Lee Pui Wah and Another v. Lan Wing Chung

DCCJ006538/1980

Landlord and Tenant (Consolidation) Ordinance Section 53(2)(b) - joint landlords - persons for whom premises required conform to specified relationship in respect to one but not both landlords - no jurisdiction in such case - Interpretation and General Clauses Ordinance section 19 merely expresses in statutory form well-established common law canons of construction - Quare whether a registered owner by virtue of being the administrator of a deceased's estate, with no evidence of beneficial ownership, can require premises for himself, his father, his mother or son or daughter over the age of 18.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 6538 OF 1980

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Coram: Judge de Basto, Q.C. in Court

Date of Judgment: 17 June 1981

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JUDGMENT

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1. The Plaintiffs are a widow and her elder son. In their Writ they claim, under section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance, possession of the suit premises "for occupation as a residence for themselves and members of their family over the age of 18". However, in her evidence the widow, the 1st Plaintiff, said the premises were required for her younger son and daughter. The 1st Plaintiff's elder son, the 2nd Plaintiff, testified that the suit premises were required for his younger brother and sister. If the Particulars of Claim had been pleaded to conform with the individual requirements of the two plaintiffs, as stated in their evidence, the legal point I have had to consider would have become manifestly apparent. Mr Ma for the Plaintiff assured the Court that his instructions have "always" been that the suit premises were required for the 1st Plaintiff's younger son and daughter. I accept that assurance. This is not the first case where a Plaintiff's stated requirement in evidence has been at variance with the requirement specified in the particulars of claim. I have been told that solicitors tend to plead the requirement "in general terms" but, for my part, I think it highly desirable for Plaintiffs to plead, at least in cases where premises are required for a specific individual or individuals, the relationship of such person or persons to themselves. To do otherwise may result in a court having doubts about the genuiness of a Plaintiff's claim.

2. Section 53(2) of the Landlord and Tenant (Consolidation) Ordinance reads in part:

3. The legal question I pose is this - - Can a court find in favour of two joint landlords under section 53(2)(b) where the person for whom the suit premises are sought conforms to the specified relationship in respect to one, but not both, of them?

4. In Sun Pin & Anor. v. R.P. Greenwood (1964) D.C.L.R. 246 the Applicants were husband and wife. They were jointly the registered owners of certain premises. They served the tenant of the premises with a notice to quit under Section 6(2) of the then Rent Increases (Domestic Premises) Control Ordinance. Sub-section (a) of Section 6 (2) of that Ordinance reads:

"(a) that he requires possession for use as a dwelling by himself, his mother, his father, or any son or daughter of his over the age of eighteen years."

5. The learned judge found that the husband applicant had been twice married according to Chinese custom and that "the son" for whom the premises were required was the offspring of the husband applicant and a former wife. He dismissed the Applicants' action on the ground that the provisions of Section 6(2)(a) of the Rent Increases (Domestic Premises) Control Ordinance did not cover the case for the Applicants because the son for whom the premises were claimed was not the son of both Applicants but the son of one of them only. The learned judge in that case (Judge McMullin, as he then was) followed the dictum of Asquith L.J. in Baker v. Lewis (1947) 1 K.B. 186 at page 193 which in turn was followed by the English Court of Appeal in McIntyre v. Hardcastle (1948) 2 K.B. 82

6. In McIntyre's Case the Plaintiffs were two married sisters and they were the joint and beneficial owners of a house. They brought an action against the tenant claiming possession under para. (h) of Sch. 1 to the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933 on the ground that the house was required for occupation as a residence by one of them. The Court of Appeal upheld the county court judge in holding that para. (h) was not applicable to the claim by the landlords where only one of them required the house for his own occupation.

7. The relevant part of para. (h) of Sch. 1 to the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933 reads:

"(h) the dwelling house is reasonably required by the landlord....for occupation as a residence for (i) himself; or (ii) any son or daughter of his over eighteen years of age; or (iii) his father or mother...."

8. In Tilling v. Whiteman (1980) A.C. 1 the Plaintiffs were two elderly ladies who jointly owned a dwelling house. They were unrelated. Stephenson, L.J. in the Court of Appeal said (at page 8) inter alia:

"It is they two, not Mrs Tilling, who occupied the dwelling house and were the owner-occupier of it, and it is both of them, not Mrs Tilling alone, who have to satisfy the court that it is required as a residence for them both.....One joint owner can sue for rent or give notice to quit, but all joint owners must sue and judgment cannot be given in favour of one only."

9. In the House of Lords, Lord Wilberforce at (page 19) said:

"There must then be great strength in the argument that if for one purpose the plural is deemed to be included in the singular, so it must be for the other - plural landlords must require the house for themselves, not for one of them."

10. For myself I do not think the legislature in Hong Kong considered the question of joint landlords when it enacted Section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance. In Tilling's Case (supra) both the Court of Appeal and the House of Lords quoted with apparent approval the statement by Tucker L.J. in McIntyre's Case (supra):

"I do not think the legislature really contemplated this situation when this paragraph was framed. Therefore, I feel driven to interpret it in the light of the actual language used."

11. I think it fair to say that the notion of "the family" among the Chinese in Hong Kong is a much wider concept than that held by the average European. But despite this I would adopt, with respect, the view of the learned judge in Sun Pin's Case (supra):-

"...... I would be slow, merely in deference to a sociological difference between two countries, to depart wholly from a clear and unequivocal interpretation given by the courts in England to a form of words which the Legislature in Hong Kong has seen fit to copy exactly occurring as it does in a section of an Ordinance dealing with subject matter of a similar sort to that dealt with by the English legislation"

and again:-

". . . . . . I think that . . . . it would be wrong for the court to assume the responsibility for serving a purely social need it such indeed exists, by the expedient of adopting an interpretation that would run counter to the ordinary grammatical construction of the wording of paragraph (a ) of sub-section 2 of section 6 and in the light of the relevant canons of construction provided by the Interpretation Ordinance."

12. I would, again with respect, like to adopt the reservations expressed by Megaw L.J. in Lloyd v. Sadler (1978) 2 All E.R. 529 at p. 533

"If this court's decision in this case accords with what Parliament would have enacted, had its intention been directed to the particular problem which has arisen in this case, it would, I firmly believe, be far better in the general interest that those parts of the gap which still remain, I suspect that those which remain are neither few nor unimportant, particularly as regards statutory joint tenancies, should be filled as the legislature would wish by an early and comprehensive Act of Parliament. They should not be left to be filled in, peicemeal, by the courts over the years, at random as cases happen to arise and happen to be taken to various stages of appeal. Such a code of judge-made law, however admirable it might prove to be in the end would be built up slowly, probably erratically (because the various problems would not come up for decision in any logical order) and, most certainly, at no small cost in terms of human stress and anxiety and, in some cases, financial hardship to a large number of individual persons, who, to their misfortune, would happen to be the litigants on whose troubles the edifice of judge-made law would be built. In my opinion, there can be no doubt which would be the more efficient, sensible and humane way of filling any remaining gaps in the law as to the effect of joint tenancies in the Rent Acts."

13. I have considered whether section 19 of the Interpretation and General Clauses Ordinance could have been successfully prayed in aid of the Plaintiffs.

14. Section 19 reads:

"An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

15. Section 19 is taken from a similar provision in New Zealand which was enacted in that country almost a hundred years ago. The section is not infrequently prayed in aid by counsel as some sort of magical formula, an interpretational cure-all to be used even where the actual meaning of words in a statutory provision is unambiguous. Much emphasis is placed on the words "remedial", "large and liberal construction". It has sometimes been urged upon this court that because there is no similar enactment in England, statutory provisions in Hong Kong should receive a more "liberal" construction than they could have been given by an English court. That argument has never excited in this court a responsive chord.

16. In my view, section 19 does no more than express in statutory form a canon of interpretation long enshrined in the common law. A fairly recent example would be Lord Diplock's interpretational approach in R. v. National Insurance Commissioners (1972) A.C. 944 at 1005 where he said there should be "a purposive approach to the Act as a whole to ascertain the social ends it was intended to achieve and the practical means by which it was expected to achieve them." I accept what Lord Devlin said in this connection in his book "The Judge" at page 14. After quoting Lord Diplock as above he went on: "But, in the end, the words must be taken to mean what they say and not what their interpreter would like them to say; the statute is the master and not the servant of the judgment."

17. The Privy Council seems to regard the New Zealand precursor of our section 19 as a statutory expression of the common law canons of interpretation.

18. As early as 1904, the Privy Council said in Smith v. McArthur and Others (1904) AC at page 398 in relation to section 5, sub-section 7 of the New Zealand Interpretation Act (1888, No. 15) of which our section 19 is a replica:

"To ignore this, and to adhere to a language so literally as to defeat the plain intention of the Legislature instead of so construing the words as to give effect to the intention, is to run counter to section 5, sub-section 7 of the Interpretation Act, which, after all, only expresses what is meant by the old legal maxim, 'Qui haeret in littera haeret in cortice'"

19. Again, in 1976, the Privy Council in Haldane v. Haldane (1977) AC at 689, after reciting section 5(j) of the Acts Interpretation Act, 1924 said:

"This provision seems to give statutery force to the common law canon of construction which generally goes by the name of 'the rule in Heydon's Case (1584) 3 Co. Rep. 7a" (also 76 E.R. 637 at 638)

20. I set out here, for convenience, the principles of the rule in Heydon's Case:

"And it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:-

21. Since the draft of this judgment was typed I have had the advantage of reading the carefully thought-out ruling of my brother Cruden in Hsia Jone Shu and Hsia Yu Liang, Patrick v. Allied International Insurance Ltd VCJ 7787 of 1980.

22. For my part, I remain unpersuaded that section 19 requires judges in Hong Kong to construe statutory enactments more "remedially" or "liberally" than judges in England.

23. I do not think that section 19 can "remedy" a casus omissus. Only an amending (or new) Ordinance can remedy an omission in a statute.

24. For my part, I am disinclined to think that a specified form of words has one meaning in England but that the same words have a different meaning in Hong Kong by virtue of section 19 of the Interpretation and General Clauses Ordinance.

25. In the instant case, I hold that Section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance does not cover the Plaintiffs for the reason that the persons for whom the suit premises are required conform to the category of persons referred to in Section 53(2)(b) in relation to one, but not both, of the Plaintiffs.

26. Another legal point has exercised my mind but in view of the decision I have already arrived at, this other point does not call to be decided by this court.

27. The 1st Plaintiff's husband died intestate on the 20th May, 1962. On 22nd February, 1966, Letters of Administration were granted to the two Plaintiffs (see Exhibit P. 6). An Assignment dated the 29th May, 1967 relating to the suit premises was produced (Exhibit P.2). The purchasers are therein stated as being the two plaintiffs as "the Administratrix and Administrator of the estate of Lau Man Tat, deceased". I will recite only a few passages from the said Assignment:

28. In the Particulars of Claim the Plaintiffs plead that they are the registered owners of the suit premises. As such they are, at least nominally, "entitled to receive rent" in respect of the suit premises (see definition of "landlord" in Section 2 of the Landlord and Tenant (Conselidation) Ordinance). I say "nominally" because it may be that they are entitled to receive such rents merely as personal representatives for the benefit of the estate of the 1st Plaintiff's late husband. See Sharpe v. Nicholls (1945) 1K.B.382C.A. I do not think it can be said of the Plaintiffs that "they and they alone" would be entitled to the proceeds of sale were the suit premises to be sold (see comments by Morton L.J. in Baker v Lewis (supra) at page 189)

29. There was no evidence at the trial as to whether the Plaintiffs (or either of them) were beneficially entitled to the suit premises and in view of the fact that the deceased died intestate before the 7th October, 1971 it may be that the 1st Plaintiff would not, under Chinese law and custom as prevailing in the Colony until that date, have been entitled to beneficial ownership of any property owned by the deceased...this would probably have devolved upon the sons of the deceased in equal shares subject to financial provisions for the maintenance of the deceased's widow for life and for his daughter until her marriage. But, as I have said, these matters may raise problems which this court need not resolve.

30. Were it not for the decision I have arrived at based on law, I would have held that I was satisfied that the Plaintiffs had satisfied me that the premises were reasonably required for occupation as a residence by the 1st Plaintiff's younger son and daughter (being the 2nd Plaintiff's brother and sister) and I would have held I was not satisfied that an Order for possession would manifestly not have been just or equitable.

31. There will be judgment for the Defendant.

Representation:

Mr Peter Ma of K.M. Lai & Li for the Plaintiffs.

Mr Raymond Leung of Yung, Yu, Yuen & Co. for the Defendant.