Ting Shung-kwok v. Chan Yin-fong
Read the full judgment text of DCCJ 9464/1979 on BabelCite. This District Court judgment.
1. In this action the plaintiff sues for possession of certain premises situate at and known as Flat B13 on the 3rd floor of Shui Ning House (Stage II), Shui Ning Street, Kwun Tong, Kowloon.
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DCCJ009464/1979 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION ACTION NO. 9464 OF 1979 -----------------
----------------- Coram: A.L. Leathlean, D.J. Date of Judgment: 13th March, 1980 ----------------- JUDGMENT ----------------- 1. In this action the plaintiff sues for possession of certain premises situate at and known as Flat B13 on the 3rd floor of Shui Ning House (Stage II), Shui Ning Street, Kwun Tong, Kowloon. 2. It is common case that on November 1st, 1976, the plaintiff let the premises in suit to the defendant for domestic purposes for a term of three years. On November 1st, 1976, the defendant was not protected by Part II of the Landlord and Tenant (Consolidation) Ordinance inasmuch as tenancies created after December 31st, 1975, for fixed terms of three years or more the agreements for which contained no provision for earlier determination by the landlords other than for breach of any of the provisions of the agreements were then expressly excepted from the provisions of that part by paragraph (j) of sub-section (1) of section 50 of that Ordinance. The tenancy, of course, expired on October 31st, 1979. The writ issued on November 5th, 1979. The defendant has continued in possession of the suit premises continuously from October 31st, 1979, to date. On December 18th, 1979, the Landlord and Tenant (Consolidation)(Amendment) Ordinance was passed. Paragraph (ii) of sub-section (1) of section 3 thereof amended section 50 of the principal ordinance by deleting paragraph (j) of sub-section (6), the result being that with effect from December 18th, 1979, domestic tenants holding under agreements for three years are protected by Part II. 3. This case stands or falls depending upon the defendant's status and the law to be applied. To some extent the two are intertwined. 4. Of course, the provisions of English Rent Acts are by no means identical with the landlord and tenant legislation in Hong Kong, but comparison of our Ordinance with the English Increase of Rent and Nortgage Interest (Restrictions) Act, 1920, is pertinent inasmuch as it discloses certain points of similarity. 5. First, sub-section (1) of section 5 of the English Act of 1920 provides that no order or judgment for the recovery of possession of any dwelling-house to which it applies, or for the ejectment of a tenant therefrom, shall be made or given save in the circumstances therein specified. Some of those circumstances resemble to some extent the circumstances in which a tenancy to which Part II of the Ordinance applies shall determine. Sub-section (1) of section 52 of the Ordinance now provides that save as is provided in sub-section (2) and section 53 no tenancy, whether created before or after December 18th, 1979, shall terminate during the continuance in force of that Part. 6. Secondly, sub-section (1) of section 15 of the English Act of 1920 provides that a tenant who by virtue of the provisions of the Act retains possession of any dwelling-house to which the Act applies shall be a protected tenant. 7. Sub-section (1) of section 50 of the Ordinance provides that, subject to sub-section (6), Part II applies to every domestic tenancy and domestic sub-tenancy in a post-war building, whether the same was effected orally or in writing and notwithstanding any provision in such tenancy or sub-tenancy, including any provision purporting generally or specifically to exclude that Part. 8. Section 49 of the Ordinance now defines "tenant" as including (inter alia) a person who, on December 18th, 1979, is in possession of premises the subject matter of a tenancy to which Part II applies (vide paragraph (a)) and a person who retains possession of any premises by virtue of Part II (vide paragraph (c)). The similarity to sub-section (1) of section 15 of the English Act of 1920 is readily apparent. 9. Thirdly, the preamble to the English Act of 1920 reads as follows:
10. The preamble to the Ordinance reads:
11. Again, while the language used differs, the similarity is obvious. 12. The main objects of the English Rent Acts are to give tenants "fair rents" and "a status of irremovability", or, in other words - (i) to prevent landlords increasing rents above the maximum rent permitted by the Acts; and (ii) to give tenants security of tenure by preventing landlords from evicting them without an order of the court, and forbidding the court to make an order for possession except on certain specified grounds (Megarry: The Rent Acts, 10th (1967) edition, volume I, page 13). In the English case of Baker v. Turner(1) Lord Porter said :
and
13. In the case of Remon v. City of London Real Property Co., Ltd.(2) it was held by the Court of Appeal in England that a tenant of premises let for business purposes which were not, prior to July 2nd, 1920, when the Act of that year protecting premises let for such purposes came into force, the subject matter of any Rent Restriction Act, who held over despite the active objection of his landlords until the Act came into force, was a tenant who by virtue of the provisions of the Act retained possession within the meaning of sub-section (1) of section 15 of the Act, and that the landlords, who re-entered forcibly on July 2nd, 1920, could not lawfully disturb him in his possession. Giving judgment, Bankes, L.J., said (at page 54):
