Wong Tse Shuk Ying v. Mrs. Chan Sang
Read the full judgment text of DCCJ 7324/1977 on BabelCite. This District Court judgment.
1. In this matter the plaintiff seeks, under s. 53 (2)(d) of the Landlord and Tenant (Consolidation) Ordinance, to regain possession of her premises which she leases to the Defendant.
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DCCJ007324/1977 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION ACTION NO.7324 of 1977 -----------------
----------------- Coram: N.P. Power Date of Judgment: 5th May, 1978. ----------------- JUDGMENT ----------------- 1. In this matter the plaintiff seeks, under s. 53 (2)(d) of the Landlord and Tenant (Consolidation) Ordinance, to regain possession of her premises which she leases to the Defendant. 2. Section 53 (2)(d) reads as follows:-
3. The wording of this section is different from that of similar sections in both United Kingdom and Australia. The provision in United Kingdom contained in Schedule 3 of Rent Act of 1968 reads:
4. There are number of similar provisions in various Australian States. That applicable in South Australia, which was dealt with in Curtis v. Stutley (1950) S.A.S.R. 130, is in s. 26n(5)(d) of the Landlord and Tenant (Control of Rents) Act 1942 - 1949 and provides that one of the grounds upon which the lessor of any premises to which that Act applies may give notice to quit is that "the lessee has been guilty of conduct which is a nuisance or annoyance to adjoining or neighbouring occupiers". 5. It is clear from the wording both in the United Kingdom and South Australia that the legislation was dealing only with "nuisance or annoyance" and that this must be caused to adjoining or neighbouring occupiers. The plaintiff argues in the present case that this is not so in Hong Kong and that the words "unnecessary annoyance, inconvenience or disturbance" are wider than the words "nuisance or annoyance" and that if they are caused to a landlord, whether or not he is an occupant, then such nuisance constitutes a ground for possession. It might further be suggested in the plaintiff's favour that the word "guilty" which is used in both the United Kingdom and the South Australia legislation conveys a much greater indication of gravity than the word "caused" which is used in the Hong Kong legislation. (See Megarry "The Rent Acts" 10th Ed. p. 270) The plaintiff contends that if the Court is satisfied that there was any unnecessary annoyance or inconvenience caused to a landlord, it should under the Hong Kong section make an order for possession and that the persistent late payments of rent by the defendant constitute unnecessary annoyance or inconvenience. 6. This contention is not in my view supported by the words of the statute. The words "to the Landlord, Principal Tenant" must be read with the words "or other occupants". The indication is clear in my view that the annoyance inconvenience or disturbance must be to the Landlord or Principal Tenant as an occupant. The plaintiff cannot, therefore, succeed in this action. 7. It was also argued that the interpretation urged by the plaintiff should not be allowed because it would rob s. 69 of the District Court Ordinance which gives relief to a defendant where an order for possession has been made on the ground of non-payment of rent if he pays the arrears within a stipulated time. It is unnecessary for me to deal with the merits of this argument as I have already determined the matter upon the words of the section itself however I consider it not inappropriate to remark in this context that it may well be time for the legislature to consider implementing legislation which will allow a landlord to obtain an order for possession against a tenant who deliberately and persistently fails to pay his rent when due. Cases come before the District Court fairly frequently where landlords have been bedevilled by tenants who have a long history of persistent failure to pay their rent when due. In some cases payments of many months of arrears are only made during the period of relief granted under s. 69. Surely it would be just in such circumstances, so long as there was provision requiring the landlord to give a warning to the tenant of the possible consequences of his continued failure to pay the rent when due, to allow the Court discretion to refuse to grant relief under s. 69. One way of effecting this might be to insert in the Landlord and Tenant (Consolidation) Ordinance a section similar to s. 53 (2)(d) making "deliberate and persistent failure to pay rent" a ground for an order for possession. 8. Dated the 5th day of May, 1978.
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