Hsia Jone Shu and Others v. Allied International Insurance Ltd

DCCJ007787/1980

Landlord and Tenant - joint owners - domestic premises required by joint owners for occupation as a residence for one only of the joint owners - whether jurisdiction to make order - Landlord and Tenant (Consolidation) Ordinance, Cap. 7, S. 53(2)(b), Interpretation and General Clauses Ordinance, Cap. 1, S. 7(2), S. 19.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 7787 OF 1980

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Coram: H.H. Judge Cruden in Court.

Date of Judgment: 29th May, 1981.

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RULING

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1. The plaintiffs in this action are father and son, Hsia Jone Shu being the father of Hsia Yu Liang, Patrick. The plaintiffs are the owners of the domestic suit premises which are occupied by the defendant as tenant.

2. Under the amended paragraph 7 of the particulars of claim, the plaintiffs have pleaded:-

3. Before any evidence was adduced the defendant made the preliminary objection that Clause 7 did not disclose a cause of action and that judgment should therefore be entered for the defendant. The defendant submitted that the plaintiffs claim was made pursuant to Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance Cap. 7 which empowers a landlord to claim possession of domestic post-war premises in these terms:-

4. The word "landlord" is in the singular, but it was agreed that by virtue of Section 7(2) of the Interpretation and General Clauses Ordinance, Cap. 1 that words in the singular include the plural and therefore the reference to "landlord" includes "landlords". Accordingly it is clearly open to the plaintiffs as landlords to bring these proceedings.

5. However, the defendant submits that before the landlords may bring proceedings, it is necessary for both of them not only to require possession, but possession must be for their joint residence or for the residence of their joint relatives. In this case, according to the defendant, the fatal flaw in the plaintiffs claim is that while both require the premises, only one of the plaintiffs wishes to reside therein. It is agreed that if the father solely owned the premises he could as sole plaintiff claim the premises for his son. Similarly, if the son solely owned the premises, he could as sole plaintiff claim the premises for his father. Likewise if a husband and wife owned premises, they could as joint plaintiffs claim the premises for their son. But, it is submitted, as the father and son in this case are joint owners, they cannot claim possession of the premises if they are going to be used as a residence for either the son only or the father only.

6. As a matter of principle, it would seem that where father and son both own premises and they are required as a residence for the son solely, an action should be able to be brought under Section 53(2) (b) and I would have had little difficulty in dismissing the defendant's objection. For if the term "landlords" is not to be construed jointly and severally the legislation could be reduced to an absurdity. Some of the examples, I have already set out may be accepted as illustrations of the unjust and illogical consequences that might result. However, Counsel for the defendant urged that if the legislation is construed literally and strictly that is the only proper construction. In Hong Kong, however, as a general rule, Courts are not permitted to adopt a strict or literal interpretation of legislation. It is true that in many common law countries a Court may select from wide, varying and often conflicting cannons of construction, before deciding which canon of construction to adopt and apply. While the freedom to adopt such a wide approach may give a Court an enviable flexibility, in Hong Kong Courts have to approach legislation within the straightjacket of Section 19 of the Interpretation and General Clauses Ordinance, Cap. 1 which provides:-

7. The Landlord and Tenant (Consolidation) Ordinance must therefore be construed in that spirit. The general object of the Ordinance, it is true, is to provide protection for tenants. However, a number of its Parts represent the consolidation of various earlier individual Ordinances. Therefore while the Ordinance must, of course, be considered as a whole each Part must be approached carefully. This particularly applies to Part II. Section 53 thereof was subject to a major amendment in 1980 pursuant to the Landlord and Tenant (Consolidation) Amendment Ordinance No. 6 of 1980 which was made retrospective to the 18th day of December 1979. The major amendments to Section 53 were twofold. First, the earlier restriction which limited the empowering provisions in favour of landlords to persons who became landlords after the 15th day of December 1973 was abolished. Secondly, under the proviso so far as tenants were concerned, the greater hardship provision was replaced by the manifestly unjust and inequitable formula. While these amendments do not amount to a landlords charter, they both considerably strengthened the position of the landlord and weakened the position of the tenant. The comulative effect of these amendments is a strong indication of the legislature's intention in regard to the amended Section 53(2), namely to improve the position of landlords.

