Mary Tsang v. Lee Mok

HCA002248/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

CASE NO. 2248 OF 1972

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Coram: Cons, J.

Date of Judgment: 15 January 1973

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JUDGMENT

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1. This is an appeal against summary judgment entered by the Registrar under Order 14. I gave my decision setting aside that judgment and made appropriate orders at the conclusion of arguments by Counsel. It is not appropriate that I should deal now with most of the arguments that were advanced before me but there are two matters which I should mention.

2. The action is one for possession of premises demised by the Plaintiff to the Defendant under a written lease for a term of five years. The premises are governed by the Landlord and Tenant Ordinance Chapter 255 but the lease contains a clause whereby the Defendant deprives himself of the protection against the ejectment afforded by that Act as is permitted by Section 15 thereof. The period of five years expired on the 31st of August this year; the Defendant remains in possession.

3. In answer to the summons for summary judgment the Defendant filed an affidavit alleging that the lease was granted in return for a premium made illegal by Section 11 of the Ordinance. The Registrar found as a fact that no such premium was given. He instanced certain matters which led him to that conclusion, but while I agree that as matters appear at the moment a strong defence is not indicated, it is pertinent to note that the Plaintiff has filed no affidavit showing anything to the contrary. In the circumstances, and with great respect to the learned Registrar, I do not think it can be said that the facts are so clear that they can be disposed of upon the affidavits.

4. If the lease was in fact granted for an illegal premium there is authority in this Colony for saying that the Defendant, despite his actual possession and payment of "rent" for five years, has no right to any form of possession at all: Yung Yeung Shuk Chuen (No. 2) v. Lau Po Wing (1965) H.K.L.R. 216 and in particular at pages 221 and 222. On this basis it is clear that leave to defend should not be granted. But Counsel for the Defendant seeks to argue that that decision is not correct, that although the personal covenants in the lease are void an interest in land has passed to the Defendant, an interest sufficient to give him protection under the Landlord and Tenant Ordinance. Unfortunately the position taken by Counsel was misunderstood by the learned Registrar. It was suggested before me that he felt himself bound by the decision to which I have just referred. I find nothing in his very clearly expressed reasons to support that suggestion. But if he did so feel, he would, I think, have been in error. The Registrar dealing with an Order 14 summons is not an inferior court in the normal sense; he is exercising the same jurisdiction as a judge would do in similar matters and stands in exactly the same position with regard to binding precedent, that is to say, he is not bound in law by decisions of his fellow brethren but usually requires considerable persuasion before he will act otherwise. It may well be that a Registrar would in fact require even greater persuasion than another Judge, but he should nevertheless hear and consider whatever arguments are sought to be placed before him. It is further not necessary in proceedings of this nature that he be satisfied that the earlier decision is wrong; it is sufficient he be satisfied the argument against it is worthy of being considered. It is unnecessary to speculate on what might have been the learned Registrar's decision had he had the benefit of the many other authorities to which Counsel has now referred me. Suffice it to say that I am satisfied it is a very difficult question of law which the Defendant should have the opportunity of raising at the trial.

5. There remains the question of costs which I reserved after hearing argument from both Counsel. I have come to the conclusion that the proper order with regard to the hearing before the Registrar should be costs in cause. That is the order that would have been appropriate had leave been given in the first instance : see the second paragraph of note 9 to Order 14 Rule 7 of the Annual Practice 1970.

6. I observe from the last paragraph of the following note that costs on an appeal normally follow the event. That is also the implication of the remarks of Hogan C.J. in Pitamberdas Chatomal Kalwani trading as Kalwani Corporation v. Jacobson Van Den Berg (Hong Kong) Limited (1964) H.K.L.R. 842 at page 857. I do not think the last sentence of the paragraph in the White Book applies in the present instance. As I understand it the failure to produce before the Registrar the material upon which I have acted was not the fault of the Defendant.

7. I should also add that I have not felt that the imposition of payment into Court as a condition of granting leave to defend is in any way material to the question of costs. I imposed that condition at the request of the Plaintiff partly because of my opinion of the unlikelihood of the defence succeeding on the facts but mainly because that money would have to be paid at some stage whatever the outcome of the trial. The defence did not resist payment and the time spent upon this point was minimal. The Defendant shall therefore have the cost of the appeal before me in any event with certificate for Counsel.

Representation: