Poon Ming Yin v. Cheung Yuet Ngor
Read the full judgment text of CACV 66/1980 on BabelCite. This Court of Appeal judgment was delivered on 30 September 1980.
1. The Plaintiff in the action, who was the Respondent in the appeal, granted a tenancy of premises in Wah Fung House, 8 West End Terrace, Hong Kong, to the Defendant (the Appellant) for a period of three years, expiring on the 31st October, 1979 at a rental of $700 per month payable in advance on the first day of each calendar month.
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CACV000066/1980
----------------- Coram: Roberts, C.J., Huggins and McMullin, JJ.A. Date of Judgment: 30 September 1980 ----------------- JUDGMENT ----------------- Roberts, C.J.: Introduction 1. The Plaintiff in the action, who was the Respondent in the appeal, granted a tenancy of premises in Wah Fung House, 8 West End Terrace, Hong Kong, to the Defendant (the Appellant) for a period of three years, expiring on the 31st October, 1979 at a rental of $700 per month payable in advance on the first day of each calendar month. 2. The three year term expired on the 31st October, 1979, but the Appellant failed to give possession of the premises. The Respondent (the landlord) issued a writ on the 15th November, 1979. The Defendant entered a defence on the 4th December, 1979 in which, in effect, he asked the court to give him an extension of a period of six months so that he could find other accommodation. 3. The matter came before Judge Bewley on the 25th February, 1980; the judge made an order for possession of the premises, with a stay of execution for three months, conditional on payment of arrears of rent and mesne profits by the Defendant. 4. On the 29th May, Judge Corcoran gave the Defendant leave to appeal against the order of Judge Bewley. 5. The execution of the judgment of Judge Bewley was stayed pending appeal on condition that the Defendant paid mesne profits from the 1st November, 1979 to the 31st May, 1980, and a rent of $700 per month thereafter. Ground of Appeal 6. The only ground of appeal put forward by the Appellant was that the repeal of section 50(6)(j)(i) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 was retrospective in its effect to such an extent as to confer upon the Appellant the protection of Part II of Chapter 7. 7. The Landlord & Tenant (Consolidation)(Amendment) Ordinance (No. 6 of 1980), came into effect on the 15th February, 1980. The section of that Ordinance which deleted para. (j) from section 50(6) of Cap. 7 was expressed to be deemed to have come into operation on the 18th December, 1979. Effect of Lam Wai v Mak Yok Jan 8. In Lam Wai v Mak Yok Jan(1), heard by this court on the 2nd April, 1980, it was held that a three-year tenancy which, before Ordinance No. 6 of 1980, had fallen outside the protection of Part II of Cap. 7, would be protected by the said Part II, if that three-year tenancy were still extant on the 18th December, 1979, the date on which Ordinance No. 6 of 1980 was deemed to have come into force. 9. We did not, in that appeal, attempt to deal with the case of a three-year tenancy which had ex pired before the 18th December, 1979, the situation with which we now have to deal. Remon v City of London Real Property Co. Ltd. (1921 1 K.B. 49) 10. Mr. Y.C. Mok, who put forward a persuasive and ingenious argument on behalf of the Appellant, relied on various English authorities for the proposition that the protection of Part II of the Ordinance should be extended to any ex-tenant who was still in possession of premises on the 18th December, notwithstanding that the three-year term which he had originally been granted had expired before that date. 11. He relied upon various English authorities for this proposition, I consider it necessary to deal only with Remon v City of London Real Property Co. Ltd.(2), since the later English authorities merely followed the principles which are laid out in that report. 12. The facts in that case had a certain similarity to those with which we have been concerned. The tenant had been in possession of premises under a quarterly tenancy, which was properly terminated by the landlord by a notice which expired on the 24th June, 1920. The plaintiff failed to give up possession and remained in the premises against the will of the landlord. 13. On the 3rd July 1920 the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 came into force. The premises concerned fell within the protection afforded by that Act. 14. The tenant, therefore, pleaded that since the premises concerned were now protected, he should benefit from that protection since he was still in possession, even though his earlier tenancy had been terminated by the landlord. 15. At page 54, Bankes, L.J. commented as follows -
16. This same reasoning appears to have been adopted by Scrutton, L.J. in the following passage from his judgment which appears at p. 59 -
17. Scrutton, L.J. does not seem to have reached this conclusion without some uneasiness, to judge from the following passage which appears later in his judgment -
