Kong Hoa (Hong Kong) Ltd v. Lau Hung Kwan
Read the full judgment text of HCA 2018/1973 on BabelCite. This High Court CFI judgment.
1. The plaintiff instituted proceedings for the recovery of certain premises let to the first defendant on a monthly tenancy on the ground of forfeiture for non-payment of the monthly rent. The premises form part of an entirely new building for which an occupation permit was granted by the Building Authority after the 16th August, 1945, and were let and used as domestic premises.
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HCA002018/1973 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 2018 OF 1973 -----------------
----------------- Coram: Trainor, J. in Court Date of Judgment: 8th January, 1976. ----------------- JUDGMENT ----------------- 1. The plaintiff instituted proceedings for the recovery of certain premises let to the first defendant on a monthly tenancy on the ground of forfeiture for non-payment of the monthly rent. The premises form part of an entirely new building for which an occupation permit was granted by the Building Authority after the 16th August, 1945, and were let and used as domestic premises. 2. The second defendants, are sub-tenants who applied to be added as defendants. This was ordered and a Defence was filed. 3. Judgment was entered against the first defendant in default of appearance. 4. On the case coming on for hearing before me a preliminary point was taken by Mr. Wu, counsel for the defendants: that the Court had no jurisdiction to hear the matter as exclusive jurisdiction is vested in the District Court by Part II of the Landlord and Tenant Consolidation Ordinance (Cap.7). 5. It was common case that the premises in question are domestic premises within the meaning of Part II of the Ordinance. 6. Mr. Wu in his argument pointed out that the word "court" in Part II of the Ordinance means District Court, vide Section 49. He referred to s.68(6) which reads:
and s.68(7) which states:
7. It was the contention of Mr. Li who appeared for the plaintiff that the jurisdiction of the District Court under Part II of the Ordinance is not exclusive; that despite the wording of that Part the Supreme Court has concurrent jurisdiction. 8. Mr. Li referred to Woodfall on Landlord and Tenant, 27th edition paragraph 1912, which states that no ejectment can be maintained for non-payment of rent unless the reservation of rent amounts to a condition or there is an express proviso in the lease giving the landlord the right to re-enter and determine it for non-payment. He argued that although the tenancy in this case between the plaintiff and the first defendant was verbal nevertheless there was an implied covenant to pay rent and a right to re-enter on failure to do so by virtue of section 52(3) of the Ordinance. The sub-section provides:
He argued that as section 74A provided:
the common law rights that the plaintiff had to recover his premises were unaffected by the Ordinance. These be maintained included the right to forfeit the tenancy and to seek his remedy in the Supreme Court, the jurisdiction of which remained in respect of common law remedies despite the wording of the Ordinance. He contended that the clearest language would be necessary to oust the court's jurisdiction, and the language of the Ordinance was far from clear on the matter. Mr. Li sought to derive some support from the case of Yu Tung-bik v. Metro Dodwell Motors Ltd. 1975 H.K.L.R.411. That was a case where the plaintiff sought, by way of an originating summons in the Supreme Court, a declaration that the tenancy agreement made between himself and the defendant still subsisted despite the fact that the defendant had returned the key of the premises. The defendant, relied on s.53(1) of the Ordinance:
The support Mr. Li sought lay in the fact that the Court heard argument from both sides, exercised jurisdiction and found for the plaintiff. 9. May I say at the outset that I can find no support in Yu Tung-bik v. Dodwell Motors Ltd. for Mr. Li's contention. Apart from the fact that the question of jurisdiction was never raised in that case, as Mr. Li fairly pointed out, the issue in it did not pertain to any relief contemplated by the Ordinance. The Court in that case was asked to interpret a subsection of the Ordinance, to wit, did the handing over of a key of premises to a landlord validly terminate the tenancy despite the unwillingness of the landlord to have the tenancy terminated. In holding that it did not Huggins J. expressed the view that to hold that there can be "a delivery up" of possession to a landlord within the meaning of s.53 where there was no obligation on the landlord to accept would interfere with the common law contractual right of parties in a way which would have required much clearer language than is to be found in the statute. In fact the learned judge was adjudicating on a relief sought which did not arise as a result of a right created by the Ordinance, but simply on the meaning or effect to be attributed to a phrase in one of its sections. 