Ma Lai Fun v. The Queen

Case No.CACC 238/1971

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 238 OF 1971

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BETWEEN	Ma Lai Fun	Appellant
	and
	The Queen	Respondent

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Coram: Mills-Owens J.

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JUDGMENT

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1. This is an appeal against an order made by a Magistrate extinguishing a tenancy of the ground floor, front and rear portions, of No. 8 Granville Road, Kowloon under the provisions of the Protection of Women and Juveniles Ordinance (Cap. 213); the basis of the order being that certain persons had been convicted of using the said premises as a brothel. It is to be noted immediately that the conviction was in respect of the user of the rear portion only.

2. Dealing with the relevant sections, in somewhat general terms:-

3. Section 12 provides that the occupier or keeper of a 'house or portion of a house' who uses it as a brothel shall be guilty of an offence;

4. Section 13 provides that on being satisfied that an offence has been committed under section 12 'with respect to a house or portion of a house' a Magistrate 'may' order that a notice of the fact shall be served upon 'the owner or tenant of the premises';

5. Section 14 provides that after service of such notice any Magistrate 'may', at the request of 'any such owner or tenant', make an order absolutely putting and end to 'any existing tenancy or sub-tenancy of such premises'.

6. But it is important, I think, to have regard to the provisions of the next following section, section 15. The section provides, in effect, that if, after service of a notice under section 13, an offence under section 12 is committed within 3 months after such service, the person served shall be guilty of an offence unless he proves that he neither knew no had reasonable grounds for knowing that the premises were being used as a brothel. (In the foregoing I have, for the purpose of simplifying the matter, left out references to using the premises as a lodging house for prostitutes, and also references to agents or attorneys for landlords).

7. So far as extinguishing tenancies or sub-tenancies is concerned, section 15, in my view, gives colour and effect to the preceding sections 12 to 14. It provides a means for a landlord, whether he be a head landlord or a mesne landlord or principal tenant, to establish his bona fides - by enabling him to take steps to put an end to the tenancy or sub-tenancy of any tenant or sub-tenant of his who uses the premises let to him as a brothel (or lodging house for prostitutes). It would certainly be a point against a landlord, in proceedings under section 15, that, having been notified of an offence by his tenant and having been provided with the means of terminating the tenancy of that tenant, he had failed to make application for the determination of the tenancy.

8. No doubt these provisions were ...(illegible)inally devised in days when there were no statutory provisions against eviction of tenants, and when therefore it was rarely of importance for it to be concealed from a landlord that his premises were occupied not by the immediate tenant to whom he had let, but in fact by sub-tenants or licensees of his immediate tenant. I have laid emphasis on the tenancy of the wrongdoer as being the tenancy which may be terminated under the provisions of the Ordinance. That , I think, must be the position; it would be quite unjust to construe the provisions of the Ordinance so as to enable the tenancy of a superior landlord, as for example a principal tenant, to be terminated. This view of the provisions of the Ordinance is supported by the judgments of the Full Court in Mui Yau Leung v. Sze To Lin & Ors. ([1949] 33 H.K.L.R. 185), in my opinion.

9. But that, unfortunately, is what has happened, or may possibly have happened, in the present case. On the 18th January, 1971 a person was convicted of keeping a brothel at No. 8 Glanville Road ground floor rear portion', and another two persons for aiding and abetting, all on pleas of guilty. Neither in those proceedings nor in subsequent proceedings did it appear what interest, if any, these persons or any of them had in the premises. Then on the 19th February, 1971 an application was made to the same Magistrate for a notice to be served upon the registered owner of the premises 'No.8 Glanville Road front and rear portion'. The Magistrate made an order for notice to issue in those terms, on the same day. No doubt the registered owner was delighted to be thus afforded a means of recovering vacant possession of the whole of the ground floor, and promptly made application for the extinguishment of the tenancy of the tenant of the whole ground floor. The Magistracy then caused to be issued, and served by registered post, a notice of hearing of the application. This was addressed to 'Principal Tenant and All Occupiers of the said premises'. The hearing came on before a different Magistrate who found himself in a difficult position, in that the initiating notice had been addressed, by order of the first Magistrate, to the registered owner, but he now found appearing before him counsel, Mr. Wesley Wong, claiming to represent a principal tenant, and counsel, Mr. Robert Tang, appearing for the registered owner conceding that Mr. Wong's client was a tenant of the whole ground floor (i.e. an immediate tenant of the registered owner) but claiming that Mr. Wong's client was not a principal tenant. Mr. Wesley Wong also made the point that the conviction related to the user of the rear portion only of the premises as a brothel.