8. To interpret the amended Section in the narrow way the defendant suggests would appear to frustrate the legislature's intention and to resort to a narrow and strict interpretation in defiance of Section 19. However, Counsel for the defendant cited two Hong Kong cases and two English Court of Appeal cases which, it is submitted, have already decided the substantial issue now before me in the defendant's favour. These cases were Sun Pin and Anor. v. R.P. Greenwood (1964) D.C.L.R. 246, Wong King Fun & Anor. v. Cheng Hon Tao (1971) D.C.L.R. 46, McIntyre & Anor. v. Hardcastle (1948) 2 K.B. 82, C.A. and Wetherall & Co. Ltd. v. Stone & Ors. (1950) 2 All E.R. 1209, C.A. Before considering those cases in detail, I would observe that in all four cases the judgments express either regret, reluctance or surprise, expressly or by implication, at the conclusion they felt obliged to reach.

9. Both the Hong Kong judges felt obliged to follow the English Court of Appeal decision of McIntyre & Anor. v. Hardcastle. In Wong King Fun & Anor. v. Cheng Hon Tao the learned judge concluded:-

"I consider that I am bound by the decision in McIntyre v. Hardcastle and it is therefore with reluctance that I must dismiss this application."

10. In Wong's case two brothers were joint owners of the premises and under Section 7 of the Rent Increases (Domestic Premises) Control Ordinance required possession of the premises for use as a dwelling for one of them and his family. Not only did the learned District Court judge uphold the tenant's objection with reluctance, but he expressly did so because he considered he was bound by the English Court of Appeal decision. Whatever may have been the position in 1971, it has been clear at least since the decision of the Privy Council in de Lasala v. de Lasala (1979) 2 All E.R. 1146 that in Hong Kong decisions of the English Court of Appeal are of persuasive authority only. Therefore the judge was not, as a matter of law, bound by the English Court of Appeal decision.

11. It is also well settled that I am not bound by other District Court decisions although, like English Court of Appeal decisions, they will always be considered with respect and where possible, in the interests of comity and consistency, followed. For the reasons I have set out I do not, however consider that Wong's Case assists me in determining the instant case.

12. In Sun Pin & Anor. v. R.P. Greenwood the learned Judge referred to the point now taken by the defendant as then being "interesting and novel". After considering McIntyre v. Hardcastle he considered he was bound by that decision's narrow interpretation of similar English legislation. In the case before him the plaintiffs who owned the domestic premises were husband and wife. They sought possession of the premises for the husband's son. The son's mother was a former wife of the husband still resident in China. The learned District Court Judge clearly was unhappy with the conclusion he reached. However, he felt that so compelling was the English construction in McIntyre v. Hardcastle that he had no alternative but to follow that decision. He concluded that only amending legislation could alter the law to meet Hong Kong circumstances.

13. The other authority cited to me was Wetherall & Co. Ltd. v. Stone & Ors. It is true that that case followed McIntyre v. Hardcastle. However, the Court of Appeal, went on to consider the landlords other rights under a further statutory provision which does not exist in Hong Kong. The Court did not find for the tenant but referred the matter back to the trial Court to consider whether under the other provision the landlords might succeed. A common feature of both the English cases is judicial reluctance or surprise at having to interpret the English legislation in the manner it was interpreted in those cases. In my view, the English legislation is not identical with the Hong Kong legislation and it would be possible to distinguish those cases on that ground. Nor are those decisions technically binding. As a consequence I would not be disposed to follow them or Sun Pin's Case. I would also be encouraged to adopt that course by the major changes made to Section 53 in 1980.

14. However, I do not need to adopt that course on those grounds alone, for there have been two recent English decisions which have considered and distinguished McIntyre v. Hardcastle. First in Lloyd v. Sadler (1978) 2 All E.R. 529 the Court of Appeal considered whether in the reverse factual position, joint tenants are to be construed either jointly or severally. Megaw L.J. referred to McIntyre v. Hardcastle as a case of "strict construction of "the landlord" adverse to the interests of landlords". This approach obviously was not attractive to the Court of Appeal. After making the factual distinction that it was dealing with the position of joint tenants under a different section it invoked Howson v. Buxton (1928) 97 L.J.K.B. 749 to support a more liberal interpretation in these words:-

"In my opinion the judgment of Scrtton L.J. in Howson v. Buxton shows that where the strict application of the doctrine of joint tenancy would lead to unreasonable results, or results which the legislature is unlikely to have intended, it is permissible for the court to conclude that the legislature did not so intend; but that, instead in such a case, the phrase 'the tenant', where there is a joint tenancy, is to be read as meaning the joint tenants or any one or more of them."

15. If that principle of interpretation applies in Hong Kong, as I believe it does, then the phrase "landlord" in Section 53(2)(b), where there is a joint ownership, is to be read as meaning 'the joint landlords or any one or more of them."

16. The Hong Kong legislature has, under Section 53(2)(b), given a landlord the power to recover the premises for a son over the age of 18. The Hong Kong legislature has given a landlord the power to recover the premises for his father. It would be absurd and an exercise in judicial sterility to hold that the Legislature did not intend to give father and son, when they are joint landlords, the similar power to recover possession for either the father or the son.

17. This more liberal interpretation was approved last year by the House of Lords in Tilling v. Whiteman (1980) A.C. 1. In that case the two plaintiffs were joint owners of domestic premises and as plaintiffs brought proceedings to recover possession for occupation by one only of them. The three English Court of Appeal decisions referred to in this ruling were considered. In the House of Lords Lord Wilberforce preferred the minority judgment of Eveleigh L.J. in the Court of Appeal below, declaring that the arguments in favour of that view were so clearly stated in the judgment of Eveleigh L.J. "that nothing would be gained, and something might be lost, by my restating them in my own language." After referring to the very different statutory provisions Eveleigh L.J. went on:-

"Furthermore, there is no general principle to be drawn from McIntyre v. Hardcastle and certainly not one which governs the present case .... It has been argued that the appellant's claim runs counter to the policy of the Act. It is said that the intention of the Rent Act is to protect the tenant. That may well be; but it is equally true that the introduction of a new ground for possession as that contained in Case 10 was done for the benefit of the landlord ... One of two joint owners can in law deal with the property without the concurrence of the other in so far as the rest of the world is concerned. The fact that two people do a thing together does not, in my understanding of the English language, prevent either one claiming that he himself did it. The argument to the contrary entails reading into the Act words something like "on his own". ... Conscious as I am of the technicalities of the Rent Act, I do not believe that one should encourage a situation where yet another technicality arises unless there is a compelling case".

18. This latest English decision is a House of Lords decision. It supports the wider interpretation which the defendant opposes. As a matter of law where there is a House of Lords decision on common legislation even though it may teonnically be persuasive only, nevertheless, as was emphasised by the House of Lords in de Lasala v. de Lasala at page 1153:-

"looked at realistically its decisions on such a question will have the same practical effect as if they were strictly binding, and courts in Hong Kong would be well advised to treat them as being so."

19. That advice to Hong Kong courts is given in unusually forceful terms. I am satisfied that notwithstanding, some of the detailed differences between the English and the Hong Kong legislation in the cases I have considered, that legislation is sufficiently "common" for the principle in de Lasala v. de Lasala to apply.

20. I am therefore bound by that decision. I am well satisfied that it has the effect of overruling the two earlier Hong Kong decisions upon which Counsel for the defendant relied but which, in any event, I would not have been disposed to follow.

21. I therefore rule that the word "landlord" in Section 53(2)(b), where there are joint landlords, is to be interpreted jointly and severally. Accordingly joint landlords may claim possession thereunder where they reasonably require the premises for the residence of themselves jointly or for the residence of either one of them. That is clearly the more reasonable and liberal interpretation. It avoids the absurdities and unjust consequences which would flow from the contrary interpretation. Fortunately, at least since the House of Lords decision last year in Tilling v. Whiteman, it is also the law of Hong Kong.

22. The defendant's preliminary objection is therefore overruled.

DATED this 29th day of May, 1981.

Representation:

Mr. C.P. Yen of Lo & Lo for plaintiffs.

Mr. Y.C. Mok instructed by Charles Russell & Co. for defendant.