CHAN NAN FONG v. CHAN TAK WAH

bjbj CACV000013/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 13 OF 1971 (On appeal from V.D.C. T.T. Appeal No. 2/71) ----------------- BETWEEN CHAN NAN FONG Appellant (Tenant) CHAN TAK WAH Respondent (Landlord) ----------------- Coram: Blair-Kerr, S.P.J., Huggins and Pickering, JJ. Date of Judgment: ----------------- JUDGMENT ----------------- Huggins, J.: This is an appeal from a District Judge under s.33 of the Landlord and Tenant Ordinance, the learned judge having certified that two points of law of such exceptional public importance arise from his decision that the opinion of the Full Court should be obtained thereon. At the outset I am compelled to say a word about the manner in which the appeal has been brought before the Court. It was not until we had heard four hours of argument and counsel for the Appellant sought to amend his Notice of Motion that s.33(9) (c) was read to us and that I for my part was reminded that the section provides for an appeal only by way of case stated. There was before us a record of some 42 pages and tucked away at p.23 was an apology for a case stated about half a page in length. It does nothing more than set out the two questions upon which our opinion is sought (and very unsatisfactory questions they are) and give page references to two passages in the judgment of the learned judge. Both this Court and single judges of the Supreme Court have on a number of occasions in recent years had occasion to complain of the manner in which cases have been stated, but never since I was called to the bar have I seen a case stated which so completely failed to state any case at all. The whole purpose of a case stated is to provide what is (in the words of s.33(9) (c) of the Landlord & Tenant Ordinance) "necessary to raise the question for the decision of the ... Court" - and to exclude everything else. In a case where the judgment appealed from had been exhibited to the Case we pointed out that a case stated should normally have no annexures whatsoever. In the present case the judgment and many other papers have been exhibited - but not even as annexures to the case stated. If we disregarded these extraneous papers, as we have every right to do, there would be nothing upon which counsel could base an argument. For my part had I recalled the provisions of s.33(9) at the time counsel opened the appeal and had I not been misled by the form of the record, I would have refused to proceed with the hearing. Once more, and I hope for the last time, I place on record the requirements of a case stated and the duty of those concerned with its preparation. Although a case is stated by the judge whose decision is appealed against and must be signed by him, it is usually the duty of the appellant or his professional advisers to draft the case. Where the appeal is under s.33(9) of the Landlord and Tenant Ordinance the points to be argued will have to be indicated upon the application for leave to appeal and the order made upon that application will certify which of them are fit for the consideration of this Court. Having where possible agreed the draft with the respondent or his advisers the appellant should submit it to the judge for his approval and signature. The judge may, and should, amend the draft if not satisfied that it correctly represents the facts or the argument or if he thinks it is otherwise defective. Although it is the duty of the appellant to draft the case there is no reason why an unrepresented appellant should not enlist the assistance of the judge in the drafting and one hopes that judges will always assist in this matter where necessary. The case should be complete in itself and, as I have already said, should normally have no annexures of any sort. It should sufficiently indicate the parties, the nature of their dispute and such of the facts found by the judge (not the conflicting evidence) as are material to the points of law to be raised on the appeal. The case should then set out the arguments of each party on each point of law and the judge's decision thereon. Finally it should pose clearly and concisely the questions to be answered by the Court and care should be taken to ensure that the questions are no wider than is warranted by the facts. If a precedent is required various examples are to be found in the text-books, but those most readily available are probably the ones in Stone's Justices' Manual and Chitty's Queen's Bench Forms. These proceedings originated as a suit by the Respondent landlord for possession of premises the identity of which has not been disclosed to us, and for arrears of rent. The claim was made under s.22(1) (c) of the Landlord and Tenant Ordinance on the ground that the tenant had failed to pay within thirty days after demand the permitted rent which had accrued due. The President of the Tenancy Tribunal entered judgment in favour of the landlord. The tenant then appealed to the District Court and we understand that his reasons for judgment were far from satisfactory in that he failed to make express findings on a number of disputed issues of fact. What the President did find was that the premises were let to the Appellant by the Respondent but that in all subsequent dealings the Respondent was represented by his mother and the Appellant by his daughter: that the Appellant was an elusive tenant with a bad record for non-payment of rent and the Respondent an obliging landlord: that the rent was payable monthly in advance: that the Appellant frequently did not pay rent on time and the Respondent sometimes accepted post-dated cheques: that on 1st February 1969 the Respondent's solicitors sent a letter demanding payment of six months' arrears up to 15th January 1969 within thirty days: that on or shortly before the expiration of the thirty days the Appellant's daughter