Chen Kui Chao Jean and Another v. Yim Chung Ning

DCCJ002511/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 2511 OF 1980

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

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

Coram: H.H. Judge Cruden

Date of Judgment: 25th July, 1980.

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

JUDGMENT

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

1. In these proceedings the plaintiff, as landlord, claims possession of certain domestic premises being Flat Q, 11th floor, Hong Kong Mansion, No. 1 Yee Wo Street, Hong Kong. The defendant was in possession of the suit premises pursuant to a tenancy agreement entered into between the parties for a term of 3 years from the 10th day of November, 1976. The plaintiff claims possession on the ground that on the 9th day of November 1979 the tenancy expired by effluxion of time and that the defendant has failed to deliver up vacant possession. The plaintiff alleges that the defendant is now in wrongful occupation of the suit premises as a trespasser.

2. The defendant, who appeared in person, filed a defence which alleges that she paid construction money at the commencement of the tenancy and spent $10,000 in repairs to make the premises habitable. She also pleads facts relating to her husband's income and the size of their family which would pose difficulties if they had to move out.

3. I now have before me a summons filed by the plaintiff under Order 18 Rule 19 of the Rules of the Supreme Court and Rule 9 of the District Court Civil Procedure (General) Rules asking that the defence "be struck out on the ground that it is frivolous and vexatious or may prejudice or delay the fair trial of the action or is otherwise an abuse of the process of the Court and that judgment be entered in this action for the plaintiff and costs of this action."

4. On the hearing of this summons the preliminary point arose whether the premises were subject to Part II of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7. In the plaintiff's statement of claim it is pleaded that Part II does not apply. Counsel for the plaintiff submitted that the tenancy agreement was for a period of 3 years from the 10th day of November 1976 and that the plaintiff's cause of action therefore arose on the 9th day of November 1979. As at that date by virtue of Section 50(6)(j)(i) tenancies for 3 or more years were not subject to Part II. The recent amendment to the Ordinance was enacted on 15th February 1980 but made retrospective to the 18th day of December 1979. It now makes such 3 years tenancies subject to Part II. However, in the plaintiff's submission the amendment does not apply to this tenancy and the proper law to be considered is that which existed prior to the 18th of December 1979.

5. The defendant submitted that the suit premises were subject to the amendment and that Part II of the Ordinance did apply. The defendant submitted that she was in possession of the suit premises at the date the amendment was passed and also at the date when it became operative; that the landlord had been overseas for 10 years; that the defendant's hardship was greater than the landlord.

6. On this summons the latter matters do not directly arise as I am solely concerned at this stage with the question whether Part II does now apply to the suit premises and after determining that issue, whether the plaintiff should be granted the orders it now seeks.

7. On the facts it is clear that the tenancy agreement expired before the coming into operation of the amendment on the 18th day of December, 1979. It is equally clear that the defendant has remained in possession continuously from the expiration of the tenancy agreement on 9th November 1979 down to the present time. What is the status of the defendant during that latter period? The plaintiff pleads that it is that of a trespasser. In Hong Kong there is no statutory tenancy created by the Ordinance in respect of a protected tenancy upon the expiration of the contractual tenancy. In England such a statutory tenancy is created. So the position in Hong Kong is different and to that extent the English authorities have to be considered with caution. However, I am satisfied that in Hong Kong a tenant whose contractual tenancy has expired, who continues to hold over without the assent or dissent of the landlord, is a tenant at common law. That this is the status of such a person was made clear in Wong Chang Sung v. Margaret Tse & Anor (1974) H.K.L.R. 350, 355 where Mr. Commissioner Yang, as he was then, stated :

"Indeed s. 49 of the New Part II includes within the definition of a "tenant" a person who on the commencement of that Ordinance is in possession of premises the subject matter of a tenancy to which the Ordinance applies. S. 3 (1) of the Temporary Provisions Ordinance appears to be wide enough to cover all types of domestic tenancy existing on the 8th June 1973. It applies to all existing domestic tenancies unless expressly excluded. Now a tenant whose contractual tenancy has expired but continues to hold over without the assent or dissent of the landlord is nonetheless a tenant at common law."

