Li Sui Yuet v. Attorney General
Read the full judgment text of HCA 1359/1969 on BabelCite. This High Court CFI judgment.
1. In 1948 the plaintiff purchased a piece of land in Tsuen Wan which is registered as Lot 1956 in demarcation district No. 449. She held this land on the terms of a block crown lease dating from the reign of Edward VII. The lease was for agricultural purposes and by a modification permit dated 16th May, 1957 permission was given "to maintain one temporary structure of 20' x 25' for dwelling".
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HCA001359/1969 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1359 OF 1969 -----------------
Coram: Briggs J. in Court. Date of Judgment: 30th July, 1970. ----------------- JUDGMENT ----------------- 1. In 1948 the plaintiff purchased a piece of land in Tsuen Wan which is registered as Lot 1956 in demarcation district No. 449. She held this land on the terms of a block crown lease dating from the reign of Edward VII. The lease was for agricultural purposes and by a modification permit dated 16th May, 1957 permission was given "to maintain one temporary structure of 20' x 25' for dwelling". 2. The terms of the lease provide that the user of the land can only be changed if a modification permit is first obtained from the Crown. Further, permission must first be obtained from the Crown before any structure whatever is built by the lessee on the land. This means that if a lot is leased for agricultural purposes a modification permit must be obtained before a dwelling house is erected thereon: but if such a lessee wishes to build pig-sty all that is necessary is that he obtains permission. The distinction is that in the former case the lessee is altering the purpose for which the lot is being used, and when the dwelling is built he will have to pay additional rent. In the latter case there is no change of user and no additional rent is payable. 3. The evidence shows that from 1962 onwards the District Office Tsuen Wan had good cause to complain of the conduct of the plaintiff as regards the terms of her lease. She had received permission to build pig-sties but converted them to dwelling places. And she had built or begun to build at least one illegal structure. At the trial evidence of this was given by the plaintiff and one of her witnesses. In addition certain documents from the file of the District Office were put in evidence. The evidence is conflicting but one thing is certain. That is that there are now standing on the property two houses each of two storeys, which together are much greater in size than that allowed in the modification permit referred to above. This was explained by Mr. Barnes, the District Officer Tsuen Wan, in his evidence. Apparently Government in the past has tolerated certain accretions to existing buildings even though they have been erected without permit or permission. The plaintiff's evidence is that the present buildings are those which were on the site when she took possession or rather went to live there in 1961. She admits she has renovated them but not increased their size. That this is not true is clearly shown by two plans produced in evidence, one plan shows the buildings on the site in 1961 and the other shows the buildings as at 1964. And it can be seen, clearly and conclusively, that there has been considerable enlargement. 4. Be this as it may, after various warnings to the plaintiff the Crown re-entered upon the lot on 12th October 1964. A memorial of such re-entry was registered in the District Office on that date in the Tsuen Wan District Office. It is common ground that though the whole history of the relationship between the plaintiff and the Crown was considered, the substantial reason for the exercise of the power of re-entry was the conduct of the plaintiff in converting pig-sty into dwelling houses and persisting in allowing such conversion to continue despite warnings from the District Office. The plaintiff eventually rectified this position. 5. On 8th April 1965 the plaintiff petitioned the Governor-in-Council for relief against forfeiture under section 4 of the Crown Rights [Re-entry] Ordinance, Cap. 126. The Governor-in-Council considered the petition and allowed the cancellation of the memorandum of re-entry upon certain conditions being complied with. 6. At least one of these conditions has not been complied with, but the plaintiff's case is that despite this there has been a cancellation and she asks for declarations that this is so and that she is still the registered owner of the land in question. 7. The Crown's case is that since the conditions have not been complied with there has been no cancellation of the memorandum of re-entry: and that the plaintiff is not entitled to the relief for which she prays. 8. The relevant portion of section 7 of Cap. 126 reads as follows:-
9. Ordinance No. 44 of 1970 repeals and replaces Chapter 126 and the new section dealing into the process of the Governor-in-Council when dealing with petition is in slightly different language. But this need not concern us here since Ordinance No. 44 of 1970 has not been brought into force yet. 10. As I have said the Gover-in-Council decided to allow the petition of the plaintiff but on certain conditions. These were communicated to the solicitors for the plaintiff by the District Office on 13th October, 1965 in the following terms.
