The Commissioners for Executing the Office of Lord High Admiral of the United Kingdom v. William Benedicto

HCA000179/1947

IN THE SUPREME COURT OF HONG KONG

SUMMARY JURISDICTION

ACTION No. 179 of 1947

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Coram: Mr. Justice T.J. Gould.

Date of Judgment: 29 December 1947

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JUDGMENT

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1. In this case the Commissioners for Executing the Office of Lord High Admiral of the United Kingdom (hereinafter called "the Admiralty") as plaintiffs ask for judgment for possession of certain living premises at 89, Lockhart Road (2nd floor), against the defendant who is an employee of the Royal Naval Dockyard, Hong Kong. It is agreed that this Court has jurisdiction to give such judgment only if the defendant is not entitled to the protection of the Landlord & Tenant Ordinance, 1947, and it is further agreed that if the defendant is not so protected, the plaintiffs are entitled to judgment for possession of the premises. The defendant holds the premises in question from the Royal Naval Dockyard which is of course operated under the Admiralty and it is not denied that the Admiralty is, in effect, the landlord. The premises are held by the Admiralty by virtue of Crown requisition.

2. The argument for the plaintiffs is in brief that the Admiralty is equivalent to the Crown for the purposes of the Landlord & Tenant Ordinance, 1947, and by virtue of Section 3 (1)(f) of that Ordinance any lease from or tenancy under the Crown is not subject to its provisions.

3. The general and well known rule is that the Crown is not bound by any statute unless it is directly or by necessary implication referred to. The Crown for this purpose is stated in Hailsham Vol. XXX1 at p.523 to mean "not only the King personally, but also the officers of state and servants of the Crown when acting within the scope of their authority on behalf of the Crown in the discharge of executive duties whether in the United Kingdom or anywhere within the British Dominions." That the Admiralty is a department of the Government and therefore the equivalent of an officer of state or servant of the Crown within the meaning of this rule is hardly open to argument; the decision in Raleigh v. Gaschen, 1898 1 Ch. 73 accepts that without question. This being so, if the meaning of the word "Crown" in Section 3(1)(f) of the Landlord & Tenant Ordinance, 1947, is the same as the accepted meaning above mentioned, there is an end of the matter and the plaintiffs must succeed.

4. The solicitor for the defendant contends that in the Ordinance, the word "Crown" is restricted in meaning to the sovereign personally or those who perform acts by his specific authority in his name. He instanced the fact that in the normal form of Crown lease in use in Hong Kong, the reigning sovereign is named, together with his heirs, successors and assigns, as lessor. The document is executed by His Excellency the Governor "in the name and on behalf of His said Majesty." It was submitted that anything less than this is not a "lease from or tenancy under the Crown." In support of this contention I was referred to Section 23 of the Interpretation Ordinance, 1911 which reads:-

"22. References to the Sovereign reigning at the time of the passing of any Ordinance, or to the Crown, shall, unless the contrary intention appear, be construed as references to the Sovereign for the time being, and it shall not be necessary to refer to or include the Sovereign's Heirs and Successors."

I see nothing in this section which would impel me to accept the construction put forward on behalf of the defendant. The section appears to have one object only, and that is to ensure that the Crown shall be regarded and treated as a corporation sole and that the legislative draftsman need not concern himself with changes following upon the death of any particular Sovereign. If the section had the limiting effect suggested by the solicitor for the defendant the section next following it, (Section 23) would not extend to cover Government departments acting in the course of their duty; decisions to the contrary are too numerous to need quoting.

5. A further argument put forward on behalf of the defendant was that unless the expression "lease from or tenancy under the Crown" were limited in meaning to official lesses in the name of the Sovereign, the whole effect of the Ordinance would be negatived, as in Hong Kong all alienation of land from the Crown is done by way of Crown lease and therefore all subleases are, in a sense, tenancies under the Crown. It is true that in England the Rent Restriction Acts have been held to apply in rem and not in personam (Clark v. Downes (1931) 145 L.T. 20); and one of the effects of this is that a sub-tenancy of Crown land is not protected by the Acts (Rudler v. Franks 1947 K.B.D. 531). In England of course the Crown is not specifically exempted from the Rent Restriction Acts but in the words of Lord Goddard C.J. at p.532 of the report of the last mentioned case ".... the Crown not being named in the Acts, obviously upon all the well known rules of construction is not affected by the Acts." It is probably to avoid the absurdity to which the extension of the immunity of the Crown in Hong Kong to sub-lessees of Crown land would give rise, that the Crown has been specifically mentioned in the Landlord & Tenant Ordinance, 1947. The wording of Section 3(1) is peculiar. It commences with the general words "(1) This Ordinance shall apply to every premises except -"; then follows an enumeration under letters (a) to (e) of five types of premises, and then under letter (f) are the words "any lease or tenancy under the Crown." A "lease" or a "tenancy" must be created in respect of certain premises but cannot properly be said to be equivalent to "premises." It may be that the draftsman intended by omitting some phrase such as he has used in subsection (e) (e.g. Any premises subject to ..) has intended to convey that where the Crown is concerned, it is the contractual relationship which is paramount; in other words that it is to the Crown in personam to which the exemption is given. This view is supported by the definitions of "Landlord", "Principal Tenant" and "Tenant" in the Ordinance and of course by the acknowledged object of this legislation. It is not necessary for me to give any decision on this point as in the present case the plaintiff succeeds whether the Ordinance applies to the Crown in rem or in personam. I refer to the matter only to indicate that it is a problem of construction which arises in any event irrespective of whether the narrow or the wide meaning of the word "Crown" is accepted - it does not therefore assist the defendant's argument.

6. The plaintiff is entitled to judgment with costs in this and in Summary Jurisdiction cases Nos.180-187 of 1947 to which by consent this decision also applies.

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