8. As at the date of the amendment coming into force, namely the 18th day of December 1979, the defendant, as tenant, was holding over. On the pleadings before me the first indication of dissent on the part of the plaintiff as landlord was when the writ was issued on the 24th day of April, 1980.

9. On that chrononolgy alone, it would seem to me that on the 18th day of December 1979, the defendant then having the status of a tenant at common law, the tenancy thereupon became subject to Part II. Accordingly the rights of both landlord and tenant are now governed by the provisions of Part II including, of course, the important new amendment to Section 53.

10. From my own research I have discovered that in Ting Shung Kwok v. Chan Yin Fong KCJ Action No. 9464/79, Leathlean, D.J. on 13th March, 1980, when faced with the same question, came to the same conclusion, after a comprehensive review of the Hong Kong and English authorities. At page 8 of his judgment, His Honour declared :-

11. In the instant case, of course, the defendant's position, if different, is the stronger, for here the writ was issued after and not before the operative date of the amendment. In his judgment Leathlean D.J. accurately anticipated the Court of Appeal's subsequent decision in Lam Wai v. Mak Yok-jan Court of Appeal Civil Appeal No. 38/80, when he observed :

"With great respect to Bewley, D.J. who, in Mak Yok Jan v. Lam Wai V.C.J. No. 371/80, has recently held to the contrary, my own view is that a domestic tenancy for three years which was created before but was still on foot when the Landlord & Tenant (Consolidation), (Amendment) Ordinance came into operation on December 18th, 1979 is protected."

12. The Court of Appeal later reversed the decision of Bewley, D.J. holding that the Legislature intended that all tenancies of the classes described in Section 15, should fall within the protection of Part II from the 18th day of December, 1979 including even those tenancies which were already the subject of pending proceedings. The present tenancy is one of the classes prescribed by Section 15.

13. The Court of Appeal's decision would seem to go further than Wong Chang Sung v. Margaret Tse & Anor (supra). For if a tenancy where the tenant is holding over, is caught by the amendment, it seems immaterial whether the landlord has assented or dissented to the tenant's continuing occupancy. In Ting Shung Kwok v. Chan Yin Fong (supra) this was also clearly the view of Leathlean D.J. who did not, however, refer to Wong Chang Sung v. Margaret Tse & Anor (supra). As to dissent on the part of a landlord, to a tenant who holds over, Leathlean D.J. commented :-

"In my judgment on the authority of Remom it matters not in this case whether the repeated requests by the plaintiff to the defendant to vacate the premises in suit which the plaintiff has pleaded or the writ itself, which, as I have said, issued on November 5th, 1979, constituted an active objection by the plaintiff to the defendant holding over ..."

14. In the instant case, the position is much simpler. The defendant has held over continuously from the expiration of the tenancy agreement on 9th October, 1979. By virtue of the Landlord & Tenant (Consolidation) (Amendment) Ordinance No. 6/80 the suit premises became subject to Part II of the Ordinance on the 18th day of December 1979. The writ was issued on the 24th day of April 1980 although that is not material. The defence filed in person raises, if obliquely, a defence which would be available to a tenant under Part II.

15. The plaintiff's summons must therefore fail. The statement of claim is drafted on the basis that Part II does not apply and the defence, except in its final paragraph, similarly pleads to matters Raised in a statement of claim so drafted.

16. Before the action proceeds to trial the statement of claim and the defence will therefore need to be substantially amended. To save the parties having to come back before me again at an interlocutory stage in respect of those amendments, I propose to make the following orders :

17. I will hear the parties further on the question of costs of this summons and also in respect of the costs of and occasioned by the amendments which have now become necessary.

Dated this 25th day of July, 1980.

Representation: