Leung Wai Han v. Lau Fing Ying and Others
Read the full judgment text of DCCJ 3700/1981 on BabelCite. This District Court judgment was delivered on 20 January 1982.
1. The plaintiff being the landlord of the domestic suit premises claims possession from the defendants pursuant to Section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, on the ground that she reasonably requires them for occupation as a residence for her parents.
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DCCJ003700/1981 Landlord and tenant - claim by Landlord for possession of domestic premises on ground that landlord reasonably required premises as a residence for her parents - whether in the case of periodic tenancies as distinct from fixed tenancies the Landlord and Tenant (Consolidation) Amendment Ordinance (No.2) imposes a new requirement on a landlord first to terminate the tenancy by notice to quit before any application can be made to recover possession - Sections 52(1) and 53(1) Landlord and Tenant (Consolidation) Ordinance, Cap.7. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO.3700 OF 1981 _______________________
___________________ Coram: H.H. Judge Cruden in Court Date: 20 January 1982 ------------------- JUDGMENT ------------------- 1. The plaintiff being the landlord of the domestic suit premises claims possession from the defendants pursuant to Section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, on the ground that she reasonably requires them for occupation as a residence for her parents. 2. It is undisputed that the 1st defendant is in possession of the suit premises under an unwritten monthly periodic tenancy. The 1st defendant has, in turn, lawfully sublet part of the suit premises to the 3rd and 4th defendants. An earlier sub-tenant, the 2nd defendant, has already yielded up vacant possession to the 1st defendant and vacated. 3. Counsel for the 1st, 3rd and 4th defendants has taken the preliminary point that no cause of action has arisen under section 53(2)(b). For, it is submitted, the effect of the recent amendments under the Landlord and Tenant (Consolidation) (Amendment) Ordinance, (No.2) 1981 is that before a landlord can bring proceedings under section 53(2)(b), she must, where the suit premises are let under a periodic tenancy, first terminate the periodic tenancy by a lawful notice to quit. 4. Counsel for the plaintiff submits that the new amendments do not expressly require any notice to quit. Further, that the new amendments are merely declaratory of the existing common law which had previously evolved to where the Courts had held that in Hong Kong, unlike England, no statutory tenancy arises under our Ordinance but the position of a tenant is protected by a continuation of the contractual term subject to the statutory conditions imposed by Section 53. 5. If a notice to quit is now required, in the case of a periodic tenancy, before a landlord may commence proceedings to recover possession pursuant to Section 53(2)(b) then that would be fatal to the plaintiff's claim in the present action. I should first mention that paragraph 6 of the particulars of claim does plead that a letter dated the 13th day of April 1981 was sent by the plaintiff to the 1st defendant requesting her to deliver up vacant possession on or before the 13th day of June, 1981. That paragraph was admitted. However, paragraph 3 of the particulars of claim, which was also admitted, pleads that the suit premises were let on a monthly basis at a monthly rent of $1,139.30 payable in advance on the 1st day of each and every calendar month. The periodic monthly tenancy was therefore from the 1st day of each month and ended on the last day of each month. The law is well settled that in the case of a monthly tenancy the notice to quit must give at least 1 month's notice to expire at the end of a monthly period - Hill and Redman's Law of Landlord and Tenant (16th Edn.) 489. So in the case of this tenancy a valid notice to quit would require to give at least 1 month's notice and be expressed to expire on the last day of a calendar month. The letter pleaded was not, as a matter of law, a valid notice so the admission of receiving that letter does not affect the parties rights. There simply was not a valid notice to quit. 6. Before determining whether a notice to quit is now necessary it is useful to consider the law before the recent amendments. The law clearly was that no notice to quit was necessary. Notice to quit was not required neither in the case of a tenancy for a fixed term or a periodic tenancy. Any doubts to the contrary were removed by the Court of Appeal in Lo Wah & Anor. v. Chui Fun (1980) H.K.L.R.844. The Court of Appeal held that in Hong Kong no statutory tenancy arises in favour of a protected tenant under Part II .As Huggins J. A. declared:-
7. At least since that decision it has been clear that while in England a statutory tenancy arises after the contractual tenancy has been terminated in Hong Kong the opposite happens. The contractual tenancy is continued by statute subject to the imposition of certain statutory terms. This major distinction, from which very important legal consequences may flow, was recognised by the 'Report of the Committee of Review: Landlord and Tenant (Consolidation) ordinance,' dated 13.2.81 and in particular Part IV, Chapter 19, page 147. I applied the same principle in Chan Wing Wah v. Wong Sai Kuen & Ors. (1981) D.C.L.R.5. 