HUANG PUI YING v. UGBE NGOZI KENNETH

HCMP 3283/2015

MISCELLANEOUS PROCEEDINGS NO 3283 OF 2015

(ON INTENDED APPEAL FROM LDPD 2309 OF 2015)

_______________

_______________

___________________

J U D G M E N T
___________________

Hon Poon JA (giving the Judgment of the Court) :

Introduction

1.  This is the tenant’s application for leave to appeal against the judgment of Mr Lawrence Pang, Member of the Lands Tribunal given on 19 November 2015 as amended on 21 December 2015 (collectively “the Order”), ordering the tenant (a) to deliver vacant possession of the suit premises to the landlord; (b) to pay the landlord balance of arrears of rent from 1 to 30 November 2015 in the sum of HK$1,500.00; and (c) to pay the landlord costs summarily assessed at HK$100.00.

2.  The tenant’s earlier application for leave to appeal and stay of the judgment pending appeal was refused by Member Pang on 27 November 2015.

Background

3.  Member Pang had set out the background facts in his judgment dated 27 November 2015. We shall not repeat them here.

Discussion

4.  Under section 11AA(6) of the Lands Tribunal Ordinance, Cap 17, an applicant for leave to appeal must show that his appeal has a reasonable prospect of success; or there is some other reason in the interest of justice why the appeal should be heard.  We do not think the tenant has been able to discharge the burden.

5.  The tenancy agreement between the parties is in Chinese.  Clause 1 provided for a term of two years of open tenancy (生約) commencing from 1 September 2014 to 30 August 2016 at a monthly rent of HK$3,000.00 inclusive of management fee and rates. Clause 1 therefore confers a right on either party to terminate the tenancy during the two-year term.

6.  Clause 18 of the tenancy agreement further provided that the tenancy may be terminated at any time (可隨時中止租約).  This reiterated the effect of Clause 1.  Absent any stipulation as to the length of notice of termination, a reasonable one, such as one month notice, is implied into Clause 18.

7.  The notice of termination dated 1 September 2015 (in both Chinese and English) required the tenant to deliver vacant possession of the suit premises on 1 October 2015.  According to the landlord’s son (who was the landlord’s representative below), he served the notice by delivering it by hand to the suit premises on 30 August 2015.  The tenant denied receiving it.  Member Pang accepted the evidence of the landlord’s son, and did not believe the tenant, noting that he did not mention in the Notice of Opposition that the notice was not served on him.

8.  By giving the notice of termination to the tenant, the landlord had exercised his right to terminate the tenancy by giving one month notice.  He was perfectly entitled to do so under the tenancy agreement.  It must follow that Member Pang was correct in making the Order as he did.

9.  In his application for leave to appeal, the tenant repeated his assertion that the landlord had not given him the notice of termination.  But Member Pang had found as a matter of fact that the landlord had served the notice of termination on 30 August 2015.  It is trite law that an appellate court will not interfere with the trial judge’s finding of fact unless it can be shown that the trial judge was plainly wrong in his finding.  This is a very high threshold. The tenant has not been able to demonstrate in what way Member Pang was plainly wrong when he made such a finding of fact.

10.  The tenant next contended that the tenancy had not expired yet.  But as said, the combined effect of Clauses 1 and 18 together with the implied term on length of notice is that the tenancy could be terminated at any time during its term by a one month notice.  The tenant’s contention has no basis.

11.  Finally the tenant contended that the landlord cut off the water supply to the suit premises in 2014, which prompted him to lodge a claim in the Small Claims Tribunal.  In retaliation, the landlord terminated the tenancy.  As long as the landlord was contractually entitled to terminate the tenancy, the motive or reason why he did so is irrelevant.  It is not a defence to the claim for vacant possession.

Conclusion

12.  For the above reasons, the tenant’s appeal has no reasonable prospect of success.  We can see no reason in the interest of justice why the appeal should be heard. We therefore refuse to give him leave to appeal.

13.  We also lift the interim stay of execution pending the determination of the tenant’s application for leave to appeal imposed on 14 January 2016.

14.  We order the tenant to pay the landlord costs of this application summarily assessed at HK$500.00.

15.  As we are of the view the tenant’s application for leave to appeal is totally without merit, we further make an order under Order 59 rule 2A(8) of The Rules of the High Court, Cap. 4A, that no party may pursuant to Order 59 rule 2A(7) request this determination to be reconsidered at an oral hearing inter parties.