Le Sau San v. Ace Tailor (Sued As a Firm)

HCA001946/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURSDICTION

ACTION NO. 1946 OF 1971

-----------------

-----------------

Coram: McMullin J.

Date of Judgment: 20th December, 1971.

-----------------

JUDGMENT

-----------------

1. I felt obliged, indeference to the industry of counsel and the formidable elaboration of an argument which, though extending through a long day's hearing, was originally set down for one hour only, to consider further the matters put before me and recorded by me in 14 pages of closely written notes. Having had the opportunity of doing so I am left with no doubt that, notwithstanding the patient and strenuous endeavour of Mr. Martin Lee to persuade me to the contrary, the Registrar was abundantly right in the conclusion to which he came.

2. The principal point in issue is whether, to gain the protection afforded to tenants by the Rent Increases (Domestic Premises) Control Ordinance 1970 (Cap. 338), the tenant of the premises must himself be in personal occupation thereof as his dwelling house, or whether it is sufficient if he occupies them vicariously through a licensee or licensees just so long as they are used primarily for domestic purposes. In the present case the licensees are the employees of the tenant who not only eat and sleep at the premises but who, during the day, perform upon the premises the duties of their trade. They are tailors in the employment of the tenant himself who resides elsewhere. The subsidiary point at issue is whether, if such vicarious occupation is permissible, the premises in the present case were in fact being used primarily for business or primarily for domestic purposes. Mr. Dennis Chang for the respondent asked me to say that even on this point there is not an issue which could legitimately be left to trial. Since I propose to dispose of the appeal upon the main ground I would prefer not to commit myself upon the latter point although I may say that, on the facts put before me, I am strongly drawn to Mr. Chang's point of view.

3. Although there is dearth of reported cases on the question, Mr. Chang has referred me to several District Court decisions in which judges of that court, in cases taken under the Rent Increases legislation in Hong Kong, have applied the well established principle that the Rent Acts in England do not extend protection from eviction to a tenant living elsewhere than in the suit premises. I have before me a very brief note of the judgment of Yang D.J. (Victoria District Court Action 3785 of 1970) in which the learned judge applied this principle as enunciated by the Court of Appeal in Hiller v. United Dairies (London) Ltd. ([1934] 1 K.B. 57) and Dando v. Hitchcock ([1954] 2 K.B. 317). Brief though it is I found myself in full accord with that decision. Basically the local and the English legislation share a common purpose however they may differ in matters of detail. That purpose is protection of persons living in dwelling houses from (a) eviction from and (b) increase of the rent payable in respect of such premises. It may very well be dangerous to apply reasoning of cases taken under the Rent Acts in circumstances where, in matters of detail, the provisions of the English legislation differ from that of the legislation in Hong Kong. But we are now dealing with the question of the fundamental intention of the legislation in both jurisdictions. Mr. Lee makes the point that under the Rent Acts in England a protected tenancy can never arise until a sitting tenant has held over at the conclusion of the contractual tenancy. He asks me to say that this is a fundamental distinction between the English and the local legislation since to hold over a tenant must be in occupation. It is true that, by contrast, the Rent Increases Ordinance operates to transform, on the date of its coming in to force, all existing tenancies, if they are otherwise within its provisions, into tenancies protected for the duration of the Ordinance and that if no further legislation is introduced they will cease to be such on the 31st May 1972 (savings excepted). But this distinction does not seem to me to carry him further. I do not see why the principle of vicarious occupancy, if it is valid for existing tenancies which by virtue of it gain protection upon an arbitrary statutory date should not equally apply where there is a holding over under the Rent Acts not by the tenant himself but by an agent or a licensee on his behalf. Yet it is plain that the courts in England have long held that only a tenant in occupation personally can gain protection.

