Wai Cheuk Lam and Another v. Tse Pong Kee

DCCJ005232/1974

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 5232 OF 1974

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Coram: Liu, D.J., Q.C. in Court.

Date of Judgment: 3 Junuary, 1975.

1st Plaintiff in person.

2nd Plaintiff in person.

Mr. Peter Lee of Messrs. Woo Kwan Lee & Lo for Defendant.

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RULING

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1. The Plaintiffs apply for an order for possession under S.53(2) (b) of the Landlord and Tenant (Consolidation) Ordinance in the capacity of registered owners of the suit premises which are domestic and form part of a postwar building. It is alleged that the Plaintiffs require the suit premises for occupation as a residence for themselves and their family. It is common ground that the suit premises are held by the Defendant on a monthly tenancy and that no notice to quit has been served for the termination thereof. Solicitor for the Defendant raised a preliminary issue, namely whether the service of a notice to quit is a prerequisite to an application for an order for possession under S.53(2) (b) of the Ordinance.

2. In my ruling given on the 5th March 1974 in Fung Kwai Ching v. Yick Kit Bing (1), I observed in passing that under the new Part II of the Landlord and Tenant (Consolidation) Ordinance, it is no longer necessary for a landlord or principal tenant to serve any notice to quit for recovering possession of postwar domestic premises. Save for one ruling given in Cheung Ying v. Chung Yin Wah (2) on the 2nd August 1974 to which I will refer, the consensus of opinion seems to be in favour of an immediate application by writ under S.53(2)(b) without the service of any notice to quit. Armed with the said ruling in Cheung Ying v. Chung Yin Wah (2) to the effect that due service of a notice to quit is required to found an application under the new Part II in the Landlord and Tenant (Consolidation) Ordinance, solicitor for the Defendant contended that in the absence of a notice to quit, the Plaintiffs here have no cause of action. The learned Judge in Cheung Ying's case approached the very same issue with delightful logic. He learned heavily against any unwarranted abridgement of a monthly tenant's common law right to a notice to quit. He referred to S.54(1) (c) in the original Part II whereby a tenancy terminated "where a notice to quit given under subsection (2) or (4) or an order made under subsection (7) takes effect", and he concluded that the omission of the provision with regard to notice to quit from the new Part II was not indicative of any intention on the part of the legislature to impair a tenant's entitlement to a common law notice to quit. As I understand it, the issue was not exhaustively canvassed before the learned judge who has thereafter had occasions to entertain applications under S.53(2) (b) of the Ordinance without any common law notice to quit.

3. There is a wealth of local authorities on similar subject-matter. In order to understand some of these local decisions, it is perhaps not impertinent to begin with two judgments of Judge Huggins, as he then was, in Chong Dim Ming v. Hui Di King (3) and Pat Woo v. Lee Wing Wa (4). In 1962, the Tenancy (Notice of Termination) Ordinance, the predecessor of Part V of the Landlord and Tenant (Consolidation) Ordinance, came into force, and it provided for a 6 months' Notice of Termination for terminating certain tenancies. S.3(4) of the Tenancy (Notice of Termination) Ordinance sought to introduce a statutory right of forfeiture for non-payment of rent, and in the construction of that section, Judge Huggins felt constrained by its language to hold that after the service of a Notice of Tarmination, a common law notice to quit was still necessary to bring into operation such statutory proviso for forfeiture. As a result of these two decisions, in July 1965, Ordinance No. 37 of 1965 remedied the position by arbitrarily injecting into every tenancy a statutory implied condition for forfeiture for non-payment of rent.

4. Next came the judgment of Blair-Kerr J. in Cheung On v. Leung Me Wo Foreign Wine (5) in which the learned Judge held that under the Tenancy (Notice of Termination) Ordinance, the prescribed 6 months' statutory Notice of Termination was sufficient, without the service of any common law notice to quit, to terminate all tenancy interest. In fact, the learned Judge held as sufficient a statutory Notice of Termination expiring on a date not even coinciding with the last date of the lunar monthly tenancy in that case. Judge Williams in Chan Oi Ho v. the Hong Kong Kowloon Carving Association (6) craved in aid the ratio decidendi of the said 1962 decision of Judge Huggins, as he then was, and held that the service of a common law notice to quit was necessary in addition to a statutory Notice of Termination. Obviously, the said 1962 or 1964 decision of Judge Huggins was confined almost exclusively to the operation of the statutory forfeiture for non-payment of rent and was little concerned with the ultimate effect of a Notice of Termination. Citing with approval the judgment of Judge Williams in Chan Oi Ho's case (6), Judge Springall also required a common law notice to quit in conjunction with a Notice of Termination in Kwong Yau v. Ng Tak Wah trading as Shung Kee Firm (7). So far as the District Court is concerned, the point was finally settled by a decision of Wylie J. in Wong Shiu Chong v. Tse Siu Fong (8) in which the judgment of Cross J. in Scholl Manufacturing Co. Ltd. v. Clifton (Slim-Line) Limited (9) was quoted in extenso, and it was held that a single statutory Notice of Termination would suffice. In 1968, the effect of statutory notices was debated in Commercial Properties Ltd. v. Wood (10) where a statutory notice was held to have the effect of overriding all common law rights. The case of Commercial Properties Limited (ibid.) dwells upon S.24 of the Landlord and Tenant Act, 1954 whereby a business tenancy may be "terminated in accordance with the provisions" of that Act, and for such purpose S.25 of the same Act provides for a notice in prescribed statutory form which was duly served in that case but expired on a date different from the date on which the contractual tenancy could have been brought to an end by a proper notice to quit at common law; it was contended that the statutory notice was not effective to determine the contractual tenancy which remained in existence by reason that the date of determination in the statutory notice did not coincide with the end of the month or the commencement of the succeeding month, and the Court of Appeal held that a statutory notice terminated for all purposes the tenancy to which that Part of the 1954 Act applied. These abovementioned authorities are not on all fours with the preliminary issue for my consideration in this case, but it seems incontestable that a tenancy may be brought to an end by a prescribed procedure, be it a statutory notice or be it a writ, without the service of any notice to quit.