sent a cheque, post-dated to 15th March, for those six months and another two months' arrears as well: and that this cheque was returned with a letter dated 4th March "asking the tenant to comply forthwith with the demand made in the earlier letter". The President further found that there had been no waiver of the right to forfeiture and no variation of the tenancy agreement. One contention of the Appellant in every court has been that the sending of the post-dated cheque in February or March 1969 was a valid tender of the rent alleged to be in arrears and that since the Appellant's daughter believed that the Respondent was refusing altogether to accept the rent the Appellant's failure to pay thereafter was not attributable to his own default. As to this the President said: " When I examine the error or mistake of the opponents [i.e. tenant's] daughter, I find that her mistake is not bona fide and reasonable". Those were apparently the only findings of fact made by the President of the Tribunal and when the case came before the learned District Judge he thought the findings insufficient to enable him to dispose of the appeal. He put the matter in this way: " There are several conclusions which the learned President had drawn, presumably on the evidence adduced before him, but unfortunately he did not state the basis of those conclusions. He did not express an opinion as to the credibility of witnesses ......". Having discussed the function of an appellate court where a decision on fact is under attack he continued: " Following these principles, I consider it my duty to examine the evidence before the tribunal as recorded by the learned President, consider his decision, particularly those parts touching upon the facts of the case, and if necessary draw my own inference of facts on the evidence. I could, I suppose, send the case back to the tenancy tribunal for the learned President to state his findings of facts, but the matter has dragged on for some considerable time and there has already been one appeal. In my opinion, justice will be better served if I were to find the facts from the evidence on record, and then decide whether the learned President's conclusions quoted above are supported by my findings." Having then reviewed the evidence he said: " In fine, I say that the learned President's inferences as quoted above were supported by the evidence and by a preponderence of probabilities ......". As I understand it, although I am not sure that this appears clearly from the papers before us, it is common ground that the arrears of rent and costs have been paid pursuant to the order of the Tenancy Tribunal. The Appellant contended that by virtue of such payment he was entitled automatically to relief against forfeiture under s.45(1) (b) of the District Court (Civil Jurisdiction and Procedure) Ordinance, which I shall hereinafter refer to as "the District Court etc. Ordinance". That paragraph reads: " if the action does not cease as aforesaid and the Court at trial, or the Registrar in the case where an application is made to enter judgment in default of defence, is satisfied that the lessor is entitled to enforce the right of re-entry or forfeiture, the Court or the Registrar shall order possession of the land to be given to the lessor at the expiration of such period, not being less than four weeks from the date of the order, as the Court or the Registrar thinks fit, unless within that period the lessee pays into court all the rent in arrear, together with such sum as would have been payable as rent if there had been no re-entry or forfeiture, and the costs of the action as endorsed on the writ or as may be fixed by the Court or the Registrar;". It is, perhaps, easier to comprehend this contention when it is understood that the paragraph does not really contemplate "relief" against an absolute order for possession but rather that a conditional order for possession shall never take effect unless there is a failure to make payment. The learned judge held that although s.33(2) of the Landlord and Tenant Ordinance governed the proceedings before him the granting of relief under s.45(1) (b) of the District Court etc. Ordinance was not a matter of practice and procedure. Section 33(2) reads: " The practice and procedure on appeal shall be by motion and in all matters, save as expressly provided by this Ordinance or any rules made thereunder, shall be in accordance with the practice and procedure prescribed by the District Court (Civil Jurisdiction and Procedure) Ordinance as though such appeal were an action commenced in the court." In the view of the judge it could not have been intended by the Legislature that, by appealing, a tenant should be able to obtain relief which would not have been available to him had he not appealed. I can now set out the questions which the learned judge has certified as being questions of exceptional public importance fit for the consideration of this Court: "(1) Whether an Appellant on the true and proper construction of the provisions contained in Section 45(1) (a) and (b) of the District Court (Civil Jurisdiction and Procedure) Ordinance, (Cap. 336) when read in conjunction with those in Section 33(1) and (2) of the Landlord and Tenant Ordinance (Cap. 255) is entitled to obtain relief automatically in law after complying with the provisions of the aforesaid Section 45. Whether an Appellate Court is entitled in law to draw inferences of fact from disputed evidence adduced before the Court of First Instance, namely the Tenancy Tribunal." Although it is not expressly so stated the words "an Appellant" in the first of these questions must have been intended to be restricted to an appellant whose right of appeal depends upon s.33 of the Landlord and Tenant Ordinance and not to every appellant. Counsel for the Appellant argues that s.33(2) of