Lum Shing Chin v. Chan Sin Han

Case No.DCCJ 10813/1972

Court

District Court

Date—

Judge—

Case Document

100%Judiciary

DCCJ010813/1972

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 10813 OF 1972

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Between
	LUM SHING CHIN	Plaintiff
	and
	CHAN SIN HAN	Defendant

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Coram: A.L. Leathlean, D.J.

Date of Judgment: 16th February, 1974.

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JUDGMENT

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1. This is an action for possession of certain premises situate at and known as No. 84, Apliu Street, 4th. floor, Kowloon.

2. It is not in dispute that the premises are part of a post-war building, and were let by the plaintiffs to the defendant for domestic purposes for a fixed term of 3 years on December 1st, 1968. On November 26th, 1971, the plaintiffs' solicitors notified her by letter to quit and deliver up possession of the premises on May 31st, 1972 or at the end of the calendar month of her tenancy which would expire next after 6 calendar months from the service of the notice. It would appear that at the time the plaintiffs' solicitors were unaware of the existence of a tenancy for a fixed term of 3 years. As the tenancy was for a fixed term notice to quit was, of course, unnecessary. The defendant continued to pay, and the plaintiffs continued to accept, rent in respect of the period December 1st. 1971 - May 31st, 1972. Thereafter, it seems, the defendant tendered rent to the plaintiffs, who, however, declined to accept it. On December 15th, 1972, the plaintiffs commenced this action.

3. The defendant, who is still in possession of the premises, asserts that she is protected by Part II of the Landlord and Tenant (Consolidation) Ordinance (hereinafter referred. to as "the Ordinance"), which applies, subject to certain exceptions, all of which are inapplicable in this case, to domestic tenancies in post-war buildings (vide sub-section (1) of section 50). A domestic tenancy is defined in sub-section (1) of section 51 of the Ordinance as a tenancy of premises let as a dwelling. Sub-section (2) of the same section provides that notwithstanding the purpose for which premises were let, in determining the nature of a tenancy for the purposes of Part II of the Ordinance certain provisions shall apply. Of those provisions, in my judgment, only that contained in paragraph (b) of sub-section (2) of section 51 is relevant in this case. It is to the effect that notwithstanding any evidence as to whether premises were originally let as a dwelling or not let as a dwelling, premises which are being used primarily for another purpose shall be deemed to have been let for such other purpose. Sub-section (3) provides that certain matters may be taken into account in determining whether premises were let or are being used as a dwelling, and sub-section (6) provides that a certificate of primary user issued by the Commissioner of Rating and Valuation shall be prima facie evidence of such user. It is not in dispute that the premises in question were originally let as a dwelling: the 1st. plaintiff himself said so in evidence, but the plaintiffs allege that the defendant has been using the premises for non-domestic purposes, and further that the primary user of the premises is non-domestic.

4. I deal first with the issue of primary user. In November, 1971, the Commissioner of Rating and Valuation certified that it was non-domestic (vide exhibit P.3). In December the same year he certified that it was domestic (vide exhibit D.2). Clearly, in my view, this evidence, which, as I have already observed, is but prima facie evidence, is little, if anything, better than useless. The plaintiffs' daughter, who, not to mince matters, was in my view a conspicuously partial witness, testified that when she visited the premises for the puroose of collecting rent (and it will be remembered that rent has not been accepted since May 31st., 1972) she observed at least 2 commercial sewing machines and piles of garments stacked on a long table there occupying the greater pro-portion of the area of what she at first referred to as "the flat", and 1 or 2 persons operating the machines. It transpired, however, that this was in that part of the premises which was immediately within the front door, in which was another door. She was unable to say what lay behind that door. According to the defendant the premises also comprise 2 bedrooms, a kitchen and a toilet. She admitted that, having 4 children to support, and in order to augment her husband's earnings of $500 per mensem as a farm labourer, she was making dolls' clothes on the premises with the assistance of 1 domestic sewing machine, and earning $100 to $200 per mensem by so doing. She denied that she was making jeans for adults, and was adamant that she and her family were residing on the premises.

5. In the case of Chan Yuk-tong and others v. Chu Sun-biu ((1960) D.C.L.R. 44) Huggins, D.J. (as he then was) was of opinion that even if it could be urged that the business and domestic users were equally balanced, the domestic user was the primary user, and the business was in the nature of a "cottage industry".