10. Referring to the case of Mui Yau Leung v. Sze To Lin & Ors. (supra) the learned Magistrate said -

"	In the case to which reference was made by both Counsel the facts clearly indicated that only a small portion of a premises, a Front verandah and a Front cubicle had been used as a brothel. The observations of Williams J. seemed I thought only to be 'obiter dicta' in nature when he stated 'It is most desirable that the fullest inquiries should be made by the Magistrate before he made the Order'.
	He (i.e. Williams J.) then went on to say: 'It is true the Ordinance does not lay down the procedure he should follow before he makes the Order. If he is not satisfied on the evidence available at the hearing of any charge under section 12 as to who is the proper person to be served with Notice under section 13 then he ought to exercise the discretion he has under that section and refuse to make such Order'.
	The division of these Ground floor premises if any at all was certainly not adduced before Mr. Garcia. I was however invited to issue a fresh Notice presumably upon Mr. Wong's client and by virtue of section 13 of Cap. 213, I did not consider I could do so or, indeed for that matter that I could interfere in any way with the Order already made by Mr. Garcia who had already exercised his discretion to serve the Owner of the premises.
	In short therefore I consider I am obliged now to make the Order requested by the applicant. I would conclude by saying that I can have little sympathy for the Principal Tenant who could hardly fail in ordinary circumstances to realise that such a large scale illegal business was being carried on in such a substantial part of her tenancy. If there are other subtenants (apart from the convicted defendants) their interests have never been established before the Court. An Order in terms requested will therefore be now made."

11. With all respect to the learned Magistrate, I would distinctly disagree with him on two points. Far from the cited observations of Williams J. (as he then was) being obiter dicta, I would take them to be a central feature of the case before him and of his decision therein. The learned Judge clearly perceived the injustice to innocent persons, having an interest in the premises, which can arise unless the statutory provisions in question are most carefully operated. The object of those provisions is to provide a means of determining the tenancy subsisting in respect of that portion of the premises which has been unlawfully used, not any other portion of the premises; what reason can there be in determining any tenancy of any other portion. Secondly, I disagree with the statement that the principal tenant could hardly fail to realise that the illegal business was being carried on; there was no evidence whatsoever as to the principal tenant's knowledge or means of knowledge. But the Magistrate was in the difficulty that, according to the case of Mui Yau Leung v. Sze To Lin & Ors. (supra), whilst a Magistrate has a discretion whether or not to order notice to issue under section 13, he has no option but to make an order under section 14 (i.e. when an application for termination of the tenancy, based on the notice, comes before him). This, indeed, seems to have been so decided in that case, at p.190 where it was said -

"With regard to the first question for our decision, Counsel for the appellant contended that the magistrate had come to a right decision in construing 'may' as 'must' in section 14 of the Ordinance and we are in agreement with the learned magistrate on this point that 'may' here means 'must' - in this it differs from 'may' in section 13 which, in our opinion, is discretionary."

If his had been the only point in the appeal I would certainly have referred the appeal to a Full Court of three judges, because I strongly doubt the conclusion that tin section 14 'may' means 'must'. In my view, there is a judicial discretion to be exercised in the case of both sections; it could well be that on a hearing under section 14 the Magistrate would be judicially disposed to think that the convicted tenant or sub-tenant had been already sufficiently punished and was unlikely to repeat the offence.

12. But, as Mr. Wesley Wong has urged, this is not the only point in the present case. It is apparent that whilst the conviction was in respect of the user of a portion only of the ground floor, the notice issued and Order made relate to the whole of that floor, in circumstances in which it remains uncertain whether the tenant of the whole ground floor is a principal tenant or not; in other words, whether he has sublet the whole ground floor or only a portion or portions thereof. The possible injustice is quite apparent; if the tenant is a principal tenant, then on the extinguishment of his tenancy his other sub-tenants will be deprived of their sub-tenancies although in no way at fault; and if as a principle tenant he had only one sub-tenant, that is to say the convicted sub-tenant of the rear portion, why should he, the principal tenant, be deprived of his tenancy of the remainder of the ground floor retained in his own occupation, in respect of which no offence has been committed. Clearly these were the considerations which Williams J. and Scholes J., quite rightly if I may say so, had in mind in the case referred to above when they said that serious consequences to innocent persons could result unless orders were made only upon full enquiry. I would make it clear that I am not saying that if a tenant or sub-tenant has say, two cublicles and uses one only as a brothel, his tenancy of both may not be terminated; that is a different case - he is the wrongdoer and stands to lose the whole of the premises comprised in his tenancy or sub-tenancy.