5. The wording in S.53(1) is categorical and unambiguous: "A tenancy or sub-tenancy shall terminate where an order of the court under subsection (2) takes effect". All a landlord or principal tenant need to obtain is an order of the Court under the new Part II of the Ordinance. It is plain that the legislature intended to make a tenancy to which the new Part II applies terminable without the service of a notice to quit, and such intention to dispense with a notice to quit is clearly reflected in the deliberate omission of the previous provision for the service of such a notice. There in S.52(3) of the new Part II of the Ordinance, an implied proviso for forfeiture, is found another example of statutory abridgement of a tenant's right to a common law notice. Again, a common law notice to quit by itself would not be effective, without an order for possession from the Court under the new Part II of the Ordinance, for terminating the tenancy interest in a periodical tenancy. This is an obvious further hindrance, imposed by the Ordinance, to the enjoyment of his contractual rights by a landlord. These interferences with contractual rights were introduced even before the original Part II, and the contractual right of a tenant is just further curtailed by the new Part II to make way for a more simplified mode of application for an order for possession of premises to which this Part applies. Lastly, those contractual rights or remedies, considered necessary to be preserved by the legislature, are explicitly set out in the saving section 74A(c). Under the new as well as the original Part II of the Ordinance, there can be only one tenancy to which that Part applies. The dual concept of a contractual tenancy and statutory tenancy created by the Rent Acts dealing with dwelling houses does not exist here. Our rent restriction legislation has for long been couched in terms applicable to contractual and statutory tenancies alike as one inseparable tenancy interest. Vide Far East Aviation Co. Ltd. v. F.M. Soares (11). By Part II of our Landlord and Tenant (Consolidation) Ordinance, the last vestige of such dichotomy was swept aside, and there is only one single tenancy of which the terms which would otherwise govern its coming to an end are modified by the Ordinance. In my judgment, the new Part II of the Landlord and Tenant (Consolidation) Ordinance provides a new code for regulating the landlord/tenant relationship in tenancies to which it applies and dispenses with the service of a notice to quit.

6. In conclusion, with respect I find myself at variance with the ruling on which the Defendant relies. I have not lost sight of the principles for not following a decision of equal jurisdiction, but in this case there would seem to be justification for me to reject the submission advanced on behalf of the Defendant. Despite that dissentient ruling, the District Courts have been consistently entertaining applications for an order for possession under S.53(2) (b) with any notice to quit. Rent restriction legislation is most vulnerable to judge-made law. The observation of Scrutton L.J. in Skinner v. Geary (12) is true to-day as it was uttered in 1931 that "the Acts were passed in a hurry, the language used was often extremely vague". Harman L.J. summed up succinctly in Parkin v. Scott (13) that the rent restriction system is "the best twentieth-century example of pure judge made law" and the "chief architect of the new system was Scrutton L.J.". Thus the settled practice of granting an order for possession without a notice to quit under S.53(2) (b) by the District Courts is no less forceful an authority for my ruling that no notice to quit need be served before a landlord may commence an action under S.53(2) (b) for an order of possession.

Representation:

1st Plaintiff in person.

2nd Plaintiff in person.

Mr. Peter Lee of Messrs. Woo Kwan Lee & Lo for Defendant.

(1) R.I.A. No. 190 of 1973

(2) V.C.J. Action No. 2180 of 1974

(3) 1962 DCLR 92

(4) 1964 DCLR 51 at p.p. 58 & 59

(5) 1964 HKLR 455

(6) 1965 DCLR 119 at p.p. 124 & 125

(7) 1966 DCLR 54

(8) 1966 HKLR 655

(9) 1966 1 Ch. 298

(10) 1968 1 Q.B.15

(11) (1950) 34 HKLR 53 at p. 59 per Gould J.

(12) [1931] 2 K.B. 546 at p. 561, C.A.

(13) (1965) 196 E.G. 989, C.A.