Leung Chui Ying v. Chow Sui Kwan

CACV000038/1982

Headnote

l. The question whether Sec. 53A of the Landlord & Tenant (Consolidation) Ordinance, which came into operation on the 19th December 1981, took effect upon legislation vending on that date is to be answered in the affirmative.

2. Ngai Sau Ying v. Henry Chue Kwok Keung (unreported Civil appeal 30/82) was not decided per incuriam, but has no relevance to the question in 1.

3. Applications to determine a preliminary point of law should be made and accepted with care. The point ought then to be clearly defined.

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Coram: Hon Leonard, V.P., Cons & Zimmern, JJ.A.

Date: 30 July 1982

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JUDGMENT

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Cons, J.A. :

1. Zimmern J.A., who regrets he is not able to be present today, has asked me to say that he agrees with the judgment I am about to deliver and with that of my Lord tie Vice-President, with which I also agree.

2. This is an anneal from the decision of His Honour Judge Wane, given in the Victoria District Court on a preliminary point of law. He was concerned with four consolidated actions brought for the recovery of Premises under Section 53(2)(c) of the Landlord and Tenant Consolidation ' Ordinance Cap. 7 i.e. on the ground that the landlord intended to rebuild the premises. At the time when the writs were taken out that was the only criterion which the landlord had to satisfy in order to  obtain his judgment. But before the actions came on for hearing other criteria had been added by anew section of the Ordinance, Section 53A, introduced by an amending ordinance No. 76 of 1981, operative in respect of that section at any rite as from the 19th December of that year. In addition the court was bound to order that compensation be paid to the tenant. The question then for the judge was whether to apply the newly introduced section 53A to the actions before him. He but the question more widely, but l prefer to restrict it to only that which is necessary.

3. The judge gave his decision on the 4th February this year. He ruled that Section 53A should not be applied.

4. Two months later this court delivered judgment in Ngai Sau-ying v. Henry Chue Kwok Keung ⁽¹⁾. That was also a claim under Section 53(2), although under paragraph (b), which relates to reasonable requirement for occupation by the landlord himself or particular members of his family. The writ had been issued well before the 19th December 1981, the hearing took place after that date. The judge was satisfied that the landlord did reasonably require the premises for himself as alleged and he was not satisfied that to make an order would manifestly not be just and equitable. Accordingly he did so.

5. The tenancy in question was a monthly one. It seems likely that the landlord had at no time served a notice to quit, certainly the particulars of claim contained no such allegation. That is not surprising. At the time the writ was issued a notice to quit was not a pre-requisite to a claim under section 53(2). It had not been so since 1973, when Section 7 of the Rent Increases (Domestic Premises) Control Ordinance, which by then had become Section 53 of the present ordinance, was completely re-drafted so as to deprive the section of the common law basis on which it had until then operated. However ordinance 76 of 1981 made changes in this respect as well. By reason of amendments to Section 52 service of a notice to quit is, in the case of periodic tenancies, now an essential pre-condition to the launching of an action under Section 53(2).

6. No point as to the absence of a notice to quit was taken at the trial, but we gave leave to argue the point on appeal. However we came to the conclusion that it failed. We took the view that the landlord acquired, on the issue of the writ, a vested right to obtain possession without the service of a notice to quit, provided he could, as in fact he already had done, satisfy the court that his claim was good. We found nothing in the amending legislation, or in any other legislation that had been passed since the issue of the writ, to indicate a retrospective intention.

7. Mr. Martin Lee Who appears for the tenant in the present appeal suggests that our decision in Ngai Sau Yin⁽¹⁾ was per incuriam within the usual meaning of that phrase ⁽²⁾ :

"As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned : so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong."

8. The authority to which our attention had not been drawn, said Mr. Lee, is the opinion of the Privy Council in D.P.W. v. Ho Po Sang ⁽³⁾. With every respect I do not think Their Lordships' opinion would have assisted. It established that a person has no "accrued right" within what is now Section 23 of the Interpretation and General Clauses Ordinance Cap. 1 when what is taken away from that person by subsequent legislation is no more than the possible exercise in his favour of an unfettered discretion. That is a situation which bears no resemblance to the situation which obtained in Ngai Sau Ying ⁽¹⁾. The landlord there did not need a discretion to relieve him of the necessity. The law at that time said so. By the time it was changed the landlord already had his "right" in that respect. But that was not so in Ho Po Sang ⁽³⁾. The landlord there was still looking to the future when that legislation was changed. In my view reference to that authority would have made no difference to our decision.

