Tang Wing Cheung and Another v. Yeung Shiu Tong

LDLA000006/1984

HEADNOTE

Whether the statutory warning under the proviso to S. 53(2)(d) of the Landlord and Tenant (Consolidation) Ordinance, which was essential to support an application for an order of possession of statutory protected premises under Part II on the ground of unnecessary annoyance to the landlord, could be validly delivered to the tenant before the tenancy was determined so as to bring Part II into play hence the jurisdiction of the Lands Tribunal.

Lord Reid's test on the limit to the power to alter, substitute or ignore statutory words formulated in Federal Steam Navigation Ltd. v. Department of Trade & Industry (1974) 2, All E.R. 97 at 100 applied.

IN THE LANDS TRIBUNAL OF HONG KONG

HOLDEN AT VICTORIA

V.L.T. NO. 6 OF 1984

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Coram: H.H. Judge Eric Li, Presiding Officer

Date: 17 March 1984

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RULING

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1. This is an ex parte application for summary judgment in default under rule 13A of the Land Tribunal Rules, Cap. 17 on the ground of unnecessary annoyance, inconvenience or disturbance to the landlord under S. 53(2)(d) of the Landlord & Tenant (Consolidation) Ordinance before the Deputy Registrar seeking an order for possession of the suit premises and, inter alia, arrears of rent and mesne profit. As an intriguing point of law arises in the interpretation of S. 53(2)(d) of the Landlord & Tenant (Consolidation) Ordinance and the proviso thereto, the Deputy Registrar refers the matter to me for a decision.

2. The papers were passed to me late yesterday afternoon. In order to avoid unnecessary delay and in line with the usual practice, I have noted down my decision together with the brief reasons on the application at about 6 p.m. It has occurred to me this morning that I should supplement those reasons by this formal Ruling because the matter may generate some general interest.

3. In essence, the issue is whether Notice To Quit which was presumably essential under S. 52(1) and S. 53(1) for bringing the matter within the ambit of Cap. 7 hence the jurisdiction of the Lands Tribunal ought to have been served before letters of warning under the said proviso were served on the tenant. I say presumably because there are two schools of thought as to whether such notice was required for determining the tenancy before the Tribunal (Court) can make an order for possession under S. 53(2) on one or more of the statutory grounds.

4. The Applicants did not dispute that on the specific facts of this case one month's notice was required to terminate the tenancy, being a monthly tenancy, "by the landlord" (see S. 52(1)). It is therefore unnecessary and indeed undesirable for me to decide whether such notice was required in order to bring S. 53(2) into play. Nor was it in dispute that this is a statutory protected tenancy under Part II of Cap. 7. If I understand it correctly, the Deputy Registrar's view is that a tenancy cannot be said to have been terminated until the expiration of a month's valid notice to quit and therefore either S. 53(2)(d) cannot be invoked or the Tribunal has no jurisdiction to entertain this application until then.

5. S. 53(2) provides for the grounds on which a Tribunal should make an order for possession. One month's notice was in fact served after the statutory warnings had been served. In my opinion, it is not a condition precedent that the tenancy must be terminated by notice before the letters of warnings should be delivered. True, for the purpose of this application, the Tribunal has jurisdiction only after the contractual period has ended (See NGAI Sau-ying, 1982 H.K.L.R. 256, D - albeit the decisive ratio decidendi there was not so much whether notice for a held-over tenancy continuing under S. 52(1) & S. 53(2) was required as that the “pre-19th December 1981" law or the new law should apply and the Court of Appeal held that the old law applied and the new law has no retrospective effect. ) One must not confuse determination of tenancy as a prerequisite for jurisdiction with the statutory warnings required by the proviso. For the purpose of this application, the tenancy was duly terminated by the Notice To Quit (whether or not such notice was required in law), irrespective of when the warnings were given. Once the Tribunal is satisfied, as I am, that the tenancy was duly terminated, there is no question of jurisdiction. Of course the statutory warnings under S. 53(2)(d) are essential for an order of possession but they are essential only for establishing whether a statutory ground for possession has been made out and surely not for deciding whether the Notice To Quit was valid. For an order for possession on this ground, the Tribunal has to be satisfied of :-

However, (C) was not a prerequisite to (A). (A) the tenancy was duly terminated. (B) and (C) are the criteria for whether possession should be granted on the statutory ground. Simply put, as (C) (or specifically that (C) must come before (A)) was not relevant to the question of termination by the landlord.

6. I must not read into the proviso that the statutory warning must be given only after the tenancy was terminated by notice to quit. Had that been intended, the Legislature would have expressly said so. The power to add to, alter or ignore statutory words is an extremely limited one. The underlying principles may be conveniently summed up in Federal Steam Navigation Co. Ltd. v. Department of Trade and Industry, [1974] All E.R. 97 at 100 per Lord Raid:

"         Cases where it has properly been held that a word can be struck out of a deed or statute and another substituted can as far as I am aware be grouped under three heads: where without such substitution the provision is unintelligible or absurd or totally unreasonable; where it is unworkable; and where it is totally irreconcilable with the plain intention shown by the rest of the deed or statute. "

The situation in this instant case was far from satisfying Lord Reid's test. Indeed, deferring the statutory warnings to after expiration of notice to quit would be unreasonable and undue prolongation of the annoyance etc. which could not have been within the reasonable contemplation of the Legislature.

7. I should reiterate that it may well be arguable that the tenancy was terminated when the Respondent failed to take heed of the statutory warnings served and therefore the Notice To Quit was quite unnecessary. However in the light of NGAI Sau-Ying particularly at page 261, H-I and in view of this question not being one called for decision after full legal argument, it would be unwise to rule on it. I merely mention this in order to avoid any possible misinterpretation of this Ruling.

8. On the affirmations and other documentary evidence, I am satisfied that the Applicants have proved his case including the due termination of the tenancy and the statutory ground for possession. Accordingly, I make an order for possession of the suit premises with arrears of rent and mesne profit and other items as claimed to the Applicant. There will be no order as to costs in this ex parte application in conformity with the usual practice in the Lands Tribunal.