SIN SHEUNG MO v. ELTHAF CHAUDHRY MUHAMMAD

LDPD 1329/2015

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPD 1329 OF 2015

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REASONS FOR DECISION
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1.  This is an interlocutory application by the respondent for (1) leave to appeal the judgment and decision on 20 July 2015; and (2) stay of execution of the Writ of Possession. Both the application for recovery of possession filed by the applicant and the interlocutory application for change of Judge / Judicial Officer to hear the application filed by the respondent were heard by me on 20 July 2015 and I made the judgment and decision on the same date.

2.  The reasons for the judgment and decision were handed down on 27 July 2015.  I do not repeat backgrounds of the case here.

3.  At the conclusion of the hearing on 3 August 2015, I ordered (1) the interlocutory application filed by the respondent on 24 July 2015 be dismissed; and (2) the respondent do pay the applicant the costs of this interlocutory application which is summarily assessed at $100, with reasons to be handed down in writing.  I now do so.

Leave to appeal the decision on 20 July 2015

4.  In addition to the grounds submitted at the hearing on 20 July 2015, the respondent contended that he suspected it was the applicant who asked for change of Judge / Judicial Officer in the case LDPD 157/2015 and therefore he could also ask for change of Judge / Judicial Officer in this case.  The respondent also submitted he dissatisfied with my conducts in the other two cases which were previously heard before me, though this ground had not been stated and presented at the hearing on 20 July 2015.  The respondent said he did not trust this court since then.

5.  The applicant confirmed at this hearing he had not asked for change of Judge / Judicial Officer in the case LDPD 157/2015, and I found no record of such request in the file too.  On the balance of probabilities, I do not believe this allegation.  In any event, this ground is ill-founded because it is injustice for a party to choose Judge / Judicial Officer at his / her will.

6.  Further, I consider discontent of the respondent in the other two cases is not an acceptable ground for change of Judge / Judicial Officer in this case.  If the respondent dissatisfied with my conducts in the other two cases, he could make complaints to the court leader of the tribunal or Chief District Court Judge.  If the respondent did not agree with the then decisions, he could file application for leave to appeal to the Court of Appeal.  In fact, before I made my then decision, there was no evidence of prejudice and I had already reviewed whether I should continue to hear the application and the answer was affirmative with reasons. This ground is unsubstantiated too.

7.  The other grounds of the respondent had been discussed at the last hearing.  I do not repeat the reasons for my decision here.

Leave to appeal the judgment on 20 July 2015

8.  Similar to the interlocutory application for leave to appeal the decision on 20 July 2015, the respondent had just repeated his grounds of opposition to the application, which had already been discussed at the last hearing.

9.  At this hearing, the respondent provided copies of WhatsApp messages between the parties and his (five) medical reports to support his opposition.  It is doubtful whether the respondent could provide new evidence at the hearing for leave to appeal.  Nevertheless, even if the said new evidence was accepted, I consider it could not affect the then judgment. 

10.  The respondent contended the WhatsApp messages could prove he had not refused to pay rent.  However, even if the respondent had not refused to pay rent, I found the respondent had failed to pay rent, and this was the main reason of my judgment.  In fact, the applicant had not queried whether the respondent had not refused to pay rent.

11.  Moreover, the five medical reports, all issued in 2014, reported some incidents and medical treatments in the past only, and had not explained why or proved how the respondent could not pay rent on time in June 2015.  Even if the then medical condition of the respondent might affect his mobility to pay rent, this is a consideration for grant of relief only and is not an acceptable defense for non-payment of rent. 

12.  The respondent submitted at the last hearing he was out of Hong Kong for a period before June 2015 when he asked his friend to pay rent for him, and he was then busy after he reported duty to his office.  Although the respondent had mentioned about his medical condition, the respondent had mainly emphasized how and why he was then busy.  

13.  The respondent might then be busy and therefore he asked the applicant to collect rent and had not paid rent to the applicant directly, but he blamed the applicant for all the faults.  The respondent considered he should be entitled to a 2^nd relief because he had not refused to pay rent and he was willing to pay arrears of rent too.  At the hearing for leave to appeal, the respondent maintained his view that he was willing to pay arrears of rent, but he refused to pay the costs of the application as ordered by the tribunal. I consider such standpoint and ground of the respondent is not a good cause for grant of a 2^nd relief. 

