Lee Man Tin and Another v. Leung Kam Chee

DCCJ005082/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 5082 OF 1981

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Coram: His Honour Judge Downey

Date: 26 April 1982

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JUDGMENT

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1. On the 23rd March 1982, I gave brief oral reasons for dismissing the plaintiffs' claim for possession of Flat No. 28, on the 16th floor of Man King Building, 28 Man Wui Street, Kowloon ("the premises"), and undertook to give my reasons in writing at a later date.

2. The plaintiffs, who are husband and wife, and the registered owners of the premises, originally sought to recover possession of the premises on the ground that they reasonably required them "as a residence for their family members." At the hearing on the 3rd March 1982, this incorrect form of pleading was rectified by an unopposed amendment alleging that the plaintiffs reasonably required  the premises as a residence for their "son and daughter, who are over 18 years old." In the course of the first plaintiff's evidence, it emerged that the son and daughter in question are the natural children of the first plaintiff, but step-children of the second plaintiff. They were born to the first plaintiff's former wife, who died in China some 40 years ago.

3. In view of the recent decision of the Court of Appeal in Allied International Insurance Ltd v. Hsia Jone Shu and another, Civ. App. No. 81 of 1981 (8th January 1982), I intervened during the cross-examination of the first plaintiff's evidence, to pose the question whether the plaintiffs could possibly succeed in these proceedings, since the second plaintiff appeared unable to show that she required the premises for one of the persons mentioned in section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance (Cap.7). The hearing was then adjourned to enable Mr. Chan, then appearing on behalf of the plaintiffs, to take counsel's advice.

4. At the resumed hearing, both pasties were represented by counsel. Miss Eu submitted that I should stop the case there and then, because the plaintiffs were, as a matter of law,   bound to fail, and to allow the trial to continue would be an abuse of the process of the court. Mr. Ho invited me to continue to hear all the evidence, before ruling on the point of law which had arisen. Although I was initially much attracted by Miss Eu's submission, it seemed to me, on balance, to be preferable to hear all the evidence, rather than to decide the case, at that stage, on the point that had arisen. Apart from giving Mr. Ho an opportunity to lay a factual foundation for subsequent argument to support a possible construction of the statute in a way favourable to the plaintiffs, I could make all neccessary findings of fact which, in the event of an appeal, would enable the Court of Appeal to finally dispose of the matter without the need for a further hearing or a re-trial.

Findings of Fact

5. Having heard evidence from the plaintiffs, Mr. Lee Lap Chun, the son of the first plaintiff, and the defendant, I make the following findings of fact in this case.

6. The plaintiffs live in a flat at 49B Broadway, 10th floor, Mei Foo Sun Chuen. This flat is owned by them jointly. It consists of two rooms and a sitting room, and is approximately 510 square feet in area. It is now held by them free of any encumbrance. The premises consist of three bedrooms, a living room, kitchen and toilet, and are approximately 720 square feet in area. The premises were originally purchased by the first plaintiff in 1967, but, in 1974, he assigned one-half share therein to the second plaintiff for a stated consideration of $65,000.

7. The first plaintiff is a retired teacher, now aged 65. He has lived in Hong Kong for over 30 years. He was formerly married to a lady in China who died about 40 years ago. She was the natural mother of the first plaintiff's son, Lee Chap Chun, and his daughter, Lee Choi Ching. The second plaintiff is now aged 56 and is still working as a teacher. She was married to the first plaintiff in Hong Kong, although I do not know when.  She has no children of her own. She told me that she has always treated Lee Chap Chun and Lee Choi Ching as her own childre , and they treat her as their blood-mother. I have no reason to doubt these sentiments, although the relationship must have begun after the children became adults and had started their own separate families.

8. Lee Lap Chun is aged 41. He came to Hong Kong in 1979, together with his wife and two children, a son and daughter, now aged 10 and 9 years. He works at a school and lives there, free of charge, with his wife and children, in accommodation provided by his employer. He is not happy with his present accommodation, because it is a school. I have no idea of the size of this accommodation. I assume that it is only available to him so long as he continues to work at the school. He is not presently considering giving up that job.

