Poon Shu and Another v. So Tsui-sim and Others

DCCJ015109/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO.15109 OF 1981

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BETWEEN

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Coram: His Honour Judge Downey

Date: 24 February 1982

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REASONS FOR DECISION

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1. There is before me today an application by the plaintiffs for judgment to be entered against the second and third defendants on the grounds that they have failed to disclose any reasonable ground of defence. At first sight, it seemed that the application must succeed, since the second and third defendants are sub-tenants of premises which were let to the first defendant, against whom judgment, in default of defence, was entered on the 16th February 1982. At the hearing, however, Mr. Sit, who appeared for the plaintiffs, quite properly revealed that there was a difficulty relating to jurisdiction. On looking further into the history of these proceedings, other difficulties emerged. For reasons which I now set out, I ordered that the judgment entered on the 11th February 1982 be set aside, and the action be transferred to the High Court.

2. By a writ, issued on the 23rd December 1981, the plaintiffs sought to recover possession of premises "known as Flat No. 5 on the 4th floor of Block C, Amoy Gardens, Ngau Tau Kok, Kowloon in the Colony of Hong Kong" on the ground of forfeiture for non-payment of rent. Paragraph 3 of the Particulars of Claim alleged that the occupation permit was given "after the 19th June 1981 whereby Part IV of the said Ordinance applies". There is no mention of "the said Ordinance" anywhere in the pleading, but the reference is to the Landlord and Tenant (Consolidation) Ordinance (Cap.7), as amended by the Landlord and Tenant (Consolidation) (Amendment) (No.2) Ordinance 1981 (Ord. No.76/81). The premises were allegedly let for residential purposes.

3. When the writ was served on the first defendant, on the 23rd December 1981, the existence of the sub-tenants was discovered. On the 6th January 1982, the writ and Particulars of Claim were amended to join the sub-tenants as defendants and to allege a further or alternative ground for possession, viz. forfeiture for sub-letting in breach of clause 22 of an alleged Chinese Tenancy Agreement.

4. On the 11th February 1982, the plaintiffs applied for judgment to be entered against the first defendant under Rule 22 of the District Court Civil Procedure (General) Rules. The affidavit in support exhibited an occupation permit dated the 22nd June 1981, which referred to a new building "at Ngau Tau Kok Road on (Lot No.) N.K.I.L. 53 s.D s.s.1, s.D s.s.2, s.E and s.F (Stage I)." It also exhibited the alleged "Chinese Tenancy Agreement with its English translation". This exhibit consists of four sheets; 2 printed in Chinese and 2 printed in English. The first page is headed "Tenancy Agreement" and sets out basic details of the tenancy, e.g. date of commencement and expiry, rent, tenant and address. These are printed in English and Chinese. The second page is printed in Chinese and signed by the parties. It consists of 21 printed clauses and clause 22, which I am told was written in by the second plaintiff, although the photocopy exhibited to the affidavit does not make this immediately apparent. The third and fourth pages are printed in English. They are not signed nor have any of the blank spaces been completed. The fourth page, however, bears the stamps denoting that Stamp Duty has been paid. The English version does not contain a clause 22 or any prohibition against sub-letting. Clause 19 states:

"This Agreement is given in the English and Chinese Languages. The Chinese Language is an abridged translation of the English Text but in the event of any differences between the English text and the Chinese translation the English text shall prevail."

I can only assume that clause 19 in the Chinese version is in similar terms. In the affidavit in support, the deponent deposes to the non-payment of rent and sub-letting and declares that the rent claimed is not in excess of the amount recoverable by law.

5. In my view, this affidavit does not sufficiently comply with the reouirements of Rule 22(2). The declaration that "the land is exempt from any law controlling its recovery, and the ground for such exemption", required by the rule, is, at best, indirect, and insufficient since the ground of such exemption is not clearly stated. The exhibited occupation permit does not clearly relate to the suit premises. Furthermore, it is far from clear what are the agreed terms of the tenancy agreement, and whether there is a covenant or condition against sub-letting. In applications of this kind, I consider that the claim should be verified in a manner which leaves the Deputy Registrar in no doubt as to the validity of the claim and the ground on which possession is sought, as it may affect the form in which judgment is entered. Where possession is sought on the basis of forfeiture for non-payment of rent, judgment should be entered in a form which indicates to the defendant that he is entitled to relief under section 69(1)(b) of the District Court Ordinance (Cap. 366). It is, in my view, unreasonable to expect busy Deputy Registrars, skilled and experienced though they are in this area of practice, to pick up matters which cast doubt on the validity of a claim and which may affect the court's jurisdiction to make the order sought.

In this case, there is the additional feature that the Particulars of Claim do not contain any averment as to the annual rent, rateable value, or the annual value of the premises (cf. section 35 of Cap. 336). If these premises are governed by Part IV of Cap.7, as recently amended, the District Court does not enjoy the unlimited jurisdiction conferred on it under Part II by section 68(6). (Section 119S(3) does not relate to proceedings for the recovery of land). As the tenancy does not continue by virtue of section 117(1) of Cap.7, because the plaintiff is claiming that there has been a forfeiture (see section 117(2), and as item 2 of the First Schedule to the Administration of Justice (Miscellaneous Amendments) Ordinance 1981 (Ord. No.79/81) and section 12(2) thereof have not yet been brought into force, I consider that my only course is to transfer this action to the High Court. At the present time, I do not consider that section 39(2) of the District Court Ordinance confers on me any discretion, in view of the clear words of sub-section (3) of that section.

Representation:

Mr. Sit (Messrs. Sit Fung Kong & Co.) for plaintiff.

2nd defendant in person, absent.

3rd defendant in person, present.