8. Prior to the recent amendments the only confusion which arose in dealing with this very different concept which had been developed in Hong Kong, was whether the statutory conditions could be invoked to determine a contractual tenancy during the initial contractual term before the time for statutory continuance arose. The former Section 74AA(a) of the Ordinance was enacted on the 10th day of July 1980 to provide that nothing in Part II would permit any tenancy to be terminated earlier than would have been the case if that Part had not been enacted. This provision it seems clear was intended to mean that a tenancy agreement could not be terminated during its expressed term by invoking a statutory ground. The grounds in section 53(2)(b) could only be invoked after the term of the contractual tenancy had expired and the period of statutory continuance had commenced. Notwithstanding that tolerably clear provision subsequent decisions of the courts, some with considerable misgivings, held that a court nevertheless had power to terminate a tenancy during the initial contractual period on one of the statutory grounds provided the order of termination was limited only to become operative on a date after the tenancy agreement had expired and the period of statutory continuation had commenced - Lam Chuen Kuen v. Wan Suet Ying, Civil Appeal No.47/81; but to the contrary Daphne Chun Wai-chan v. Thomas Young VCJ No.3300/81. 9. I turn now to the new amendments. For the first time they provide express statutory recognition of the Hong Kong concept of the continuation of the contractual term. Sections 50B(1), 52(1) and 53(1) are examples where the words "continuation", "continuance" and "continuing" are used for the first time in legislation. 10. Counsel for the plaintiff submits that these amendments are merely declaratory of the already existing law. For the first time they represent statutory recognition of the development in Hong Kong of the concept of the statutory continuance of the existing tenancy as distinct from its replacement by a separate statutory tenancy. Further, that the absence of any express requirement of a notice to quit in Part II is the more significant in view of the fact that the new Part IV, enacted at the same time, contains several references to notices to quit. I observe that section 115(1) of Part IV even expressly defines a notice to quit for the purposes of that Part. There is also express reference to a series of statutory notices which may be served or filed at various stages under Part IV. 11. Counsel for the defendant submits that while the former Section74A(aa) has been repealed it has, in effect, been replaced and strengthened by the amended provisions of section 52 and 53. The effect of those amendments, it is submitted, closes the gap recognised in Lam Chuen Kuen v. Wan Suet Ying (supra) and has the following practical results:-
12. If these are the consequences of the amendments then it would seem that whereas previously our statutory continuance of tenancy was a distinct concept from the English statutory tenancy, the amendments have created a new hybrid confusingly sharing some of the characteristics of the two former alternatives. The replacement of the uniform clear cut Hong Kong principle requiring no notice to quit with a new requirement for notices to quit in some cases but none in others, would further complicate an already complex area of law. New legislation in this area could otherwise be expected to proceed in the opposite direction with simplicity as one of its paramount objectives. 13. Before going on to analyse the new amendments in detail I will pause to consider the proper approach to the new legislation for what is essentially an exercise in statutory interpretation. In earlier actions involving this Ordinance I have followed a purposive approach for at Least two reasons. First, Section 19 of our Interpretation and Genernal Clauses Ordinance, Cap.1 directs that ordinances shall be deemed to be remedial and receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the legislation. Secondly, at a common law level the House of Lords in recent years, particularly the judgments of Lords Wilberforce, Diplock and Scarman, has rejected the strict, literal, formal approach to interpretation which was so prevalent in the nineteen forties and nineteen fifties, in favour of what they now call a "purposive" approach. I am aware, however, that the purposive approach has not been adopted in all common law jurisdictions. Indeed, Lord Scarman recently chided judges of the High Court of Australia in his Wilfred Fullager Lecture at Melbourne, Australia reported in (1981) A.L.J. 175 where, having pointed out that Australian judges had hesitated to apply a purposive approach he continued:
14. However, I am obliged to accept that all the indications are that Hong Kong has yet to adopt a purposive approach and that a literal approach is widely preferred. Statutory detail rather than legislative principle must be given primacy. Certainly this is clearly the view of our Court of Appeal. A recent example of its preference for the literal approach is to be found in Allied International Insurance Ltd. v. Hsia Jone Shu & Anor., Civil Appeal No.81/81 judgment being delivered on 8th January, 1982. Although that decision deals with a different section it was concerned with the proper interpretation of provisions of the Landlord and Tenant (Consolidation) Ordinance. 15. I therefore, if with some reluctance, feel obliged to adopt a literal rather than a purposive approach to the new amendments. The relevant portions of the amended sections 52 and 53 which were argued before me were:-
16. (The former section 52(1) provided that "no tenancy" should terminate during the continuance of Part II other than pursuant to section 53 or another exemption which would not have applied in this case.)
17. So Section25(1), inter alia, now provides that even though a tenancy agreement has been terminated by effluxion of time or by the landlord, otherwise than by forfeiture, it shall nevertheless not come to an end except pursuant to an application under section 53(2). Further Section 53(1) provides that where a tenancy continues under section 52(1) it shall, inter alia, come to an end when an order is made in favour of the landlord under Section 53(2). The combined effect of these two provisions is that it is now clear - whether or not the Courts previously interpreted the former Section 74A(aa) correctly - that a tenancy agreement cannot during its term be terminated under Section 53(2). The statutory rights to terminate under section 53(2) only arise during the period of statutory continuance after the initial contractual term has ended. So nor can proceedings under Section 53(2) be commenced during the contractual term even though an order for possession is not sought until after that term has ended. 18. Where the initial contractual term is for a fixed period it expires by effluxion of time and the new provisions appear to effect no change in the law nor create any difficulties. Clearly, as in the past, no notice to quit is necessary. If one were to be pedantic it could be observed that when the law draftsman refers to the "termination" of a fixed term tenancy by effluxion of time, if he has not used the term "termination" incorrectly he has at least used it loosely. For where a fixed term tenancy so comes to an end it does so by expiration of its term not by termination. "termination" should preferably only be used where a tenancy is determined by an act of one of the parties at a time when but for such termination the tenancy would otherwise have continued - 2 "Stroud's Judicial Dictionary" (4th Edn.) 764,986. However, it is clear enough that the law draftsman has used the word "termination" to also include "expiration" and I hold that it has this wider, if artificial, meaning for the purposes of Section 52(1). 19. The crucial point at issue is whether as a consequence - even if by a side wind - the new provisions have introduced as a new requirement, that in the case of a periodic tenancy, a notice to quit has to be served and the tenancy terminated before the landlord can commence proceedings under Section 53(2). I fully appreciate the powerful arguments of Counsel for the plaintiff both on the absence of any express requirement for notice and that as a matter of principle notice would be contrary to the legislature's recognition, for the first time by these amendments, of the concept of statutory continuance. To require a tenancy to be terminated before it can be continued certainly seems a contradiction in terms. However, I must be less concerned with principle and more with detail and so it is to the precise words of Sections 52(1) and 53(1) that I must focus my attention. In this case there is no question of forfeiture. Section 52(1) therefore requires that the existing tenancy is either terminated by effluxion of time or by the landlord. This is a periodic tenancy. Periodic tenancies cannot be terminated by effluxion of time. The only other statutory alternative is termination by the landlord. The common law procedure for termination of a periodic tenancy where forfeiture is not available is by notice to quit. The first step a landlord of a periodic tenancy must therefore take before he can proceed under Section 53(2) is to serve a valid notice to quit. Until a notice to quit has been served and the time stated therein has expired, no cause of action arises in favour of the landlord under section 53(2). 20. The defendant's preliminary objection must therefore be upheld and judgment is given in favour of the 1st, 3rd and 4th defendants. Perhaps I should make these final observations. It must surely be undisputed that fresh amendments to this already complicated Ordinance should be drafted on the basis of clarity and simplicity. Few other Ordinances effect the lives of individuals so deeply involving one of their fundamental rights, namely the right of a landlord to recover possession of his home for his family or a tenant's right to continue to reside in his home ,with his family. Before the recent amendments it was well settled that no notices to quit had to be served for either a fixed or periodic tenancy. Now the amendment introduces a twofold different test depending on the legal nicety whether a tenancy is fixed or periodic. For one notice is not necessary. For the other notice is necessary. The amendments have unnecessarily increased the unfortunate technicalities which seem to bedevil tenancy legislation of the very kind which Lord Wilberforce by implication and Eveleigh L.J. expressly, deplored in Tilling v. Whiteman (1980) A.C.1. However, if this twofold standard was intended to have been introdiced it is the more to be regretted that the legislation does not expressly provide that in the case of periodic tenancies they must first be determined by notice to quit. It does not appear that to have included such a simple express provision would have been a titanic task. As Counsel for the plaintiff rightly submitted the law draftsman was under no similar inhibitions in respect of the contemporaneously enacted new Part IV which includes express provision for an intricate series of notices. Whatever their intricacy, at least it is abundantly clear under Part IV, because of those express provisions, that compliance with the notices is a condition precedent to a party taking the respective next step under Part IV. 21. In accordance with the recent amendments there shall also be no order as to costs or certificate for Counsel. DATED this 20th day of January, 1982.
Representation: Mr. Imsail instructed by H.H. Lau & Co. for the plaintiff. Mr. K.F. Shum of Peter Mo & Co. for 1st, 3rd and 4th defendants. |