Alice Martha Wu Chan v. Peter Hui
Read the full judgment text of DCCJ 3253/1974 on BabelCite. This District Court judgment.
1. This is an action by the plaintiff for an order for possession of the premises known as No. 11 Ashley Road, 1st floor, front portion, Kowloon (hereinafter referred to as the suit premises).
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DCCJ003253/1974 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION ACTION NO. 3253 OF 1974 -----------------
----------------- Coram: N.B. Hooper, D.J. in Court. Date of Judgment: 12 July, 1974. ----------------- JUDGMENT ----------------- 1. This is an action by the plaintiff for an order for possession of the premises known as No. 11 Ashley Road, 1st floor, front portion, Kowloon (hereinafter referred to as the suit premises). 2. She claims that at all material times the defendant was her monthly tenant in respect of the suit premises at the rent of $630 per calendar month payable in advance from the first day of each and every month. She alleges in paragraph 2 of her Statement of Claim that the tenancy agreement which was oral did not specify whether the suit premises were let as domestic premises or not, but that from approximately July 1973 and at all material times thereafter the suit premises had been primarily used for non-domestic purposes. She claims that the tenancy of the defendant was terminated by the service upon the defendant on the 25th September 1973 of a notice of termination expiring on the 31st March 1974 given pursuant to section 122 of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 and that copies of the said notice with Chinese translation were posted at the main entrance of the premises on the 25th, 26th and 27th days of September 1973 pursuant to section 122(3) of the Ordinance. 3. It is in fact common ground that the plaintiff is the registered owner of the suit premises and that these premises form part of an entirely new building in respect of which the written permit of the building authority to occupy the same was granted after the 16th August 1945. It is also common ground that the defendant was served on the 25th of September 1973 with a notice to quit but the defendant claims the protection of part II of the Landlord and Tenant (Consolidation) Ordinance on the grounds that the premises have at all material times been used by the defendant for domestic purposes, and that the plaintiff therefore was not entitled to serve the said notice to quit. 4. At the outset of the hearing Mr. McElney who appeared for the plaintiff and Mr. Wong who appeared for the defendant both agreed that the only issue for the determination of the Court was whether the primary user of the premises at all material times was domestic or non-domestic. 5. The plaintiff gave evidence herself and also called her rent collector to testify on her behalf. The plaintiff testified that at the time of the oral tenancy agreement the premises were to be used for domestic purposes. However, some time last year about the middle of last year she happened to notice when passing by that there was a big signboard bearing the names of 2 Philippino dentists. These were in English and Chinese. She testified that she saw this signboard about July last year and that it was there for a few months until March this year and that it was down in March this year. As a result of seeing the signboard she applied for a certificate of primary user from the Commissioner, and she produced the certificate in Court (Exh. P1). 6. This certificate showed that in the opinion of the Commissioner the primary user of the suit premises on the 3rd September 1973 was non-domestic. 7. The plaintiff testified that after receiving this certificate she telephoned the defendant complaining about the extra names on the signboard, but that the defendant simply ignored her complaints. She therefore instructed her solicitors to serve the notice to quit. It was put to her in cross-examination that the signboard was-taken down in August 1973, but she denied this and maintained that it remained there until March 1974. 8. There can be no real doubt, and indeed it is not disputed, that the defendant used the suit premises primarily for domestic purposes until the time when the signboard went up bearing the names of the two Philippino dentists. It is from this time onwards that the differences between the parties arise. 9. Mr. Law Siu-man, the plaintiff's rent collector, testified that at the beginning of 1973 there was a small signboard at the entrance of the suit premises about 2 foot by 1 foot bearing the name "Dr. Hui Dentist" both in English and Chinese. There was one small signboard at the door of the premises and another one on the ground floor at the staircase. He testified that in or about June or July 1973 he noticed that the signboards were changed to larger ones, including the names of the two Philippino dentists and their qualifications and professional status. There was also the Chinese name "Tai Sze Tak Dentist Dr. in Dentistry" This signboard was at the entrance of the premises on the ground floor. He testified that the signboard on the front door was also changed and the names of the two Philippino dectors were added in the same way. He testified that he first saw the signboards round-about July 1973 and that he first noticed they had disappeared round-about March 1974. 