9. Mr. Lee has a second approach. He says that our decision was per incuriam because the arguments, which he now most respectfully puts forward to show that we were wrong, were not put to us by counsel in the case itself. That is so. Whether they might have persuaded us to a different conclusion is something upon which I propose to make no comment. But right or wrong our decision cannot be said to have been per incuriam. The definition of that phrase given by the English Court of Appeal, and to which I have earlier referred, is accepted to be "not necessarily exhaustive", but the court added that "cases not strictly within it which can probably be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule, which is an essential feature of our law, be in the language of Lord Greene M.R., of the rarest occurrence". And the proposition which Mr. Lee suggests was specifically rejected. It had been made there by the Attorney General :

"In our judgment, acceptance of the Attorney General's argument would necessarily involve the proposition that it is open to this court to disregard an earlier decision of its own or of a court of co-ordinate jurisdiction, at least in any case of significance or complexity, whenever it is made to appear that the court had not upon the earlier occasion had the benefit of the best argument that the researches and industry of counsel could provide. Such a proposition would, as it seems to us, open a way to numerous and costly attempts to re-open questions now held to be authoritatively decided."(4)

10. I have set out my conclusions upon these two arguments in deference to the thoroughness with which they were presented. However it seems to me that the case of Ngai Sau Ying ⁽¹⁾ has no relevance to the matter now before us. It was concerned with the amendments to Section 52, involving, as that section does, the termination and continuance of contractual tenancies. The amendments were introduced to remedy a mischief that was mainly, if not wholly, of academic interest only. Section 53A on the other hand deals with rebuilding and brings changes of great practical significance. There is no reason to suppose that with such widely differing objectives the legislature necessarily intended that the effect of each upon actions which had already been commenced should be the same. Or to nut it in another way, Mr. Lee's fears that we would consider ourselves in the present instance completely bound by our previous decision in Ngai Sau Ying ⁽¹⁾ are unfounded.

11. If Section 53A were to be applied in the present instance it would undoubtedly have a substantial effect upon the landlord's position. He might have to extend and re-draft his plans; conditions might be imposed as to when he should start or finish his rebuilding, or in other respects; and he would certainly have to nay compensation to his tenants. In that circumstance it is well settled that the section will only apply to the action he has commenced if the section is made to do so by express enactment or necessary intendment : Colonial Sugar Refining Co. Ltd. v. Irving ⁽⁵⁾ . There is here no express enactment. As to necessary intendment three points are made.

12. Firstly our attention is  drawn to the words of the section itself. "The district court shall not make an order ......... unless, in addition, it is satisfied that ......" It is said that these words could not be more clear. Reliance is also placed upon the use of the definite article before the word "rebuilding" and we are asked to infer therefrom that the legislature had in mind the particular building in respect of which the writ would already have been issued. I think for myself I might be slow to draw that inference, but I do find indication in the use of the mandatory "shall not" and the emphatic "in addition", particularly when looked at in the light of the second point taken, that in actions of this kind, unlike normal civil actions where the court is concerned with situations that existed in the past, and possibly in the distant Past, the court is concerned and only concerned with the situation that exists on the actual day of the trial, i.e. does the landlord then have the intention and capability of carrying out the project he puts forward. From this it is argued that in order to make the amendment take effect upon pending actions, if that be the wish of the legislature, the draftsman did not need a special provision. All he needed was to use the present tense, which he did. The position is not unlike that found in the Attorney General v. Vernazza ⁽⁶⁾ , where an amendment to an act empowered the High Court to make an order that legal proceedings by a vexatious litigant "shall not be continued by him without leave".

13. The third point is that the amendment has been made for the public benefit. Unless the existing building is in such a state that restoration or repair is economically unreasonable the rebuilding must be directly in the public interest, or alternatively indirectly so, by the Provision of more accommodation than is currently provided. Furthermore the introduction of compensation indicates a general intention by the legislature that all tenants who are to lose their homes for this reason should have some share in the increased value of the land which has accrued to the landlord by reason only of changing economic circumstances.

14. I find this point to have merit and taking the three all in all, in the context of this particular legislature, I have come to the conclusion that the legislature did intend that Section 53A should take immediate effect and overate upon pending cases as well as any which might be commenced thereafter.