14.  Anyhow, the applicant submitted at both hearings he was disturbed by the repetitive breaches of the tenancy agreement.  The applicant said he lost trust in the respondent and objected to the grant of a 2^nd relief.

Conclusion

15.  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. 

16.  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.

17.  Since the respondent had not provided any ground of appeal on point of law and the appeals have neither a reasonable prospect of success nor any reason in the interests of justice, the interlocutory application for leave to appeal the judgment and decision on 20 July 2015 was refused.

Stay of execution

18.  The respondent applied for stay of execution until lease expiry instead of extension of relief period.  Nonetheless, the respondent refused to pay the costs of the application as ordered by the tribunal.   Further, apart from the grounds for leave to appeal, the respondent had not provided any particular ground for stay of execution, whilst the applicant objected to the grant of stay of execution and asked for recovery of possession at the earliest.

19.  On the condition that the interlocutory application for leave to appeal was refused, I also dismissed the interlocutory application for stay of execution of the Writ of Possession.

Costs

20.  The applicant asked for costs of $600 being his salary for half day leave, and the respondent had not commented on the costs as claimed.  After considering the time for the hearing, I summarily assessed the costs at $100 only, payable by the respondent to the applicant.

LDPD 1329/2015

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPD 1329 OF 2015

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________________

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REASONS FOR JUDGMENT

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1.  This is an application for recovery of possession. Before the hearing, the respondent filed an interlocutory application for change of Judge / Judicial Officer to hear the application.

2.  At the conclusion of the hearing on 20 July 2015 for both the interlocutory application and the application, I ordered (1) the interlocutory application filed by the respondent on 14 July 2015 be dismissed; and (2) there be no order as to costs of this interlocutory application, and in respect of the application, I ordered (1) the respondent do deliver vacant possession of the suit premises to the applicant; (2) the respondent do pay the applicant arrears of rent/mesne profits at the rate of $13,500 per month from 12 June 2015 until delivery up of vacant possession; and (3) the respondent do pay the applicant the costs of this application which is summarily assessed at $800, with reasons to be handed down in writing.  I now do so.

Background

3.  The applicant is the landlord of the premises known as 10^th Floor, Tak Yan Mansion, 107 Lai Chi Kok Road, Kowloon (the “Suit Premises”) and the respondent is the tenant.  By a tenancy agreement dated 27 January 2014 (the “Tenancy Agreement”), the Suit Premises was leased to the respondent for the period from 12 February 2014 to 11 February 2016 at the monthly rent of $13,500. 

4.  The applicant filed a Notice of Application to the tribunal on 24 June 2015 for recovery of possession of the Suit Premises.  The applicant alleged that the respondent had failed to pay rent from 12 June 2015. The applicant also submitted that there were applications before to the tribunal with reference nos LDPD 1115/2014 and LDPD 157/2015 for recovery of possession because of non-payment of rent.  In the case LDPD 1115/2014, there was a possession order subject to a relief in favour of the respondent, but the application in the case LDPD 157/2015 was dismissed.

5.  The respondent filed a Notice of Opposition on 2 July 2015.  The respondent contended that he had not refused to pay rent.  The respondent alleged that, since he was then busy, he had already asked the applicant both verbally and in writing to collect rent at the Suit Premises but the applicant failed to collect the rent.  The respondent also submitted there is no requirement in the Tenancy Agreement that the respondent must deposit rent into the applicant’s bank account.

6.  In the interlocutory application filed by the respondent on 14 July 2015 for change of Judge / Judicial Officer, the respondent contended the tribunal had once changed the Judge / Judicial Officer from Court 1 to Court 3 in the case LDPD 157/2015 when the tribunal found Court 3 had heard the case LDPD 1115/2014 before.  The respondent also contended the subject case should be heard by the Judge / Judicial Officer in Court 3 because the Judge / Judicial Officer in Court 3 who dealt with these two cases before knew full details of the background.   The respondent further stated in his interlocutory application that, if the subject case would be heard by me in Court 5, he would not be able to attend the hearing.

Interlocutory application for change of Judge / Judicial Officer

7.  The interlocutory application was heard before me on the same date and the respondent appeared in person at the hearing.  The applicant objected to the proposed change of Judge / Judicial Officer because this might defer hearing of the application.

