Li Yuk Ha Betty v. Cheng Fong
Read the full judgment text of on BabelCite. was delivered on 19 March 1982.
1. In this action the plaintiff had claimed possession of the domestic suit premises for occupation by herself as a residence pursuant to Section 53(2) (b) of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7. After hearing the evidence, I held that I was not satisfied that the contractual periodic tenancy had been terminated by notice and judgment was given for the defendant. From the judgment the plaintiff has applied for a review, pursuant to Section 53 of the District Court Ordinance,
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DCCJ004194A/1981 Landlord and tenant - action commenced before but heard after enactment of Landlord and Tenant (Consolidation) (Amendment) (No. 2) Ordinance - whether old or new law to be applied at hearing - whether Amendment's transitional provisions limited to jurisdiction or also relate to substantive law to be applied at hearing - whether English Rent Acts except to general principle that legislation not presumed to be retrospective still applies to Landlord and Tenant (Consolidation) Ordinance - Held new law is the substantive law to be applied at the hearing - Sections 52, 53, Landlord and Tenant (Consolidation) Ordinance, Cap. 7, Sections 1, 59 Landlord and Tenant (Consolidation) (Amendment) (No. 2) Ordinance No. 76/81. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 4194 OF 1981 ________________________
_________________________ Coram: His Honour Judge Cruden in Court Date: 19 March 1982 ----------------------- JUDGMENT ----------------------- 1. In this action the plaintiff had claimed possession of the domestic suit premises for occupation by herself as a residence pursuant to Section 53(2) (b) of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7. After hearing the evidence, I held that I was not satisfied that the contractual periodic tenancy had been terminated by notice and judgment was given for the defendant. From the judgment the plaintiff has applied for a review, pursuant to Section 53 of the District Court Ordinance, Cap. 336. I granted the application and have heard submissions by Counsel for both parties. 2. The plaintiff's application was based on two points. First, that the provisions of the Landlord & Tenant (Consolidation) (Amendment) (No. 2) Ordinance No. 76/81 did not apply to this action at the date of the hearing, namely the 9th day of February, 1982, as the action was commenced on the 4th day of June, 1981. Secondly, that leave should be granted to the plaintiff to call further evidence to establish that the pleaded notice to quit, which I was not satisfied at the trial had been posted to the defendant, was actually posted. I am not disposed to allow further evidence to be adduced. For the service of the notice was a condition precedent to the cause of action arising. Whether it was served was a matter of substance not merely a matter of procedure. The additional evidence was available to the plaintiff at the trial but was not called. Leave to call further evidence is opposed and I am satisfied that there are no proper grounds to lead me to exercise my discretion to allow such further evidence to be called. 3. The substantial issue before me on the review is whether the provisions of the Landlord & Tenant (Consolidation) (Amendment) (No. 2)(1981) Ordinance applied to this action at the hearing. Before considering the law it may be helpful to set out the chronology of the relevant events:-
4. Counsel for the plaintiff submitted that these dates disclosed the significant fact that here the writ was issued before both the date the Amendment was enacted and the date the amended Section 53 came into operation. 5. It was common ground that before the new amendments came into operation it was not necessary first to terminate a periodic tenancy by notice. After the amendments notice was necessary. The amended particulars of claim pleaded that such a notice had been given and served on the defendant. However, I was not satisfied the notice had been served. The plaintiff therefore had argued in the alternative that it was not necessary to either plead or prove such notice. Therefore the inability of the plaintiff at the trial to prove service of the notice was not fatal to her claim. 6. I have already, in earlier judgments, held that the proper law to apply where an action was commenced before the amendment but heard after the amendment was the new law in force at the date of the hearing. In doing so I had relied on the Court of Appeal decision in LAM Wai v. MAK Yok-jan (1980) H.K.L.R. 236. In that case the Court of Appeal considered the retrospective effect of a similar worded amendment in the Landlord & Tenant (Consolidation)(Amendment) Ordinance No. 6/80 and held that the law to be applied was the law at the date of the hearing. 7. I am aware that another District Judge in CHOW Sui-kwan v. Estate Sum Yat Ming VCJ No. 6035/80 has suggested the effect of Section 59 of the new Amendment in relation to actions commenced before the Amendment but not heard until after the Amendment, is that the old law continues to apply at the hearing. With respect, the transitional provisions of Section 59, seem to me, to be limited to jurisdiction. They are only concerned with the otherwise competing jurisdiction of the District Court and the Tenancy Tribunal on the one hand and of the Lands Tribunal and the Commissioner of Rating & Valuation on the other hand, in respect of pending proceedings. They are not concerned with the different question of what law is applicable. Counsel for the plaintiff referred me to that other District Court decision, but expressly stated that he did not adopt its reasoning for he considered, with respect, that to the extent that judgment made observations on the present issue, they were wrong. I accept that submission. 8. Counsel for the plaintiff commenced his submissions with the general proposition that where the legislation is changed when an action is pending, the amendment has no retrospective effect unless the contrary is clearly shown. The decision of the then Chief Justice in In re Arjan Heera Sakhrani (1968) H.K.L.R. 389 was cited to me where that principle was applied in respect of the Legal Practitioners Ordinance, Cap. 159. The Chief Justice held that as the amending legislation did not indicate that it was to affect pending actions, an application for admission by a barrister filed before the amendment was enacted, fell to be determined in accordance with the law in force on that date the application was filed and not in accordance with the law in force at the date of the hearing. With respect I would not be disposed to quibble with that decision or that general principle. 9. As to the Court of Appeal's decision in LAM Wai v. MAK Yok-jan the Ordinance had been amended on 15th February 1980 with retrospective effect to 18th December 1979. So there was express retrospective provision in the 1980 Amendment whereas in the 1981 Amendment there is no express retrospective provision. All the various dates when different portions of the Amendment would come into operation are after and not before the date of its enactment, namely the 10th day of December 1981. Counsel for the plaintiff placed more importance on the fact that the writ in LAM Wai v. MAK Yok-jan was issued on the 21st day of January 1980. This was after the new law came into force on 18th December 1979. Whereas in the instant case the writ was issued on the 4th day of June 1981, so before the Amendment came into force on the 19th day of December 1981. 10. I recognise at once that this is a major factual distinction and the crucial question is whether these different facts are of legal significance. 11. At least at the date of the Court of Appeal's decision in LAM Wai v. MAK Yok-jan it was clear that Hong Kong Courts in interpreting such of the provisions of the Landlord & Tenant (Consolidation) Ordinance as are analogous with the English Rent Acts, followed the English decisions that the law to apply, where there have been amendments of the kind I am considering, is the law as at the date of the hearing. The two leading English decisions which are most frequently cited in this connection are Remon v. City of London Real Property Co. Ltd. (1921) 1 K.B. 49 and Hutchison v. Jauncey (1960) 1 K.B. 574. Both those decisions recognise that because of the exceptional nature of the various provisions of the Rent Acts, which interfere on social grounds with the contracting rights of the parties, the general principles of legislation prima facie not being retrospective, is changed. In approaching the Hong Kong legislation the Chief Justice in LAM Wai v. MAK Yok-jan himselfrefers to Hutchison v. Jauncey. In adopting the principle of that decision the Chief Justice cited the 1980 Amendment to Section 52 in these terms:- 12. 'The amendment to Section 52 of the principal Ordinance reads -
13. The italics are the Chief Justice's. Turning to the 1981 Amendment it is to be noted that in again amending Section 52 the legislature has once more used precisely the same words as those italicised by the Chief Justice in the prior Amendment. For the new Section 52 provides:
14. I have added the latter italics. 15. After considering, in particular, those words of Section 52 of the 1980 Amendment, the Chief Justice for the Court of Appeal concluded:
16. The earlier decision of WONG Chang-sung v. Margaret TSE & Anor. (1974) H.K.L.R. 350 was also cited to me as a Hong Kong decision in part considering the present Ordinance, where it was held that:
17. In approaching that decision it is important to take into account that the proceedings were an action for trespass. In addition, the defendants had held over at sufferance when the Domestic Premises (Tenure and Rent) (Temporary Provisions) Ordinance came into effect. That Ordinance and the subsequent Part II of the Landlord & Tenant (Consolidation) Ordinance, it was held, applied only to parties under tenancies. In that case there was no tenancy. In this case the continuing relationship of the parties as landlord and tenant under a tenancy has never been disputed. So on those grounds that decision may be distinguished. Even if it were not distinguished, it would also require to be considered in the light of the Court of Appeal's more recent decision in LAM Wai v. MAK Yok-jan. 18. The Privy Council decision of Zainal bin Hashim v. Government of Malaysia (1979) 3 All E.R. 241, also cited, may be similarly distinguished. The Privy Council considered whether a pending action for a declaration by a police officer for wrongful dismissal was affected by retrospective legislation. The advice of the Privy Council reaffirmed the settled principle that for pending actions to be affected by retrospective legislation the enactment did not have to state expressly that it applied to such actions, but its language had to be such that the only possible conclusion was that the Legislature had intended it to so apply. The Privy Council had no difficulty in finding that the amendment before it did have retrospective effect. This was hardly surprising as it appears to have been passed specifically, inter alia, to destroy the police officer's cause of action. 19. Clearly where landlord and tenant legislation is concerned, a Court is readier than in other cases to hold that an amendment does have retrospective effect. Further as the Privy Council declared it is not necessary for any express provision to be included declaring that the amendment is to be retrospective. I appreciate that it is a matter of construction in each case. 20. In approaching the new Amendment on this basis I also remind myself of the recent decision of the English Court of Appeal in Harrison v. Hammersmith (1981) 1 W.L.R. 650. In considering whether certain provisions of the Housing Act 1980 were retrospective, the line of cases under the Rent Acts commencing with Remon v. City of London Real Property were considered. On that point it was held that the particular Housing Act's provisions were not retrospective. The Court of Appeal recognised that cases under the Rent Acts are an exception to the general rule that legislation is not presumed to be retrospective. However, it held that there were fundamental differences between the Rent Acts and the Housing Act and that the general principle applied to the latter Act. I accept that this decision may be an indicator that at least in England for social or other reasons, the exceptional principle applicable to the Rent Acts may in future be increasingly restricted. Further, it was obviously very relevant that landlords under the Housing Act are local authorities. 21. However that may be, in my view, the position in Hong Kong is clear. I am satisfied that no legal significance attaches to the fact that in this case the writ was issued before the amendment came into operation whereas in LAM Wai v. MAK Yok-jan the writ was issued after the amendment came into force. The Court of Appeal in the latter case held that words similar to the instant provisions meant that the proper law to apply at the hearing was the new law in force at the hearing. Within twelve months of the 1980 Amendment, which the Court of Appeal considered, the legislature passed the present Amendment to the same Ordinance. The legislature used the very same words as to the application of the Amendment, as were considered by the Court of Appeal only a few months earlier. 22. When I consider the terms of the new Amendment against that background and in relation to the other provisions of the Ordinance I have arrived at the conclusion that the new Amendment equally intends that the law to be applied at the hearing of a pending action, such as the instant action, is the new law in force at the date of the hearing. 23. As I applied the new law at the hearing there seems to be no reason why my prior judgment should be varied on this review. That judgment delivered on the 12th day of February, 1982 is therefore confirmed. DATED this 19th day of March, 1982.
Representation: Mr. B. Yu instructed by K.M. Lai & Li for the plaintiff. Mr. S.S.W. Chan of Hastings & Co. for the defendant. |