the Landlord and Tenant Ordinance does not make sense as it stands. Whilst it may not be in the most felicitous terms and the punctuation is manifestly defective I think its intention is very clear. The appeal is instituted by motion and not, as is an action in the District Court, by writ of summons, but in so far as the subsequent proceedings are concerned the rules applicable in an action shall where possible be followed. Counsel himself supplied an example of the sort of matter in contemplation, namely payment of money into court. Counsel then contends that the learned judge completely misunderstood his argument in the court below and thought that he was being asked to exercise a discretion to grant relief. I do not think the learned judge was under any misapprehension: indeed, at one point in his judgment he expressly referred to "the requirements entitling the tenant to relief against forfeiture" (the emphasis is mine). As I have already indicated, I think perhaps it is unfortunate to refer in this connection to the granting of relief because where a conditional order has never taken effect no relief is necessary. However, the expression is a convenient one and provided that one appreciates, as I am satisfied the learned judge did, that the "relief" does not depend upon the making of an order by the court no harm can result from its use. Had we had a proper case stated it would no doubt have provided a short answer to the whole argument based on s.45 of the District Court etc. Ordinance. As it is, we do not know the terms of the President's order, although I think we are entitled to assume that it was not a conditional order such as is contemplated by that section. Section 45 does not apply to a Tenancy Tribunal and bind it to make orders in the form prescribed by that section, and only where there is such an order does the "relief" provision apply. Counsel for the Appellant adopted the words used by my brother Pickering in the course of the argument and said that a payment of the arrears and costs necessarily attracted the relief provided for in s.45(1) (b) of the District Court etc. Ordinance and that it mattered not that such payment was made pursuant to an order of a Tenancy Tribunal. He submitted that the judge guessed at the intention of the Legislature and guessed wrongly: the true intention was to equate cases on appeal from the Tenancy Tribunal to one at first instance before the District Court. I agree with the conclusion of the District Judge, although I do not entirely agree with all his reasoning. The right to "relief", where it exists, is a matter of substantive law: the procedure for paying money into court is a matter of adjective law. Section 45 creates a substantive right and on the face of it such right is created only where the landlord has brought his action in the District Court. Section 33 of the Landlord and Tenant Ordinance deals with adjective law. If the effect of providing machinery for payment of money into court were to be that a tenant who was not entitled to relief before he appealed were automatically entitled to relief by lodging an appeal and thereupon paying the arrears of rent and the costs into court it would mean that the right of appeal could be employed by unscrupulous tenants as an instrument of delay and of vexing their landlords. It is true, as counsel for the Appellant says, that the automatic right to relief can be employed by a tenant any number of times when action for forfeiture is brought in the District Court and that the Legislature has indeed thus provided a right which can be used for the vexation of landlords, but that is based upon the equitable principle that a contractual right of re-entry for non-payment of rent is merely a security for payment. It is a very different thing to suggest that the Legislature intended to employ the court as an instrument which a tenant may use to vex his landlord by providing that, even though an appeal be brought for the sole purpose of obtaining a right to relief which would not exist if there were no appeal, the tenant is to be permitted so to abuse the judicial process. It would require very clear words to persuade me that any such thing was intended. "Tenant" in s.45 clearly includes only a contractual tenant and does not include a statutory tenant, whose only rights are conferred by the Landlord and Tenant Ordinance. Turning to the second question counsel submits with justification that the judge appears to have treated the facts as being at large and that that was wrong. It must be conceded that the words he used were more consistent with a wrong approach than with the right one. Had the judge's review of the evidence led him to decide that the President's findings were not supported by the evidence would he then have entered judgment for the Appellant? To have done so would have been to ignore the advantage which the President had of seeing and hearing the witnesses and yet the impression given is that he would have done so. The question for the judge was not whether the findings of the President were right but whether it had been shown to his satisfaction that they were wrong. However, the greater includes the less and it is beyond doubt that he was not satisfied that the findings of the President were wrong. Not every misdirection by a judge renders his conclusion invalid and entitles the aggrieved party to intervention by an appellate court. What we have to ask ourselves is not the second question posed for our decision in the "Case Stated" but whether the learned judge was wrong in deciding that the findings of the tribunal could be supported. Had a proper case stated been prepared it would probably have been seen that the question in fact posed was not material and it is highly doubtful whether the learned judge would have certified that the only question