Shek Kau v. Poon Kam Cheung
Read the full judgment text of DCCJ 1770/1970 on BabelCite. This District Court judgment was delivered on 30 July 1970.
1. This action raises a question that is short, fascinating and by no means easy of decision, a question of the correct interpretation of the Tenancy (Notice of Termination) Ordinance Cap. 335. Section 2(2) thereof provides inter alia that that ordinance shall not apply to:-
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DCCJ001770/1970 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 1770 OF 1970 -----------------
----------------- Coram: Cons, D.J. Date of Judgment: 30 July 1970 ---------------------------------- REASONS FOR JUDGMENT ---------------------------------- 1. This action raises a question that is short, fascinating and by no means easy of decision, a question of the correct interpretation of the Tenancy (Notice of Termination) Ordinance Cap. 335. Section 2(2) thereof provides inter alia that that ordinance shall not apply to:-
2. The tenancy to which the section must be applied in the present instance is in writing, although not professionally drafted nor divided into clauses. I must refer to three material provisions:-
3. It also contains provisions for re-entry for non-payment of rent and otherwise. 4. It will be seen immediately that although the tenancy may be determined other than for breach of its provisions within three years, such determination can only take place at the instance of or with the agreement of the tenant. In other words, at the commencement of the tenancy, he is assured that it will continue for three years if he so desires. 5. In earlier cases where the tenant has sought the protection of the Landlord and Tenant Ordinance (Cap. 255) with regard to business premises, it has been held that the tenant's prospect of security, as apparent at the time the tenancy is granted, is the decisive criterion of letting for a term of not less than five years. In the case of Tse Chuen Wing and others v. Tak Wing Firm(1), a provision in a sevenyear lease that the landlord might determine the same upon three months' notice after the expiration of the first three years precluded the lease from being a letting for seven years because it was uncertain at the outset whether or not the tenant would be able to enjoy the premises for the full length of seven years. The same principle has been applied to slightly different circumstances in later cases: Lo Yim Chai v. Au Kin Kwan(2) and Chan Sang v. Choi Yuk(3). But it is important to observe that in each case it was the action of the landlord or the one upon whom the landlord depended that might have brought about the sooner determination of the tenancy. In no case did the tenant have an equivalent opportunity. The implication follows, and an implication expressly mentioned by Mills-Owens J. in Tse Chuen Wing's case (at page 44), that an option for earlier determination exercisable by the tenant alone would have no effect. 6. The choice of words in the comparative section of the Landlord and Tenant Ordinance (sec. 2(1)(e)) is similar, although not the same as that in the Notice of Termination Ordinance. In particular, there is no express qualification with regard to provisions for determination within the requisite period. Nevertheless the landlord now contends that the same principle should be applied equally to both; in other words, that the qualification in the Notice of Termination Ordinance should be confined to options exercisable by the landlord; that this should follow from the similarity of their objects, namely, not to extend the benefits conferred by the respective statutes to tenants who already enjoy adequate security under their own contracts. The force of the analogy, attractive at first sight, is considerably lessened by the dissimilarity of the benefits themselves. One of the principle objects of the Landlord and Tenant Ordinance is to secure the tenant against eviction without good reason. The Notice of Termination Ordinance however is concerned solely to ensure that the tenant is given adequate warning of eviction. The reason for eviction is immaterial. If he is on a tenancy for less than 6 months he will, as it were by a side wind, receive a strictly limited amount of security. In other cases he may benefit only if his landlord fails to take thought in sufficient time. A situation vastly different from the permanent security given by the former. 7. Another consideration is that apart from the difference in the length of notice required the operative section of the ordenance (sec.3) acts equally in respect to both the landlord and the tenant. It would seem therefore logical that general exemptions should also apply equally. I can see no reason for reading into this particular exemption words which would operate solely for the benefit of the tenant, which could easily have been inserted by the legislature had it so desired and without which the provision is still absolutely clear and unambiguous. 8. These are the grounds upon which I based my judgment given in open Court and which I have now reduced to writing at the request of the plaintiff.
30 JUL 1970 Representation: Mr. Smith (Deacons) for plaintiff. Mr. Chung (W.I. Cheung) for defendant. Judgment delivered on 10th July, 1970. (1) 1958 D.C.L.R. 35 (2) 1960 D.C.L.R. 224 (3) H.K.L.R. 1963 476 |