13. Thus far I have considered the appeal without reference to any authority other than the case of Mui Yau Leung v. Sze To Lin & Ors. (supra) That case was referred to by the Full Court in the case of Wong Sai & Ors. v. Kwong Shui Kau ([1962] H.K.L.R. 30), a similar case under the then Dangerous Drugs Ordinance, where the Court said, by way of obiter dicta, that in exercising the power to issue a notice initiating the procedure for extinguishment of a tenancy the Magistrate was acting in a judicial capacity; which, I am glad to find, accords with the view which I had arrived at above. In that case the Full Court expressly refrained from expressing its views on the question whether, on the hearing of the application for an order terminating the tenancy, it is mandatory for the Magistrate to make the order.

14. It may be observed that this last-mentioned case was, possibly, the reverse of the present case. In the former the person convicted was the principal tenant, and the question arose whether the order of extinguishment could be restricted or limited to that portion of the premises in his occupation, so as to save the interests of innocent third parties, namely his sub-tenants. The appeal was determined on another ground, so that this question also was left to abide the day when it became necessary to decide it; I would merely observe that limiting the order as suggested would certainly raise the problem of bringing the sub-tenants into privity with the principal tenant's landlord. In the present case (although it is not entirely clear that it is so, in the absence of evidence that any of the persons convicted was a sub-tenant) it may well be that it is a sub-tenant who has been convicted, so that the question could arise whether one may move up the ladder, as it were, that is to say, obtain extinguishment of the tenancy (the principal tenancy) out of which the offender's sub-tenancy was created. As I have indicated, that would be most unjust, not only to the principal tenant but to any other sub-tenants he may have. If it is to be suggested that the principal tenant connived at the offence then it must be on the basis that he is an accessory and for that there would, surely, be no warrant unless he had been so convicted.

15. Undoubtedly there are a number of difficulties, but it is unnecessary for me to attempt to resolve all of them. In the present case it is clear that whilst the conviction was with respect to the rear portion only of the ground floor, the notice initiating the order of extinguishment expressly referred to the front and rear portions of that floor, and the order likewise extended to the whole of the floor. I have had no argument to the effect that the order might be 'severed' so as to be considered as having effect in relation to the rear portionoonly of the ground floor, and I do not propose to consider it. Quite apart from that aspect there is the defect, as I hold it to be, that the order was made with respect to the so-called principal tenancy without enquiry whether that portion of the ground floor with respect to which the offence was committed was comprised in a different tenancy, namely a sub-tenancy.

16. Accordingly the appeal is allowed, with costs, the order made by the learned Magistrate being set aside, and, if necessary, possession is to be restored to all affected tenants or sub-tenants. Liberty is reserved to any such person, or other person having an interest in the premises, or any part thereof, to apply for any further order necessary or convenient for giving effect to this determination and the orders hereby made.

17. I would add that it is most desirable in such cases to grant a stay of execution for at least the period within which an appeal may be brought and, if brought, pending the determination of the appeal.

18. I would add further that the present practice in the Magistracy whereby any principal tenant and sub-tenants are notified (of the hearing of an application under section 14) only after an order has been made for service of a notice under section 13, appears to be wrong. By that time, possibly, the damage will have been done. The time for those persons being so notified and required to attend is when the Magistrate is considering whether or not to order notice of the conviction to be served, and upon whom. Indeed, I doubt whether the Magistrate's Court is an appropriate tribunal in such cases; far better the District Court, I think, having regard to its powers to order pleadings, discovery etc.

(Mills-Owens J.)

Representation:

Wesley Wong (instructed by Thomas Wang & Co.) for appellant.

Robert Tang (instructed by Lau Chan & Ko) for respondent.