Chu Kin-ying v. The Queen
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CACC000232/1981
----------------- Coram: Sir Alan Huggins, V.-P., McMullin, V.-P. and Li, J.A. Date of Judgment: 4th August, 1981. ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P.: 1. This appeal has raised certain problems because of the inadequacy of the record which has been placed before us and, indeed, the inadequacy of the record in the court below. 2. The Appellant was charged nominally under s.53(7) of the Landlord and Tenant (Consolidation) Ordinance, but in fact under s.53(78) of that Ordinance. The allegation was that she had obtained an order for possession under s.53(2)(b) of the Ordinance on the ground that she reasonably required the premises for occupation for herself and that within 24 months of that order she had sold the premises. It was not in dispute that she did sell the premises. The dispute has been as to whether there was an order for possession under s.53(2). 3. What happened was that the Appellant gave instructions to her solicitor to write to the tenant and ask for possession and that, if he did not give possession, the solicitor should, after obtaining instructions from her agent, institute proceedings on this ground. Correspondence ensued between her solicitor and the solicitor for the tenant. Eventually, proceedings were instituted, but before they came to full term an agreement was reached between the parties. 4. On 1st June 1980 the tenant moved out. On 5th June an order was made by the court in the action. Unfortunately, although clearly various documents relating to the action were put in evidence before the court below, those documents were never marked as exhibits and they formed no part of the record. Most essential, of course, was the order which was made in the civil action because only if the order was one which was contemplated by s.53(70) could the offence be committed. The order has been put before us and we assume that this was the order which was put before the judge, and it is in the form of what is commonly called a Tomlin Order. It is in these terms:
The Schedule - which, of course, forms no part of the order of the court - was in a somewhat unusual form, for the first paragraph reads:
It is common ground before us that no judgment for possession was in fact entered: the only "judgment" was that dated 5th June 1980, which is the Tomlin Order. Whether the parties seriously contemplated that judgment would be entered or not is neither here nor there. For my part I would not have been surprised had the learned judge questioned the Schedule to the Tomlin Order and suggested to the parties that it be re-worded. He could do no more than make a suggestion, for this was a consent judgment and a court has no right to force its own opinions upon the parties in making a consent order. 5. This order of 5th June did not order the giving up of possession under s.53(2). Indeed, on 5th June it was no longer proper or possible to make an order of this kind, for ontthat date by virtue of the giving of vacant possession on 1st June there was no necessity for an order for possession at all. This was not a case where the tenancy could be terminated by an order on the ground that the landlord required possession for her own occupation, she already having possession. That is sufficient to require us to allow this appeal and to set aside the sentence and order made consequent upon the conviction. 6. A further point was taken on behalf of the Appellant, namely that there was no evidence of mens rea. In our view mens rea is an essential ingredient of the offence but, beyond saying that, we propose to say nothing on this point. It is a matter which would have concerned solely this Appellant: it is not necessary to discuss it and we say no more. 7. The result is that the appeal is allowed and the sentence and order are set aside. 4th August, 1981. Representation: |