Ho Kong-po v. Yiu Hoi Leung and Others

DCCJ000024/1974

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

R.I.A. Nos. 24-29 OF 1974

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Coram: N.B. Hooper, D.J.

Date of Judgment:  21 JUNE 1974

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RULING

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1. In these applications the Applicant seeks orders for possession in respect of the premises comprising No. 34 Kowloon City Road, 1st floor to 3rd floor, and No. 36 Kowloon City Road, 1st floor to 3rd floor. In his applications he claims to have given his tenants notice to quit on the 24th of October 1973 and specified in the notice to quit that he was entitled to possession on the ground that he intends rebuilding the premises. He claims that counter notices were served by all the respondents to these applications and alleges that the notice to quit should take effect on the 30th November 1973.

2. The applications were only filed on the 21st of March 1974 and the matter came on for hearing before me on the 24th of May 1974.

3. As the applications were filed after the 15th of December 1973, the date when the Landlord and Tenant (Consolidation) (Amendment) (No. 2) Ordinance came into effect, I pointed out to the parties that there is a practice direction that every proceeding in the District Court under this Ordinance shall commence by Writ.

4. Mr. Chang who appears for the applicant indicated that he was aware of this and had deliberately proceeded by application under the Repealed Part II because all the notices to quit were served under the Repealed Part II and had expired prior to the repeal thereof by the new Ordinance. He then made a lengthy submission in which he maintained that his client was entitled to enforce rights accrued under the Repealed Part II as if the Amendment Ordinance had not been passed, though he recognised that this was a difficult point.

5. There have been a number of Ordinances in recent years relating to the control of increases in rent in domestic premises and those referred to the present decision are set out below:-

6. It will be appreciated that the 2nd of the abovementioned Ordinances was consolidated into the Landlord and Tenant (Consolidation) Ordinance Cap. 7 of the laws of Hong Kong as Part II thereof, hence the reference to it as the Repealed Part II, and to the provisions which have been substituted therefor as the New Part II.

7. Mr. Chang has submitted that although the Repealed Part II was replaced by the New Part II on the 15th of December 1973, he, can still proceed under the Repealed Part II by virtue of Section 23 of the Interpretation and General Clauses Ordinance Cap. 1. This Section provides, inter alia, that where an Ordinance repeals in whole or in part any other Ordinance, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any Ordinance so repealed. Neither shall it affect any investigation, legal proceeding or remedy in respect of any such right, privilege or obligation, liability, and that any such investigation, legal proceedings or remedy may be instituted continued or enforced as if the repealing ordinance had not been passed.

8. A similar submission was presented to me in the case of Chan Wing To v. Kin Tung Co., Ltd. 1970 D.C.L.R. p. 86, where I ruled against the submission. In that case a Notice to Quit had been given under the Security of Tenure Ordinance, and although a counter notice had been served and application had been made to the Court, the notice to quit only expired after the 5th of June 1970, (the date of the commencement of the Repealed Part II). In holding against the submission, I ruled that the contrary intention had been expressed by the repealing Ordinance (The Repealed Part II). In this connection I relied upon S. 2(1) of the Interpretation and General Clauses Ordinance which applied the provisions of that Ordinance (including S. 23) to all other Ordinances "save where the contrary intention appears".

9. In support of his contention Mr. Chang has referred to the Transitional Provisions Ordinance of 1974 stressing that S. 2(1) which preserves applications under S. 57 of the Repealed Part II, relates to applications for increases in rent. He submitted that these applications have been singled out because they involve a discretion on the part of the Commissioner and cannot therefore be the subject of accrued or acquired rights. In support of this he cited the case of D.P.P. v. Ho Po. Sang 1961 H.K.L.R. p. 308. He has referred to S. 2(2) which indicates that subsection (1) is in addition and not in derogation of S. 23 of the Interpretation and General Clauses Ordinance "in its application to the Landlord and Tenant (Consolidation) (Amendment) (No. 2) Ordinance No. 2 of "973". This seems to suggest he contends that S. 23 has application to the Amendment Ordinance of 1973 and that rights acquired or accrued etc. under the Repealed Part II, may be enforced as if the Amendment Ordinance of 1973 had not been passed.

10. He further distinguished Chan Wing To's case on the basis that the notice to quit in that case had not expired at the time the repealing ordinance was passed, whereas in the present case he maintained that the notice to quit expired before the Amendment Ordinance of 1973 was passed and that the tenancies of the respondents were duly terminated when this notice to quit took effect. He submitted that his client therefore had an accrued right to possession subject to certain procedural provisions for the purpose of obtaining an order for possession from the Court.

