Wu Wing Seng v. Choi Tak and Others

DCCJ000550/1973

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

RENT INCREASES APPLICATION NO. 550 OF 1973

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Coram: Liu, D.J.

Date of Judgment: 15 January, 1974

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JUDGMENT

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1. The Applicant is the registered owner of Flat D on the 3rd floor of No. 223 Queen's Road East which was let to Respondent Choi Tak. Respondent Choi has sublet portions of Flat D to the other eight Respondents retaining for himself the front cubicle. The sublet portions are two cubicles and six bed spaces in the corridor. Surprisingly, there is no evidence that any part of Flat D has been shared by the Respondents or any of them. On the 21st December, 1973, on the Applicant's application for an Order for possession of Flat D for self-occupation on a statutory notice to quit served under s.54(2) of the repealed former Part II of the Landlord and Tenant (Consolidation) Ordinance Cap. 7 to which all the Respondents responded by a counter notice, I found that the landlord intended to recover Flat D for dwelling by himself and his family but that save for Respondent Choi Tak and Respondent Wong, a sub-tenant of a bed space, the other Respondents would suffer greater hardship if an Order for possession were to be made against them. In the result, I allowed the applicant to recover the front cubicle of Respondent Choi Tak and the bed space of Respondent Wong and rejected his application in so far as it affected the rest of the premises in suit. Before the order for possession was made, I invited solicitor for the Applicant to take instructions as to what his client's attitude was as regards recovery of only part of the suit premises in the light of the expected difficulties and inconvenience of living in the same flat with the other sub-tenants. The Court was then informed that the Applicant would accept the return of parts of the suit premises, and an order was accordingly made.

2. Part II of the Landlord and Tenant (Consolidation) Ordinance Cap.7 has, since the 15th December, 1973, been amended. The amendments are of no significance for the present purpose. The Applicant now applies by summons for a review of my decision given on the 21st December 1973 under s.53(1) of the District Court Ordinance Cap. 336. Whilst my said decision was not wholly against the Applicant, the summons has failed to specify which part or parts thereof is sought to be reviewed. It would obviously be of assistance to the Respondents and the Court alike to disclose in the summons for a review whether the whole or a part (and if so, which particular part) of the decision is challenged.

3. Solicitor for the Applicant mounts his attack on three fronts the first and the last of which were not canvassed at the hearing on the 21st December 1973. Firstly, he submits that the sub-tenants are mere licencees or alternatively that the sub-tenants have no statutory protection. The first limb of his argument is totally misconceived. Not only is there evidence that all the other Respondents are sub-tenants of Respondent Choi Tak, but they were so named and described in the Applicant's own application dated the 11th October 1973 and the final submission of his solicitor at the hearing on the 21st December 1973. In substance, solicitor for the applicant relies, as I understand it, on the alternative second limb of his argument that the sub-tenants have no statutory protection thus enjoying no better right than that of licencees. This argument is developed thus: s.50 (formerly also s.50) in Part II of the Landlord and Tenant (Consolidation) Ordinance applies that Part to every domestic tenancy and domestic sub-tenancy in a post-war building s.51(1) (formerly s.52(1)) of the same Ordinance defines such "domestic tenancy" and "domestic sub-tenancy" as tenancy or sub-tenancy of premises let as a dwelling; solicitor for the Applicant concedes that a sub-tenant within the meaning of s.51(1) has an independent statutory right (that is now even more clearly reflected in the language used in s.53(6) of the recently amended Part II), but that he would bring himself within s.51(1) or acquire such right only if he holds a sub-tenancy of premises let as a "separate" dwelling. In another words, he contends that the word "dwelling" in s.51(1) must be properly construed as "separate dwelling", and that the effect of such proper construction is that no sub-tenant (or for that matter even a tenant) will become a statutory sub-tenant (or a statutory tenant) within the meaning of Part II of the Landlord and Tenant (Consolidation) Ordinance unless he has obtained a sub-tenancy (or tenancy) of premises let as a "separate" dwelling, that is to say, unless, broadly speaking, he shares no accommodation with the tenant or other sub-tenants in the same unit of which his premises form part. Solicitor for the Applicant cites two cases in support of his contention: Neale v. Del Soto, [1945] 1 K.B. 144 and Sharpe v. Nicholls [1945] 1 K.B. 382. These cases were decided under the Rent and Mortgage Interest Restrictions Acts, 1920 to 1939. Before the Landlord and Tenant (Rent Control) Act, 1949, the Rent Acts applied only to premises let as a "separate" dwelling. See p.72 Megarry on the Rent Acts 10th Ed. Volume 1. S.12(2) of the 1920 Act reads as follows:

"This Act shall apply to a house or a part of a house let as a separate dwelling."

In Neale's case, a tenant who had exclusive use of two out of seven rooms but shared essential living accommodation in a house with the landlord, was held to be outside the Rent Acts thus enjoying no statutory protection. In Sharpe's case, it was held that the Court had no power to create a statutory tenancy, under the protection of the Rent Acts, of two rooms with the joint use of the kitchen. Solicitor for the Applicant submits that although the word "separate" is absent from our s.51(1), the word "dwelling" in the plural sense must signify separate dwellings.