4. Apart from this I also agree with the learned District Judge where, in the same case, he says that the protection under Cap. 338 does not extend to persons other than those persons mentioned in section 3(3) of that Ordinance. Though he did not expressly say so, it is clearly implied in his judgment that he meant that the protected persons under the Ordinance are restricted to: (a) the tenant in occupation of the premises; and (b) those relative of the tenant residing with him at the time of his death who are described in section 3(3). Mr. Chang observes that if Mr. Lee is correct in his principle then section 3(3) would be unnecessary. It would permit a premises to become protected by virtue of its user for domestic purposes irrespective of who was actually residingin it (provided the resident was there as the licensee of the tenant) since, in the absence of any disposition to the contrary on the part of the tenant before his death, any one of the named relatives would be entitled to continue on in possession provided he continued to use the premises for domestic purposes. There may be substance in this point but speaking for myself I would think that the terms of section 3(3) regarded from a somewhat different angle are capable ofyielding a simpler answer still. It is the effect of this section that the family members described therein get the benefit of protection given to his tenancy if they are residing with the tenant in the protected premises when he dies. The protection of his tenancy, which was his right, is dealt with as though it were a property which he can pass on to them. Let us now suppose that the tenant housed his family in the suit premises but himself regularly resided elsewhere and that he did no more than occasionally visit his family so that he could not in any sense be said to be residing with them there. When, in these circumstances, he dies, it is plain from the wording of section 3(3) that his family members cannot claim any protection under the Ordinance at all. Yet their ordinary human need for that protection is no less in the second case than it was in the first. Neither, one would think, should the appropriateness of statutory protection be different in the two cases. One might heighten the contrast between these two cases by choosing yet a third possible set of circumstances. If the tenant, having acquired premises in Hong Kong prior to the enactment of Cap.338 put a married daughter to live therein and to hold them on his behalf and then went abroad to join a son living overseas and after a few years died there then, if the vicarious residence principle is valid, that son, the Ordinance meanwhile having come into force, would be entitled at once to return to Hong Kong, evict his sister, the sitting licensee, and take possession of a house which had never been his family home and which he may not even have seen before. There may be no inherent contradiction in this result but neither does it sit at all comfortably with the purposes of the Ordinance one of which is to protect persons living in houses from any sudden interruption of tenure. One can only say that if the Ordinance can be read more reasonably in this particular without doing violence to it in any other than it ought to be so read. Such discomfortable anomalies can be avoided only if, rejecting the suggested principle of vicarious occupancy, one assumes that the legislature, in providing as it did in section 3(3), clearly saw a tenant in residence with his family as having something to transmit to them, something which they should, in justice, be entitled to have because of the close tie of blood and shared familial experience between them; something which might be described as a right of extended residential user personal to him which, in the absence of special provision, would die with him. That it was this right of personal residential user by the tenant that the Ordinance sought to enlarge and protect seems to be shown clearly by the manner in which it provides for the tenant's survivors. The protection given, whether to the tenant or to his survivors, is wholly the creation of the Ordinance. We must look within the Ordinance to discover the extent and the limitations of that protection. If a tenant's right to a protected tenancy is capable of being enjoyed vicariously, as Mr. Lee suggests, and if the legislature saw fit to extend the benefit of that right to members of his family after his death, it would surely have been stultifying its own ends so to provide that members of his family would achieve protection in the case where, at the time of his death, they were residing with him elsewhere than in the protected premises and lose it in the case where they, as occupants, were the very vicars who had secured protection for his tenancy while he still lived. In short, although the Ordinance does not say so explicitly in the case of the tenant, it does explicitly provide that his relatives can only claim their especial benefit under its provisions where they were using the premises as their residence at the date of the tenant's death. The implication seems to me so plain that such was the intention in regard of the tenant also, that I am compelled to say that the point made by the defendant is, in my view, not further arguable. Accordingly the appeal must fail.

Representation:

Mr. Dennis Chang (C.P. Lin & Co.) for plaintiff.

Mr. Martin Lee (J.S. & M.) for defendant.