Re Chan Leung and Others
Read the full judgment text of HCMP 241/1979 on BabelCite. This High Court CFI judgment.
1. Leave having been granted on the 11th May 1979 this is the hearing of an Application for the issue of an Order of Certiorari directed to the President of the Tenancy Tribunal (C.Y. Shum, Esq.).
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HCMP000241/1979
IN THE SUPREME COURT OF HONG KONG HIGH COURT MISCELLANEOUS PROCEEDINGS -----------------
----------------- Coram: Full Bench (Silke, J. and Mr. Commissioner Bewley in Court). Date of Judgment: 5th March, 1980. ----------------- JUDGMENT -----------------
1. Leave having been granted on the 11th May 1979 this is the hearing of an Application for the issue of an Order of Certiorari directed to the President of the Tenancy Tribunal (C.Y. Shum, Esq.). 2. The applicants are Chan Leung, Tang Chung Miu, Chang Pui, Yuen Chiu Kam and Tam Fung Hin for who Mr. Bernacchi, Q.C., with him Mr. Patrick Woo, appeared. 3. The Respondents are Lam Ping Sum, Chan Che Kin and Chan Muk Wan for who Mr. Robert Wei, Q.C. appeared. 4. The President of the Tenancy Tribunal, also a Respondent did not appear nor was he represented. 5. At a hearing on the 30th October 1979 the Court, as then constituted, felt that an interested party had not been served with the proceedings. The matter was adjourned for this to be done - it was, and he has not appeared nor been represented before us. 6. The statement filed pursuant to 0.53 R.2 states that the relief sought "is an order of Certiorari to remove into the Full Bench for the purpose of its being quashed the making of a recommendation by the President of the Tenancy Tribunal Mr. C.Y. Shum, on the 19th February 1979 whereby the learned President granted an application for exemption in respect of premises (hereinafter called "The premises") known as Nos. 171, 173 and 175 Castle Peak Road and registered in the District Office, Yuen Long as Yuen Long Town Lot No. 297 Yuen Long in the New Territories". 7. The grounds for the relief sought are: (1) That there appears on the face of the record that the Exemption Order and/or recommendation made by the learned President of the Tenancy Tribunal on the 19th day of February 1979 was erroneous in point of law. (2) The Tenancy Tribunal having dismissed the application made on the 5th day of December 1978 in respect of the said premises the Tenancy Tribunal had no jurisdiction to make any order (IN) respect of the same premises and upon substantially the same facts by reason of inter alia Res Judicata. 8. It should be said at once that Mr. Bernacchi relies on the strict rule of Res Judicata and, in the alternative, should that not apply, then res judicata, or estoppel, in its extended meaning as an abuse of the process of the court. 9. The history of the matter is as follows: on the 5th day of December 1978 exemption case K.E. 345-348/78 was heard in the Tenancy Tribunal, the present 1st respondents were the applicants and the premises concerned were Nos. 171 and 173 Castle Peak Road. 10. The scheme was a joint development by co-owners and No. 175, referred to in the Order 53 R.2 statement, was wholly occupied by one of the co-owners and therefore not a premises for consideration by the Tribunal except insofar as it formed part of the joint development. 11. The present applicants, and one other, were the opponents and were represented. 12. The evidence before the Tribunal was first that of Mr. Fung Man Chi, an Authorised Person, who produced the plans of the scheme, the Building Office approval, the plans of the existing premises, photographs and his report. 13. Then Mr. Lam Bing Sum, one of the grantees of lot 297 who referred to his co-grantees and to the finance for the redevelopment scheme. 14. The evidence of these two persons having concluded, counsel for some of the then opponents stated she had nothing to say and the solicitor appearing for others stated he was instructed to oppose the application. 15. We would interpolate here that "opposition" in the Tenancy Tribunal is normally one related to the amount of compensation to be awarded. 16. The learned President then made the following order: "application dismissed -
