Everlight Commodities Ltd v. Besan Ltd

HCA006566/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Power, J. in Chambers.

Date of Judgment: 10th March, 1981.

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JUDGMENT

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1. In this matter the Plaintiff is applying for an Order that the action be removed from the Warned List and for a further Order that the action be transferred to the District Court. This is an action for possession of premises and the parties are agreed that by virtue of S.68 of the Landlord & Tenant Ordinance Cap. 7 the District Court has exclusive jurisdiction.

2. The point in issue before me is whether a Judge of the Supreme Court has power to order that such a matter be transferred to the District Court. Mr. Poon, for the applicant, argues that there is jurisdiction and asks that a transfer order be made. Mr. Lee for the respondent takes the attitude that he would not oppose the order being made if the Court has jurisdiction but argues that there is no jurisdiction to make such an order.

3. In Kong Hoa v. Lau,⁽¹⁾ Mr. Justice Trainor held, in similar circumstances, that there was no such power under Section 40 of the District Court Ordinance. That section is as follows:-

"40. Where an action or matter commenced in the Supreme Court is within the jurisdiction of the Court or has been brought within such jurisdiction by payment, admitted set-off or otherwise, the Supreme Court or a judge thereof may, if it or he thinks fit, order the transfer of such action or matter to the Court and thereupon the Court shall have jurisdiction and authority to proceed therein."

He held "That section implies that both Courts have jurisdiction; in which event the Supreme Court may hear the case or remit it to the Court below. But in the instant case, as I have no jurisdiction to try the issue, may I exercise some jurisdiction and order the case to be transferred to the District Court?" The learned Judge answered the question he had posed for himself in the negative.

4. In the earlier case of Tse Kam v. Lau,⁽²⁾ Mr. Justice Briggs, as he then was, had no hesitation in ordering in similar application that the matter be transferred to the District Court. He did not specifically indicate that he was acting pursuant to the provisions of Section 40 of the District Court Ordinance, however it would appear that he must have been so doing.

5. In Liu v. Great Mace Trading Company,⁽³⁾ where Mr. Commissioner Litton dealt with a similar application he did not rely upon S.40 but held that the Court had an inherent jurisdiction to regulate its own procedures and that this jurisdiction gave him power to order the transfer of the matter to the District Court. As regards this case it must however be noted that the Supreme Court had jurisdiction to deal with the matter at the time when the action was commenced and that this jurisdiction was taken from it by legislation passed after the date of commencement of the action.

6. In the case dealt with by Mr. Justice Trainor he indicated that, although he was satisfied that the Court had no jurisdiction to remit the matter to the District Court, he did have jurisdiction to make an order for costs and he referred, in that regard, to Wilkinson v. Barking Corporation⁽⁴⁾. In that case it was held -

"The Supreme Court may by statute lack jurisdiction to deal with a particular matter .... It has, however, jurisdiction to decide whether or not it has jurisdiction to deal with such matters, and by entering an unconditional appearance, a litigant submits to the former jurisdiction (which exists), but not to the latter (which does not)."

7. This decision is pertinent as it indicates that there are 2 kinds of jurisdiction of which the former is a limited jurisdiction "to decide whether or not it has jurisdiction to deal with such matters."

8. The argument advanced before me, based upon the ruling of Mr. Justice Trainor, was that the words 'an action or matter' in Section 40 of the District Court Ordinance include within their meaning only proceedings with regard to which the Court has jurisdiction to hear and dispose of the matter and do not include proceedings with regard to which the Court has jurisdiction of the former limited kind.

9. The object of the section is to give power to order the transfer of cases from the Supreme Court to the District Court where they are within the jurisdiction of the latter Court. I do not consider that this object should be frustrated by reading a restricted meaning into the words "action or matter". It is true that the Supreme Court only has a limited jurisdiction of the former kind in the present case but I am satisfied that the case is nonetheless an "action or matter" within the meaning of that term as it is used in S.40 and that this Court does have jurisdiction to order that it be remitted to the District Court.

10. It may well be that the Court also has an inherent jurisdiction so to do however I do not in this application need to rely on such jurisdiction. I make the order in terms.

Representation:

Mr. W. Poon (Ho & Ng) for applicant/plaintiff.

Mr. S. Lee (Ng & Yung) for respondent/defendant.

(1) (1976) H.K.L.R. 62

(2) (1970) H.K.L.R. 568

(3) H.C.A. 5290 of 1979

(4) (1948) 1 All E.R. 564