11. He further submitted that Chan Wing To's case can be distinguished also by reason of the difference in the definition of the words "tenant" in the respective repealing ordinances. It will be noted that the Repealed Part II defined a tenant or sub-tenant as including "a person who is in possession of premises to which this Part applies, on the 5th day of June 1970". The New Part II, which has been substituted by the Amendment Ordinance of 1973, has defined a tenant or sub-tenant as including "a person who, on the 15th day of December 1973, is in possession of premises the subject matter of a tenancy or sub-tenancy to which this part applies." Mr. Chang places great stress on the words "the subject matter of a tenancy or sub-tenancy" and has submitted that in effect this is a dramatic and intentional change; as the notice to quit in the present case given under the Repealed Part II, expired before the New Part II came into effect, there is no subject matter of any tenancy to which the new Ordinance could apply.

12. I have not heard any arguments against Mr. Chang's submissions, the respondents in this case all being unrepresented, but I am very much indebted to Mr. Chang, who, in his submission, has covered the law very fully, and sought to distinguish the authorities which appeared to be against him. He has referred in particular to two other decisions in the District Court (K.C.J. No. 10813 of 1972 Lam Shing Chin v. Chan Sin Han and V.C.J. No. 631 of 1973 So Mui v. Wong Moon and others). In these two cases the principle enunciated in the case of Remon v. The City of London Real Property Co., Ltd. 1921 1 K.B. 49 was applied in Hong Kong to give protection to persons in occupation of premises who had held over unlawfully without the consent of the landlord, after their tenancies had been validly terminated and who were still in occupation at the time when the Amendment Ordinance of 1973 became effective (15th December 1973) and at the time when the Temporary Provisions Ordinance became effective (8th June 1973). He submitted that in respect of the first mentioned case since the tenant was in possession both on the 8th of June 1973 and on the 15th December 1973, the Court should have held first that the tenancy was protected under the Temporary Provisions Ordinance and then that this protection was passed on to the Amendment Ordinance of 1973 which substituted the provisions of the New Part II for the Repealed Part II. The significance of this submission as I understand it is that it is Mr. Chang's contention that the principle in Remon's case could properly be applied to such a person having regard to the definition of 'tenant' in the Temporary Provisions Ordinance, but not having regard to the definition of 'tenant' in the New Part II. The point being that the definition in the Temporary Provisions Ordinance included "a person who, on the commencement of this Ordinance, is in possession of premises to which this Ordinance applies" whereas that in the New Part II included "a person who, on the 15th day of December 1973 is in possession of premises the subject matter of a tenancy." Since there was no tenancy the premises could not be the subject matter of a tenancy. A person should not be protected by extending the principle in Remon's case of a person whose tenancy has been validly terminated under the Repealed Part II.

13. A further ground of distinction he has put forward is that the Temporary Provisions Ordinance was not a repealing ordinance, and therefore S. 23 of the Interpretation and General Clauses Ordinance could not be invoked. However the Amendment Ordinance is a repealing ordinance and hence S. 23 applies to preserve the landlord's accrued or acquired rights under the repealed ordinances.

14. In support of his contention that the tenancies in the present case were terminated on the 30th of November 1973 when the notices to quit expired, he relied on S. 54(2) of the Repealed Part II. This subsection provides:

"A notice to quit may be served and shall, subject to subsections (5), (6) and (7) take effect as if neither this Part nor Part I had been enacted .............."

Thus where you have an application to the Court under subsection (7) before the notice to quit expires, he submitted that the tenancy will then be terminated only when an order for possession takes effect, but otherwise it ill take effect, when the notice to quit expires, subject to certain procedures for enforcement of rights given by the Ordinance.

15. Pursuasive though Mr. Chang has been, and ingenious though his submissions are, I cannot agree with him that, on the basis of the facts presented, the tenancies were terminated on the 30th November 1973. It is my considered view that subsection (2) of S. 54 of the Repealed Part II should be read together with subsection (1) (c). This provides:-

16. Under this provision the tenancy shall terminate either when a notice to quit takes effect or when an order of the Court takes effect. There is no need for an order of the Court unless a counter notice has been served. Where no counter notice is served the notice to quit will take effect. Where however a counter notice has been served, the notice to quit cannot possibly take effect to terminate the tenancy, As IF PART II AND PART II PART II HAD NOT BEEN ENACTEL, and in my view the tenancy can only be terminated by an order for possession. If the tenancy were terminated by the notice to quit in every case, there would be no need for the use of the words "would have taken effect" in subsection (7). I cannot see any logical reason for the effectiveness of the notice to quit being dependent on the time at which an application is made to the Court. It is therefore illogical to say that if the application is made before the notice to quit expires, it will be the order of the Court which takes effect, but if the application is only made after the notice has expired, it will be the notice to quit which will take effect to terminate the tenancy.

