Chan Wing To v. Kin Tung Co Ltd

DCCJ002713/1970

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 2713 OF 1970

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Coram: Hooper, District Judge

Date of Judgment: 28 September 1970

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JUDGMENT

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1. This is an action by the plaintiff for recovery of possession of premises under the provisions of the Security of Tenure (Domestic Premises) Ordinance No.8 of 1970. The defendant company is the tenant of the said premises, and it is not disputed that the premises are domestic premises within the meaning of the Ordinance, or that they fell within the protection of the ordinance. It is common ground that on the 11th of May 1970 the plaintiff served on the defendant a notice to quit under Sec.6(2)(a) of the Security of Tenure (Domestic Premises) Ordinance on the ground that he required possession for use as a dwelling by himself and his family. By the said notice the plaintiff required possession on the 30th day of June 1970. It is also common ground that on the 22nd of May 1970 the defendant company through their solicitors Messrs. Johnson, Stokes & Master, served a counter notice under the provisions of Sec.6(6) of the said Ordinance disputing the notice to quit. The plaintiff commenced his action in this Court on the 22nd of July 1970.

2. Before this action was filed, and before the expiry of the notice to quit, the Security of Tenure (Domestic Premises) Ordinance was repealed by Sec.25 of the Rent Increases (Domestic Premises) Control Ordinance No.56 of 1970, which came into force on the 5th of June 1970. Mr. McElney for the defendant has conceded that he cannot defend this action on the issue of greater hardship, but he submits that the notice given by the plaintiff is not effective to determine the tenancy, because the notice was given under the Security of Tenure (Domestic Premises) Ordinance which was repealed by the Rent Increases (Domestic Premises) Control Ordinance on the 5th of June this year.

3. As there will be a number of references to these two Ordinances, I will hereafter refer to the former as the "Old Domestic Premises Ordinance" and the latter as the "New Domestic Premises Ordinance".

4. Mr. McElney claims on behalf of his client the protection of the New Domestic Premises Ordinance on the ground that this particular tenancy still existed on the 5th of June 1970. In this connection he refers in particular to Sec.3(1) and in particular to the following words:-

"Save as otherwise provided in this section and in Sec.4, this Ordinance shall apply to every domestic tenancy and domestic sub-tenancy existing at the date of the commencement of this ordinance .........."

5. Mr. McElney develops his argument further by referring to Sec.6(1) of the New Domestic Premises Ordinance which provides as follows:-

"Section 6 Sub-section 1. Save as is provided in Section 7 no tenancy or sub-tenancy existing at the date of commencement of this Ordinance shall terminate during the continuance in force of this Ordinance."

And he therefore argues that the only way in which this tenancy can be brought to an end, is under the provisions of Section 7. He refers to Section 7(1) which states how a tenancy or sub-tenancy shall terminate pointing out that the provisions of this section are exclusive. He submits that if the plaintiff wishes to recover possession of these premises for use as a dwelling by himself and his family, the only way in which he can do this is to serve a notice to quit under Sec.7(2)(a) of the New Domestic Premises Ordinance. In other words he argues that the plaintiff will have to go through the same procedure again under the New Domestic Premises Ordinance, that he has already been through under the Old Domestic Premises Ordinance.

6. Mr. Benjamin Liu who has argued the case most ably on behalf of the plaintiff has conceded that the notice to quit was served under the Old Domestic Premises Ordinance and cannot therefore be a notice to quit under the New Domestic Premises Ordinance. He has also conceded that the tenancy in question was still in existence at the time of the commencement of the New Domestic Premises Ordinance. However he contends that the position of the parties is governed by Section 23 of the Interpretation and General Clauses Ordinance Cap.1 of the Laws of Hong Kong.

"Section 23. Where an ordinance repeals in whole or in part any other ordinance, the repeal shall not -

He has referred me to the following cases:-

7. It is to be appreciated however that this question of accrued or acquired rights or enforcement of rights is only relevant to the present matter, if Sec.23 of the Interpretation and General Clauses Ordinance applies. During the course of argument I have been referred to Sec.2(1) of that Ordinance which provides as follows:-

"Sec.2(1). Save where the contrary intention appears either from this Ordinance or from the context of any other Ordinance ........, the provisions of this ordinance shall apply to this ordinance and to any other ordinance in force, whether such ordinance came or comes into operation before or after the commencement of this ordinance, .........."

Mr. MeElney argues that Section 23 cannot be applied in respect of a tenancy in existence at the commencement of the New Domestic Premises Ordinance, because the contrary intention appears from Sec.3(1), Sec.6(1) and Sec.7(1) of that ordinance. Mr. McElney argues that if the legislature had intended to preserve these rights etc. and the validity of notices to quit under the Old Domestic Premises Ordinance, it could easily have said so in simple words.

8. Mr. Benjamin Liu on the other hand argues that throughout the New Domestic Premises Ordinance there are no express words excluding the Interpretation Ordinance from operating. He refers specifically to Sec.3(4) of the New Domestic Premises Ordinance and argues that the importance of this section is that another ordinance The Tenancy (Notice of Termination) Ordinance has been excluded, and the intention of the legislature for such exclusion has been stated in clear terms.

9. This question as to whether the rights of the parties under the Old Domestic Premises Ordinance have been preserved by virtue of the Interpretation Ordinance, is in my view the crux of the matter. Does therefore a contrary intention appear in either the Interpretation Ordinance itself, or in the New Domestic Premises Ordinance. Clearly there is nothing in the Interpretation Ordinance itself which restricts Section 23 thereof in its application to legislation of the kind now under consideration. Does a contrary intention appear therefore in the New Domestic Premises Ordinance? As the Interpretation and General Clauses Ordinance is of general application, if it were the intention of the legislature that none of its provisions should apply to the New Domestic Premises Ordinance, one would certainly have expected some express words showing a clear indication of this. In my view there can be no doubt that the Interpretation and General Clauses Ordinance does apply generally to this ordinance. For example Section 19 of the Interpretation and General Clauses Ordinance provides:-

"An ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best insure the attainment of the object of the ordinance according to its true intent, meaning and spirit."

10. I have no doubt that this general principle of interpretation should be followed by the courts when interpreting the New Domestic Premises Ordinance. This does not mean however, in my view, that the whole of the Interpretation and General Clauses Ordinance must be applied; if there is any part of it which is inconsistent with the New Domestic Premises Ordinance, then that portion, and that portion only, cannot be applied. It would seem that the preservation of accrued  or acquired rights etc. under the Old Domestic Premises Ordinance is inconsistent with the provisions of the New Domestic Premises Ordinance when the tenancy still exists at the commencement of the New Domestic Premises Ordinance.

11. The first important thing to note is that the category of tenancies which are excepted from the provisions of Sec.3(1) is not precisely the same in both ordinances. It is also important to note that the procedure and form of notices to quit and counter-notices under the New Domestic Premises Ordinance is not precisely the same as that under the Old Domestic Premises Ordinance. Sec.7(5) of the New Domestic Premises Ordinance provides for the notice to quit to be in English and in Chinese, whereas the corresponding section in the Old Domestic Premises Ordinance (ie. Sec.6(5)) makes no reference to the fact that the notice to quit must be in Chinese. Furthermore Sec.7(6) of the New Domestic Premises Ordinance provides for the counter notice to be in the specified form, while Sec.6(6) of the Old Domestic Premises Ordinance does not require a specified form. It is clear that under the new ordinance more control is being exercised over the parties when this procedure is being followed. There is therefore a reason for the legislature to require termination under the new ordinance, instead of under the old ordinance.

12. I have already referred to the category of tenancies to which the ordinance do not apply, but I think I should also make specific reference to Sec.3(5)(6) of the New Domestic Premises Ordinance where there is express reference to the Old Domestic Premises Ordinance. I quote from Sec.3(5) of the ordinance:-

"Sec.3(5). This ordinance shall not apply to the following:-

13. It follows from these provisions, that even though a tenancy has been protected by the provisions of the Old Domestic Premises Ordinance, it is still subject to the provisions of the New Domestic Premises Ordinance, and the new ordinance makes it clear that it can only be determined under Sec.7. This would appear to be inconsistent with the preservation of rights under the old ordinance.

14. It is important to notice that there are transitional provisions contained in Section 26 of the New Domestic Premises Ordinance. To understand the significance and necessity for these transitional provisions, it is necessary to recognise that the New Domestic Premises Ordinance does not apply to certain tenancies of any demostic tenement the rateable value of which is $15,000 or above, where as such tenements fell under the protection of the Old Domestic Premises Ordinance. On the repeal therefore of the Old Domestic Premises Ordinance, there were no provisions in the new ordinance which could govern the rights of the parties and in particular the right of the landlord to bring the tenancy to an end. Section 26 now provides that where a notice of termination in respect of such a tenancy had been given under the Tenancy (Notice of Termination) Ordinance prior to the 30th of January this year, the period between the 30th of January this year and the date of the commencement of the New Domestic Premises Ordinance (that is the period that the Old Domestic Premises Ordinance was in operation) shall not count for the purposes of such notice of termination which will therefore continue in force, and the tenancy shall cease in accordance with the terms of notice. The section therefore expressly provides for the period that such a tenancy fell within the protection of the Old Domestic Premises Ordinance and also indicates an intention to prevent the preservation and enforcement of accrued rights etc.

15. The transitional provisions referred to above deal with the sort of tenancies which are not governed by the New Domestic Premises Ordinance, but which were governed by the Old Domestic Premises Ordinance. There are no transitional provisions in respect of Premises and Tenancies which were governed by the former ordinance, and which are now governed by the latter Ordinance. As the new ordinance has brought all such tenancies existing at its commencement under its control including those tenancies where the tenant occupies solely by virtue of the Old Domestic Premises Ordinance, and as the new procedure for termination by notice to quit and form of counter notice are slightly different from that under the old ordinance, one would have expected to find, if it was the intention of the legislature that the provisions of the old ordinance should still apply where rights had accrued etc., to make some provision to negative the contrary intention, which appears so clearly in Sec.6(1) and Sec.7(1). I have examined the legislation which was being construed in the authorities to which I was referred, but can find nothing which would persuade me to alter this view.

16. I would agree with Mr. McElney that the notice to quit given under the old ordinance, is not effective to terminate this tenancy which is now governed by the new ordinance.

17. I would therefore give judgment for the defendant with costs.

Representation:

Benjamin Liu instructed by Messrs. Philip K.H. Wong & Co. for plaintiff.

McElney of Messrs. Johnson, Stokes & Master for defendant.