6. In the case of Shirlien Light v. Wan Bing-wong ((1971) H.K.L.R. 145) Mills-Owens, J., on facts not dissimilar from those of the present case (though supported by evidence somewhat less scant), held that the sewing "business" was a user within the meaning of paragraph (c) of sub-section (3) of section 5 of the Rent Increases (Domestic Premises) Control Ordinance, but one consistent with the domestic nature of the tenancy.

7. I believe the defendant's evidence that she is. and has been since December 1st., 1968, residing on the premises together with her husband and children, and that she has been dressmaking at home on a modest scale in order to supplement her husband's meagre wages as an agricultural labourer. As I have said, the plaintiffs' daughter impressed me as being conspicuously partial to her parents' cause, and I believe that she has given an exaggerated account of the state of things which obtained upon the premises when she visited them for the purpose of collecting rent. I believe that the user of the premises for human habitation was not subordinate to the user of the premises for business purposes, or, to put it in another way. that the user of the premises for business purposes was consistent with the domestic nature of the tenancy. In my judgment the primary user of the premises has throughout been domestic.

8. I deal secondly with the issue of the defendant's status. The defendant contends that on or about December 7th., 1971, the plaintiffs agreed to let the premises to her on a monthly basis with effect from December 1st., 1971. The plaintiffs deny this, although in evidence the 1st. plaintiff did say in effect that he "took it as" a month-to-month tenancy during the period December 1st., 1971 - May 31st., 1972. In support of her contention the defendant apparently relies upon the continued acceptance of rent by the plaintiffs during the period December 1st., 1971 - May 31st., 1972, and the terms of the receipts for rent which were issued during that period. The fact that the defendant seeks to set up a letting on a monthly has is, and the further fact that the 1st. plaintiff said that he regarded it as a month-to-month tenancy during the period December 1st., 1971 - May 31st., 1972. does not, of course, necessarily establish that the defendant was a monthly tenant during that period: the defendant's status is not for the parties, but this court, to determine. In this case I do not think that anything turns upon the terms, in which the rent receipts are couched: they are the common form for such receipts in this colony. I have come to the conclusion that I agree with neither the plaintiffs nor the defendant upon this aspect of the matter. In my judgment, the plaintiffs, by their solicitors' letter of November 26th., 1971, authorised the defendant to remain (subject to the payment of rent) on the premises until May 31st., 1972, the defendant by remaining and paying rent accepted that offer, and a tenancy for a fixed term of 6 months was thereby created. Further, in my view, since May 31st., 1972, the defendant has been holding over. However, for the reasons given infra, in my view it matters not for the purposes of this case whether any tenancy arose on December 1st., 1971, or if it did whether it was a tenancy for a fixed term of 6 months or a tenancy from month-to-month.

9. I deal thirdly and finally with the issue whether the defendant is protected by Part II of the Ordinance. The Rent Increases (Domestic Premises) Control Ordinance, which applied, with certain exceptions, to every domestic tenancy existing on June 5th., 1970, when it was enacted, did not apply to a tenancy for a fixed term of 3 years (vide sub-sections (1) and (5) of section 3). On June 5th., 1970, the defendant's tenancy for a fixed term of 3 years was still on foot, and her tenancy for a fixed term of 6 months was not even, so to speak, en ventre sa mere.

10. Comparison of the Ordinance with the English Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, is of interest inasmuch as it discloses certain points of similarity.

11. First, sub-section (1) of section 5 of the English Act of 1920 provides that no order or judgment for the recovery of possession of any dwelling-house to which it applies, or for the ejectment of a tenant therefrom, shall be made or given save in the circumstances therein specified. Some of those circumstances resemble to some extent the circumstances in which a tenancy to which Part II of the Ordinance applies shall determine. Sub-section (1) of section 52 of the Ordinance provides that save as is provided in sub-section (2) and section 53 no tenancy, whether created before or after December 15th., 1973, shall terminate during the continuance in force of that Part.

12. Secondly, sub-section (1) of section 15 of the English Act of 1920 provides that a tenant who by virtue of the provisions of the Act retains possession of any dwelling-house to which the Act applies shall be a protected tenant.

13. Sub-section (1) of section 50 of the Ordinance provides that, subject to sub-section (6), Part II applies to every domestic tenancy and domestic sub-tenancy in a post-war building, whether the same was effected orally or in writing and notwithstanding any provision in such tenancy or sub-tenancy, including any provision purporting generally or specifically to exclude that Part. For present purposes, in my judgment, sub-section (6) is inapplicable.

