasons for the delay. However, he adopted an uncooperative attitude and refused to render any explanation. It is the respondent who has the onus of explaining why he was late for assessment of the tribunal but he did not.  Coupled with the assessment of the tribunal that he fails to satisfy section 11AA(6) of the LTO, his leave to appeal application should be dismissed. Necessarily, the stay of execution should likewise be dismissed because the applicant should not be deprived of the fruit of her judgment.

45. As for costs, the tribunal awarded the applicant a sum of $200 summarily, being the aggregate of ½-hour time charge for attending the hearing and ½-hour for perusing the documents filed by the respondent at an hourly rate of $200.