10. Mr. Li valiantly endeavoured to establish that as the right to forfeiture for non-payment of rent is to be implied in all tenancies to which Part II of the Ordinance applies in the absence of express provision that right must be considered as a contractual right and therefore a landlord has all the common law remedies open to him and one of them is the right to seek his remedy in the Supreme Court. 11. I think it is immaterial whether the right to forfeit a lease of premises to which Part II applies exists by virtue of s.52(3) or by virtue of an express covenant or condition in a lease when one of the parties seeks relief. S.74A(c) merely states that the Ordinance shall not affect any right or remedy; but it says nothing as to where relief is to be sought. 12. In my opinion the intention of the legislature that the District Court should have exclusive jurisdiction is made manifestly clear by subsections 6 and 7 of section 68. I say this because the ordinary jurisdiction of the District Court to hear and determine any action for the recovery of land is limited by the District Court Ordinance; and where the property involved in a dispute exceeds that jurisdiction the jurisdiction lies in the Supreme Court. By subsection 6 the limitation imposed by the District Court Ordinance is removed and the District Court is given the unlimited jurisdiction normally vested in the Supreme Court. To put it at its lowest, that must indicate that the legislature intended something more than merely to give jurisdiction to a second tribunal. But when one discovers that the legislature has declared in subsection 7 that a decision of the District Court shall be final, that no appeal lies from it, then the intention of the legislature becomes clear: that there be a court of first and final jurisdiction. If the Supreme Court had jurisdiction to hear cases to which Part II of the Ordinance applied then, in the ordinary way, a right of appeal to the Full Court and the Privy Council must lie. This would result in the existence of one court with first and final jurisdiction in those cases, and another with a right to appeal up to the Privy Council. 13. It was argued that the Supreme Court has a concurrent jurisdiction in these cases and when it exercises it it is to be implied that it stands in the same position as the District Court, i.e., its decision is final. To accept that argument would mean that the right of appeal from a decision of the Supreme Court to the Full Court and the Privy Council is abrogated by implication. While such might be possible I would expect in the circumstances something much more positive and clearly expressed to force such an implication before concluding that the existing right of appeal from the Supreme Court had been abrogated. 14. In my opinion it was the clear intention of the legislature exclusively to vest in the District Court the right to adjudicate on disputes between landlords and tenants as to the tenure and rent of premises to which Part II of the Landlord and Tenant (Consolidation) Ordinance applies. A dispute exists in the instant case as to the tenure between the plaintiff and the defendants and the District Court is the only Court that can resolve it; this Court has no jurisdiction. 15. The next question that arises is what order may I make. May I order the case to be transferred to the District Court? S.40 of the District Court Ordinance is as follows:-
16. That section implies that both Courts have jurisdiction; in which event the Supreme Court may hear the case or remit it to the Court below. But in the instant case as I have no jurisdiction to try the issue may I exercise some jurisdiction and order the case to be transferred to the District Court? 17. Supposing I were to order the case to be transferred and later the plaintiff did not wish to proceed the defendant would be entitled to apply to have the case dismissed with costs. Thus my order would impose on the plaintiff costs of proceedings which he might otherwise avoid. On the other hand the defendants might decide to give up possession of the premises without more ado yet there would be proceedings existing in respect of which an order for costs might be made. 18. I mention those examples merely to illustrate unfortunate possibilities were I to order a transfer. In fact, I am of the opinion that once I hold I have no jurisdiction in the case I cannot make any other order in it; not even an order for transfer. 19. Costs however are a different matter. I have jurisdiction to decide the issue whether or not these proceedings could be brought in the Supreme Court. An unconditional entry of appearance by the defendants does not waive that lack of jurisdiction in the Court.
Asquith L.J. in Wilkinson v. Barking Corporation (1948) 1 A.E.R. 564 at 567. 20. I allow the defendants the costs incurred by them.
Representation: Mr. Andrew Li (C.Y. Kwan & Co.) for the plaintiff. Mr. K.H. Woo ( K.Y. Woo & Co.) for the defendant. |
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