9. Lee Choi Ching also works at a school, where she lives with her daughter. She was married in China, but her husband disappeared after they came to Hong Kong. She did not give evidence, so I have no idea of her present intentions regarding her work or accommodation.

10. Upon these findings, T do not consider that the plaintiffs have established the ground for possession on which they rely. Subject to the question of reasonableness, the first plaintiff can bring himself within section 53(2)(b) of Cap. 7; but the second plaintiff cannot do so, unless the words "son" and "daughter" can be construed so as to include "stepson" and "step daughter". In the case of joint landlords, Allied International Insurance Ltd v. Hsia Jone Shu and another, supra, is clear, and binding, authority for the proposition that both must bring themselves within the section, before a court can make an order for possession.

11. The point of law which arises in this case is not a novel one.  It arose in Sun Pin and another v. Greenwood [1964] DCLR 246, where Judge McMallin, on facts almost identical to those before me, declined to construe section 6(2)(a) of the Rent Increases (Domestic  Premises) Control Ordinance 1963, which, in all material respects, is the same as section 53(2)(b) of Cap.7, in a way which would cover a step-child of one of two joint landlords. This decision was cited in the judgment of the Court of Appeal in Allied International Insurance Ltd v. Hsia Jone Shu, without any adverse comment. That does not mean that it wa approved on the point now before me (i.e. whether "son" or "daughter" includes step-children of the landlord(2)), but, unless I am convinced that it is wrong in law, I conceive that I should follow it.

12. In Sun Pin and another v. Greenwood, supra, Judge McMullin, whilst recognizing the sociological differences between England and Hong Kong in terms of the concept of lawful marital relationships, indicated that he would be :

".... slow.... to depart wholly from a clear and unequivocal interpretation given by the courts in England to a form of words which the Legislature in Hong Kong has seen fit to copy exactly occurring as it does in an Ordinance dealing with subject matter of a similar sort to that dealt with by the English legislation. It may be that the point will have to be attended to and a change introduced in the wording of paragraph (a) of sub-section 2 of section 6, but I think that it will require specific intervention by the Legislature to effect such a change and that it would be wrong for the court to assume the responsibility for serving a purely social need if such need exists, by the expedient of adopting an interpretation which would run counter to the ordinary grammatical construction of the wording of paragraph (a) of sub-section 2 of section 6 and in the light of the relevant canons of construction provided by the Interpretation Ordinance."

In the first place, I would remark that the Legislature in Hong Kong has not yet responded to the invitation implicit in that judgment. Indeed, it had not even copied the provisions of more recent amendments to the English legislation enlarging the scope of the family relation-ship between landlord(s) and the person who will occupy the premises.

13. It has adhered to a specific form of words - son or daughter; father or mother - instead of the mere generic terms of "child" or "parent". Even if the Legislature had used these words, which are, perhaps, capable of carrying more than one meaning, I consider that they should be construed as being confined to natural or blood relationships, unless other words in the statute, or the context of the statute, suggest that the Legislature intended them to carry a wider or extended meaning. Miss Eu referred me to a number of statutes, dealing with "family" matters or benefits conferred upon, or relating to, "family members", where the Legislature has deliberately selected a form of words to manifest its intention that the expression "child" should receive an extended or wider meaning. See Fatal Accidents Ordinance (Cap.22), S. 2(2)(b); Intestates' Estates Ordinance (Cap. 73), S. 2(2)(b); Estate Duty Ordinance (Cap. 111), S. 7(4) (d); Inland Revenue Ordinance (Cap. 112), S. 43A(e). These provisions clearly indicate that the Legislature intended the word "child" to extend to a step-child. In the Matrimonial Proceedings and Property Ordinance (Cap. 192), the Legislature has expressed the same intention by resort to another device, viz, paragraph (b) of the meaning of "child of the family" in section 2(1) thereof. On the other hand, the Deceased's Family Maintenance Ordinance (Cap. 129), although it extends the meaning of "son" and "daughter" to adopted children, does not extend it to a step-child of the deceased.