Was the Appellant a tenant? 18. This appeal turns on the narrow point of whether the Appellant could be said to have been a tenant on the 18th December when Ordinance No. 6 of 1980 came into force, within the meaning of the definition of "tenant" in Part II of Cap. 7. 19. Only if he could be said to fall within that definition could the protection of Part II apply to him. 20. Remon's case(2) appears to have been decided on the basis that, although it was doing violence to ordinary language, to describe an occupier holding over against the will of his landlord as a tenant, nevertheless the court should do so, because it took the view that this was the intention of the Legislature when the 1920 Act was passed. 21. This decision appears to me to have been based as much upon an assessment of the social purposes of the legislation as upon its wording and to have involved a somewhat strained interpretation of its terms. I would be reluctant to adopt the reasoning of Remon unless I were persuaded that the Ordinance by its terms shows that the Legislature intended to confer retrospective protection on trespassers. 22. There is an important difference between the Rent Acts and the Hong Kong Ordinance, since the Rent Acts, in essence, protect premises and not tenancies. The Hong Kong legislation, however, is designed to give protection to tenants, rather than to premises, though the tenancy must relate to a post-war building let for domestic purposes. 23. Since the whole tenor of the Hong Kong legislation is to protect tenants, it seems to me to do violence to the intention of that legislation for protection to be given to persons who cannot be so described. 24. Certainly, I do not feel inclined to adopt the distinction drawn in Remon between "mere trespassers" and those persons who originally were subject to a legal letting and then became trespassers by holding over. 25. I therefore conclude that the intention of Ordinance No. 6 of 1980, insofar as three-year tenancies are concerned, was to give protection only to those tenancies of that nature which were still in force on the 18th December, 1979. Had the Legislature intended that all persons who were in possession of premises on that date, and who on that date were not enjoying the protection of Part II of the principal Ordinance should do so in future, it would have said so. 26. I do not think that we should attempt to read into the Ordinance words which were not there, or to attribute to the Legislature intentions which can only be derived from the legislation by straining language beyond its normal meaning. 27. I would, therefore, dismiss the appeal with costs to be taxed in accordance with legal aid regulations. Huggins, J.A.: 28. I entirely agree. Indeed, but for the commendable industry, skill and tenacity of Mr. Mok I would have thought the appeal unarguable. I confess, however, that for my part I find his argument particularly unattractive. It depends upon making a distinction between "trespassers" and "mere trespassers", the former being used to indicate persons who, in the eyes of the law, are not trespassers at all. To draw such a distinction is in my judgment not merely bad sense and bad theology but, prima facie, also bad law. It is a distinction which the English Court of Appeal in Remon v City of London Real Property Co., Ltd.(2) apparently found itself compelled by the language of the Rent Restrictions Acts to draw. If the language of our Ordinance were identical to that of the English Acts, it might be we should have felt constrained (however reluctantly) to adopt the same interpretation. In fact the language is very different. I find nothing in our Ordinances which suggests that the Legislature intended to protect trespassers who hold over after the expiry of a tenancy to which Part II of the Ordinance did not apply on the date of the expiry and as to that I agree with Mr. Commissioner Yang (as he then was) in Wong Chang Sung v Tse(3). 29. The foundation of Part II of the Ordinance is s. 52(1):
That provision is clearly concerned with contractual tenancies and, strictly, there can be no "statutory tenancies" under this Part: even a tenancy for a fixed term must be deemed not to have terminated at the end of the term. Paragraph (c) of the definition of "tenant in s. 49 is, therefore, unnecessary. The Appellant's tenancy was due to expire on 31st October 1979. It is true that on that date Part II was in force, but it did not, by virtue of s. 50(6)(j)(i), apply to the Appellant's tenancy. I think that is the end of the matter: the tenancy was not continued and it terminated. No definition of "tenant" would have been necessary if persons in the position of the Appellant were to be protected, because there cannot be a "tenancy" without a "tenant." Paragraph (a) of the definition reads:
The effect of that is to protect tenancies which, before the amending ordinance, were not protected, provided that those tenancies were still subsisting on 18th December 1979. McMullin, J.A.: 30. The Appellant, Poon Ming Yin, seeks to retain possession of the 1st floor, Wah Fung House, 8, West End Terrace. She held these premises from the Respondent, Cheung Yuet Ngor, under a written agreement securing to her a period of three years tenancy at a rent of $700 per month. The term ended on the 31st of October 1979 and by a writ dated 15th November 1979 the Respondent sought possession of the premises. 31. The Appellant defended the claim upon grounds which are now admitted to be of no substance and on the 25th of February 1980 the Respondent applied by summons to strike out the defence. She was given an order in terms of her summons and a stay of execution was ordered for three months conditional on payment of all arrears of rent and mesne profits. 32. The Appellant has since continued in occupation of the premises against the will of the landlord and in this court Mr. Mok, who appears for her, has sought to persuade us that the judge's order should be set aside as misconceived in law. 33. It is common ground that during the currency of this three year tenancy and for some time thereafter it was not a tenancy which came within the protection of any of the provisions of the now consolidated law relating to landlord and tenant in this territory. 