4. The definition of dwelling in the Concise Oxford Dictionary is "place of residence." There is good authority advocating construing the rent restriction legislation, wherever possible, by giving to the language used its ordinary meaning. See Wilkes v. Goodwin [1923] 2 K.B. 86 at 92 per Bankes L.J. Our rent restriction legislation applies universally to all tenants and sub-tenants alike of certain type of premises. It is common knowledge that facilities and accommodation are generally shared in cases of subletting. It is unthinkable to suggest that the rent restriction legislation would exempt tenancies and sub-tenancies with shared common accommodation. "Dwelling" connotes activities of residential life including sleeping cooking, washing, feeding, etc. , and sleeping is the most important and has been held to be alone sufficient to turn a place into a dwelling. Curl v. Angelo and Another [1948] 2 A.E.R. 189 at p.192; Langford Property Co. Ltd. v. Tureman [1949] 1 K.B. 29 C.A. In Curl's case, at p. 191 Lord Greene M.R. seems to draw some distinction between "dwelling" and "separate dwelling". Furthermore, in s.49 in Part II of the Landlord and Tenant (Consolidation) Ordinance, a "principal tenant" is defined as a tenant who has sublet premises as a "separate" holding. It cannot be assumed that the word "separate" in the definition section, s.49, has the meaning as that of the same word in the Rent Acts, 1920 to 1939, but it does illustrate that the word "separate" is not foreign to the draftsmen of our rent restriction legislation and that if the legislature had minded to mean "separate dwelling" in s.51(1), they could have simply had it so enacted. I cannot read into s.51(1) the word "separate", and any construction of "dwelling" as "separate dwelling" in s.51(1) would do violence to the language. I find that each of the sub-tenants has been using his respective portion as a place of residence i.e. a dwelling and enjoys statutory protection. The first ground therefore fails even if there is any or any sufficient evidence that the tenant and sub-tenants share some accommodation or facilities. I can find no such evidence, and that is only as expected by reason that when the case was heard on the 21st December 1973, arguments along this first ground had not apparently been conceived. I come back to the submission that the sub-tenants, being without statutory protection, can have in effect no better right than licencees. In view of my construction of s.51(1) of the Landlord and Tenant (Consolidation) Ordinance on the substantial arguments in the first submission made on behalf of the Applicant, I need only mention, en passant, that although sub-tenants with shared accommodation were held to be capable of having a tenancy interest even in such shared accommodation under the Rent Acts which applied to premises, let as a "separate" dwelling, a contention had been successfully ventilated to the effect that letting of premises not as a separate dwelling would create, in respect of the shared accommodation, an intermediate right between a demise and a licence - a right of joint or common user in effect nothing more than a licence co-extensive with the letting. See Rogers v. Hyde [1951] 2 K.B. 923 at p. 933 per Lord Asquith. See also Cole v. Harris [1945] K.B. 474 at p. 479. It would seem that even under the Rent Acts, for premises let with the right to share some other common accommodation, such premises were let as a subject matter of a tenancy, though not as a separate dwelling and thus unprotected, whilst the shared accommodation could be spoken of and taken as let but in effect creating nothing more or less than a licence to use it, co-extensive in durating with the letting of the premises. On my ruling of the Applicant's substantive first argument, it is quite unnecessary to consider the status of the sub-tenants in respect to their shared accommodation, if any.

5. The next ground on which the Applicant relies is that the Respondents against whom the Applicant's application was dismissed failed to discharge their burden of proving any or greater hardship. I have given this matter further consideration, and I can find no justification for departing from the conclusion and decision which I arrived at on the 12th December 1973. Consequently, this submission finds no favour with this Court.

6. Finally, playing the last string to his bow, solicitor for the Applicant submits that by making an "order for partial possession", that is to say, making orders for possession only against some but not all of the occupants, the Applicant has suffered greater hardship. In so far as the Applicant was given and accepted additional living accommodation at the last hearing, it is inconceivable what, if any, hardship he can possibly suffer. He asked for and was granted such "order for partial possession". He can hardly be heard now to say that he has suffered any hardship on account on it. Solicitor for the Applicant seems to put this last ground thus: after the orders for possession, the Applicant has had second thought about living in the portions of the premises to be recovered with the other sub-tenants; the Applicant has mis-givings as to the future smooth management of the premises with the other sub-tenants as his direct tenants; the Applicant's freedom in re-letting, will be naturally restricted; consequently he may suffer even more hardship with than without the recovered portions which he is not prepared to reside in; he wishes therefore to have both orders for possession set aside if the Court should find against him on the first and second grounds. The Applicant is the author of his own misfortune if indeed all his fears would materialise after the 3 months' stay. Mr. Choi Tak, the principal tenants, informs the Court that he has made arrangement to move into a Resettlement Estate in 3 months, that he does not wish to take up the responsibility of a principal tenant again, and that furthermore reinstatement of his statutory right to the front cubicle may affect his approved application for Respondent Estate housing. In the circumstances. I cannot force an unwelcomed contractual relationship on Mr. Choi Tak, and I must refuse the application to set aside the order for possession against him. Respondent Wong of other order for possession is prepared to have it set aside, by consent, but having failed in his application for setting aside the order against Mr. Choi Tak, the Applicant withdraws his application in respect of this other order for possession. In conclusion, the last ground submitted also fails. The application for a review is accordingly dismissed with costs on Scale IV.

Representation:

Mr. Wong of Johnson, Stokes & Master for Applicant.

Respondents in person.