Lam Choi Lan v. Shun Mei Mui

LDLA000213/1983

Headnote

LANDLORD and TENANT - Landlord and Tenant (Consolidation) Ordinance (Cap. 7), sections 53(2)(a),. 54 - claim for possession for nonpayment of rent - effect of failure to lodge notice of rent with Commissioner under section 54 - whether order for possession can be made in respect of unpaid rent, which is irrecoverable by action - meaning of "lawfully due from the tenant" -

Dates of Hearing: 4th May 1983, 24th May 1983, 31st May 1983

Date of Judgment: 31st May 1983

IN THE LANDS TRIBUNAL OF HONG KONG

HOLDEN AT KOWLOON

ACTION No. 213 of 1983

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Coram: Presiding Officer Judge Downey

Date: 31st May 1983

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JUDGMENT

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1. On the 13th August 1982, Mr. Lam Choi Lan ("the applicant") purchased the premises, known as Flat D-1, on the 12th Floor of Honour Building, 80 Tokwawan Road, Kowloon. At that time, the premises were let to the respondent, for domestic purposes, under a written Tenancy Agreement, dated the lst March 1981, made between the respondent and the applicant's predecessor-in-title, Mr. Fung Kwong Ming. The tenancy was for a fixed term of two years from the 1st March 1981.

2. By a Notice of Application, dated the 7th March 1983, the applicant sought to recover possession of the premises, by virtue of section 53(2)(a) and (d) of the Landlord and Tenant (Consolidation) Ordinance (cap 7), on three grounds: (1) non-payment of rent since the 1st October 1982; (2) failure to pay management fees since the 1st September 1982; and (3) causing unnecessary inconvenience by persistent failure to pay rent.

3. The application was first heard by me on the 4th May 1983, when the applicant was represented by a solicitor. The respondent, though duly served with the Notice of Application and notice of the hearing, did not appear. Indeed, he did not file any Notice of Opposition and has not taken any part in these proceedings. At the first hearing, the applicant's advocate, quite properly, informed me that Mr. Fung had not complied with the provisions of section 54 of Cap 7, which requires a landlord to lodge with the Commissioner a notice in triplicate in the specified form stating the rent payable by the tenant. He further indicated that he would not seek to prove the claim(s) based on non-payment of rent, but would seek an order on the basis that the failure to pay management fees was a breach of condition which would have been a cause of forfeiture. The applicant's advocate was aware that in a previous case (Chan Lai Ming v. Cheung Pui Chi : KLT App. No. 21 of 1983) I had refused to make an order under section 53(2)(a), because of the landlord's failure to comply with section 55 of Cap 7, which deals with agreed increases of rent in terms similar to section 54.  Although I indicated that I doubted the correctness of my earlier decision, the applicant's advocate was not then ready or prepared to argue that it was wrongly decided. The case then proceeded on the second of the three grounds already mentioned.

4. Certain difficulties were encountered in proving this part of the claim, and the hearing was adjourned to enable the applicant to adduce further evidence. At the resumed hearing, the applicant was represented by Mr. Cheung of counsel.  Mr. Cheung indicated that he wished to pursue the claim under section 53(2)(a), and to rely on a recent decision of the Court of Appeal which apparently supported his case. As the reasons for this decision were not then available, and the respondent had not been given notice of the adjourned hearing, the trial was further adjourned to the 31st May 1983. In the meantime, the written reasons for judgment in Fuk Lai Ling v. Poon Shu-wan (Civ. App. No. 45 of 1983; 27th May 1983) were made available to counsel and myself, and the respondent was given notice of the adjourned hearing.

5. On the evidence, I am satisfied that the respondent has failed to pay the rent stipulated in the Tenancy Agreement for the period from the lst October 1982 to the 28th February 1983. Indeed, he has made only one payment, in December 1982. This was in respect of the rent for September 1982. The question before me is whether the applicant can rely on that failure as constituting a ground for the making of an order for possession under section 53(2)(a) of cap 7, when he cannot recover the arrears of rent by action because of section 54(3) of the same ordinance. Strictly speaking, this question was not before the Court of Appeal. That decision was concerned with a landlord's claim to enforce a forfeiture or right of re-entry at Common Law. The effect of non-compliance with section 54 of Cap 7 on a claim for possession based on section 53(2)(a) was not considered. In particular, the court was not required to construe the words "lawfully due from the tenant" (my emphasis) in section 53(2)(a).

6. The powerful argument that a penalty or restriction imposed by a statutory provision should receive a limited construction, and not be regarded as depriving a landlord (or, indeed, any per-son) of a right which he would have under the general law, is, perhaps, less compelling where the right sought to be enforced is conferred by the very same statute which imposes the penalty or restriction.  However, having had the advantage of Mr. Cheung's submissions, and the benefit of the learned Vice-President's reasoning, I am persuaded that the obvious differences are not such as to entitle me to distinguish that authority. Adoption of a different interpretation in the case before me would produce the same absurd, and monstrously unjust, result that a tenant, once in possession, could neither be sued for rent nor evicted from the premises after the contractual period of his tenancy has come to an end.

7. Once again, I have not had the benefit of argument on behalf of the respondent. The Court of Appeal was in the same position. My only reservation in applying that authority to the case before me stems from the difficulty of assigning a meaning to the adverb "lawfully" in section 53(2)(a).  It is a well- established principle of interpretation that every word in a statute should be given a meaning, and not be construed in a  way which would make any word otiose. With this principle in mind, I have posed for myself the following questions: should the normal qualifying effect of the selected adverb be ascertained by reference to other statutory provisions (e.g. sections 54 and 55) which deprive a landlord of his right to recover rent by action? Or, is the employment of the adverb "lawfully" merely an example of those pleonastic expressions, frequently used by conveyancers and lawyers in the past, and, nowadays, more frequently adopted by social engineers in other disciplines? I am inclined to the view that the second question I have posed should be answered: "Yes"; and, that both question and answer explain the employment of this expression in section 53(2)(a) of Cap 7. It seems to me that it has been borrowed from similar legislation enacted in England, more than 60 years ago, and accepted, without question by authority in England and Hong Kong, as adding nothing to the words: "rent due from the tenant" (my emphasis).

8. Nevertheless, if I should address my mind to the first question I have posed, because it, perhaps, encapsulates an argument which might have been fairly advanced on behalf of the respondent, if he had been legally represented, I would, as now advised, give a negative answer thereto.  Section 54(3) of Cap 7 merely provides that a landlord cannot "maintain an action to recover" the rent which his tenant has agreed to pay for occupation of the premises. It does not make it an offence, or otherwise unlawful, for a landlord to receive or retain such rent, if it has been paid. It does not obviously relieve a tenant of his contractual duty to pay the agreed rent, since the statutory provision does not, in my view, taint the agreement, or the actual performance, by either party, of any obligations arising thereunder, with that element or degree of illegality, which would oblige a court to withhold its assistance from a litigant seeking relief, or would entitle the "innocent party" to some form of restitutionary remedy. On further reflection, I am not convinced that the prohibition imposed by section 54(3) of cap 7 is intended to afford protection to tenants of premises governed by Part II of cap 7.  It seems to me that the penalty which is clearly imposed upon landlords by that provision, is a form of indirect persuasion, exerted by the legisla-ture upon landlords, designed to ensure that the Commissioner is supplied with information relative to current market forces, to enable him to carry out duties imposed upon him by other provisions of the ordinance, and to provide a factual or statistical basis for future policy decisions affecting the control of domestic tenancies.  Be that as it may, I now consider that any decision to refuse the order now sought by the applicant could only be justified if I were to construe the words "lawfully due" as meaning "lawfully recoverable by the landlord and due" from the tenant. Apart from the fact that such construction would involve an obvious re-writing of the statute, I apprehend that it would be rightly regarded as a blatant usurpation of the legislative function, under the thin disguise of judicial interpretation.

9. For the reasons I have given, I am now convinced that my earlier decision was erroneous in point of law, and that, in the present case, I should apply the law, as expounded more recently by the Court of Appeal in the case cited, to the case now before me.   Accordingly, I will make an order for possession of the premises in favour of the applicant. I cannot order the respondent to pay the arrears of rent which have accrued since the 1st October 1982.  But, in the exercise of the discretion conferred upon me by section 53(4)(a) of Cap 7, I order that the order for possession shall take effect on the 31st May 1983, and further order that the respondent pay mesne profits, at the rate of $1,089 per month from the 1st June 1983 until the date when he delivers up possession of the premises to the applicant.

Representation:

Mr. Peter Cheung (Shea & Co.) for applicant.

Respondent in person absent.