Fung Chi Kwing v. Lam Sik Man

DCCJ000072/1970

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 71 OF 1970

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ACTION NO. 72 OF 1970

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Coram: Derek Cons, D.J. in Court.

Date of Judgment: 8 April 1970

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JUDGMENT

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1. The premises in question in these two cases, namely, 23, Argyle Street, Kowloon, comprise a ground and three upper floors. The two plaintiffs, at least up until May, 1968, were respectively principal tenants of the second and third floors. Each had sublet certain portions of his floor to which apparently no objection had been taken. The premises fell within the ambit of the Landlord and Tenant Ordinance Cap. 255.

2. Unfortunately, the premises had been allowed to fall into a bad state of repair and on the 27th May, 1968, the Building Authority served upon the owner, that is the defendant, a Demolition Notice, as that Authority has power to do Section 26(1) of the Building Ordinance (Cap. 123). That order required the defendant to demolish the whole building before the 18th July following, although he was not allowed to commence any work to that end before the 20th of June. Similar Notices were served on the owners of Nos. 19 and 21 of the same street.

3. Very shortly afterwards, that is, on the 30th May, the Director of Public Works served upon the defendant a redevelopment notice, which is a notice declaring that the property in question has become subject to the provisions of the Demolished Buildings (Redevelopment of Sites) Ordinance (Cap. 337). The effect of this is, to put it briefly, that the tenants become entitled to compensation assessed by a Tenancy Tribunal in very much the same manner as that employed in normal exemption proceedings. I believe that in order to help the tenants over their immediate problems of removal, loans against the expected compensation are made to them by the Secretary of Home Affairs. Such loans were made to each of the present plaintiffs and have since been repaid. Neither plaintiff has made application for compensation in the manner required by the Ordinance, apparently as a result of advice given on behalf of the Secretary, and naturally no compensation has yet been paid.

4. The defendant admits that he left the premises on or about the 10th of June, although it is not clear if he had previously occupied any part himself. He was followed by the plaintiffs on the 18th and 20th of June. On the latter of those days a Closure Order was made under Section 27 of the Building Ordinance and later on, on the 22nd August, the Director of Public Works followed up his redevelopment notice with a redevelopment order under Section 4 of the Demolished Buildings Ordinance. In his final submission Counsel for the defendant withdrew reliance upon these two orders as material features of the case, and I merely mention them in passing to complete the picture. Similarly, I should add that the Closure Order expired, at the proper instance of the Building Authority, on the 29th September of the following year, that is, 1969. By that time certain amendments had been made to the appropriate sections of the Building Ordinance but, again, they are not material to the present issues.

5. In the meantime, however, certain matters had taken place that are very material. In essence, the defendant, by incurring considerable expense in the way of repairs and redecoration, put the premises in such condition that by the 16th June 1969, the Building Authority was satisfied that they were no longer dangerous, and by letter to the defendant on that day the Authority withdrew both the Demolition Order and the Redevelopment Notice. It may be convenient to explain here that the Director of Public Works and the Building Authority are by definition one and the same person. The Authority was clearly of the opinion that the withdrawal had the effect of cancelling those two documents, in which case the plaintiffs claim to have been automatically reinstated in their earlier position, that is, as protected tenants of their respective floors.

6. Four arguments to rebut such claims have been put forward by the defence. Two may be very simply disposed of. The first one is based on Section 3(1) of the Landlord and Tenant Ordinance, which section excludes certain premises from the operation of the Ordinance, including under paragraph (d):

"any premises which after the 16th day of August, 1945, have remained continuously untenanted and which after the commencement of this Ordinance have been rendered habitable by extensive repairs effected at the expense of the landlord. For the purpose of this paragraph, the expression "extensive repairs" means repairs wholly necessary for rendering the premises reasonably habitable and in respect of which expense incurred amounts to not less than the equivalent to the standard rent of the premises for seven years."

7. The present premises have been continuously untenanted only since at least the 18th or the 20th of June, 1968, but I am asked to read the paragraph in the Ordinance as though the words "16th of August, 1945" were "service of a redevelopment notice". I must confess myself completely unable to understand by what authority it was suggested that I might be so presumptuous. Moreover, tenancy continued for at least 19 days after the service of the notice. The argument is hopelessly misconceived.

8. The second argument is little better and turns upon the rhetorical question:

"As the plaintiffs had sublet various portions of the premises to which they are entitled as tenants, how will the Court be able to determine the exact areas in which they should be reinstated?"

The answer is simple. The three plaintiffs still remain protected tenants. They are therefore tenants of the same interests that they originally held of the defendant, namely, one floor each. Their own sub-tenants would of course at the same time, and by the same token, remain protected tenants of the plaintiffs and practical difficulties might arise if the repairs and redecoration has made it now impossible to divide the floors into the areas previously adopted. But even if that be so, and there is no evidence to that effect, it is a matter between the plaintiffs and their own tenants, and cannot affect the defendant unless and until he determine the principal tenancies under Section 14 of the Landlord and Tenant Ordinance.

