Cheng So Shi v. Shing Ngan

CACV000086/1982

Headnote

The amendment to Sec. 53(2)(e) of the Landlord & Tenant (Consolidation) Ordinance which was introduced by Ordinance 76 of 1981 had no effect upon pending actions (applying Ngai Sau Ying v. Henry Chue Kwok Keung, Civ. Ap. 30/82).

BETWEEN

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Coram: Hon. Leonard, V.P., Cons, J.A. & Power, J.

Date: 15 September 1982

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JUDGMENT

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1. This is an appeal from the decision of His Honour Judge Striven who refused the plaintiff landlady an order for possession. Her claim was based on a subletting by the tenant of part of the premises, which was said to be in breach of the contractual tenancy and also contrary to Section 53(2)(e) of the Landlord and Tenant (Consolidation) Ordinance. It is conceded at once that the plaintiff has no case whatsoever under the contractual tenancy. Her appeal stands or falls by Section 53(2)(e).

2. Three questions are raised : -

3. When the action was commenced in March 1981 Sec. 53(2)(e) provided that the court could make an order in favour of the landlord if the tenant had, since the 14th December, 1973, sublet the whole or part of the premises. By the time the action came to trial in May 1982 that paragraph had been amended. The court could only make an order if, in addition, the subletting was in breach of the contractual tenancy.

4. The learned judge below appears to have applied the law as amended. With every respect to him I think he was in error. In Ngai Sau Ying⁽¹⁾ we considered the effect on actions already commenced of an amendment, introduced by the same ordinance which changed Sec. 53(2)(e), to Sec. 52. We concluded that it had none. In my opinion the considerations which affected us in that case apply equally to the present and the plaintiff was likewise entitled to have the action dealt with as though the law, in that respect, had not been amended. I appreciate that in Leung Chui Ying v. Chow Siu Kwan⁽²⁾ we took a different view with regard to a new section 53A. But the considerations were quite different WITH regard to that particular legislation.

5. The tenancy, which was a monthly one, commenced in 1968. In 1973 the tenant proposed to partition and sublet. The landlady had no objection, although she imposed qualifications as to the quality and quantity of subtenants. It is suggested that this gave consent for subletting generally. In my view that is not so. Her "consent" had no value in law at all. Although the contractual tenancy contained a covenant against subletting the whole, there was no covenant against subletting part. And as to possibly foregoing her rights in respect of Sec. 53(2)(e), at that time, earlier in 1973, the statutory prohibition was not yet in existence. The subletting was in any event lawful, and remained so until it was terminated in 1976.

6. The same year the tenant sublet again. He did not ask for or obtain further permission, certainly not in writing, although by this time Sec. 53(2)(e) had come into force. It is suggested however that the landlady waived her rights under that paragraph by accepting the rent for October 1980 with knowledge of the subletting.

7. Waiver is basically a question of fact and as such may be thought to be beyond the purview of this court with regard to appeals under part II of the ordinance. However in reality it is not a question of fact, for with respect to the learned judge below he proceeded in this respect upon a misconception of the law. He assumed that it was for the landlady to prove that there had been no waiver. That is not so. Waiver is something for the defendant to prove.

8. In my view the evidence was not sufficient. The judge found the evidence of the landlady as to whether she came to know of the subletting before or after she accepted that rent to be vague and inconsistent. That is not surprising. She is 81 years old.

9. The tenant gave no direct evidence on the point, which leaves us simply with one letter, exhibited below and now page 46 of our bundle. In effect it gives permission for subletting against the tenant's assuming responsibility for the rates. It is dated September 1980.

10. The landlady said that the letter related still to the first subtenant. If so it takes matters no further. If not it is of course inconsistent with the Particulars of Claim which alleged the first discovery of the subletting to be October. It may also be inconsistent with the express finding of the judge that the landlady gave no consent to the second subletting.

11. The situation was not satisfactorily resolved. But the burden was on the tenant to prove waiver. I am not prepared to accept that that letter, standing by itself, was sufficient to do so.

12. That disposes of the appeal as such, but there was a late application for relief. We queried immediately whether this court had jurisdication to relieve against a forfeiture which indeed if it were a forfeiture at all, was a forfeiture sanctioned by statute. Mr. Lee, for the tenant, was not able to draw our attention to any authority in support of the jurisdiction, save to say that the tenant had been misled by the landlady and thus there was some equity on his side.

13. For my part I must confess that I find it impossible on the evidence to see that the tenant was in any way misled. It was a subletting contrary to the statute. As I have mentioned already, no permission was asked. And the transaction was, so it appears from the evidence, attended by some subsequent dishonesty. In the circumstances it would seem to me quite wrong for this court to consider the grant of relief which, if available at all, is available only in its equitable jurisdiction.

14. For these reasons I would allow the appeal.

(1) Civ. Ap. 30/82

(2) Civ. Ap. 38/82

Leonard, V.P. :

15. I also would allow the appeal for the reasons given by my brother Cons and have nothing to add.

Power, J. :

16. I concur also with the reasons already given and have nothing to add.

Representation:

Jerome Chan (M/S W.S. Lo & Lo) for Appellant.

John Lee (M/S Hampton, Winter & Glynn) for Respondent.