15. The learned district judge below relied solely upon Section 59(1) of the amending ordinance for his decision. There had been several interlocutory applications in the various individual actions, e.g., to appoint a personal representative of a deceased defendant in one, to amend pleadings in another, to give time for filing a defence and, of course, for consolidation of the actions themselves. The judge took these applications as being sufficient to say that the district court "had heard or commenced to hear a matter or proceeding", which is the first trigger needed to bring that subsection into operation. He had not then of course had the benefit of the comments to the contrary made by my Lord the Vice-President in Ngai S au Ying ⁽¹⁾ , although I appreciate that the step taken in that action, namely to fix the date of hearing, was of a less substantial character. I think, also with respect, that the learned district judge failed to appreciate that until a day is appointed under Section 1(2)(b), there can be nothing which, by that amending ordinance, has become a matter or proceeding within the jurisdiction of the Lands Tribunal. And that is the second trigger needed under that subsection.

16. For these reasons I would allow the appeal.

(1)     (Unreported) Civil Appeal No. 30 of 1982

(2)    Morrell Limited v. Wakling (1955) 2 Q.B. 379 at 406

(3)     (1961) A.G. 901

(4)     at page 40b

(5)     (1905) A.C. 369

(6)    [1960] A.C. 965

Leonard, V.P. :

17. The notice of appeal before us asks for an order that "the Ruling herein of His Honour Judge Wane dated the 4th February 1982 whereby it was held that section 53A and the Landlord & Tenant Consolidation (Amendment) (No. 2) (sic) did not apply to the hearing of this action be set aside and that it may be ordered that, the provisions of Part II of the Landlord & Tenant (Consolidation) Ordinance as amended by the Landlord & Tenant (Consolidation) Amendment (No. 2)(sic) apply to the hearing of the said action". To say that the order proposed is inelegant is to be kind.

18. The ruling in question commences with the words "This is a preliminary point of some fundamental importance to the hearing of the action" and later indicates that "The question is whether the sections cited in section 1(2)(a) of the Amendment No. 2 are to be applied in these actions". Beyond indicating the dates on which the writs were issued, that they were issued "on the ground of the plaintiff's intention to rebuild the premises under section 53(2)(c) of the Landlord & Tenant Ordinance Cap. 7" (sic), that various applications had been made and heard and all pleadings closed before 19th December 1981 (the date on which the relevant sections of the Landlord & Tenant Consolidation (Amendment) (No. 2) Ordinance came into operation) and that the hearing of the actions commenced on 2nd February 1982, I can find no clue in the papers before us as to the machinery by which the preliminary question came before the District Court. Apart from that quoted I can find no definition of the point to be decided. The ruling actually made was "that the actions should proceed under the pre-existing law and so that the provisions of the new section 53A in particular should not be applied to these actions".

19. The record contains no notes of the proceedings before the District Judge either prior to the order that the preliminary question be tried or of the argument on the hearing of the preliminary point. We do not know whether it was ordered to be tried by the consent of the parties or on the application of one of them or by the judge of his own motion. I am completely at a loss to understand what advantage is to be derived from the preliminary hearing of such a point as this. There is nothing on the record to indicate that costs could be saved by its being decided as a preliminary point, nothing to indicate that its decision in one way or another would dispense with further trial or with the trial of any issue in the actions other than the issue itself. Furthermore as defined in the ruling it is vague. As was observed by MacKinnon L.J. in National Real Estate and Finance Co. v. Hassan ⁽¹⁾ at 77 "care should be taken that a real point of law is being raised and that there should be a clear definition of what the point of law is. It is only in those circumstances ........ that the procedure is of any advantage whatsoever.

20. In Tilling v. Whiteman ⁽²⁾ Scarman L.J. described preliminary points of law as being "too often treacherous shortcuts". A further danger inherent in the use of the procedure for the decision of preliminary points is that the court may be used as consultative rather than judicial. The courts exist to decide cases, not to be consulted on knotty points of law.

21. Mr. Lee in opening the case appeared to have thought that before he could succeed he must show that Ngai Sau-ying v. Henry Chue Kwong Keung ⁽³⁾ was per incuriam. Cons, J.A. has demonstrated that he need not and I agree with his reasoning. Mr. Lee may have been led into error by the looseness of definition of the preliminary point. What called for decision was whether or not the new section 53A should be applied rather than whether all the sections cited in section 1(2)(a) should be applied. I agree with Cons J.A. that the necessary intendment that this new section should be applied to pending actions has been made out and that therefore the appeal should be allowed and would make an order to that effect.

(1)    (1939) 2 K.B. 61

(2)    (1979) 2 W.L.R. 401

(3)    C. A. 30/82

Representation:

Mr. Martin Lee, Q.C. & Mrs. B. Kaplan (D.L.A.) assigned for the Appellant/ Defendant.

CHOW Sui Kwan @ CHOW Cho Poon, Respondent/Plaintiff absent.