Poon Kai Tin v. Lam Mee Kam and Others

CACV000091/1983

Landlord and Tenant (Consolidation) Ordinance - section 53(2)(f) - proof of illegal activity on suit premises - notice to quit served prior to 19th December 1981 - effect of section 52(1C).

BETWEEN

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Coram: Yang J. A., Barker J. A. and Kempster J.

Date: 25th October, 1983.

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JUDGMENT

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Yang J.A.:

1. This case concerns a cockloft at 81 Ho Pui Street, Tsuen Wan, New Territories. The landlords of the premises sought to recover possession on the grounds that the tenant had been involved in certain illegal activities there.

2. In effect this appeal consists of two issues. One was whether there was illegal activity on the premises in question and secondly, whether a Notice to Quit dated the 9th July 1980 sent by the landlords' solicitors to the tenant had the effect of terminating the tenancy on 31st January 1981.

3. Dealing with the first point, it was argued on behalf of the tenant that there was no evidence to show that there was any illegal activity: the illegal activity in question being illegal bookmaking within section 7(1) (a) of the Gambling Ordinance. The Presiding Officer in his judgment quite clearly took into consideration the meaning of the phrase "illegal bookmaking" as defined in section 2 of the Gambling Ordinance. Though he did riot expressly say so, it was clear in his judgment that he took all the evidence into consideration when he came to the conclusion that the tenant was involved in that illegal activity and that illegal gambling was going on.

4. This could be seen at pages 5, 6 and 7 of his judgment. At page 5 he came to the conclusion that the tenant had assisted another person in bookmaking or been an accessory to bookmakers by placing bets himself and his friends in the premises. Then on the following page, he went on to consider whether the tenant assisted either directly or indirectly another person in bookmaking and he came to the view that there was ample evidence to show that some persons telephoned the said premises placing bets, and this evidence, together with the other evidence, tended to show that on the balance of probability the tenant was fully aware of the activities inside the premises and that such activities were illegal bookmaking. He also came to the view that he was satisfied that the tenant was well aware of the illegal activities at the premises on the day in question, i. e. the 27th February 1982. Finally, he concluded that he was satisfied that-the landlords had discharged their burden in showing that illegal activities did take place.

5. I am of the view that the Presiding Officer was correct in coming to the conclusion as he did on the evidence before him. For this reason, the first part of this appeal fails.

6. On the second part of the appeal which relates to the Notice to Quit, a very interesting technical point arises. It is argued on behalf of the tenant that the Notice to Quit dated the 9th July 1980 was not a valid notice. Mr. Fung argued with some force that the tenancy in question is a monthly periodic tenancy. He argued that the allegation made in paragraph 4 of the landlords' Notice of Application that the said contractual tenancy was terminated on the 31st January 1981 was not a correct allegation. This is because (Mr. Fung said) that contention relies on a Notice to Quit served by the landlords upon the tenant on or about the 9th July 1980, at a time when no Notice to Quit would suffice to terminate any tenancy of domestic premises protected under Part II of the Landlord and Tenant (Consolidation) Ordinance. And, Mr. Fung said, at that time, only an order of the District Court made under the provisions of Section 53(2), would suffice for that purpose.

7. I do not wish to embark upon a detailed analysis of this part of the case except to say that I shall simply refer to the case of Ngai Sau-ying v. Henry Chue Kwok-keung⁽¹⁾ where Leonard, V.-P dealt with this point at pages 264I-265B, and Kempster J. dealt with that at pages 271A and 272C. The point has been clearly explained in that base and I am content to follow it.

8. It is also argued on behalf of the tenant that Lo Wah's case⁽²⁾ (infra) seems to have come to a somewhat different conclusion. For my part, and with the greatest respect to Huggins, V.-P. it would appear that he went perhaps a little too far: see Lo Wah &Another v. Chui Fun⁽²⁾. In any event the point hereovered  appears to be obiter.

9. For these reasons, I would dismiss the appeal.

10. Finally I would like to acknowledge my indebtedness to both counsel for their very helpful arguments and the succinct and lucid manner in which they have presented their respective cases.

Barker, J.A.:

11. I agree and it is only out of deference to Mr. Fung's arguments that I add any observations of my own and they are concerned solely with the question of the "Notice To Quit" point - a point be it observed which was not taken in the Court below.

12. The point can be briefly stated as follows: Prior to the 19th December 1981, it was not necessary to serve a Notice To Quit provided the landlord could bring himself within one of the grounds of section 53(2) of the Landlord and Tenant (Consolidation) Ordinance as it then was. Since the amendment of that Ordinance by Ordinance 76 of 1981 it has been necessary to serve such a Notice To Quit.

13. Mr. Fung's argument, as I understand, it was this, that the Notice To Quit which was served on the 6th July 1980 was an invalid Notice To Quit because, says Mr. Fung: The case of Lo Wah⁽²⁾ to which My Lord has just referred decided that it was not possible to determine a contractual tenancy otherwise than by an order of the Court.

14. All that Lo Wah ⁽²⁾ had to decide was that there was no need to serve a Notice To Quit before bringing an action under section 53(2) and that therefore an action under that section could be brought even though the contractual term was still in being.

15. The position now is that an action cannot be brought until the contractual term has been brought to an end and in so far as Lo Wah⁽²⁾ purported to go any further than that, I would regard any observations made therein as obiter.

16. The way the case is put against Mr. Fung is that, by section 52(1C) of the present Ordinance, it is provided:

"A tenancy or sub-tenancy which, immediately before 19 December 1981, was continuing under this Part shall be a tenancy or sub-tenancy continuing under subsection (1)."

17. And Mr. Kwok, who appeared for the respondents, says:

"That is exactly the position one has here."

He said that the Notice to Quit was valid to terminate the contractual tenancy; that thereafter the tenancy continued by virtue of the Ordinance and by virtue of the Ordinance alone and, therefore, by section 52(1C) of the Ordinance as amended, this tenancy continued, having been validly contractually determined, and therefore the Court had jurisdiction to, hear the action.

18. I find that argument totally convincing. Were Mr. Fung's argument to be right, section 52(1C) of the present Ordinance would have no content except for the case where a term or fixed term was terminated by effluxion of time. It could have no application to periodic tenancies at all. I cannot think that the legislation intended the sub section to fall within such a narrow compass.

19. For these reasons, Mr. Fung's argument fails and I agree that this appeal should be dismissed.

Kempster, J. :

20. I agree with all that is fallen from My Lord Mr. Justice Yang and Mr. Justice Barker and have nothing that I can usefully add. I, too, agree that the appeal must be dismissed.

(1)    No. 2 (1982) H. K. L. R. 256

(2)    (1980) H. K. L. R. 844, 846

Representation:

Daniel Fung, Esq. instructed by Messrs. Hampton, Winter & Glynn for Appellant.

Kenneth Kwok, Esq. instructed by Messrs. David Tong & Co. for Respondents.