Financial Secretary Incorporated v. Chan Po Kee

Case No.HCMP 2438/1987

Court

High Court CFI

Date26 Jan 1988

Judge—

Case Document

100%Judiciary

HCMP002438/1987

1987, M.P. No.2438

IN THE SUPREME COURT OF

HIGH COURT

____________

BETWEEN

FINANCIAL SECRETARY INCORPORATED

Plaintiff

AND

CHAN PO KEE

Defendant

____________

Coram: Hon. Mr Justice Mayo in Chambers

Date of Hearing: 26 January 1988

Date of Delivery of Judgment: 26 January 1988

__________

JUDGMENT

__________

1. The Plaintiff is seeking a declaration that since 23rd April 1985 Part IV of the Landlord & Tenant Ordinance Cap.7 has no application to the suit premises, a flat at 8 Po Shan Mansion, Po Shan Road, Hong Kong.

2. The Defendant took a 3 year tenancy from a Mr. Lui Lok from 1st December 1982 to 30th November 1985 of the suit premises.

3. Mr. Luk Lok is a fugitive from justice. On 3rd May 1984 Mr. Justic Hunter (as he then was) made an order that Mr. Lui Lok should transfer the suit premises to the Crown.

4. Pursuant to the Order, the suit premises were assigned to the Crown on 23rd April 1985.

5. Shortly thereafter the Plaintiff sought to obtain vacant possession of the suit premises at the expiration of the said term. The defendant declined to comply with the Plaintiff's demand. She contended that she was protected by the provisions contained in Part IV aforesaid and that the Plaintiffs had failed to comply with the requirements thereunder to terminate the Tenancy.

6. At the hearing before me, she was represented by Mr. Warren Chan. He referred me first to S.116(1) of Part IV. He emphasized the legislation applied to Tenancies which were "created" on or before the operative date the 19th of December 1981.

7. It was clear from the short facts which I have recited that the Tenancy was created by the Tenancy Agreement between Mr. Lui Lok and the Defendant.

8. The Crown had only acquired its interest in the reversion to the land by virtue of the assignment dated 23rd April 1985. This could not affect the Defendant's interest under the Tenancy.

9. In support of this proposition Mr. Chan referred to the judgment of Mr. Justice Power (as he then was) in Washington Internation Ltd. v. Wong Mee-ching and Another^(l) I regret that this case seems to me to be very different to the situation in the present case. That case dealt with the circumstances which arose when a mortgagee attempted to sell property subject to a protected Tenancy when the mortgagor was in default of the terms of the mortgage. Not surprisingly, Mr. Justice Power held that the Tenant's rights to protection under Part II of the Ordinance were not prejudiced by the mortgagor/landlord's default. That seems to me to he an entirely different situation.

10. I am not persuaded that in the circumstances of the present case that the Crown can only acquire an interest in the land subject to the Defendant's rights.

11. The next submission made by Mr. Chan was that it was clear from the definition of a "Tenancy" in S.115 that the Defendant's Tenancy was still protected under the Ordinance.

S.115 reads:

"	"tenancy" means a tenancy entered into orally or in writing and includes -
	(a)	an agreement for a tenancy;
	(b)	a sub-tenancy; and
	(c)	a tenancy continued or granted under this Part."
	This must be read in conjunction with S.117:
"	117. (1) A tenancy shall not come to an end unless terminated in accordance with this Part; and a tenant may apply to the Lands Tribunal for a new tenancy -
	(a)	if the landlord has given notice under section 119 to terminate the tenancy; or;
	(b)	if the tenant has made a request for a new tenancy under section 119A.
	(2) Subsection (1) shall not prevent the coming to an end of a tenancy by notice to quit given by the tenant, by surrender or forfeiture or by the forfeiture of a principal tenancy unless -
	(a)	in case of a notice to quit, the notice was given before the tenant had been in occuption in right of the tenancy for 1 month; or
	(b)	in the case of an instrument of surrender, it was executed before, or was executed in pursuance of an agreement made before, the tenant had been in occupation in right of the tenancy for 1 month."

12. It will be noted from this that by virtue of the definition in S.115 the Tenancy continues until it is determined in accordance with S.117. Clearly on the facts the Tenancy was not determined in accordance with S.117.

13. At first glance this would appear to be an attractive argument. I do not thing that it can withstand serious scrutiny.

14. As was pointed out by Mr. Hinchen for the Crown, there are provisions in the legislation excluding the Crown from the operation of the Ordinance. S.50 which relates to Part II excludes in S.50(6):

(e)

a Tenancy held from the Crown, the Hong Kong Housing Authority, the Hong Kong Housing Society, the Hong Kong Model Housing Society or the Hong Kong Settlers Housing Corporation Limited, or a sub-tenancy created out of such a tenancy."

15. S.116(2) excludes from Part IV all tenancies excluded by S.50(6).

16. Mr. Warren Chan submitted that where difficulties are encountered in the interpretation of statutory provisions the correct approach to adopt was to endeavour to ascertain the true intention of the legislature. This could he seen from a passage in the judgment of Mr. Justice Huggins at page 233 of Leung Yiu Ming v. Jade Palace Restaurant⁽²⁾ where he cited with approval the words of Lord Denning in Seaford Court Estate v. Asher⁽³⁾:

"

It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and on the mischief which it was passed to remedy, and then he must supplement the written word so as to give'force and life' to the intention of the legislature. That was clearly laid down by the resolution of the judges in Heydon's case (1584)3 Co Rep 7a, and it is the safest guide to-day. Good practical advice on the subject was given about the same time by Plowden in his second volume Eyston v. Studd (1574) 2 Plowden, 465. Put into homely metaphor it is this: A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he could and should iron out the creases."

17. In my view if this is the test to be adopted, there can only be one answer to the problem facing me. I have no doubt whatever that it was the intention of the legislature to exclude the Crown from the operation of Part IV of the Ordinance. It would obviously be inconsistent to have some Tenancies where the Crown was in effect the landlord controlled by the Ordinance and to have others where there was no such control.

18. It is also significant to note that the words used to exclude the Crown are "tenancies held by the Crown". There is no question of considering Tenancies created by any instruments or oral agreement.

19. I am satisfied that the Tenancy in question is excluded from the operation of Part IV and that such exclusion took effect from the 23rd April 1985 the date when the suit premises were assigned to the Crown. The Plaintiffs are entitled to the relief they have sought. I will hear the parties on the form of the order to be made and on costs.

(Simon Mayo)
Judge of the High Court

Representation:

Mr. David Hinchen, Senior Crown Counsel for plaintiff/ applicant

Mr. Warren Chan instructed by J.S.M. for defendant

(1) [1983] HKLR 381

(2) [1985] HKLR 231

(3) [1949] 2 KB 481 at p499