17. If the contrary were the case, then one might wonder what the position is of a tenant served with a notice to quit which had expired and against whom the Court has refused to make an order for possession. Is it to be said that his tenancy having expired, on the expiry of the notice to quit, has been revived again. This again is illogical, and I can't believe that that is what the Legislature intended.

18. In my view reference to the authorities under the Rent Acts in England should be made very cautionsly, because there is a fundamental distinction between the English legislation and the Hong Kong legislation. The legislation is England did not interfere generally with the terms of the Common law contractual tenancies. It was possible under the English Acts for a protected tenancy to be properly terminated in accordance with the provisions of the contract. On such termination, the protected tenant then became a statutory tenant and could only be removed from the premises by an order of the Court. Under the legislation in Hong Kong, on the other hand, the protected tenancy cannot be terminated in accordance with the terms of the contract, because the ordinances prohibit this. Domestic tenancies to which the Hong Kong legislation applies can only be terminated in accordance with the provisions of the Hong Kong ordinances.

19. Section 50(1) of the New Part II with certain specified exceptions, applies the New Part II to every domestic tenancy and domestic sub-tenancy in a post war building, whether the same was affected orally or in writing. S. 52(1) again with certain specified exceptions which don't apply in the present case provided that no tenancy or sub-tenancy, whether created before or after the 15th December 1973 shall terminate during the continuance in force of the New Part II. One exception was provided in subsection (2) which is not relevant to the present case, and the other exception is where a tenancy is terminated in accordance with section 53 of the New Part II.

20. Section 53(1) provides a tenancy or sub-tenancy shall terminate where -

21. With regard to the last form of termination there is the proviso that upon such termination the New Part II shall apply to any tenancy thereupon arising by operation of law.

22. The Amendment Ordinance of 1973 has therefore specifically provided in the New Part II for the continuation and termination of tenancies by super-imposing upon the previous terms of the tenancies statutory terms. The Amendment Ordinance of 1973 by virtue of the new definition for tenant in the New Part II (para. (b)) has specifically brought formerly protected tenancies under the Repealed Part II and the Temporary Provisions Ordinance of 1973 under its protection. It is clearly the intention on the Legislature that tenants protected under the Repealed Ordinances may now only have their tenancies terminated in accordance with the provisions of the New Part II.

23. It is true as Mr. Chang has pointed out that Subsection (2) of the Transitional Provisions Ordinance indicates that S. 2(1) is in addition to and not in derogation of Section 23 of the Interpretation and General Clauses Ordinance in its application to the Amendment Ordinance of 1973. It would be surprising if negative phraseology of this sort were to be construed as applying S. 23 to preserve accrued or acquired rights under the repealed ordinances, in the teeth of the contrary intention so clearly expressed above.

24. This does not mean to say that other rights which had acquired or accrued under the Repealed Part II should not be preserved by virtue of S. 23. For instance where a certificate as to primary user had been issued by the Commissioner in accordance with S. 52(5)(a), it is provided in subsection (6) that such certificate shall be prima facie evidence of the facts set out therein. It is also provided in subsection (7) that a landlord, tenant, principal tenant or sub-tenant may apply to the Court for a review of the certificate of the Commissioner or for a determination where the Commissioner has declined to issue a certificate, or generally for a determination as to whether tenancy or sub-tenancy is domestic. It is my view that, where a party has obtained a certificate before the 15th December 1973 in accordance with the provisions of the Repealed Part II set out above, he has an accrued right to apply for review of that certificate etc. The mere fact that the provisions under which this certificate was issued have been repealed, does not mean in my view that his rights are not preserved and that the certificate could not be produced in evidence in an action brought under the New Part II.

25. For the reasons set out above, it is my ruling that where a notice to quit given under the provisions of the Repealed Part II has been challenged by the service of a counter notice, and the notice to quit has expired prior to the commencement of the New Part II, and an application has been made under subsection (7) of section 54 of the Repealed Part II, such application having been made after the 15th of December, 1973, the Court has no jurisdiction to entertain such an application. It is my ruling that in these circumstances the applicant, if he wants the tenancies terminated, must bring an action in this Court for an order of this Court under subsection (2). Termination of the tenancies will then only occur if on order is made and at the time this order takes effect.