8.  Hearing of the subject case was fixed by the Listing Officer of the tribunal instead of the Judges and/or Judicial Officers.  Once a case was fixed for hearing, I consider it is inappropriate to change Judge / Judicial Officer at the request of a party, particularly if the reason is simply that another Judge / Judicial Officer knows background of the case better, otherwise there is an apparent injustice that a party can choose Judge / Judicial Officer at his/her will.  Further, the subject case is not complex and it is also not difficult to understand the background by reading files of the previous two cases.

9.  The respondent had not provided other reason(s) for change of Judge / Judicial Officer. Nevertheless, I have also reviewed whether I should continue to hear the application.  Although I noted the respondent had attended various hearings before me in two other cases in relation to two other properties and the applicants in these two cases were different, I did not find any actual or apparent bias from the perspective of a fair-minded and informed observer.  While I was discharging my judicial duties in these two cases, their hearings were conducted in open court and the respective decisions were delivered or handed down with reasons.  Whatever, the subject case is independent from these two cases.

10.  I decided to hear the application and therefore dismissed the interlocutory application.  On the conditions that the respondent had already paid the filing fees of the interlocutory application, the applicant had not submitted any written response and the hearing time in this regard was relatively short, I made no order as to costs of the interlocutory application.

Application for recovery of possession

11.  The parties had no dispute that (1) there was no actual payment or receipt of rent from 12 June 2015; and (2) the respondent had asked the applicant both verbally and in writing by phone messages to collect rent at the Suit Premises. Nevertheless, the applicant contended since he was then also busy and had some bad experience before when he visited the Suit Premises, he decided not to collect rent at the Suit Premises. Whilst, the respondent submitted his representative had then already served verbally a conditional termination notice to the applicant.  The respondent had expected, when the applicant collected rent at the Suit Premises, the applicant would also check internal condition of the Suit Premises for the proposed lease termination.

12.  In Clause 3 of the Tenancy Agreement, the parties had agreed that rent of the Suit Premises should be paid in advance on the 1^st day of each monthly period, and the landlord can forfeit the lease if the tenant fails to pay rent to the landlord over 10 days in arrears.

13.  The respondent was used to pay rent by deposit into the applicant’s bank account, although there is no such requirement in the Tenancy Agreement. In fact, the Tenancy Agreement had not specified the payment mode(s).  However, if the tenant fails to pay rent to the landlord on time, the tenant breaches the Tenancy Agreement.  The Tenancy Agreement does not require the landlord or representative of the landlord to collect rent in person from the tenant, but do require the tenant to pay rent to the landlord, and in the subject case the respondent had failed to pay rent to the applicant.  The respondent had not refused to pay rent is not equivalent, or similar, to the respondent had already paid rent.

14.  In view of the above, the respondent had no arguable defense in the subject case and the applicant is entitled to recover possession.  Nonetheless, since both parties submitted the lease was yet to be determined by the conditional termination notice of the respondent, the tribunal should further consider whether or not a 2^nd relief should be granted to the respondent.

15.  The respondent asked for a 2^nd relief because his plan for lease termination and relocation had then been disturbed, while the applicant objected to the grant of any relief to the respondent.

16.  According to section 21F of the High Court Ordinance, no 2^nd relief would be granted unless the Court is satisfied that there is good cause why a 2^nd relief should be granted in favour of the tenant.  At the hearing, the respondent had just repeated his opposition grounds, that it was the applicant who failed to collect rent at the Suit Premises and he could not found a replacement flat to move because the applicant had not checked the internal condition of the Suit Premises for the proposed lease termination, as his grounds for a 2^nd relief.  In fact, the respondent had merely blamed the applicant for his non-payment of rent and incapacity to relocate then.

17.  I did not accept the grounds of the respondent for a 2^nd relief is a good cause and therefore refused to grant a 2^nd relief in the subject case.

18.  While the applicant asked for costs of $1,024 including the filing fees, photocopying charges and his salary for half day leave, the respondent refused to comment on these costs as claimed by the applicant.  After considering the time for the hearing of about 1.5 hours only, I summarily assessed the costs at $800, payable by the respondent to the applicant.

19.  When I was delivering the orders of the application, the respondent called out and said he would leave the court room.  After I reminded the respondent to behave at the hearing, the respondent left the court room eventually, with apology, before the end of the hearing.