34. However, on the 15th of February 1980 that law was amended by the introduction of the Landlord & Tenant (Consolidation)(Amendment) Ordinance No. 6 of 1980. For present purposes the principal effect of the amending legislation was that tenancies for fixed period of three years, such as that involved in the present case, were given protection by the deletion of paragraph (j) of subsection 6 of section 50 of the Ordinance under which they had previously been excluded from that protection. 35. The amending Ordinance provided in effect that this alteration in the status of such tenancies was to be deemed to have come into operation on the 18th of December 1979. 36. Mr. Mok maintains that had the judge at first instance applied the law as it then stood at the hearing before him on the 25th of February - some ten days after the coming into force of the new provisions - he should have found that the Appellant's continued occupancy of the premises was justified on the basis of a protected tenancy. 37. In an admirably lucid and balanced argument counsel did not seek to minimize the principal difficulty which he faced viz.: the fact that at least between the 31st of October 1979 when the contractual term ended and the 18th of December when the retrospective provisions came into force the Appellant was in occupation, against the will of her landlord of unprotected premises to which she had no claim in law. He concedes that had the issue been brought to adjudication with greater expedition and had it reached adjudication before the 15th of February there could have been no good defence to the landlord's claim. 38. Notwithstanding this formidable difficulty counsel asks us to accept that the general spirit and intendment of the protective provisions of the landlord and tenant legislation in Hong Kong are of one kind with the purpose and motivation underlying the extensive web of legislation which, for convenience, passes under the style of the Rent Acts in England. In each case a primary purpose of the legislation is the protection of persons from eviction and the consequential interference with existing contractual rights. This being granted, he would then rely upon certain decisions of the English courts under the Rent Acts which strongly favour his case. 39. In Remon v City of London Real Property Co., Ltd.(2) a quarterly tenancy of premises was brought to an end by a valid notice to quit. The tenant did not quit the premises but remained on against the will of his landlords. This situation continued until, several months later, the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 came into force. The premises were of a description and value which fell within the provisions of that Act. But the landlords, on the very day upon which the new Act came into force, had physically taken possession of the premises the defendant being absent at the time. The former tenant, Remon, applied for an injunction restraining the landlords form entering the premises or interfering with his occupation and this was granted upon trial. On appeal it was held that although the tenancy had come to an end by the notice to quit the rooms formerly occupied by the plaintiff had been "let" within the meaning of section 12(2) of the new Act and that the plaintiff was therefore a tenant who retained possession by virtue of the provisions of that Act. Scrutton, L.J. was clearly somewhat uncomfortable with the view to which he felt obliged to come by what he perceived as the purpose of the legislation and he said (page 59):
The particular wording of the Act to which he was then directing his attention is that contained in section 15(1) which commences with the words:
In respect of this language he-had earlier said (page 58):
40. This principle was applied in Hutchinson v Jauncey(4) where the circumstances were closer to those in the present case. A tenant whose premises were not within the protection of the then existing Rent Restrictions Act refused to comply with a valid notice to quit. The landlord issued a plaint claiming possession while the law was still in that condition. In the following month (June 1949) the Landlord & Tenant (Rent Control) Act, 1949 came into force which extended protection to premises shared with others (which was the condition of the premises in the suit). Lord Evershed, M.R. at p. 580 echoes the misgivings of Scrutton, L.J. in Remon's case but applies the principle of that case nevertheless, quoting from the judgment of Bankes, L.J. who had said in Remon that the expression "tenant" has been used in the Rent Restrictions Act
41. The same principle was subsequently applied in Jonas v Rosenberg(5). Mr. Chang for the Respondent does not deny that there may be a general purpose shared by the English and the local legislation but he points to the different language used in the local law as compared with the English legislation which was under consideration in any of the three cases to which I have referred. Mr. Chang maintains that throughout the relevant portions of the Landlord & Tenant Ordinance the emphasis is upon subsisting tenancies. Protection, he says, is secured in Hong Kong to tenants by the prolongation of their existing tenancy rights. Thus the existing definition of the word "tenant" in section 49 of the Ordinance is as follows:
Moreover the general emphasis in the English legislation is on protected premises rather than protected tenancies and although as Mr. Mok rightly points out the references in the English legislation "to let" and "letting" are invariably associated with the notion of the letting of premises the distinction it emphasizes, Mr. Chang would say, remains. He points to a number of district court decisions in which the distinction between the English and the local legislation has been adverted to notably by Judge Hooper in Alice Martha Woo Chan v Peter Hui(6). 42. Continued personal residential occupation of premises is what the English legislation is primarily concerned with. Where the premises are or become protected while the occupation subsists that will give rise to the unique form of purely possessory title which has become known as a statutory tenancy, something which is not truly a tenancy at all since it confers no estate and is ".... merely a personal right of occupation" (per Lord Greene M.R. in Carter v S.U. Carburetter Co.(7)). In Hong Kong while the same protective concern is the motive of the legislation the means is different in that the incidents of an existing estate are seized and preserved by statutory action supervening upon contractual design. 43. Mr. Mok was able to point to another district court decision in which Judge Leathlean in 1979 had expressly considered the line of English authorities commencing with Remon's case and had applied the ratio of those cases to circumstances closely similar to those with which we are dealing here. He did so in an express dissent from the judgment of Judge Wilson in Chung Cho Cheung v Lam Kam Tin(8) where the latter had refused to follow Remon. It would seem, however, that his attention had not been drawn to a decision of the high court in Wong Chang Sung v Margaret Tse & Another(3). In that case Mr. Commissioner Yang (as he then was) was dealing with a case of holding over following the termination of a contractual term by effluxion of time. The action was in trespass and for the defendant it was sought to draw down the cover of the protective legislation which had been introduced after the termination of the tenancy and the issue of the writ. It was argued on behalf of the defendants that they were tenants within the meaning of section 2 of the Domestic Premises (Tenure & Rent) (Temporary Provisions) Ordinance and Remon and the other English decisions were relied upon for this purpose. The learned Commissioner rejected that argument expressly adopting certain expressions used by Judge Hooper in Rent Increases Applications Nos. 24 - 29 of 1974 where the latter had refused to extend the expression "tenant" to include "an ex-tenant in the sense of Remon's case". 44. It seems clear enough that the weight of authority in the courts at first instance in Hong Kong is preponderantly against regarding a party holding over against the interest of his landlord as anything other than a trespasser. Although in Remon's case Scrutton, L.J., in order to give effect to the wording of the Act, draws a distinction between a person holding over after the conclusion of a contractual term and a "mere trespasser" that is effectively the description used by Lord Greene, M.R. in Cow v Casey(9) who refers to such a person as a "pure trespasser". 45. In the end it appears to me that Mr. Chang is right to say that the protective provisions of Part II apply only to subsisting tenancies, that is to say, tenancies the contractual incidents of which were still alive at the date upon which any of the existing provisions in the Landlord & Tenant Ordinance became applicable to them. 46. That such is the general intention and approach of the Legislature to this legislation seems to me to be borne out by certain of the provisions of this most recent legislation to which Mr. Chang had drawn our attention. Section 17 of Ordinance No. 6 of 1980 amends section 122 of the principal Ordinance. Two additional subsections are introduced. The second of these is subsection 7 and is in the following terms:
Section 122 occurs in the Fifth Part of the Consolidation Ordinance. Tenancies dealt with in that Part are such as are terminable upon six months' notice of termination in the case of business premises or twelve months for domestic premises. Fixed terms for three years such as we are dealing with in the present case have always been excluded from the provisions of Part V as they were formerly excluded from the provisions of Part II. There are however other classes of tenancy formerly excluded from the provisions of Part II but falling within the provisions of Part V. Three such classes have now been brought within the protection of Part II by section 3 of Ordinance 6 of 1980 together with those fixed terms of three years with which we are now concerned. In respect of such tenancies the intention of the Legislature under the new subsection 7 of section 122 would seem to be clear. Where a notice of termination has matured in respect of any such tenancy prior to the 18th of December 1979 so that an interval has intruded between the date of its maturing and the coming into force of the legislation which applied protection to tenancies of that description, it is plain that that "interval of trespass" is not to be re-converted into tenancy so as to attract the protection of the new law. I would dismiss the appeal. Representation: Y.C. Mok (Tsang, Chau & Shuen) for appellant D. Chang (C.Y. Kwan & Co.) for respondent (1) Civil Appeal 1980 No. 38 (2) 1921 1 K.B. 49 (3) 1974 H.K.L.R. 350 (4) 1950 1 K.B. 574 (5) 1950 2 K.B. 32 (6) (1974) D.C.L.R. 15 at p.24 (7) 1942 2 K.B. 288 at p.291 (8) an unreported decision of 1973 (9) 1949 1 K.B. 474 |