Chow Fung King v. Kan Wai Ching

DCCJ001775/1979

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1775 OF 1979

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Coram: Judge Rhind in Court

Date of Judgment: 9 August 1978

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JUDGMENT

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1. More than three years have now passed since the amendment to S. 50(6) of the Landlord and Tenant (Consolidation) Ordinance Cap 7, which made the following addition to the list of types of post-war domestic tenancies not enjoying the protection of Part II of Cap 7:

2. The exact date on which that amendment passed into law was 18th December 1975. (Landlord and Tenant (Consolidation) (Amendment) (No. 4) Ordinance 1975, S. 13.)

3. Some three year fixed term tenancies created since 31st December 1975 of post-war domestic premises have already run their natural term, and practical problems are beginning to arise where the tenant is unwilling to vacate the premises voluntarily.

4. Such a problem arises in the case now before me.

5. There is no dispute as to the facts; only the effect of applying the law to those facts is an issue.

6. The facts could not be simpler. The Plaintiff is the owner of the post-war suit premises comprising the fifth floor and roof top at 12, Catchick Street. By a tenancy agreement in writing (hereafter called "the first tenancy") dated 2nd March 1973, the Plaintiff let the suit premises to the Defendant for domestic purposes at the monthly rental of $550 for a term of three years commencing 15th March 1973. By a further tenancy agreement in writing (hereafter called "the second tenancy") made on 10th March 1976, the Plaintiff again let the suit premises to the Defendant for domestic purposes for a period of three years, the monthly rental this time being $630 and the commencement date being 15th March 1976. Notwithstanding the expiration of that three year period on 14th March 1979, the Defendant has refused to vacate the suit premises, despite the Plaintiff's requests. Hence the present proceedings for possession of the suit premises.

7. It is common ground that, although at the time of the commencement of the first tenancy agreement (i.e. 15th March 1973) the suit premises were not protected, they, nonetheless, became so On 7th June 1973 by virtue of the provisions of the Domestic Premises (Tenure and Rent) (Temporary Provisions) Ordinance 1973. That Ordinance, conferring security of tenure, applied by S. 3(1) to ".... Every domestic tenancy .... existing at the commencement of this Ordinance", (subject to some exceptions in S. 3(6) which are not relevant for present purposes). The form the security of tenure took was to provide by S. 6(1) that tenancies could only terminate in one of the ways specified in S.7(1).

Provided that upon such termination this Ordinance shall apply to any tenancy thereupon arising by operation of law."

8. The Domestic Premises (Tenure and Rent) (Temporary Provisions) Ordinance 1973 was repealed by S.3 of Ordinance No. 78 of 1973 which also enacted a new Part II (hereafter referred to simply as "Part II") for Cap 7. Part II, the duration of which has been extended from time to time (S.74B), is still basically in operation as then enacted, subject only to certain amendments, including the amendment already referred to which brought in S.50(6)(j) of Cap 7. The other amendments are of no relevance for present purposes.

9. While the Plaintiff's solicitor made no express concession on this, it is clear that the Defendant remained a protected tenant by virtue of Part II.

10. S.50(1) of Part II provides as follows:

"50. (1) Subject to subsection (6), this Part applies to every domestic tenancy and domestic sub-tenancy in a post-war building, whether the same was effected orally or in writing and notwithstanding any provision in such tenancy or sub-tenancy, including any provision purporting generally or specially to exclude this Part."

11. As already foreshadowed, S.50 sub-section (6) did not have any sub-paragraph (j) at the time of its enactment, and there was nothing else in subsection (6) which might have taken the Defendant's tenancy outside of the protection conferred by Part II.

12. By use of the word "every" in relation to "domestic tenancy" in S. 50(1), it is clear that the protection afforded by Part II must have extended to the Defendant. If any further support is required for the proposition that the Defendant was within the ambit of the protection of Part II, it can be found in the definition of "tenant" in S. 49;

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"tenant" or "sub-tenant" does not include a Crown lessee but includes -

13. Because of the circularity of the definition in (a), which drives one back to S. 50 to find out the tenancies to which Part II applies, it is not very helpful, except to the extent it fixes 15th December 1973 as the crucial qualifying date. (b) is more relevant for present purposes. In view of the concessions made by the Plaintiff's solicitor there can be no doubt that on 15th December 1973 the Defendant was a tenant by virtue of the repealed section 6 of the Domestic Premises (Tenure and Rent) (Temporary Provisions) Ordinance 1973.

