The Securities and Futures Commission v. The Stock of Exchange of Hong Kong Ltd.

HCMP003225/1991

HEADNOTE

Company Law - Section 116 of Companies Ordinance, Cap. 32 - whether Stock Exchange of Hong Kong has given "not less than 21 days" notice of a meeting convened to pass special resolutions of the Exchange - whether day of service of notice and day of meeting can be counted in the 21 day period - whether "clear days" are required - whether Section 71 of Cap. 1 is relevant - whether English or Scottish decisions should be followed - relevance of application of English Law Ordinance, Cap. 88.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: The Honourable Mr. Justice Kaplan in Court

Date of Hearing: 28 and 29 October 1991

Date of Judgment: 30 October 1991

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JUDGMENT

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1. I have before me an originating summons dated 25th October 1991 issued by the Securities and Futures Commission (the Commission) which seeks the determination of the Court on the following questions, namely:

2. Mr. Ribeiro Q.C. appeared for the Commission on 28th and 29th October 1991 and invited me to answer both questions in the affirmative. Mr. Mills-Owens Q.C. appeared for the Exchange and invited me to answer both in the negative. No objection was taken to the procedure followed and it was agreed that the Exchange should be added as a party to these proceedings. For reasons which will become readily apparent both parties wanted an urgent decision so that at 2.15 p.m. on 30th October 1991 I announced in open court that my answer to both questions was in the affirmative but that I would reduce my reasons into writing which I now do.

3. The background to this matter was contained in an affidavit filed on behalf of the Commission by Mr. Gilmore. In that affidavit he explains the Commission's supervisory and monitoring function of the Exchange pursuant to the provisions of the Securities and Futures Commission Ordinance, Cap. 24 (SFCO). By virtue of the Stock Exchange Unification Ordinance, the Commission has a function to approve or disapprove amendments to the constitution and rules of the Exchange.

4. On 20th August 1991, the Commission served on the Exchange various requests under s.50 of SFCO requiring amendments to be made to the Exchange's Memorandum and Articles of Association and its Rules. These requests were not complied with, so on 5th October 1991 the Commission issued restriction notices requiring the Exchange to do so. These restriction notices take effect if the Exchange fails to comply within the stated time. The restriction notices give the Exchange 25 days in which to comply, thus they had until midnight on 30th October 1991.

5. Following service of the restriction notices, the Exchange informed the Commission that it would convene an EGM to be held on 30th October 1991 at which it would put to members amendments to its Memorandum and Articles of Association and Rules. These proposed amendments do not coincide with the terms of the restriction notices but for present purposes nothing turns on that.

6. The Commission has agreed to consider any alternative proposals put forward as a result of the EGM to be held on the 30th October 1991.

7. On the 8th October 1991 the Exchange sent notices by post convening the EGM at 4.30 on 30th October 1991.

8. The purpose of the meeting was to consider and, if thought fit, to pass, special resolutions for the alteration of the Exchange's Memorandum and Articles of Association.

9. The reason for this urgent application is that the Commission are fearful that insufficient notice has been given to members of the Exchange of the meeting and that if the special resolutions are passed they may subsequently be open to attack or challenge and the Commission is anxious to know where, as a matter of law, it stands in relation to its restriction notices which either come into force at midnight on 30th October 1991 or have to be withdrawn before that moment. The Commission is anxious to know whether the proposals to be put to it following the EGM are in fact valid.

10. The governing section is s.116 of the Companies Ordinance Cap. 32, the material terms of which are as follows:       

11. It is common ground that s.116 applies as a mandatory statutory requirement. s.4 of the Stock Exchange Unification Ordinance (Cap. 361) expressly makes the Companies Ordinance applicable to the Exchange. S.13 of the Companies Ordinance provides that any alteration or addition to a company's articles should be by special resolution. S.13 makes the conduct of the EGM on the 30th October 1991 subject to the provisions of the Companies Ordinance and in particular s.116 which regulates a special resolution. It is common ground that on the 8th October 1991 the Exchange sent out notices by post convening the EGM for the 30th October 1991. It is common ground that they are deemed to have been received on the 9th October [Article 149(b) of the Exchange's Articles of Association and s.8, Cap.1].

12. It is further common ground that the 21-day period does not include both the 8th (date of posting) or 9th (date of deemed receipt). It is accepted by Mr. Mills-Owens that the notice provision is only complied with if the day of the meeting, namely the 30th is included. There are only 20 clear days between the 9th and 30th October. Mr. Mills-Owens submits that the day of the meeting can be included. Mr. Ribeiro submits that it cannot.

13. Article 130 of the Exchange's Articles of Association provides that:

"A meeting called for the passing of a special resolution shall be called by 21 days notice in writing at the least."

14. Mr. Ribeiro submits that there is no difference in meaning between "21 days notice in writing at the least" and the words used in s.116 of the Companies Ordinance namely "not less than 21 days". However, he submits that if I were to hold that there was a material difference between the 2 phrases than s.116 overrides Article 130. I do not consider that the differences are in the slightest way material.

15. Article 152 of the Exchange's Articles of Association provide as material as follows:

"When a given number of days' notice or notice extending over any other period is required to be given, the day of service, shall, but the day upon which such notice will expire shall not, be included in such number of days or other period..."

16. This article, if it purports to provide for a period other than "not less than 21 days" is clearly in conflict with s.116 of the Companies Ordinance and to that extent is overriden by the statutory minimum requirement. In so far as it may provide for a lesser period for other notices apart from special resolutions then it may well be effective.

17. Both sides made reference to and sought to rely upon s.71(1) of the Interpretation and General Clauses Ordinance, Cap.1 which provides as follows:

18. It should be noted that the researches of counsel have not thrown up any English equivalent to s.71 of Cap.1.

19. Mr. Ribeiro Q.C. submits that s.116 requires 21 clear days notice and he bases this submission on the natural and ordinary meaning of the words under consideration. He relies upon certain English cases. Further or alternatively insofar as it may be necessary he relies on the true construction of s.116 in combination with s.71(1)(a) of Cap.1.

20. Mr. Ribeiro points out that the expression "not less than 21 days" contains reference to days and not to any lesser unit of time and it prescribes a minimum period of time. He submits that the Common Law approach has always been to ignore fractions of a day. He submits that one should not equate a part of a day with a whole day and that one should not seek to aggregate hours from 2 different days (9th and 30th) to make up a whole day.

21. In Re Lympne Investments Ltd. (1972) 2 AER 385, Megarry J. said this:

"... The general rule in the computation of periods of time is that unless there is sufficient indication to the contrary, fractions of a day should be ignored, at all events when a period is expressed in days or longer units and not in hours or shorter units, and that the day on which the initial event occurs is to be excluded: see January Trow v. Ind Coope (West Midland) Ltd. (1967) 2 Q.B. 899 ... At the moment when the petition was first presented, just after noon on 25th November the petitioner could then at best point to a period of 20 days and a fraction of another day during which Lympne had neglected to pay the money; and 20 days and a fraction is not the 3 weeks required by s.233(a)."

22. In Re Railway Sleepers Supply Co. (1885) 29 Ch. D 204 Chitty J. had to consider s.51 of the Companies Act 1862 which dealt with special resolutions in a two tier stage where there had to be "an interval of not less than 14 days, nor more than one month" between the meetings. At p.205 he said this:

"The general rule of law in the computation of time is that fractions of a day are not reckoned. Sir William Grant in Lester v. Garland says, "Our law rejects fractions of a day more genuinely than the Civil Law does. The effect is to render the day a sort of indivisible point; so that any act done in the compass of it, is no more referable to any one, than to any other portion of it; but the act and the day are co-extensive; and therefore the act cannot properly be said to have passed, until the day is passed."

23. Chitty J. also referred to Lord Mansfield's dictum in Pugh v. Duke of Leeds, 2 Cowp 714, 720 where he said:

"Day does not mean the hour or the minute, but the day of delivery and in law there is no fraction of a day."

24. As to the specific issue before Chitty J. he said this:

"It is not material, to my mind, to answer these questions beyond saying that it is plain at all events that the statute describes the interval which is to elapse between the day of the first meeting and the earliest time when the second meeting can be held. 'An interval of not less than 14 days' is equivalent to saying that 14 days must intervene or elapse between the two days."

25. At the end of his judgment he made it clear that the rule was in his view settled and that he was not at liberty to depart from what had already been laid down.

26. In Mercantile Investment and General Trust Company v. International Company of Mexico, noted at (1893) 1 Ch. 484, it was assumed that "at least 14 days" meant 14 clear days.

27. In The King v. Turner (1910) 1 KB 346, one of the issues for the Court of Criminal Appeal was whether the service of a notice on October 4th, the sessions being held on October 11th, was a sufficient notice within s.10 of the Act which required 7 days notice to be given. The judgment of the court was given by Channell J. and at 359 he said this:

"Section 10 sub-section 4(b) of the Prevention of Crime Act, 1908, provides that "not less than 7 days" notice must be given to the proper officer of the court and to the offender. The question whether the words "not less than 7 days" mean clear days is a troublesome one to answer, as there have been decisions upon similar words which are not exactly in accord. Those decisions depend on particular statutes, and may therefore all be right and yet bring about apparently conflicting results. We have come to the conclusion that the decision most nearly in point is that in Chambers v. Smith referred to by Chitty J in re Railway Sleeper Supply Company where he reviewed the authorities. In Chambers v. Smith the words were "not being less than 15 days" and the court in the first instance held that what I may call the ordinary rule applied, namely that where a certain number of days are specified they are to be reckoned exclusive of one of the days and inclusive of the other unless clear days are expressed. But although that is the rule, the difficulty is to ascertain whether clear days are expressed by the language of the particular statute. In Chambers v. Smith the court, after having in the first instance thought that the words "not less than 15 days" were to be construed according to what I have called the ordinary rule, namely, inclusive of one of the days and exclusive of the other, on reconsideration came to the conclusion that they were to be construed as meaning 15 clear days. The words upon which that decision was based are the nearest to be found in the authorities to those which we have to construe in the present case and we therefore come to the conclusion that the provision that "not less than 7 days" notice has to be given means "7 clear days" notice and we so answer the question."

28. Mr. Ribeiro relied very heavily on Re Hector Whaling Ltd. (1936) 1 Ch. 208, where Bennett J. had to consider and construe s.117 of the Companies Act 1929 which is the equivalent of the s.116 which I have to construe. The learned judge had to determine what "not less than 21 days notice" meant. In that case the notice was posted on the 8th May, 1935 and was therefore deemed to be served on the 9th May, 1935 for a meeting to be held on the 30th May, 1935. Mr. Ribeiro pointed out there is an uncanny resemblance to the facts of the present case. In giving his very short judgment Bennett J. said this:

"In the interests of everybody it is of importance that there should be no doubt as to the meaning of a phrase in a section of almost daily use. I do not think that there is any doubt about its meaning and I propose to found my decision on The King v. Turner and Chambers v. Smith and to decide that the phrase means 21 clear days exclusive of the day of service and exclusive of the day on which the meeting is to be held."

29. The line of cases to which I have just referred are strongly in favour of Mr. Ribeiro's submission. However, he has pointed out, to me that the law in Scotland is different. In Neil M'leod & Sons Ltd. Petitioners (1967) S.C. 16, the Court of Session was concerned to construe the expression "not less than 21 days' notice" in section 141 of the Companies Act 1948 which is equivalent to our s.116. A court of four judges decided that in computing a period of not less than 21 days, the day on which the notice was served did not count but that the last of the 21 days did. Re Hector Whaling Ltd. was not followed. Lord President Clyde relied upon the normal rule in Scotland that the day on which the notice is received is not counted, but that the last day is. This rule was laid down in the case of Parish Council of Cavers v. Parish Council of Smailholm (1909) S.C. 195, a decision of Lord President Dunedin. With great respect to Lord Clyde I do not find his reasons for departing from Re Hector Whaling convincing. However, in any event, although Scottish cases may from time to time be persuasive and helpful when they deal with a topic not adequately covered in Hong Kong or in England, they cannot assist whether there is a direct conflict between the English and Scottish courts. In such cases, I think Mr. Ribeiro is right when he says that the Hong Kong court has to apply the Common Law of England which does not include Scotland. Judicial decisions as to the meaning of "not less than 21 days" are part of the Common Law to which I have had to have regard and there is nothing in the Application of English Law Ordinance, Chapter 88 which requires me to take a different view in construing this section in Hong Kong.

30. Unfortunately, the text-books are not of great assistance. In the 4th edition of Gower on Company Law, the learned author just refers to the disagreement between the English and the Scottish courts on whether not less than 21 days' notice means 21 clear days and gives very sensible advice that one should always play safe. The latest edition of Buckley at pages 833/4 refers to the conflict between the English and Scottish cases and says, without giving any reasons, that the Scottish approach is a more satisfying interpretation of the statutory provision. In the 44th edition of Gore-Browne, one finds a statement, "Directors and Secretaries are sometimes not sufficiently careful on this point, in particular forgetting that the number of days' notice required by the Act means clear days, and do not therefore give a sufficient notice, whence it follows that the resolutions are void and everything done under them invalid." A footnote then refers to Re Hector Whaling but states that the Scottish courts have held the opposite.

31. Finally, to complete Mr. Ribeiro's submission it is necessary to refer to a Hong Kong Court of Appeal decision cited by Mr. Mills-Owens which Mr. Ribeiro contended was support for his submission. That case is In the matter of Meng Ching Hai (1990) Civil Appeal Nos. 194 and 195, (judgment delivered on the 23rd January 1991). The case concerned s.42(4) of the Immigration Ordinance which enables the Governor in Council to make a deportation order if a person has been sentenced to imprisonment for two years. It was argued on behalf of the applicant that "not less than 2 years" means more than two years. Reliance was placed on s.71 of Cap.1 and also reliance was placed on Re Hector Whaling and The King v. Turner. At page 4 of the judgment of the court Fuad V.P. said this:

"In my judgment, the words used by the legislature are precise and unambiguous and no task of interpretation is involved. It is only necessary for us to apply the words used in their ordinary sense. I respectfully agree with the judge that "not less than 2 years" means 2 years or more. With great respect to Mr. McCoy, it seems to me quite unreal to argue that the expression is not plain and that it might mean "2 years and more" or "more than 2 years." If the legislature had so intended, it could have enacted that an immigrant would be liable to deportation if convicted of an offence punishable with imprisonment exceeding 2 years, but that is not what the legislature said."

32. Mr. Mills-Owens Q.C. for the Exchange submitted that it was permissible to count the day of the meeting in order to arrive at the necessary 21 days and invited me to follow the approach of the Scottish courts. He based his submission very strongly upon s.71 of Cap. 1. He pointed out that s.71(1)(a) expressly relates to the start of the period of days and makes no reference to the end of the period of days. He points out that by contrast s.71(1)(b) does expressly refer to the last day of the period amd so he submits that it is clear that the legislature specifically and intentionally dealt separately with each end of the period. He then goes on to argue that the clear implication applying the expressio unius rule "is that as the day on which the act or thing from which time runs is expressly excluded from the computation of time, the day on which the event may take place following a specified period should be included in the computation." He goes on to submit that from the terms of s.71(1)(a) & (b) read in conjunction with s.116(1) the legislature intended to permit the day of the EGM to be included in the 21 day period. He further submits that s.71 provides a statutory rule which overrides existing common and foreign case law including English and Scottish case law. He says that it is an express provision contained within Hong Kong's legislation and so we have a Hong Kong Ordinance, providing a complete albeit imperfect code for interpreting s.116. He further submits that the question is one of statutory construction and application of the Articles and is not a matter of Common Law, and I am free to interpret s.116 without regard to the relative persuasive force of the English or Scottish cases. He invites me to review the matter uninfluenced by case law and insofar as I do look at the authorities he invites me to take a fresh look at the question in the light of the circumstances and practices prevalent in Hong Kong and in particular he relies upon the numerous occasions in the case of public listed companies (26 out of a 181 reviewed thus far) where there are articles which permit the day of the meeting to be included in the computation.

33. In my judgment, there is a basic flaw in Mr. Mills-Owens' submission in relation to s.71 of Cap.1. It is clear from s.2(1) of Cap.1 that it supplements and does not override other ordinances. Cap.1 has to give way where the substantive ordinance provides otherwise. If I come to the view that on the true construction of s.116 of the Companies Ordinance 21 clear days is referred to, I am not relieved from interpreting s.116 by reason of Cap.1. I have to ask myself what is the construction to be applied to s.116 and only if I need to, do I have to look at s.71 of Cap. 1.

34. It seems to me quite clear that the words used in s.116 are intended to ensure 21 clear days notice is given. I agree with Mr. Ribeiro that several expressions would achieve the same result. I am quite satisfied that there is no difference in construction between "not less than 21 days" and 21 clear day. These phrases were used in the light of the Common Law rule above referred namely that fractions of a day are not taken into account.

35. I now turn to Mr. Mills-Owens' next point which was that the construction of a statute by a judge is not part of the Common Law. I disagree. The canons of construction are not usually to be found in a statute but are evolved over centuries by judges. Nowhere will it be found in a statute that fractions of a day are not to be counted but judges have said that that is the law and thus it is part of the developing Common Law.

36. If authority were needed for this obvious proposition, Mr. Ribeiro reminded me of a passage in Bennion on Statutory Interpretation at p.257 where the learned author says this:

"Interpretative criteria as part of the common law. Using the term common law in a broad sense, the interpretative criteria laid down or adopted by the courts may (except where they are statutory) be regarded as part of the common law. Lord Wilberforce has described the courts' development and application of them as 'the common law in action'. (Express Newspapers Ltd. v McShane [1980] 2 WLR 89, at p.94.)

Blackstone said:

'...the rules of expounding wills, deeds and acts of parliament...are doctrines that are not set down in any written statute or ordinance, but depend upon immemorial usage, that is upon common law, for their support.'

[Kerr B1 (4th edn, 1876) i 46. See also ibid, p.60. Blackstone was of course writing before the passage of the first Interpretation Act in 1850.]

Parliament is slow to intervene here. As Lord Scarman said:

'It has been axiomatic among lawyers and, indeed, in our legal professional thinking for a very long time that the interpretation of statutes is a matter for the judges; it is not a matter for legislation.'

[HL Deb 13 February 1980 col 276.]"

37. Mr. Mills-Owens' next argument was characterized by Mr. Ribeiro as the "could have said so argument". Mr. Mills-Owens quite correctly referred me to a number of statutes and subsidiary legislation in which the legislature had used the expression "clear days". If that is what they intended for s.116 of the Companies Ordinance, he says, why not say so. This argument rests upon the submission that the word "clear" was omitted. However, in my judgment, there is no difference in meaning between the expressions "clear days", "not less than X days" and "at least X days". This is precisely what Chitty J. said in the Railway Sleepers case over 100 years ago and thus the conclusion at which I have arrived in this case should not have come as the blinding surprise which Mr. Mills Owen foreshadowed.

38. Mr. Mills-Owens next relied upon a Hong Kong case which was based on the pre 1929 Act Legislation. In Chung Cheung She & others v. The Sze Yap S.S. Company Ltd. [1931] HKLR 77, the Full Court was concerned with a provision in the Companies Ordinance of 1911, namely s.68 which stated that:

"In default of and subject to any regulations in the articles - (1) a meeting of a company may be called by 7 days' notice in writing".

S.70 provided that:

"a resolution shall be a special resolution when it has been (a) passed in manner required for the passing of an extraordinary resolution; and (b) confirmed by a majority of such members entitled to vote as are present in person or by proxy (where proxies are allowed) at a subsequent general meeting of which notice has been duly given, and held after an interval of not less than 14 days nor more than one month from the day of the first meeting."

Sub-section 6 of Section 70 provided:

"For the purposes of this section, notice of a meeting shall be deemed to be duly given and the meeting to be duly held when the notice is given and the meeting held in manner provided by the articles."

39. So it can be seen that under that code it was the Articles of Association of a company which regulated the length of notice required. Article 49 of Table A of that Ordinance provided as follows:

"7 days notice at least (exclusive of the day on which the notice is served or deemed to be served, but inclusive of the day for which notice is given) specifying the place, the day, and the hour of meeting and, in the cases of special business, the general nature of the business shall be given in manner hereinafter mentioned...."

40. Thus under this legislation Table A or the Company's Articles computed the relevant period of time. It is hard to see the relevance of that case which was decided at a time when the legislature permitted a company to define for itself the length of notice required and the method for computing that interval of time.

41. In any event, the report of that case does not inform us what the Articles of the company actually provided. It does not appear that the computation of the 7-day period was an issue in the case (see pages 81 and 92 of the report).

42. In my judgment I gain no worthwhile assistance from that case.

43. Much the same comment can be said of the Aberdeen Comb Works Case 1902 Scots L.T. 210 which was also a case under the pre 1929 legislation. S.51 of the Companies Act 1862 enabled the company in its regulations to specify the manner of calling a meeting. The articles of that company expressly provided that the day of service of a notice did not count but that the last day of such days did count when calculating "7 days at least". So that too was a case where a company had legislated for itself as it was then, by the law, entitled to do.

44. Mr. Mills-Owens then referred me to the 1929 Act and to various articles therein contained. The 1950 edition of the Hong Kong Companies Ordinance contains the 1932 Ordinance which was based on the 1929 English Act. S.116 of that Ordinance is based on s.117 of the English Act. This section which is similar to the present s.116 although not identical, does specify:

"(2) A resolution shall be a special resolution when it has been passed by such a majority as is required for the passing of an extraordinary resolution and at a general meeting of which not less than 21 days' notice specifying the intention to propose the resolution as a special resolution has been duly given."

45. Article 8 in Table C of the then Hong Kong Companies Ordinance commences with the following words:

"Subject to the provisions of s.116(2) of the Ordinance relating to special resolutions, 7 days' notice at the least (exclusive of the day on which the notice is served or deemed to be served but inclusive of the day for which notice has given) specifying the place, the day, and the hour of meeting and, in the case of special business, the general nature of the business shall be given in manner hereinafter mentioned..."

46. One finds similar wording in Article 42 of Table A. These Articles are made subject to the provisions of s.116 and that is the section which has to be interpreted to find out whether 21 clear days are required. As Mr. Ribeiro put it, Table A mirrors the Ordinance. He reminded me that the 1929 Act brought about a radical change. Previously there had to be two meetings with the minimum period of notice required between the two. After 1929 there had to be a single meeting of which not less than 21 days' notice had to be given. The 1929 Act in England and subsequent legislation in Hong Kong stopped companies from legislating for themselves with regard to the period of notice required for special resolutions. The matter was clear as soon as that Ordinance came into force and it would be wrong to say that companies or those responsible for their management have in some way been trapped by these changes.

47. The 1975 version of the Companies Ordinance, Article 42 in Table A again makes it clear that it is subject to s.116. We then come to 1984 and to Article 52 of Table A. The change of approach in drafting can readily be seen. The matter is now spelt out quite clearly and it might be helpful, given that it has said confusion reigns, to set it out in full.