which did arise was one of exceptional public importance. However, as the case has been urged before us I will deal with the arguments advanced. The "several conclusions which the learned President had drawn" were conclusions of fact, i.e. inferences. The proper basis for those inferences, which was the necessary findings of primary facts, was absent. It is said that the primary facts were in dispute and that the judge could not properly supply his own findings. The falsity in this argument lies in the fact that in the present case the inferences drawn by the President were consistent with the evidence on behalf of the Respondent and inconsistent with the evidence on he half of the Appellant. Although it was the duty of the President to make express findings of primary fact we can be in no doubt that on the disputed matters he must have believed the Respondent's witnesses. The two stories were diametrically opposed and he could not have made the inferences he did if he had believed the Appellant's witnesses. The Appellant's daughter said she tendered the rent. Such a tender would have been a complete answer to the claim for possession under s.22(1) (c) of the Landlord and Tenant Ordinance. We are told the Appellant was not professionally represented when the suit first came before the Tenancy Tribunal but that thereafter he was so represented at all stages of the proceedings, twice in the District Court and once in the Tenancy Tribunal. When the matter was remitted to the Tenancy Tribunal for a new trial the Appellant was represented by a solicitor of great experience in such matters. If it were true that the tender had been made it is difficult to believe that an amendment would not have been made to the grounds of opposition at some stage. Yet no such defence was ever raised. The only issue argued before the learned President was whether by repeatedly accepting late payment of rent by post-dated cheque the Respondent had waived the right to prompt payment in cash. The President saw the witnesses and it is impossible for us to say he was not justified in making the findings which he did. In my view the findings he made are sufficient indication that the President did not believe that the Respondent had given the Appellant any ground for thinking that strict compliance with the terms of the tenancy had been excused for the duration of the tenancy and that he or his agent bona fide thought it had. Whether he was right in rejecting the evidence of tender is not for us to say: the Legislature prescribed the President as the judge of the facts and it is no more for us to substitute our own findings for his than it was for the District Juege. We note with displeasure that the learned District Judge had occasion to criticise adversely the record which he received from the Tenancy Tribunal. We hope his observations will be taken to heart not only by those responsible for keeping such records but also by those responsible for copying them and those responsible for certifying the copies. Counsel for the Appellant has based an argument upon the instructions which the Respondent's wife said she gave to his solicitors. Her answer is reported as "I said to my solicitor that I would claim possession if rent was paid". The judge inferred that a "not" had been omitted and that she "said or meant to say" that she would not insist on possession of rent were paid, although he did not, apparently, inquire at what stage it was omitted - whether by the President himself or by the typist. He should not have, in effect, amended the record without enquiry and having at least ascertained what the witness said, whatever she may have meant to say. We are told that a note made by the solicitor for the Respondent shows that the witness did say "if rent was not paid". No notice was given that any point would be taken on the judge's approach to this matter and the Appellant has not come with affidavit evidence to substantiate the complaint which has been made of his judgment. In all the circumstances I think we should proceed on the basis that the District Judge's conclusion was right, with the result that the argument based on the record as it stands must fail. Counsel is not without ground in attacking the passage in the learned judge's judgment when he says "by her solicitors' first letter, it seemed that the landlord's mother was still prepared to allow the tenancy to continue if the tenant would pay up all the arrears within thirty days". That was the letter of 1st February 1969. As counsel pointed out, a demand in such terms was a necessary pre-requisite for a claim for possession under s.22(1) (c) of the Landlord and Tenant Ordinance and therefore the giving of thirty days to pay cannot be construed as an indulgence. However, the letter of 4th March did give a last chance to pay and the inference of an indulgence which the judge drew from the first letter can properly be drawn from the second. I am satisfied that there is no cause for us to say that the President came to a wrong decision on the facts. Being far from happy at the form of the questions which have been posed fory our consideration I prefer not to answer them in the form in which they stand. I hope that my views upon the issues which arise are sufficiently clear from what I have said and I will do no more than say that I would dismiss this appeal. Representation: A.J. Sanguinetti (David Burgin & Co) for Appellant. R. Mills-Owens (Wat & Fu) for Respondent. PAGE - PAGE - &`#$ CACV000013/1971 CHAN NAN FONG v. CHAN TAK WAH Normal Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACV000013/1971 CHAN NAN FONG v. CHAN TAK WAH Title Microsoft Word Document MSWordDoc Word.Document.8 CACV000013/1971 CHAN NAN FONG v. CHAN TAK WAH Normal Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR CACV000013/1971 CHAN NAN FONG v. CHAN TAK WAH Title