11. I shall refer to these three conditions as "condition (a)", "(b)" and "(c)". 12. On 20th October, 1965 the solicitors for the plaintiff received a communication from the Secretariat stating that, and I quote, "the Governor-in-Council has approved the cancellation of the Memorial of Re-entry ... subject to your client's compliance with certain conditions." 13. The plaintiff paid the penalty of $1,000 at once: but the illegal kitchen referred to in condition (a) stated in the letter of 13th October was not demolished within the time permitted. It was not demolished within one month from 13th October. It is because this condition has not been complied with that the Crown say there has been no cancellation of the re-entry and that there can be no such cancellation. 14. The method of cancelling a memorandum of re-entry is contained in section 8 of Chapter 126. A memorandum of cancellation signed by a Land Officer is entered on the memorandum of re-entry registered in the District Office. Its effect is to render the memorandum of re-entry void and the lands to which it refers are ipso facto re-vested in the lessee for his previous estate. 15. There is no such memorandum of cancellation entered in the memorandum of re-entry in this case. 16. It is pointed out on behalf of the plaintiff that there is no evidence that the existence of the kitchen referred to in condition (a) was the reason for the exercise by the Crown of its right of re-entry or even one of the reasons for the exercise of such right. Condition (b) complains of the size of a house. There is no evidence that the plaintiff knew that the Crown were complaining of this before February 1966. It is suggested on behalf of the plaintiff that to attach such conditions to an order for cancellation of a memorandum of re-entry is not within the ambit of section 7(1) of the Ordinance. 17. I have quoted the relevant portion of this section above. The words "or otherwise as (the Governor-in-Council) shall in his absolute discretion think fit" must be read disjunctively, because it is specifically laid down in section 3 of the Interpretation & General Clauses Ordinance (Cap.1) that the words ""or", "other" and "otherwise" shall be construed disjunctively and not as implying similarity, unless the word "similar" or some other word of like meaning is added." If read disjunctively the words in question have a very wide meaning indeed. The discretion of the Governor-in-Council is unfettered. 18. The case of Hui Shiu-wing v. Cheung Yuk-lin(1) was referred to but I do not think that that case assists the plaintiff. That decision concerned the interpretation of a rule of the Order in Council which regulates appeals from the Supreme Court to the Privy Council. 19. The Order in Council states that the Supreme Court may grant leave to appeal to the Privy Council in cases where the Court considers that the question involved in the appeal ought to be submitted to the Privy Council, and I quote, "by reason of its general or public importance or otherwise". It was held that:-
In that case all the Court is saying is that the words "or otherwise" do not give an unfettered discretion so far as that Order in Council is concerned. However, the Court was there dealing with the question of appeals to the Privy Council. It is obvious that the Court would not allow any case to proceed no matter how trivial was the question involved. Indeed there would be no point in having to apply for leave if that were the case. 20. The judgment of Wills J. in the poorly reported case of Sultan v. The London Chatham & Dover Railway Co.(2) shows that "otherwise" has a very wide meaning. 21. And again Jessel M.R. in Lowther V. Bentinck(3) says that the words "or otherwise for his benefit" contained in a will are 'the largest terms of all'. They are words enlarging what preceeds them. In the present case the phrase is even wider and stronger in that it specifically refers to the "absolute discretion" of the Governor-in-Council. It is obvious, I think, that these words mean that the Governor-in-Council may impose conditions to be observed before the cancellation of the memorandum takes effect. Mr. Bernacchi suggested that such conditions should be confined to cases where the erstwhile lessee is asked to remedy those breaches on account of which re-entry has been made: and that if it be extended beyond such cases that any extension must be reasonable. I can find nothing in the Ordinance to warrant such a restricted interpretation. The words "or otherwise etc." are very wide and give the widest possible discretion, indeed an unfettered discretion. I do not think that the exercise of that discretion is confined to the putting right of what was complained of at the time the Crown exercised its right of re-entry. Nor in my opinion need the person in whose favour the cancellation is to be made know what condition is to be imposed until he is informed that his petition will be granted. I see no reason, all things being equal, why the Crown should not impose a condition to the cancellation of the memorandum of re-entry quite new: that is, one unconnected with the previous conduct of the lessee. 