P.H. Foo and Others v. Tam May Ling

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 4460 OF 1970.

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Coram: W.S. Collier, D.J.

Date of Judgment: 21.7.71

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Verbal Judgment reduced into writing

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1. In this case, there was, originally, an application for an order for possession under the Rent Increases (Domestic Premises) Control Ordinance 56 of 1970. An Order for possession was made by consent, between the landlord and principal tenant. Some few days later, the sub-tenants, the Plaintiffs in this action, applied to be joined as Respondents in the application under the Rent Increases (Domestic Premises) Control Ordinance. As they had served no counter notice (and, indeed, upon their affidavits they had no opportunity so to do, having had no notice of the notice to quit) they could not be joined as respondents to the application.

2. They therefore commenced this action as plaintiffs prying for, mainly, an injunction restraining the defendant landlords from interfering with the plaintiffs' quiet enjoyment of the premises under their sub-tenancy.

3. I was asked by the solicitors to both parties to decide one point as a preliminary point. The solicitor for the defendant said that his evidence would be, that on each of three successive days, his clerk went to the premises in question and there posted up a copy of the notice to quit and that on the second and third days, when he attended the premises, he found that the notice he had posted on the previous day was no longer there.

4. Mr. McElney, for the plaintiffs, submitted, with some hesitation, having regard to the obvious practical difficulties that would arise, were he correct in his submission, that the words in subsection (3) of section 7 of the Rent Increases (Domestic Premises) Control Ordinance "is displayed for three successive days" mean what they say and that, accordingly, it is not sufficient to post a notice on three successive days; the notice must be prominently affixed and must remain so for three successive days before the notice to quit can take effect on sub-tenancies.

5. In support of his argument he cited the previous Rent Increases (Domestic Premises) Control Ordinance No.7 of 1963, in which there is a similar provision to sub-section (3) of section 7 of the 1970 Ordinance, which appears as sub-section (3) of section 6 of the 1963 Ordinance. This latter provision has the words "is posted on three successive days" in place of the words in the 1970 Ordinance "is displayed for three successive days."

6. A similar provision to that in the 1963 Ordinance is to be found in subsection (3) of section 3 of the Tenancy (Notice of Termination) Ordinance, Cap. 335 in that the words "is posted on three successive days" also appear.

7. Mr. McElney submitted that because the words in the 1963 Ordinance, which followed those of the Tenancy (Notice of Termination) Ordinance, enacted in 1962, were altered in a provision of the 1970 ordinance, otherwise in the same terms, that the legislature must have intended to make a change in the steps necessary to affect subtenancies and that no matter how irksome or difficult it may be, the notice under the 1970 Ordinance must be continuously present upon the main door of the premises for three successive days if it is to have effect upon sub-tenancies, without personal service upon sub-tenants under the provisions of section 22.

8. In my judgment, that submission must be correct. The words "is displayed for three successive days" are clear enough in themselves. When contrasted with an almost identical provision in an almost identical Ordinance of 1963 and an almost identical provision with regard to sub-tenancies in the Tenancies (Notice of Termination) Ordinance of 1962 there can be no other view other than that the legislature intended to make a radical change in the method of affecting sub-tenancies, otherwise than by personal service, to avoid what has alleged in this case, namely, a conspiracy between the landlord and principal tenant to defeat the interests of the sub-tenants by the removal by the principal tenant during the absence at work of the sub-tenants, of the notice to quit each time as soon as it was affixed to the main door.

Representation:

Miss Leung (P.H. Sin & Co.) for plffs. up to 18.2.71.

Mr. McElney ( J.S.M. ) for plaintiffs.

Mr. Tsang (M.K. Lam & Co.) for defendant.

Judgment written on 31.7.71.