Li Yuk-ha Betty v. Cheng Fong

DCCJ004194/1981

Landlord and tenant - service of notice to quit by ordinary post - where service disputed whether in absence of direct evidence of posting landlord can rely on internal system of management of landlord's solicitors as to posting - Section 53(2) Landlord and Tenant (Consolidation) Ordinance, Cap. 7, Section 8 Interpretation and General Clauses Ordinance, Cap. 1

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 4194 OF 1981

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Coram : His Honour Judge Cruden in Court

Date: 12 February 1982

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JUDGMENT

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1. In this action the plaintiff claims possession of the domestic suit premises for occupation by herself as her residence pursuant to Section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7.

2. When the action was commenced on the 4th day of June 1981 there was no necessity to first terminate the monthly periodic tenancy between the parties. No doubt for that then very good reason no notice to quit was pleaded.

3. On 19th December 1981, however, as a consequence of the Landlord and Tenant (Consolidation)(Amendment No. 2) Ordinance No. 76/81 it became necessary for such a periodic tenancy to be first terminated before a cause of action under Section 53(2) could arise.

4. I was informed by Counsel for the plaintiff that although no notice to quit had been pleaded a notice had in fact been served. He therefore orally applied at the hearing to amend the particulars of claim by the addition of he following new paragraph:-

5. The defendant opposed the amendment. I considered that the necessity for the amendment had only arisen because of the recent statutory amendment which was enacted after the present proceedings were commenced. In the exercise of my discretion I held that this was a proper application and allowed the particulars of claim to be amended accordingly. I intimated to the defendant's solicitor that if he wished he might apply for an adjournment to consider the matter and file any amended defence that might be necessary. After a short adjourment I was informed that the defendant wished the hearing to proceed subject to the defence being amended by the addition of the following new paragraph:

6. I ordered that the defence be amended accordingly; reservice being dispensed with in respect of both amendments.

7. In view of the express defence denial as to service of the notice to quit, the plaintiff could not rely on the principle set out in Chan Oi-ho v. Hong Kong and Kowloon Carving Association (1965) D. C. L. R. 119 but was put to proof. So the trial continued. Counsel for the plaintiff intimated that he hoped to call the clerk who effected service of the notice to quit or if he was not available the plaintiff would give evidence, that in a subsequent discussion with the defendant, the defendant acknowledged receipt of the notice.

8. The plaintiff called Mr. LAI Chak-sum a clerk employed by her solicitors. His evidence was that he drafted and personally typed the letter constituting the notice a copy of which he produced as Exhibit P.1. He further stated that he obtained its signature by Mr. LI, a partner of the firm, and then handed it to a person employed by the firm and asked that person to mail the letter by normal post. The letter he stated was to be mailed by normal post and not registered. When the plaintiff gave evidence she was not questioned on the issue of service nor when the defendant gave evidence was she cross-examined whether she received the letter.

9. After hearing the whole of the evidence I reserved my decision in order to give further consideration to whether the plaintiff had established on the balance of probabilities that the letter, which constituted the notice, had been served on the defendant.

10. The letter was addressed to the defendant at the suit premises. I find she then resided and continues to reside at that address. I was satisfied that its contents constituted a valid notice to quit. The defence drew my attention to the fact that the letter went on to state that the reason for wanting possession was to use the premises as a residence for the plaintiff and members of her family whereas paragraph 5 merely refers to the plaintiff requiring possession of the premises for herself. If the position was as stated in the letter then the pleading is still accurate for her family in these proceedings have no status other than as members of her household.

11. To refer to them in the particulars of claim was unnecessary and in the view of the Court of Appeal improper. In any event the law is well settled that a notice to quit otherwise valid is not invalidated by the addition of other words or statements provided the notice itself remains clear and certain in its terms and not subject to any contingency - Norfolk County Council v. Child (1918) 2 K.D. 805, C.A. This notice was clear and certain in its terms.

12. The issue of service of the notice raises, on the instant facts, two points. First, may service be effected by unregistered post? Secondly, if so, is there evidence from which it may be held that the letter containing the notice was so posted?

13. The notice to quit must be duly served on the defendant. In other words, the service must be sufficient for the notice to be brought to her personal attention. For example it is not sufficient merely to affix the notice to the suit premises or leave the notice at those premises, unless there is evidence that it actually came to the defendant's notice. Hill and Redman (16th Edn.) at page 505 point out it is sufficient if the notice is sent by post to the tenant's address:-

"If the posting is proved, the notice will be presumed in the absence of evidence to the contrary to have been delivered in due course of post ..."

That textbook goes on to emphasise: -

"It is desirable in such a case to send it by registered post or by the recorded delivery service so that an offic al record of the posting may be obtained ;"

14. In the instant case the notice was not sent by registered post but it is asserted it was sent by ordinary post. I note that Hill and Redman merely states that it is desirable that the notice is sent by registered post if service is to be attempted to be effected by post. That is certainly a counsel of common sense but it is obligatory. If the evidence establishes that the notice is sent by ordinary post to the proven address of the defendant then I would accept that is prima facie evidence of service. As was also said in CHAN Oi-ho v. Hong Kong and Kowloon Carving Association (Supra) : -

"A notice to quit may be served upon the tenant personally or by post and in other ways, but it is not a good service to simply affix it to the premises."

15. A Court must be satisfied the defendant has actual knowledge of the notice. Service by ordinary post is prima facie evidence of such knowledge. Although it would need far less powerful evidence by a defendant that he nevertheless did not receive the notice than if it were sent by registered post. Certainly while it is not essential to use registered post it is most "desirable" if service by post is selected.

16. I am also conscious of the fact that Section 8 of the Interpretation and General Clauses Ordinance which deals with service by post makes no distinction between ordinary "post" and "registered post" in caseswhere an Ordinance requires or authorises service by those means. However, that Section is only of passing interest for it does not apply to service of the instant notice to quit. Part II of the Landlord and Tenant (Consolidation) Ordinance does not require or authorise notices served thereunder to be by post registered or otherwise.

17. The defence evidence was silent on the issue of service so I am not here concerned with any denial or other evidence as to service which might rebut the prima facie evidence of service if I were satisfied that the notice was sent by ordinary post. While it would not need very strong evidence to rebut allegations of service, limited to using the ordinary post, that obligation would only arise where there is first prima facie evidence in favour of service.

18. So the important question on the issue of service is whether I am satisfied that the notice to quit was sent to the defendant by ordinary post. The evidence is that PW1 gave the letter to a member of his firm's staff and instructed him to post the letter by ordinary post. It was put to Counsel for the plaintiff that the employee who posted the letter was not called. To this Counsel replied that the Court could rely on the firm's system of internal management. As to this it may be observed that PW1 did not give evidence as to that system and no postage record book of the firm or other evidence was called on this point.

19. Can the Court rely on the firm's system of internal management on this issue? I approach this question against the background that due service of a proper notice to quit is a condition precedent to the statutory cause of action arising under Section 53(2). Service of the notice is on the pleadings expressly disputed.

20. I appreciate, that at common law, once a letter is posted, in the absence of evidence to the contrary, a presumption of delivery in due course of post arises. Equally where there is statutory provision for service by post a similar statutory presumption arises in Hong Kong under Section 8 of the Interpretation and General Clauses Ordinance. What the plaintiff asks is that I apply a similar presumption as to the internal steps taken in the plaintiff's solicitor firm once one employee instructs another employee to send by post a particular letter. To apply such a presumption in respect of a firm's internal system of management, on the evidence before me in this case, would be different not only in degree but in kind to the various presumptions as to delivery by post which may arise  once a Court is first satisfied that a particular letter has been posted. No authority for such a wider presumption in these circumstances has been cited.

21. When I take all these matters into account I am of the view that the absence of direct evidence, on such an important element of the plaintiff's claim, is not cured by invoking the firm's system of internal management, particularly when the evidence of that system too, is sparse. I have come to the conclusion, if with some reluctance, that the plaintiff has not established on the balance of probabilities that the pleaded notice to quit was served on the defendant. It follows that I am not satisfied that the contractual periodic tenancy has been terminated. There must in these circumstances be judgment for the defendant who is also given 21 days to pay any arrears of rent. There will be no order as to costs.

DATED this 12th day of February 1982.

Representation:

Mr. B Yu instructed by K. ?? Lai &. Li for the plaintiff.

Mr. S. S. W. Chan of Hastings & Co. for the defendant.