26. It is not therefore necessary for me to deal with Mr. Chang's submission on the subject of the cases which have applied the principle in Remons case in Hong Kong. I do however, myself, entertain grave doubts as to whether it was the intention of the Legislature to protect persons in possession or occupation of premises who were holding over unlawfully before the Temporary Provisions Ordinance came into effect on the 8th June last year.

27. Tenant or sub-tenant was defined in the Temporary Provisions Ordinance as including a person who on the commencement of that Ordinance was in possession of premises to which this Ordinance applies. It will be appreciated that the premises of which he must have been in possession were premises to which the Ordinance applied. By virtue of S. 3(1) with the exception of certain specified tenancies or sub-tenancies of premises that Ordinance was applied to every domestic tenancy and domestic sub-tenancy existing at the commencement of that Ordinance in a post war building.

28. It follows from these provisions, that there must have been a tenancy in existence at the time when that Ordinance commenced.

29. The whole rationale of the decision in Remon's case, as expressed in the judgments of Bankes L.J. and Scrutton L.J. was that the Rent Restriction Acts had used the expression 'tenant' in a special, a peculiar sense, as including a person who might be described as an ex-tenant, someone whose occupation had commenced as tenant and who had continued in occupation without any legal right to do so except possibly such as the Acts themselves conferred upon him. It is to be remembered a person became a statutory tenant under those acts when his contractual tenancy had been validly terminated.

30. It would appear that by not following the terms of the English Acts, the Legislature here intended that different principles should apply on this subject. No where can I find in any of the ordinances relating to this subject, a tenant having been defined in such a way as to include an ex-tenant in the sense used in Remon's case.

31. It is true that a tenant or sub-tenant has also been defined in the Temporary Provisions Ordinance as including "A person who retains possession of any premises by virtue of this ordinance (para. (b)). It is true also that this definition bears similarity to the definition of tenant which the English Court of Appeal was construing in Remon's case, but the English Court did not construe this definition in isolation. They construed it in the context of the whole of the Act. It was only then that they felt able to lay down the principle which they did. If one looks at the Hong Kong definition in the light of the Hong Kong Ordinance as a whole, I do not see how one could possibly adopt a similar course. The only way in which a person can retain possession under our ordinances is where there has been a legal tenant, whether a tenant at sufferance, a tenant by agreement between the parties or a tenant by operation of law. There is no question of protection being afforded by these ordinances to a ...(illegible) who was not a protected tenant and whose tenancy had been validly terminated at common law before these ordinances came into effect. Their true intent, meaning and spirit would appear to be quite different. It is for these reasons that I have doubts as to whether the decisions referred to by Mr. Chang correctly give effect to the intention of the Legislature in Hong Kong. In another case which is unreported Remon's case was held not to apply (KCJ 3675/73, 3677-3685/73, 3687-3695/73).

32. I come now to the second leg of Mr. Chang's submission whereby he suggests that even if the Court is against him on his first point, and rules that an application can only be made under the New Part II, then the Court should entertain the applications in their present form. In this connection he has cited the case of Lau Tau Shing v. Lau Ping Lip 1959 H.K.L.R. p. 158 in supporting the proposition that where no procedure has been prescribed, then the judge should mould the correct procedure. He has submitted that S. 53 of the New Part II does not prescribe any procedure at all for the seeking of an order of the Court under Subsection (2), and therefore distinguishes it from applications under subsection (7) of the Repealed Part II where there were provisions made for application to the Court.

33. Again I must reject this submission because express rules have been laid down made under the enabling powers of Section 72 of the District Court Ordinance Cap. 336.

34. It is provided by Rule 12(1) of the District Court Civil Procedure (General) Rules that subject to the provisions of these rules and the provisions of any other enactment, every proceeding in the District Court shall be commenced by a Writ. It is quite clear therefore that the applicant in the present case should have commenced his action in this Court by way of Writ. Not only is this laid down specifically by the rules referred to above, but there is also a practice direction issued on the 23rd of February, 1974 in the following terms:

"Every proceeding instituted in the District Court under Section 53 of the Landlord and Tenant (Consolidation) (Amendments) (No. 2) Ordinance of 1973 (Ordinance No. 78 of 1973) shall commence by writ, in accordance with normal procedure. The Chief Justice does not propose to make any rules unless it becomes necessary so to do".

In fact this Ordinance (The Amendment Ordinance of 1973) only has three sections, the second of which repealed the Repealed Part II, and substituted the New Part II, It is Section 53 of the New Part II which is obviously referred to in the practice direction.

35. It is clear therefore that the present applications are misconceived and I have no jurisdiction to entertain them.

Certified true copy:-

Representation: