Tse Kam v. Lau Tam Sau Ying

Case No.

Court

Date—

Judge—

Case Document

100%Judiciary

HCA001309A/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1309 OF 1970

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BETWEEN
	Tse Kam	Plaintiff
	and
	Lau Tam Sau Ying	Defendant

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Coram: Briggs J. in Court

Date of Judgment: 16th December, 1970.

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JUDGMENT

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1. The Plaintiff is the landlord of certain domestic premises in Waterloo Road of which the Defendant is the tenant. The tenancy is a month to month tenancy for $500 per month.

2. On June 25th the Plaintiff served a notice to quit on the Defendant under the provision of Section 7(2)(a) of the Rent Increases (Domestic Premises) Control Ordinance, 1970. In the notice to quit it was specified that the Plaintiff required the premises for herself and her family as a dwelling. The notice to quit purported to terminate the tenancy of the Defendant on July 31st 1970.

3. The Defendant has not yielded up possession to the Plaintiff and therefore asks for an order for possession of the premises and mesne profits from 31st July, 1970.

4. Under the provisions of Section 7(6) of the Rent Increases (Domestic Premises) Control Ordinance it is open to a tenant who is served with a notice to quit under Section 7(2) to serve a counter notice disputing the right of the landlord to serve the notice to quit. The counter notice must be in the prescribed form and must be served within 14 days from the service of the notice to quit.

5. In the statement of claim the Plaintiff states that such a counter notice was not served or not served within the time provided by the section.

6. However in the defence the Defendant states that she did in fact serve a counter notice on the Plaintiff five days after she was served with the notice to quit. There is therefore a direct conflict on this point which can only be decided upon the evidence.

7. Section 16(6) of the Ordinance confers jurisdiction on the District Court in these words:

"For the removal of doubt, jurisdiction is hereby conferred on the court for the purpose of hearing and determining all applications and appeals for which provision is made in this Ordinance, and all actions for possession upon the termination of any tenancy or sub-tenancy under section 7, and for the purpose of ordering the payment of rent or mesne profits in any such application, appeal or action, and such jurisdiction shall be exercised notwithstanding that the value of the property sought to be recovered or the amount of the annual rent thereof or the amount of rent or mesne profits being claimed exceeds ten thousand dollars."

8. And the expression "the Court" is defined as the District Court by section 2 of the Ordinance.

9. I made an order of transfer to the District Court under section 11 of the District Court (Civil Jurisdiction and Procedure) Ordinance (Cap. 336), when the case came before me in court.

10. If it is true that a counter notice was served correctly upon the Plaintiff under Section 7(6) of the Ordinance these proceedings cannot be brought in the Supreme Court. For section 7(7) of the Ordinance confers jurisdiction in such a case exclusively upon the District Court. Section 7(7) reads as follows:

"	On receipt of a counter notice under subsection (6) the landlord or principal tenant, as the case may be, may apply to the court for an order for possession of the premises to which such notice relates. Where he satisfies the court that he is entitled to possession on the ground specified in the notice to quit, the court may make an order for possession which shall take effect on such date as the court may order but not earlier than the date on which the notice to quit would have taken effect nor later than three months from the date of such order; and at the hearing of such an application the court may order the payment of rent or mesne profits:
	Provided that no order shall be made on the ground specified in paragraph (a) of subsection (2) if the court is satisfied that having regard to the circumstances, including the question whether other accommodation is available for the landlord, the tenant, the principal tenant or the sub-tenant, greater hardship would be caused by granting the order than by refusing to grant it."

11. These words clearly indicate that any order for possession made in these circumstances is to be made under the Ordinance and by a District Court.

12. If this case is tried in the Supreme Court and after hearing the evidence the Court decides that a counter-notice was in fact served on the Plaintiff, the Court will have no jurisdiction to continue with the case. It must be transferred to the District Court. However the District Court has jurisdiction in any event. It is surely in the best interests of the parties that the case should come before the District Court in the first place, and so avoid the risk of having to have two trials. There is the additional point that the tenancy is only a $500 per month tenancy.

13. Mr. Chang who appeared for the Plaintiff kindly drew my attention to the case of Leung Ho Yuen v. Shiu Chun Hau⁽¹⁾. That case decided that the Rent Increases (Domestic Premises) Control Ordinance, 1963 only conferred jurisdiction upon the District Court to hear applications and appeals for which provision was made in the Ordinance : but that it did not confer jurisdiction to hear actions for the recovery of possession. This was true of that Ordinance which has since been repealed. In Section 16(6) of the 1970 Ordinance, which I have quoted above Jurisdiction is specifically given to the District Court in "all actions for possession upon the termination of any tenancy under Section 7". This is such an action.

14. The jurisdiction of the Supreme Court in actions for the recovery of possession is not ousted by the wording of the Ordinance. A Plaintiff can proceed either at common law in the Supreme Court or under Section 16(6) of the Ordinance in the District Court.

15. However in view of the exclusive jurisdiction conferred on the District Court under Section 7(7) of the Ordinance referred to above this is a proper case for an order of transfer.

	(G.G. Briggs)
	Puisne Judge
	16th December, 1970.

Representation:

Denis Chang (K.C. Yung & Co.) for Plaintiff.

Defendant in person.

Decision of 15th December, 1970 reduced in writing.

(1) DCLR 1964 129