14. Section 49 of the Ordinance defines "tenant" as including (inter alia) a person who, on December 15th., 1973, is in possession of premises the subject matter of a tenancy to which Part II applies (vide paragraph (a)) and a person who retains possession of any premises by virtue of Part II (vide paragraph (c)). The similarity to sub-section (1) of section 15 of the English Act of 1920 is readily apparent.

15. Thirdly, the preamble to the English Act of 1920 reads as follows:

"An Act to consolidate and amend the Law with respect to the increase of rent and recovery of possession of premises in certain cases, and the increase of the rate of interest on, and the calling in of securities on such premises, and for purposes in connection therwith. "

16. The preamble to the Ordinance reads:

"To consolidate Ordinances relating to landlord and tenant, protection and determination of tenancies, and control and recovery of rent" .

17. Again, while the language used differs, the similarity is obvious.

18. The main objects of the English Rent Acts are to give tenants "fair rents" and "a status of irremovability", or, in other words - (i) to prevent landlords increasing rents above the maximum rent permitted by the Acts ; and (ii) to give tenants security of tenure by preventing landlords from evicting them without an order of the court, and forbidding the court to make an order for possession except on certain specified grounds (Megarry: The Rent Acts, 10th. (1967) edition, volume I, page 13). In the English case of Baker v. Turner ((1950) A.C. 401 at 417) Lord Porter said: "The guiding light through the darkness of the Rent Acts is to remember that they confer personal security on a tenant in respect of his home", and "The rules of formal logic must not be applied to the Acts with too great strictness."

19. In the case of Remon v. City of London Real Property Co., Ltd. ((1921) 1 K.B. 49) it was held by the Court of Appeal in England that a tenant of premises which were not, prior to July 2nd., 1920, when the Act of that year came into force, the subject matter of any Rent Restriction Act, who held over despite the active objection of his landlords until the Act came into force, was a tenant who by virtue of the provisions of the Act retained possession within the meaning of sub-section (1) of section 15 of the Act, and that the landlords, who re-entered forcibly on July 2nd., 1920, could not lawfully disturb him in his possession. Giving judgment, Bankes, L.J., said (at page 54):

	"In no ordinary sense of the word was the respondent a tenant of the premises on July 2. His term had expired. His landlords had endeavoured to get him to go out. He was not even a tenant at sufferance. It is however clear that in all the Rent Restrictions Acts the expression 'tenant' has been used in a special, a peculiar sense, and as including a person who might be described as an ex-tenant, someone whose occupation had commenced as tenant and who had continued in occupation without any legal right to do so except possibly such as the Acts themselves conferred upon him. The respondent therefore on the coming into operation of the new Act was a tenant within the meaning of that expression in the Act ..........".
	Scrutton, L.J., giving judgment, said (at page 57) :
	"But the statute in endeavouring to define the new statutory tenancy uses the phrase 'A tenant who by virtue of the provisions of this Act retains possession of any dwelling-house to which this Act applies' and the framers of the Act were obviously under the impression that some provision of the Act did entitle a tenant to retain possession. They can only have been referring to the section which prevents any order for the recovery of possession being made. Whom did they mean to include in the term 'tenant' ? If a tenant by agreement whose tenancy had expired was not within those terms, the whole purpose of the Act would have been defeated, for it was obviously intended to allow former tenants who were willing to carry out the terms of their old tenancy, as modified by any permissible statutory increases of rent, to stay on. If this was not so every weekly or monthly tenant, the small tenant for whose benefit the Acts were obviously framed, were outside the Act. Unless 'tenant' includes a former tenant by agreement holding over against the will of the landlord, and 'letting' includes the landlord's relation to such a tenant, the whole object of the Acts is defeated. It is true that some of these persons would never previously have been called 'tenants' by any lawyer. The nearest approach to them is 'tenant by sufferance' who as Lord Coke says: 'entreth by lawfull lease and holdeth over by wrong', whose tenure was probably invented to prevent their obtaining title by adverse possession as disseisors. But tenants by sufferance seem to have been confined to persons who held over without the assent or dissent of their landlords, and not to have included persons who held over wrongfully in spite of the active objection of their landlords. Yet I think it is clear Parliament has intended to confirm these people in a statutory tenancy and to speak of their position as a 'letting'. Mr. Romer argued very forcibly to us that though the policy were clear yet the Courts ought not to give effect to it unless they could find words apt in their ordinary meaning to justify them in so doing, and that the case of a landlord getting into possession of premises which under the agreement of tenancy he had a right to enter had not been dealt with by Parliament. I do not think it has expressly; and I feel that I am straining language in speaking of a person whose tenancy has expired, and who stays in against the active protest of the landlord, as a 'tenant', and of the landlord's relation to him as a 'letting' ; but such a person appears to be within the clear intention of the Legislature, and where the statute has forbidden any process of Court to be used to eject him, I think it must have intended and be taken to forbid ejection by the private action of the landlord without the did of the Court. A similar point as to a house not within the 1915 Act which came within the 1919 Act was decided by the Lord Chief Justice in Dobson v. Richards, and I think the decision was correct.
	In my view this decision must be confined to cases where there was a previous legal 'letting' and legal tenancy, and does not extend to caretakers, occupants by service, and mere trespassers, and in case of such a previous legal 'letting' and 'tenancy', applies to the tenant, though his term has expired or been terminated by notice and he holds over even against the active objection of his landlord."

20. The decision in that case was applied in the case of Hutchinson v. Jauncey ((1950) 1 K.B. 574) in which it was held by the same court that, on a true construction of section 10 of the English Landlord and Tenant (Rent Control) Act, 1949, the relevant provision of the Act applied to pending actions, and that the law applicable was the law as it existed at the date of the hearing, and that as on that date the tenancy in question was protected by the provisions of the Rent Restriction Acts by virtue of the Act of 1949, there was no jurisdiction to make an order for possession.

21. Section 10 of the English Act of 1949 provides that sections 7, 8 and 9 shall apply whether the letting in question began before or after its commencement.

22. Sub-section (1) of section 52 of the Ordinance, it will be remembered, provides that, save as provided in sub-section (2) thereof and section 53, no tenancy, whether created before or after December 15th., 1973, shall terminate during the continuance in force of Part II.

23. In Hutchinson v. Jauncey, supra, Cohen, L.J., giving judgment, said (at page 584) :

"Remon's case I think, shows that nothing but delivery of possession or an order for possession can effectively deprive the occupying tenant of his possession."

24. Remon's case was argued before Wilson, D.J., in the case of Chung Who-cheung v. Lam Kam-tin (Kowloon District Court Civil Jurisdiction Action No.3675 of 1973), who decided on August 29th., 1973, that it did not apply in Hong Kong, but in that case an order for possession had, rightly or wrongly (in my view, with respect, wrongly) already been obtained on June 20th., 1973, i.e., after the commencement of the Domestic Premises (Tenure and Rent) (Temporary Provisions) Ordinance, 1973, which contained provisions similar to those of sub-section (1) of section 51 of the Ordinance.

25. In the case of Wong Bun-chun v. Tam Chuen-yee ((1971) D.C.L.R. 48) Collier, D.J., mindful of the provisions of section 19 of the Interpretation and General Clauses Ordinance that an Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the Ordinance according to its true intent, meaning and spirit, held that even a licensee, paying a fee for the licence, who was in occupation at the commencement of the Rent Increases (Domestic Premises) Control Ordinance was protected thereby.

26. In my judgment it matters not in this case whether the plaintiffs' solicitors' letter of November 26th., 1971, prior to the expiration of the defendant's tenancy for a fixed term of 3 years, would have been effective to terminate the monthly tenancy which the defendant would have me hold began on December 1st., 1971, on May 31st., 1972. Nor, in my judgment, does it matter whether that letter or the writ itself, which, as I have said, was issued on December 15th., 1972, constituted an active objection by the plaintiffs to the defendant holding over.

27. I hold that the defendant, since she was in possession of the premises in question on December 15th., 1973. when the Ordinance came into operation, having held over continuously since the expiration of a contractual domestic tenancy, is protected by Part II of the Ordinance. The plaintiffs' claim is accordingly dismissed with costs on Scale V. The defendant's costs are to be taxed in accordance with the Legal Aid Regulations. The exhibits are to remain in court until further order.

28. Dated this sixteenth day of February, 1974.

	(A. Lawrence Leathlean).
	District Judge.

Representation:

...(illegible) & Co. for Defendant