Wong Chang Sung v. Margaret Tse and Another
Read the full judgment text of HCA 2982/1973 on BabelCite. This High Court CFI judgment.
1. In this action on trespass, the facts were agreed and the parties called no evidence.
Cited by 4 cases
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HCA002982/1973
----------------- IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION Action No. 2982 of 1973 -----------------
----------------- CORAM: Mr. Commissioner Yang. Date of Judgment: 11.July.1974 ----------------- JUDGMENT ----------------- 1. In this action on trespass, the facts were agreed and the parties called no evidence. 2. The plaintiff is the registered owner of the suit premises situate at No.15 Grampian Road, first floor, Flat B, Kowloon. These premises form part of an entirely new building within the meaning of S.3(1) of the Landlord and Tenant (Consolidation) Ordinance. In 1971, the defendant's son entered into a tenancy agreement with the plaintiff in respect of those premises for a term of two years from 7th June 1971 to 6th June 1973. It was a domestic tenancy. The son and the defendants lived at that address until 15th June 1972, when the son died. After the son's death, the defendants have continued to live there until now. The lease was validly terminated by effluxion of time on 6th June 1973, but the defendants have refused and still refuse to deliver up possession of the premises to the plaintiff. 3. The tenancy in question was not protected by the Rent Increases (Domestic Premises) Control Ordinance of 1970 because protection was given only to a domestic tenancy existing at the date of commencement of that Ordinance. The provisions of that Ordinance were subsequently incorporated into Part II of the Landlord and Tenant (Consolidation) Ordinance. On 8th June 1973, i.e., two days after the expiration of the lease in question, the Domestic Premises (Tenure and Rent) (Temporary Provisions) Ordinance came into effect. On 8th October 1973 the plaintiff issued the present writ against the defendants. On 15th December 1973 the Landlord and Tenant (Consolidation) (Amendment) (No.2) Ordinance came into effect, repealing and replacing Part II of the Landlord and Tenant (Consolidation) Ordinance. It also repealed the Domestic Premises (Tenure and Rent) (Temporary Provisions) Ordinance. 4. The question which I am called upon to decide is whether the defendants were protected under the Domestic Premises (Tenure and Rent) (Temporary Provisions) Ordinance and the Landlord and Tenant (Consolidation) (Amendment) (No.2) Ordinance (hereafter referred to as the Temporary Provisions Ordinance and the New Part II respectively). If so, then they were not trespassers. 5. Miss Tam submitted on behalf of the defence that the defendants were tenants within the meaning of S.2 of the Temporary Provisions Ordinance as being tenants at sufferance and therefore persons who on the commencement of that Ordinance were in possession of the premises to which the Ordinance applied. In support of her contention that the defendants were protected tenants, the following provisions of the Ordinance were also relied on, namely :
It was argued that the tenancy referred to in S.3(1) must be a contractual tenancy, and the defendants were protected by virtue of the doctrine of transmission of tenancy on death and of S.3(4) and S.6(2). Miss Tam also referred to S.49, S.50(1) and (4), and S.52(1) and (2) of the New Part II in support of her argument that the defendants were protected under that Part. In support of her arguments, she cited the well known case of Remon v. City of London Real Property Co., Ltd. (1921) 1KB 49, followed in Hutchison v. Jauncey (1950) 1KB 574, which held that the English Rent Acts protected a person unlawfully holding over from a tenancy even if that tenancy had validly determined before the Acts applied to the premises. Two District Court decisions, following the English cases, were also cited, namely, Lam Shing Chiu v. Cham Siu Han (Action No. A10813 of 1972) and So Mui v. Wong Moon. etc (Action No. 631 of 1973). 6. Mr. Waung however contended on behalf of the plaintiff that the decision in Remon's Case does not apply in Hong Kong as it was based on the Increase of Rent and Mortgage Interest (Restrictions) Act 1920, which was quite different in purpose and in wording from the Tenancy Ordinances. He therefore submitted that the two District Court cases were wrongly decided. In the present case, Mr. Waung submitted, there was no tenancy existing on the commencement of the Temporary Provisions Ordinance, it having expired on 6th June 1973. Neither of the two 1973 Ordinances protected a tenant who held over from a contractual tenancy, and in any event the defendants were never contractual tenants themselves, but only the parents of a former tenant. Accordingly they could not be tenants at sufferance. As the defendants were not protected under the Temporary Provisions Ordinance, it followed that they were also not protected under the New Part II. 7. In my judgment the principle laid down in Remon's Case does not assist the construction of the New Part II and the Temporary Provisions Ordinance. In this connexion I cite with approval the dictum of Judge Hooper in the District Court case of Ho Kong-po v. Yiu Hoi Leung and others (R.I.A. Nos. 24-29 of 1974), where he said:
8. From the determination of the lease on 6th June 1973 to the 8th June 1973 when the Temporary Provisions Ordinance came into effect, the defendants clearly held over as tenants at sufferance. Now S.2 of that Ordinance in effect provides that a tenant includes a person who on the 8th June 1973 was in possession of domestic premises protected under that Ordinance. It is clear that protection is given not to persons in possession of any premises, but only to those in possession of "premises to which the Ordinance applies". Reading the Temporary Provisions Ordinance as a whole, and having regard to the previous legislations on the relevant subject, I am of the view that a tenant under the Temporary Provisions Ordinance includes a person who on the commencement of that Ordinance is in possession of domestic premises the subject matter of a tenancy to which the Ordinance applies. 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 appears 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. A tenancy at sufferance in domestic premises as on the 8th of June 1973 is therefore protected under the Temporary Provisions Ordinance as being. a domestic tenancy existing at the commencement of the Ordinance. Whilst there are English authorities for saying that tenancies at sufferance were protected under the Rent Acts (see, for example, Artizans, Labourers and General Dwellings Co., Ltd. v. Whitaker (1919) 2KB 301, and Dobson v. Richards (1919) 63 So.Jo.663), they were based on the peculiar wording of the relevant Acts. As the provisions in the local Ordinance are clear, it is not necessary to rely on the English decisions to come to a similar conclusion. 9. In view of what I have said before I need not consider further whether the defendants are also protected under the New Part II. The writ in the present case was issued before the commencement of the New Part II, the rights of the parties therefore crystallized on the date of the writ. It follows that the Ordinance governing the present action is the Temporary Provisions Ordinance. However as the applicability of the New Part II has been suggested in arguments, I ought to state that even if it were applicable between the parties, I would still hold, on S.49 and S.50(1) of that Part, and also because the defendants were tenants protected under the Temporary Provisions Ordinance, that the protections was continued. 10. Reverting now to counsel's submissions, I think the doctrine of transmission of tenancy on death and S.3(4) and S.6(1) and (2) of the Temporary Provisions Ordinance are irrelevant and do not advance the defendants' case in any way. I shall therefore say no more about these sections. It was also submitted on behalf of the plaintiff that the defendants were never contractual tenants and could therefore not be tenants at sufferance. This argument seems to be inconsistent with the agreed facts. It was agreed that the lease expired by effluxion of time, thereby implying the defendants must have been contractual tenants from the time of their son's death to the expiry of the lease. 11. For the reasons given above the plaintiff's claim is dismissed with costs.
Representation: Mr. William Waung (Ho & Wong) for Plaintiff. Miss Maria Tam (H.C. Yeung) for Defendants. |