17. Instead of making use of the procedure provided by subsection (1) of section 5 of the Landlord and Tenant (Consolidation) Ordinance Cap. 7 ("the Ordinance") whereby an appeal from any decision of the Tenancy Tribunal made in proceedings under section 4 of the Ordinance may be made by way of Petition to the Governor, the applicants filed, on the very next day, fresh applications in respect of the same premises. 18. These applications were heard on the 19th February 1979 and the parties were again represented. 19. Mr. Fung and Mr. Lam again gave evidence and, in addition, evidence was also given by Mr. Chan Che Kin and Mr. Chan Muk Wan, co-grantees. The fact of their giving evidence, and the evidence they gave, repaired the omissions found to exist by the learned President at the December hearing. 20. After a short submission by the solicitor representing some of the opponents, and the then Counsel for the applicants having offered compensation at the rate of $21 domestic and $42 business, the learned President fixed the compensation rate in those amounts. 21. There then occurred the usual adjournment while the parties bargained on the amount of compensation each opponent should receive. 22. In the afternoon of the same day, after opponents' evidence was called, there being a lack of agreement as to the compensation amounts, awards of compensation were made and the learned President made the following order "Recommendation made subject to the usual conditions". 23. We thought it necessary to set out, in full, the course the two hearings took both because of the somewhat esoteric procedure in a Tenancy Tribunal and because of the issues raised by Mr. Bernacchi. 24. Section 4 of the Ordinance is, as far as we are aware, a procedure peculiar to Hong Kong. It starts off by stating (subsection (1)) that: 'the Governor may in his absolute discretion and without the necessity of hearing any interested party by order exclude from the operation of Part I of the Ordinance any class of premises.' 25. In its subsection (2) it provides that, upon the recommendation of a Tenancy Tribunal, an order excluding any particular premises from the further application of Part I may be made by the Governor. 26. Subsection (3) provides for the publication of the Governor's order, whether under the provision of subsection (1) or subsection (2), in the Gazette and makes further provision for matters consequential upon such publication. 27. Subsection (4) provides for the making of the application to a Tribunal for a recommendation, and the service thereof. 28. Subsection (5) provides for the making of opposition to such application. 29. Subsection (6) provides for the appointment of a tenancy tribunal, by the Chief Justice, to "hear the application and to determine whether or not" it should make a recommendation to the Governor for the exclusion of the premises. 30. Subsection (7) provides that a tenancy tribunal so appointed may "in its absolute discretion" decide to recommend such exclusion. 31. Subsection (8) provides that an agreement may be come to between the landlord and a tenant whereby the tenant withdraws his opposition. 32. Subsection (11) provides that where a recommendation is made the Governor may reject it, remit it to the Tribunal with directions, direct that the application be heard de novo, accept it and vary the conditions imposed by the Tribunal and further provides for the withdrawal of the application, by the applicant, on notice to the Chief Secretary. 33. Subsection (12) provides for the enforcement of conditions contained in the Governor's order by any party aggrieved by their non performance as if the conditions had been ordered by the High Court. 34. In the case of an appeal to the Governor, to which we have already referred, no person is, under the provision of subsection (4) of section 5, entitled to appear before the Governor whose decision, under the provision of subsection (5) of section 5, is final. 35. If he should decide that the tribunal ought to have recommended the exclusion then his decision shall be deemed to be such a recommendation. 36. It will be apparent from the recital above that section 4 is indeed an unusual animal. 37. It is Mr. Bernacchi's contention that as the scheme at both hearings was precisely the same, that as the parties were the same and the premises the same then the decision to refuse to recommend, for that is what the learned President did in the December hearing, is a res judicata in respect of the February hearing and, if it is not a strict res judicata, then it is still res judicata in its extended meaning as an abuse of the process of the court. There cannot be repeated applications. 38. We accept, in the light of R.v. Chee Quan Lim and others [1963] H.K.L.R. 866, that Certiorari can lie as against a Tenancy Tribunal appointed under section 4 of the Ordinance. 39. We accept that the proceedings at both hearings concerned the same scheme and the same parties. 40. We accept that there was no reference made in the February hearing to res judicata. 41. Mr. Bernacchi has taken us through, with his usual thoroughness, a long list of authorities and relies mainly on the line started in Henderson v. Henderson [1843-60] ALL E.R. (Reprint) 378 followed in Greenhalgh v. Mallard [1947] 2 ALL E.R. 255 and culminating in Wat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] A.C. 581 (P.C.) on the extended meaning of res judicata. 42. A full res judicata is, as defined in Spencer Bower & Turner 2nd Ed., a rule of evidence which prevents a party from raising again a point which has been finally and judicially decided as between the parties. 43. The passage reads: -