14. Scrutton, L.J., giving judgment, said (at page 57):
15. The decision in that case was applied in the case of Hutchinson v. Jauncey(4) in which it was held by the same court that, on a true construction of section 10 of the English Landlord and Tenant (Rent Control) Act, 1949, the relevant provision of the Act applied to pending actions, and that the law applicable was the law as it existed at the date of the hearing, and that as on that date the tenancy in question was protected by the provisions of the Rent Restriction Acts by virtue of the Act of 1949, there was no jurisdiction to make an order for possession. 16. Section 10 of the English Act of 1949 provides that sections 7, 8 and 9 shall apply whether the letting in question began before or after its commencement. 17. Sub-section (1) of section 52 of the Ordinance, it will be remembered, now provides that, save as provided in sub-section (2) thereof and section 53, no tenancy whether created before or after December 18th, 1979, shall terminate during the continuance in force of Part II. 18. In Hutchinson v. Jauncey, supra, Cohen, L.J., giving judgment, said (at page 584):
19. Remon's case was argued before wilson, D.J. in the case of CHUNG Who-cheung v. LAM Kam-tin(5), who decided on August 29th, 1973, that it did not apply in Hong Kong, but in that case an order for possession had, rightly or wrongly (in my view, with respect, wrongly) already been obtained on June 20th, 1973, i.e., after the commencement of the Domestic Premises (Tenure and Rent) (Temporary Provisions) Ordinance, 1973, which contained provisions similar to those of sub-section (1) of section 51 of the Ordinance. 20. In the case of WONG Bun-chun v. TAM Chuen-yee(6) Collier, D.J., mindful of the provisions of section 19 of the Interpretation and General Clauses Ordinance that 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 Ordinance according to its true intent, meaning and spirit, held that even a licensee, paying a fee for the licence, who was in occupation at the commencement of the Rent Increases (Domestic Premises) Control Ordinance was protected thereby. 21. In LUM Shing-chin v. CHAN Sin-han(7) I held that the tenants who had held over continuously since the expiration of a protected contratual domestic tenancy, was protected by Part II of the Ordinance. 22. In Capital Land Investment Co., Ltd. v. Se Mong-kai(8), too, it seems to have been accepted that a protected tenant who held over was also protected. 23. In my judgment, on the authority of Remon(2), it matters not in this case whether the repeated requests by the plaintiff to the defendant to vacate the premises in suit which the plaintiff has pleaded or the writ itself, which, as I have said, issued on November 5th, 1979, constituted an active objection by the plaintiff to the defendant holding over. I hold that the defendant, having held over continuously since the expiration of a contractual domestic tenancy is a tenant within the definition of that term in section 49 of the principal ordinance, and not a trespasser as submitted by Mr. Li for the plaintiff. 24. As to the question whether the law to be applied is that presently in force or that which obtained before its enactment, it appears to be the law in force at the date of judgment, not the date upon which the writ issued, which must be applied to cases governed by this class of legislation: Remon(2): Hutchinson v. Jauncey(4); Jonas v. Rosenberg(9). I so held in LAU Sau-nui v. HO Chi-kwong(10), and I so hold in the instant case. 25. With great respect to Bewley, D.J., who, in MAK Yok-jan v. LAN Wai(11), has recently held the contrary, my own view is that a domestic tenancy for three years which was created before but was still on foot when the Landlord and Tenant (Consolidation) (Amendment) Ordinance came into operation on December 18th, 1979, is protected. In the instant case, however, as I have said, the three year tenancy expired before that date, but on the authority of Remon(2), in my judgment it matters not that it was still unprotected at its expiration as the defendant had continued in possession thereafter and was still in possession on December 18th, 1979, when domestic tenancies for three years became protected. Nor, in my judgment, does it matter that in Remon(2), the original tenancy was a business tenancy which because it was a business tenancy was unprotected at its inception whereas the original tenancy in the instant case was a domestic tenancy which because it was for a term of three years was unprotected at its inception (vide Dobson v. Richards(3)). And in my judgment, the defendant, since she was in possession of the premises in question on December 18th, 1979, when the amending ordinance came into operation, having held over continuously since the expiration of a contractual tenancy of a class which as from that date is no longer excluded from the protection of Part II of the principal ordinance, is protected by that Part. The action is therefore dismissed. Endorsed costs to the defendant. 26. Dated this 13th day of March, 1980.
Representation: (1) (1950 A.C. 401 at 417 (2) (1921) 1 K.B. 49 (3) (1919) W.N. 166 (4) (1950) 1 K.B. 574 (5) (1973) Kowloon District Court C.J. Action No.3675, unreported. (6) (1971) D.C.L.R. 48 (7) (1972) Kowloon District Court C.J. Action No.10813, unreported. (8) (1973) H.K.L.R. 371 (9) (1950) 2 K.B. 52 (10) (1979) Kowloon District Court C.J. Action No.5855, unreported. (11) (1980) Victoria District Court C.J. Action No.371, unreported. |