9. The third argument, at first sight, appears to have a little more substance. It is said that at the time of moving out each plaintiff intended to establish, and long since has established, a new home elsewhere-a statement with which I would agree-and that by leaving the premises with no intention to return has deprived himself of the protection of the Ordinance. Several cases were quoted or referred to, but the essence of the argument, as I understand it, the foundation on which it rests, is contained in 4 lines from the judgment of Judge Huggins, as he then was, in the case of Ng Kam Chuen v. World Motor Repairing Works⁽¹⁾ at page 233:

"He need not be in actual possession so long as he can show an animus revertendi, but unless he can show that the premises are his home, he is not entitled to protection."

With respect to that very, learned Judge, that is an admirable statement of the law, but he was referring to the law of England, not that of Hong Kong. This is immediately apparent if one reads the following passages of that judgment. In Hong Kong a tenant is entitled to such protection as the Ordinance extends to him whether he be in actual possession or not. Even were the law otherwise it could seem somewhat artificial to give legal effect, in circumstances which the plaintiffs cannot reasonably have been expected to have envisaged, to intentions which were forced upon them by pressures over which they had no control.

10. This leaves the final and crucial point of Section 5 of the Demolished Buildings Ordinance. This provides:

"Where a re-development notice has been served in respect of any property-

No mention is made anywhere in that Ordinance as to what the position would be if the notice were subsequently withdrawn. It may be, as both parties appear to have assumed, that this was an oversight on the part of the draftsman. I am not necessarily sure that this is so, for I have the gravest doubts, although the point was not fully argued before me, whether the authority has the power to withdraw such a notice once it has been issued. The section under which it purports to do so, in its letter of the 16th of June, is Section 46(c) of the Interpret Ordinance (Cap.1), but that section only gives it power to withdraw an "approval" that it has already bestowed. Paragraph (a) may give it power to amend or suspend the notice; paragraph (b) to substitute another notice in its place; but it would seem an abuse of normal grammatical rules to read paragraph (c) in such a way as to give the Authority the power that it currently assumes. However, accepting for the purposes of this judgment that the withdrawal was perfectly lawful, what then is the position? Counsel for the defence draws an analogy with the situation where legislation is passed repealing earlier legislation which itself repeals some original law. Not only is the original law not revived by the second set of repealing legislation, but any act properly taken, but not concluded, during the life of the first set is preserved to be dealt with in accordance with that first legislation, notwithstanding its subsequent repeal. These principles are now embodied in section 23 of the Interpretation Ordinance.

11. The plaintiffs counter-attack in two directions. First, it is said that the words "cease to apply" in section 5 of the Demolished Buildings Ordinance must be given a temporary meaning, limited to only so long as the redevelopment notice subsists. The position is contrasted with that which would have pertained had the legislature used the words "shall not apply". It is a contrast the effect of which I fail to comprehend. "To not apply" is a general expression; "to cease to apply" is an expression more suitable where it is intended that that which once did apply shall no longer do so. But I cannot see why it should be any the less final in its meaning. I see no merit in this point.

12. The second approach relies upon the condition precedent set out in the opening words of section 23 of the Interpretation Ordinance:-

"Where an Ordinance repeals in whole or in part any other Ordinance,......"

Great stress is laid on the fact that section 5 of the Demolished Buildings Ordinance has not been repealed in whole or in part, or even amended. But with the greatest respect to the Solicitor for the plaintiffs I feel he is labouring under an illusion. The repeal in question is not the repeal of that section but the repeal of the Landlord and Tenant Ordinance. It is not a direct legislative repeal, but when taken together with section 5 of the Demolished Buildings Ordinance the action of the Building Authority in serving a redevelopment notice is tantamount to the repeal of the Landlord and Tenant Ordinance in so far as it relates to the premises the subject of that particular notice. The subsequent withdrawal is analogous to the repeal of that first repeal, and similar rules should be applied. This conclusion appears to me as logical, and as in accord with general principles. Applying it to the circumstances of the present case, the plaintiffs lost the protection of the Landlord and Tenant Ordinance consequent upon the service on the defendant of the redevelopment notice, that is, on the 30th May, 1968. The subsequent withdrawal of that notice does not restore to them their previous protection. Subject to their being granted an extension of time within which to make their application they may well be entitled to compensation assessable by a Tenancy Tribunal, but they are entitled to none of the relief which they seek in this Court.

13. This case has raised a novel and interesting point of law. It may have been more convenient and less expensive had it been argued solely as such upon an agreed statement of facts. But be that as it may, I am satisfied that the major part of the evidence, that is, evidence relating to the nature and cost of the repairs and redecoration, was introduced to support an argument that is quite unsupportable in law. Subject therefore to anything that Counsel may wish to say I propose to say that the defendant shall have his costs of the action, with Certificate for Counsel, but that the costs shall be taxed as though the adducing of evidence and the making of submissions had been limited to one day.

8 APR 1970

Representation:

Chaine of Francis Chaine & Co. for plaintiffs.

B. Liu isntructed by Ho & Co. for deft.

(1) (1958) District Court Law Reports, 229.