"52. An Annual General Meeting and a meeting called for the passing of a Special Resolution shall be called by 21 days' notice in writing at the least, and a meeting of the company other than an Annual General Meeting or a meeting for the passing of a Special Resolution shall be called by 14 days' notice in writing at the least. A notice shall be exclusive of the day on which it is served or deemed to be served and the day for which it is given, and shall specify the place, the day, and the hour of meeting and, in the cases of special business, the general nature of the business shall be given in manner hereinafter mentioned..." [emphasis added]

48. So now Article 52 of Table A mirrors quite precisely with s.116. Mr. Mills-Owens submitted that Table A is optional and of course he is right about that. But the one thing that is not optional is s.116 and whatever the company's Articles might say about notice of meeting for special resolutions, it is bound by the terms of s.116. No doubt that is why it was thought sensible to make Article 52 in Table A mirror precisely with s.116. It must therefore follow that any Articles which are replacing Table A will have, nevertheless, to comply with s.116.

49. Mr. Mills-Owens next relied upon a landlord and tenant case, namely Schnavel v. Allard [1966] 3 AER 816. The issue there was whether a notice to quit was valid at Common Law and whether it complied with the requirements of the Rent Act 1957 that it should have been given "not less than 4 weeks before the day on which" it was to take effect. The court held that the period included the first day but excluded the last day.

50. Lord Denning M.R. asked himself what is the effect of the words "not less than 4 weeks"? He mentioned Re Hector Whaling Ltd. "in which such words as 'clear days', or 'not less than' so many days were held to exclude both days, i.e. both the day of giving and also the day of receiving the notice. I must say, however, that I think that those cases have no application to this statute. The general rule as to notices, at any rate as between landlord and tenant, is that you exclude only one of the days and not both of them."

51. A little later on in his judgment Lord Denning made it clear that he was dealing with a statute that dealt with the relationship between landlord and tenant "and should be construed in accordance with the usual understanding of landlord and tenant". Diplock L.J. (as he then was) referred also to Chambers v. Smith but felt unable to conclude that in dealing with a subject like landlord and tenant "in which the law as to notice to quit is so well-known, it was intended by the words "not less than 4 weeks" to give effect to a fundamental change in the basic rule as to the length of notice required to terminate periodic tenancies. This would render the section a trap to every landlord and tenant".

52. It is clear from reading the short judgments delivered in that case that the learned judges were talking about an exception rather than the rule. What they were not prepared to hold was that the section concerned made a fundamental change to the understanding over many years of landlord and tenant. That situation is far removed from the one presently before me.

53. In my judgment there is nothing in any of the cases cited by Mr. Mills-Owens which lead me to conclude that the words "not less than" are to be construed in such a way that one of the days (either the day of giving the notice or the day of the meeting) should be included. My conclusion is wholly consistent with the natural and ordinary meaning of the words, and is consistent with the law of England which I have to apply, namely that fractions of a day are not generally taken into account.

54. It goes without saying that the period referred to in s.116 of the Companies Ordinance is a statutory minimum period. There is nothing to stop more than 21 days' notice being given, and I find it difficult to see why there is always an attempt to produce a notice which gives the very minimum amount of time with no leeway and in this case results in short notice. In my judgment the law in relation to fractions of a day and as to the meaning of phrases like 'not less than' or 'at least' has been clear for some considerable time and it ill behoves those who do not properly check the law to now complain when they find that corners have been cut.

55. These then are the reasons why I answered both questions posed in the originating summons in the affirmative.

56. I make a costs order nisi in favour of the Commission.

57. I cannot leave this case without paying a special debt of gratitude to both counsel for their most useful and helpful written submissions and for the succinct manner in which they adumbrated them before me.

Representation:

Mr. Robert Ribeiro Q.C. with Anselmo Reyes instructed by Simmons & Simmons for Applicant.

Mr. Richard Mills-Owens, Q.C. and Anderson Chow instructed by Linklaters & Paines for Respondent.