Wong Bun Chun v. Tam Chuen Yee
Read the full judgment text of DCCJ 3023/1971 on BabelCite. This District Court judgment was delivered on 13 December 1971.
1. In this case the plaintiff claims possession of domestic premises, a flat, upon the ground that the defendant is in occupation as a licensee and that the licence had been determined by the plaintiff. No reference is made in the particulars of claim of any fee, or payment made as consideration for the licence.
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DCCJ003023/1971 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO.3023 OF 1971 -----------------
----------------- Coram: W.S. Collier, D.J. Date of Judgment: 13 December 1971. ----------------- JUDGMENT ----------------- 1. In this case the plaintiff claims possession of domestic premises, a flat, upon the ground that the defendant is in occupation as a licensee and that the licence had been determined by the plaintiff. No reference is made in the particulars of claim of any fee, or payment made as consideration for the licence. 2. The defendant says in the Defence that this is a tenancy for which rent was paid is, accordingly protected by the Rent Increases (Domestic Premises) Control Ordinance Cap.338. 3. When the case came on for trial, I enquired of the plaintiff's solicitor if it were admitted that sums of money were received by the plaintiff each month, as alleged in the Defence, and the plaintiff's solicitor admitted that these payments were made. 4. It appeared that both the solicitors considered that the case turned upon the question "Is the relationship between the parties that of landlord and tenant, or licensor and licensee?" That is the state of affairs under the Rent Acts in England. 5. However, I referred solicitors to the definition in the Rent Increases (Domestic Premises) Control Ordinance which reads:
6. I indicated that it appeared that that definition could include a licensee who was in possession of domestic premises at the commencement of the Ordinance. It was common ground that the defendant was in possession of domestic premises at the commencement of the Ordinance. 7. I then adjourned the hearing so that solicitors and I could see if any authority upon the point was forthcoming. 8. Each of us read through the definition sections of the various Acts in England, which appear conveniently in Part 2 of the tenth edition of "The Rent Acts" and agreed that there was no definition remotely resembling that in the Rent Increases (Domestic Premises) Control Ordinance. 9. I was asked by solicitors to deal with this question as a preliminary point. 10. It will be seen that the definition "tenant" or "sub-tenant" makes no attempt to define those words whatever but adds to the common-law definition of those words. It is a definition that expands the common-law concept of "tenant" or "sub-tenant". What class of person, therefore, is in comtemplation? Clearly a tenant at common-law enjoys the protection of the Ordinance in respect of premises to which the Ordinance applies. The definition must therefore apply to persons who are something other than tenants or sub-tenants. 11. In my judgment what is contained under "(a)" in the definition is wide enough to cover a licensee, paying a fee for the licence, who was in occupation at the commencement of the Ordinance. That is self-evident from the words of the definition by themselves. 12. If, however, in accordance with section 19 of the Interpretation and General Clauses Ordinance, Cap.1, one looks at the "true intent, meaning and sprit" of the Rent Increases (Domestic Premises) Control Ordinance, one is driven to the conclusion that the Ordinance sought to maintain a status quo with regard to domestic premises. The exact legal relationship between owners of premises and those who occupy them in Hong Kong is often difficult to determine in fact, owing to the informality of that relationship, often made even more informal by reason of middlemen or go-betweens. The object of the Ordinance would not be achieved if every arrangement whereby a person occupies premises belonging to another had to be examined to see whether or not the common law relationship of landlord and tenant existed. Mere occupation with the owners consent, at the commencement of the Ordinance, where a fee is paid for that consent is, in my judgment sufficient to make the occupier a "tenant" for the purposes of this Ordinance, and the owner a "landlord". 13. It would appear that a bare licensee will not get the protection of the Ordinance as section 6(3) contemplates that rent shall be paid so as to keep alive the protection afforded by the Ordinance. However, that question is not before me and I mention it only to indicate that this judgment should not be taken to indicate that I consider the definition "tenant" to cover the case of a lease licensee. 14. It follows therefore that I find for the defendant on the preliminary point that, even if he is a fee-paying licensee and not a tenant, as alleged by the plaintiff, he is still protected from eviction by the Rent Increases (Domestic Premises) Control Ordinance.
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