10. There can be no doubt, and indeed it is not disputed, that the defendant did in fact use a portion of the suit premises for the purposes of his practice as a dentist. His signboard was on the door of the premises from the very beginning of the tenancy. Mr. Law Sui-man had in fact been treated by the defendant in a consultation room in the suit premises sometime in 1971 about April or May. He was shown the photo graphs Exh. D(3)(a), and admitted that this was the room that he visited on this occasion. Mr. Law further testified that he visited the suit premises at least once a month, and from July 1973 onwards he had entered the defendant's flat. He saw some receptionist there, and on one occasion he saw a non Chinese dentist. However he did not go right into the premises, but only entered into the room immediately inside the door which would in fact be, according to the sketch (Exh. D5), the sitting room. He testified that on the occasion he went into the sitting room in 1971 it was in the condition shown in the photograph Exh. D(3) 'c & d). He admitted that he had in fact visited the lavatory of the premises when the defendant complained that the equipment was out of order and that the condition of that was as shown in the photograph Exh. D(3)(e). However he was not able to testify as to the condition of the bedrooms and kitchen because he has never been into them. He did admit that sometimes the door of the bedrooms were open, but he was not clear as to the condition of the bedrooms. Mr. Law was not challenged with regard to the presence of a receptionist, but it was put to him that the receptionist, but it was put to him that the receptionist had been there before July 1973, but this was denied by Mr. Law. The fact that Mr. Law saw a non-Chinese person in the sitting room of the premises is not disputed, but he was challenged with regard to this person's uniform; it was suggested that in fact he was in plain clothes at this time. This however was denied by Mr. Law. 11. The defendant gave evidence to the effect that he had used the suit premises from the very beginning of the tenancy, with the consent of the plaintiff, partly for the purpose of his practice. partitioned the long sitting room off from the word go, in order to make a fourth small room. As one of the bedrooms was being used by him as a consultation room, the fourth small room occasioned by the partition, became the third bedroom. Of the three bedrooms he maintained that bedroom A (as shown in the sketch) was used by him and his wife, bedroom B by his sister and bedroom C by his elder brother. The four the room D was his consultation room, and that there was also a kitchen and a bathroom. He testified that since 1966 his sister's room and his elder brother's room had interchanged but apart from them there had been no other changes. He testified that his brother moved in after the death of his mother, who died when she was 68 or 69. He did not deny that the signboard in question had been put up in July but maintained that he had not gone into partnership with these dentists and that they did not practise in the suit premises. He maintained that he was merely providing a facility for them after they had moved out of their premises in Nathan Road, the facility being that he was to direct all their clients to their new premises by giving them the new telephone number of the Philippino dentists. I don't propose to set out the evidence in full that he gave on this matter, but it will suffice to say that I agree with Mr. McElney that the defendant's story regarding the signboards was very far-fetched, and I did not believe that he was being completely frank. I find that the probability is that the defendant and also the two Philippino dentists were using the suit premises for the purpose of their practice from July 1973 onwards and probably up to sometime in March 1974. This is based on the fact that Mr. Law saw one of the non-Chinese dentistsin his familiar white coat. Nobody saw into he other bedrooms to see if they had in fact been converted into consultation rooms as well, but it does seem unlikely that three dentists would practise in the same premises, and would employ a female receiptionist, if the premises only had one consultation room. When the Commissioner carried out his inspection of the premises on 3rd September 1973, it is clear that they were such as to convince him that the primary user wasnon-domestic. His certificate is prima facie evidence that the primary user was non-domestic on that date. 12. In the circumstances I find as a fact that the premises were used primarily for non-domestic purposes from July 1973 onwards probably up to March 1974. I cannot make a finding as to the exact period, because the evidence was not sufficiently clear, but I would hold that the period of non-domestic user commenced some time in July 1973 and ended some time in March 1974. LAW 13. The facts having been established I will now examine the application of the law to these facts. Mr. McElney for the landlord has submitted that the relevant time for determining primary user is the date of the service of the notice of termination, though he has conceded that there might be another relevant time, namely the 15th December 1973 when the new Part II came into effect. [The reference to Part II is a reference to the Part II of the Landlord and Tenant (Consolidation) Ordinance Cap.7] 14. In support of his proposition that the date of service is the relevant date he has cited the case of Alex. Cowan & Sons Ltd. v. Acton [1952] S.C. 73 I.H. and made a reference to the text in Megarry's 'The Rent's Acts. He contended that once the notice to quit was served the landlord had an acquired right to possession although his right did not accrue till the expiry of the notice. 15. He conceded that the suit premises were domestic at the date in 1970 (5/6/70) when the repealed Part II commenced but submitted that the Ordinance only applied so long as the Ordinance continued to affect them (S. 50 (4)) and that when the tenancy became non-domestic then the Ordinance ceased to protect them. He submitted that because of the words 'every domestic tenancy existing on 5th June 1970' it was essential for the protection under the repealed Part II that the tenancy had been domestic on that date. If the tenancy had been non-domestic on that date and had been converted to domestic before June 1973, then the June 1973 Ordinance will have come into play. (This is a reference to the Domestic Premises (Tenure and Rent) (Temporary Provisions) Ordinance No. 40 of 1973 which came into effect on the 8th June 1973 and protected all domestic tenancies exisiting on that date.) Mr. McElney implies from this submission that if the user had been non-domestic on 5th June 1970 the tenancy would not have been protected at all by the repealed Part II. 16. Mr. McElney further pointed out that the New Part II (which came into effect on 15th "December 1973) makes no stipulation in its application section that the tenancy must exist on the 15th December but conceded it was possible that if the user of the premises had been converted back to domestic again by the 15th December 1973, then the tenancy might be protected by the New Part II. 17. Mr. Wong for the Respondent based his defence on the contention that the user of the premises had remained domestic at all times and that, although the Commissioner's certificate showed the primary user to be non-domestic, his client had never been served with a copy of the certificate and had not therefore been in a position to apply to the Court for review of the certificate. He didn't address the court on the relevant date. 18. This question of the relevant date is a very difficult one. Indeed it would appear that the law in England and Scotland is different on this point. (Compare the decision of the House of Lords in BAKER v. TURNER [1950] A.C. 401 with the decision of the Inner House in Cowan's case referred to above.) 19. In the former case Lord Porter said the material times for deciding whether a house was protected or not is the moment when action is brought (at p. 414). He cited Prout v. Hunter [1924] 2 K.B. 736 and Remon v. City of London Real Property Co. Ltd. [1921] 1 KB 49 in support of the proposition. Lord Normand (at p. 419) quoted the words of Bankes L.J. in Prout's case. Lord MacDermott on the other hand dealt with the matter of time by saying (at p. 425):
20. In another English case John M. Brown Ltd. v. Bestwick [1951] 1 KB 21 C.A., Cohen L.J. (at p. 25 and 27) drew a distinction between the question whether a house is a dwelling house to which the Rent Acts applied (for which the relevant time for consideration was the moment of time when the plaint was issued) and the question whether or not an occupant can properly claim to be a tenant of these premises (for which continuous possession of the dwelling house was necessary). 21. It would appear that the learned judges in Cowan's case experienced considerable difficulty reaching their conclusions. The Lord Justice-Clarke (Thomson) expressly said (at p. 82) that he did not want to be taken as seeking to lay down any rule that the date of service of the notice is necessarily in all cases the crucial date. Lord Mackay said (at p. 85) that the most important date of all (but clearly not the "only relevant date") was the date of the service of the notice to quit and to what transpired fpr a reasonable prior period or periods. He regarded the date of service of the notice to quit as the time when the landlord "made up his mind to claim the rights of ownership". He strongly (at p. 86), criticised the text in Megarry as giving the wrong impression that in every case the launching of the action would be the relevant date. Lord Patrick considered (at p. 90) that the last material date for consideration of the conditions of the tenancy was the date when the landlord gave notice of his intention to terminate the tenancy. He went on to say "However, if this is not so, the last relevant date would be the date of the expiry of the notice to quit for the contractual tenancy is then at an end". 22. In an article in the Law Quarterly Review (1952 68 L.Q.R. 323) Mr. Megarry justifies his text and claims that much of the difficulty disappears if the tenant's claim to protection is analysed into its constituent parts. One claim was that the premises fell within the Acts, the other that he was a statutory tenant of the premises. He suggests "on the authorities the first question falls to be answered at the date when proceedings are commenced so that previous fluctuations in the condition of premises, thrusting them outside the Acts or drawing them within, do not affect the result. The second question, however, involves an examination of the whole period between the determination of the contractual tenancy and the commencement of proceedings for if at any time during that period the tenant ceased to use the premises as his home, the statutory tenancy perished and could not be revived." He finds it difficult in view of the authorities and the words of the Acts to see the relevance of the circumstances when the notice to quit was served. 23. So far as the Hong Kong Legislation is concerned the English and Scottish decisions should be considered with great caution, because there are fundamental differences between the English Rent Acts and the Hong Kong legislation relating to the centrel of rent in domestic premises. 24. In England a landlord can terminate the contractual tenancy in accordance with the terms of the contract. Protection is afforded thereafter to the tenant by a right of irremovability, that is a right to retain possession until an order of possession is made against him. In other words the tenant becomes what has been termed a statutory tenant. 25. In Hong Kong a different method has been adopted. Protection is afforded here by imp sing statutory terms onto the tenancy which provide for continuation of the tenancy unless terminated in accordance with those statutory terms. It is not essential in Hong Kong that the tenant should be continuously using the premises himself as a residence in order that his tenancy should be protected; all the law requires is that it is let as a dwelling. 26. Termination of a tenancy under the New Part II now bears a similarity to termination of the so-called statutory tenancy under the Rent Acts. When the tenant is unwilling to give up possession the landlord must seek an order of the Court. Under the repealed Part II a notice to quit was necessary in the first instance and may have been sufficient. If however a valid counter notice was served, then and only then it was necessary to make application to the court for an order for possession. 27. Under the Rent Acts the landlord wanting to terminate a tenancy did not have to choose between two different types of notice to quit. A landlord in Hong Kong on the other hand had to choose between proceeding under the repealed Part II by serving a notice to quit under S. 54 or by proceeding under Part V and serving a 6 month notice of termination under S. 122. The decision would be critical, for if the premises were not protected then a notice under Part II would not be effective to terminate. If on the other hand the premises were protected, then a notice of termination under Part V would not be effective to terminate. If the tenant were to be permitted to change the user of the premises from time to time thus thrusting them at one moment outside the protection of the repealed Part II and later drawing them within its protecting influence, it would be possible for a tenant to prevent the landlord ever getting possession and stultifying whatever method the landlord chose by the simple expedient of changing the user. 28. Furthermore if the relevant time for considering the user were the date action was brought the tenant would have had the period of the notice (in either case) to prepare the premises to suit his purposes at that time. 29. To held therefore in Hong Kong in cases of change of user that any date after the service of a notice to quit is the relevant date could lead to abuse and would clearly not be practicable. The English authorities should not be blindly followed here. Even though the necessity for a notice to quit has been removed by the New Part II, the landlord still has to decide whether to file a writ under the New Part V and the same problem would arise if he decided to serve a notice under Part V. 30. There is a passage in a judgment in the Supreme Court by Mr. Justice Mills-Owens (as he then was) where he considered a similar question (O.J. Action N. 1393 of 1970) reported in 1971 H.K.L.R. p. 145 Shirlien Light v. Wan Bing Wong. The facts were somewhat complicated in that Notice of Termination under the Tenancy (Notice of Termination) Ordinance (Cap. 335) (Now Part V) had been given in November 1969 before either the Security of Tenure (Domestic Premises) Ordinance came into force on 50th January 1970, or the repealed lart II case into effect on 5th June 1970, The Notice to Quit purported to expire on 31st May 1970, i.e. before the repealed Part II commenced. 31. The learned Judge considered that there may be two relevant dates for determining primary user, namely the 30th January 1970 and the 5th June 1970 the dates when the two Ordinance became law, and brought within their protection all domestic tenancies and sub-tenancies existing on these dates. 32. A similar matter came before the Supreme Court in OJA 157/72 when Mr. Justice Briggs (as he then was) held that the relevant date for determining primary user was the 5th June 1970. 33. Amongst other things the learned June said:-
34. It will be appreciated however that in that case the learned Judge not have to consider a situation where there was a change of user between the 5th June 1970 and the date when that action was commenced, though it is manifestly clear that he did not regard the change of user after the filing of proceedings as relevant. 35. In the earlier case of Shirlien Light referred to above, it will be noted that Mr. Justice Mills-Owens (as he then was) was dealing with a situation where a notice of termination had been given in November 1969 before any of this legislation was passed. If the tenancy was protected by the Security of Tenure (Domestic Premises) Ordinance commencing on 30th January 1970 it was also protected by the Ordinance commencing on 5th June 1970. 36. The learned Judge in that case again did not have to deal with a situation where the user changed during the period of protection and he was clearly of the view that the premises were primarily used for domestic purposes throughout. 37. I could be argued on the basis of these decisions that no times other than the commencement dates of the Ordinances were relevant, despite the presence of a subsection phrased in the present tense deeming a subsequent change of user to reflect the purposes for which the premises had been let, and despite the definition of domestic tenancy as meaning a tenancy let as a dwelling. This argument presupposes that the use of the words in the present tense in S. 52(2) (b) of the Repealed Part II relate to the present time when these words became law i.e. the commencement date of that Ordinance. 38. If that were so then it follows that a subsequent change of user would not affect the tenancies by either thrusting them outside or drawing them within the protection of the Ordinance. 39. If this is the correct way of interpreting the above decisions it would mean that in the present case, since the tenancy of the Defendant was a protected one on 5th June 1970, it remained protected until the New Part II took over all such protected tenancies on 15th December 1973. It then became a protected tenancy under the New Part II. This would mean that the Plaintiff's notice of termination would have been ineffective to determine the tenancy. 40. However the Legislature has now made it clear in the New Part II that the commencement date of the New Part II (15th December 1973) is not necessarily a relevant date for considering the primary user. It has done this by incorporating into the New Part II precisely the same deeming previsions in relation to change of user and yet it has specifically applied the Ordinance to tenancies coming into existence after the commencement date. It is thus not possible to construe the deeming section in the way the above argument requires. 41. The solution I think is to regard these decisions of the Supreme Court strictly in relation to the facts before it. In neither case was there a finding on the facts that the user had changed between the giving of the notice or the commencement date of the ordinance and the filing of the action. These decisions are only authority for the proposition that under the Repealed Part II a tenancy was not protected unless the primary user on 5th June 1970 was domestic. They do not deal with the matter of change of user, after 5th June 1970. 42. They are not therefore directly on the point before me. In another Supreme Court case (O.J.A. 1609 of 1973 Au Yeung Yin and Lam Sun) Mr. Justice Li said: "The material time was to be-found at the time when the notice of termination was being served." 43. It seems to me therefore that so far as the repealed Part II was concerned there were two relevant dates, namely: -
44. This latter date could be the date the landlord served notice to quit under s. 54 of the repealed Part II or when he served a notice of termination under s. 122 of Part V. 45. So far as the new Part II is concerned it would seem that there should be only one relevant date namely the date the landlord seeks to obtain possession, which could be the date the landlord cemmemces proceedings for an order under S. 52 of the New Part II or serves a notice of termination under s. 122 of Part V. 46. It would seem that the position is similar to that in England under the Rent Acts where previous fluctuations in the condition of premises may thrust them outside the Acts or draw them within, but not effect the result. It would seem that in Hong Kong tenancies may fluctuate and be thrust outside or drawn within the protection of Part II depending on the primary user at any given time and such fluctuations prior to the relevant date or dates or in between will not effect the result. Furthermore the necessity for personal and continuous residence by the tenant himself would not appear to be an essential ingredient for protection under Part II. 47. I rule that since the primary user of the suit premises was non domestic at the time of the service of the notice of termination, the defendant was not a protected tenant at one of the relevant times and the plaintiff is entitled to an order for possession.
Representation: McEluey of johnoon, Stokeo & Maoten for plaintif. Wong of c.c. tee & to for Aegendant. |