44. Here estoppel was not raised at the hearing of the new application but, for reasons which will become apparent, our decision does not turn on this. 45. The word "estopped" only meant stopped, its Norman French derivation is "Estoupail" - a bung or a cork by which you stopped something from coming out. The doctrine of Estoppel has developed over the centuries into many variations, the latest perhaps being the "extended meaning". 46. An essential prop for either estoppel per rem judicatam or issue estoppel is the doctrine of finality. We do not, on a true construction of the Ordinance, think this doctrine to apply to the Tribunal acting under section 4. 47. The Tribunal makes no more than a recommendation which the Governor, to whom that recommendation goes, may reject, alter, accept, vary or attach conditions to it. In so doing he acts in the absence of the parties. 48. The Tribunal has a duty to act judicially but its decision is not a final judicial decision binding as between the parties or, for that matter, all the world. 49. In our judgment therefore the strict rule of res judicata does not apply to a Tribunal acting under the provisions of Section 4 of the Ordinance. 50. Mr. Wei raised one point in the course of Mr. Bernacchi's argument: that we should not look at affidavits to see if there is an error in law on the record. We do not think it necessary to dwell at any length on this as we do not consider the contents of the affidavits filed to assist Mr. Bernacchi's case, but we can look at the records of the two proceedings even though they are exhibited to those affidavits. An error of law on the record may show an excess of jurisdiction by, or oust the jurisdiction of, the Tribunal altogether. And it is for this purpose alone that we look at the records of the two hearings before the learned President. The affidavits basically refer us to the contents of these records and draw our attention to certain parts of them. 51. Having come to the conclusion that the strict rule of res judicata does not apply, we go on to consider, our main concern, that which Mr. Bernacchi has termed its "extended meaning" - abuse of the process by a second application. 52. As we have said we accept that the scheme was the same and that the applications being considered by the Tenancy Tribunal were in respect of the same premises. The evidence was, up to a point, the same; it moved over that point when evidence was led which remedied the deficiency of the first hearing. 53. We accept that repeated applications might, by their very repetition, become an abuse of the process. We do not think this to be the position here. 54. We have been referred to repeated applications in matters of bastardy. In that line of case the refusal to make an order against the alleged father is not, by itself, an adjudication that he is not the father. To this extent it is not a final order: it is in the nature of a non-suit. 55. It has been held that the ordinary considerations of res judicata have no application in affiliation proceedings, even after a right of appeal was given to the mother by the Criminal Justice Administration Act, 1914. R. v. Sunderland JJ. ex parte Hodgkinson [1945] KB 502; 2 ALL E.R. 175 DC. It is clear, however, that there is room for the extended meaning of the rule in such proceedings. In Sunderland Justices Oliver J. said (at p. 179):
56. This dictum was followed in Re F (w) (An infant) [1969] Ch. 269; 3 ALL E.R. 595, in which the court held that magistrates should not entertain a second application if the evidence then led is exactly the same as that led in the first application. 57. And Spencer Bower & Turner 2nd Ed., in its paragraph 60 at page 56, echos this where it says:
58. We think the position here to be analogous. Here fresh evidence was led to remedy the position as it stood after the first hearing. It is not a case of precisely the same evidence being produced in both hearings. 59. We do not think that the second application was an abuse of the process. 60. We would refuse the issue of the order.
Representation: Mr. Bernacchi, Q.C. & Mr. Patrick Woo (L.H. Kwan & Co.) for applicants Mr. Robert Wei, Q.C. (Wong Hui & Souza) for Respondent/Landlord. |