14. How Part II confers protection is to be found in its Sections 52 and 53, the only parts of which needing to be set out for present purposes are the following:

(2) A court shall not make an order for Possession of premises in respect of which there is a tenancy or sub-tenancy to which this Part applies unless it is satisfied that -

15. In sum, the effect of Part II when it passed into law was that the Defendant continued to have a statutory protected tenancy.

16. The only other legislative event of any significance was the adding of sub-paragraph (j) to S. 50 (6) of Part II on 18th December 1975, as already described.

17. A situation which I regard as indistinguishable was ruled on by the Full Court (as it then was) in Capital Land Investment Co. Ltd. v. Madam SE Mong-kai, 1973 H. K. L. R. 371 which turned on virtually identical legislation.

18. On the authority of that decision a statutory protected tenancy can only terminate on one of a number of specified grounds.

19. Those grounds for the purposes of the present case are those to be found in S. 53 (1) of Cap 7.

20. It had to be conceded by the Plaintiff that none of those grounds operated here.

21. Part II of Cap 7 was enacted subsequently to the Full Court's decision in Capital Land Investment Company Limited v. Madam SE Mong-kai, so that in adopting the same legislative concepts in Part II the legislature no doubt intended the same interpretation to be followed.

22. By virtue of interpreting the relevant provisions of Part II of Cap 7 in accordance with their plain meaning, in the same way that the Full Court did in the Capital Land Investment Co. Ltd. case, the conclusion is inevitably reached that the first tenancy has never been terminated, and, what is more, cannot be terminated except by following one of the pathways established in Section 53(1) of Cap 7. The second tenancy in so far as its provisions conflict with the incidents of the protected statutory tenancy is necessarily void and of no effect.

23. In an endeavour to escape that result, the Plaintiff's solicitor wanted to have resort to the H. K. Hansard's report of the Secretary for Housing's speech in the Legislative Council on the second reading of the Landlord and Tenant (Consolidation) (Amendment) (No. 4) Bill of 1975. From that speech, according to the Plaintiff's solicitor, there can be discerned an intention to Remove protection from tenancies like the first tenancy after the 3lst December 1975 and, as what has now become S.50(6)(j)(i) of Cap 7 was to be the medium of giving effect to the Government's intention, the court should interpret S.50(6)(j)(i) in such a way as to result in the first tenancy ceasing to be a statutory protected tenancy.

24. The short answer to that is that courts refuse to pay heed to legislative deliberations. On this see the House of Lords' case of Davis v. Johnson 1978 1 all E 1132 at 1153.

"I also agree that it has always been a well-established and salutary rule that Hansard can never be referred to by counsel in court and therefore can never be relied on by the court in construing a statute or for any other purpose. The reasons for this rule have been lucidly expressed by Lord Reid in Beswick v. Beswick, and also by my noble and learned friend, Viscount Dilhorne, in his speech in this appeal", per Lord Salmon.

25. Another reason advanced by the Plaintiff's solicitor in support of his contention that S.50(6)(j)(i) in some way extinguished the statutory protection attaching to the first tenancy was that as S.50(l)(b)(j) was clearly enacted to benefit landlords there was a presumption that it should be interpreted in such a way as to favour landlords. No authority was supplied for this proposition.

26. I do not see how presumptions have any place in interpreting a provision as unambiguous as S.50(6)(j)(i) or the other relevant provisions in Part II. In any event I do not think that the modern approach to interpreting legislation dealing with security of tenure is the one that the Plaintiff's solicitor suggests. The following quotation from Stephenson L. J. in Kennealy v. Dunne (1977) 2 All ER p. 16 at p. 23 is in point:

"She submits, finally, that if there is ambiguity it is wrong to resolve it in a landlord's favour on the basis that, as indicated by Somervell LJ, the Act is interfering with a landlord's common law rights. The Rent Acts are Acts passed primarily to give the tenant security, to protect him from being ejected or having his rent or mortgage interest increased. So, speaking for myself, if there were ambiguity in the language of Case 10 I would not have thought that the landlords were in any way assisted by a consideration of the landlords' common law rights or by any presumption against those rights being cut down by the wording of this part of the Rent Act 1968."

27. Being satisfied that the Defendant is still a statutory protected tenant by virtue of the incidents attaching to the first tenancy under Part II of S. 7, I therefore dismiss the Plaintiff's claim with costs on the Upper Scale.

28. At the request of the solicitors for both parties I have reduced my reasons into writing, because they informed me the proceedings before me were in the nature of a test case. They tell me that between them they know of at least ten similar disputes which are pending. Personally, I regard the principles of law applicable to the present case as settled beyond question by Capital Land Investment Company Limited v. Madam SE Mong-kai, but apparently this is not a view which is universally shared.