14. These other statutory provisions are, of course, not conclusive of the proper construction to be placed on the words "son" and "daughter" in Cap. 7. But, they are, in my new, significant in the sense that they demonstrate quite clearly that, during a period in which this particular provision of Cap. 7 has undergone frequent re-enactment or amendment, the Legislature was clearly aware of the need to make special provision or step-children of relevant pasties, whether they acquire that status as a result of valid polygamous proved that they reasonably require the premises fox the first plaintiff's son and daughter, in the sense that there is no genuine present need for the premises. The son has no plans to leave his present job, so there is no need for him to begin looking for other accommodation in the foreseeable future. I have no evidence as to the nature of the accommodation provided for the son or the daughter, so that living in the premises is no more than a mere desire or preference. I realise that their freedom to change their employment is, in practice, restricted by the fact that their present jobs include free accommodation, and their financial position is such as to make it difficult for them to get other accommodation, but in the absence of any evidence that either of them wishes or is seriously considering employment elsewhere, I do not think that the plaintiffs have proved, on the balance of probabilities, that there is a genuine present need.

15. In case I am wrong on either of these grounds - and I prefer to base my decision on the second plaintiff's failure to prove the necessary relationship - I do not think that the defendant has proved that it would manifestly not be just and equitable to make an order. I find as a fact that he lives in the premises with his wife, his two children who are aged 2 1/2 years and 6 months, his father who is not in good health, and an unmarried brother. A married brother also lives in the premises with his wife and daughter, aged 2 1/4 years. The defendant and his two brothers work as transportation workers, in a business which seems to belong to a cousin, although the evidence as to their interest or roles in the business is somewhat vague, as are their earnings therefrom. Altogether, the three of them appear to be earning just under $7,000 per month from their work.

16. The first plaintiff was also somewhat vague and unrevealing  marriages, or remarriages after dissolution by death or divorce. And yet, it has not expressed any clear intention, or need, to extend such special treatment to the relationships involved in section 53(2) (b) of Cap. 7. It has merely removed. the bar upon landlords who became so after the 15th December 1973 and replaced the "greater hardship" test by imposing upon tenants a much heavier burden of proving that an order for possession would be manifestly unjust and inequitable. The Legislature has not gone further to deal with the problems facing joint landlords or the nature or extent of the relationship between them and the persons they intend to place in their premises.

17. For the reasons given by the Court of Appeal in Allied International Insurance Ltd v. Hsia Jone Shu and another, supra, I do not consider that the decision of the House of Lords in Tilling v. Whiteman [1980] A.C.1 obliges me to come to a decision in favour of the plaintiffs in this case. The House of Lords was able to come to its decision because the relevant statutory provisions did not turn upon the construction of words which were, or had. acquired the status of, legal terms, but upon a factual state of affairs falling within the clear policy or intention of Parliament. There is no indication in the more recent, and, in some respects, quite radical amendments of Cap. 7, i.e. Ordinance No. 76 of 1981, that the supposedly more "purposive" approach to the construction of local Ordinances should be followed by courts in Hong Kong.

18. Accordingly, I consider with respect that Sun Pin v. Greenwood, supra, was correctly decided, has not been altered or modified by any higher authority or legislative amendments, and that I should follow it.

19. Although this is sufficient to dismiss the present claim, on the facts which I have found I do not think that the plaintiffs have as to his financial position. If, as he claims, he and his wife spend virtually all they receive each month - $1, 500 by way of rent for the Premises; $5,400 from the wife's work as a teacher - they are enjoying a comfortable standard of living. They have no mortgage repayments to make in respect of their two flats. But this evidence merely satisfies me that the defendant would probably suffer more hardship by having to move to other accommodation. In my view, that falls short of what is required to prove that it would be thoroughly unjust to make an order in this case.

Representation:

Mr. Daniel Chan of Messrs. Lau, Wong & Chan for plaintiff.

Mr. Derek Cheung of Messrs. Cheung & Chan for defendant.