22. It must be remembered that the plaintiff has no right to an order cancelling the memorandum of re-entry. The Governor-in-Council must consider any petition presented under section 4 of the Ordinance and reach a decision. But what that decision is is entirely a matter for the Governor-in-Council. The conditions imposed in the present case, including condition (a) fall well within the exercise of the discretion of the Governor-in-Council under the section. I will go further, were it the law (which it is not, in my view,) that the conditions must be "reasonable", I would be prepared to hold that the conditions imposed in the present case are "reasonable". 23. There is no doubt that the offending kitchen was not pulled down before the expiration of the one month allowed under condition (a). There is a conflict of evidence when the kitchen was built and when it was demolished. For the sake of this judgment I will accept the evidence of the plaintiff, that is that it was demolished a few days after, nine I think, the expiry of the date. 24. Condition (b) of course has also not been fulfilled. No point can be made of this against the plaintiff. The Crown is relying on the breach of condition (a). 25. Counsel for the plaintiff if I understand him aright, says that time is not of the essence of condition (a) and that equity will come to the plaintiff's aid. I will say at once I do not think that the doctrines of Equity come into this case at all. From the time that the memorandum of re-entry was registered the contractual relationship between the Crown and the plaintiff was at an end. The Crown then made an offer: if the plaintiff would comply with certain conditions then, and only then, the Crown would exercise its statutory powers of cancelling the memorandum of re-entry, and all would be as it was before. But for the period during which the conditions are to be carried out there is no contractual relationship between the parties at all. I know of no authority, nor was any authority quoted to me to allow of the equitable rules governing the question of when time is of the essence of a contract to be extended to the exercise of a statutory power. If there had been a contractual relationship between the parties and the condition (a) had been one of its terms, equity might well have assisted the plaintiff. But this is not the case here. There is no contract. Where a statute empowers an authority to do an act equity is powerless to intervene. If there is power to order the demolition of a kitchen by a certain date and a certain date is fixed, the Courts relying on equity cannot intervene and substitute another date. To do so would mean that the Court was usurping the power of the Governor in Council. 26. It was also contended on behalf of the plaintiff that the last paragraph of the letter of 13th October, 1965 must be read as a condition precedent to the cancellation and that since it had not been fulfilled the whole of the letter of October 13th was a nullity. In which case the matter should be reconsidered as for the date of the registration of the memorandum of re-entry. The paragraph is quoted above and need not be repeated. 27. It is common ground that the officer referred to in the paragraph in question did not accompany the plaintiff to the land nor did he point out to her what was necessary to be done. 28. The evidence of the plaintiff was most unsatisfactory on this point. She said in her examination-in-chief that a Land Bailiff one Mr. Sousa had pointed out to her the kitchen which was to be demolished about 20 days after she had received the letter of 13th October. She also said that the time for demolition was running out was very much in her mind. Later in cross-examination she altered this part of her evidence. She then said that Mr. Sousa had only phoned her solicitors on that occasion but that a Mr. Chan, another Land Bailiff one week after receiving the letter of 13th October had told her what was to be demolished: though she was vague as to details. However, she agreed that Mr. Leung the officer mentioned in the paragraph in question did not go with her to the land and Mr. Leung himself confirmed this. 29. The last paragraph of the letter of 13th October is not one of the conditions laid down by the Governor-in-Council. It emanated from the District Office and is obviously an attempt to assist the plaintiff. In no sense can the words be considered to mean that no cancellation will be made unless and until Mr. Leung accompanies the plaintiff to the lot. The whole paragraph from its wording is no more than a suggestion or way of explaining the conditions imposed by the Governor-in-Council. And I will say at once that the evidence clearly shows she understood those conditions. For she herself said that she had been told to reduce the house to an area of 280 square feet and that the house had been pointed out to her. And in addition she clearly understood which kitchen was meant and that it must be demolished before 13th November, 1965. 30. Other interesting points arose during the trial of this action, for example what would be the position if the contention of the plaintiff is right that the condition imposed by the Governor-in-Council must be reasonable and the Court were to find that the conditions imposed were unreasonable, and whether a petitioner under section 4 of Chapter 126 may present a second petition under the Ordinance after his first petition has been pronounced upon. It is not necessary to decide these matters for the purposes of this case. And I decline to do so. 31. In view of what I have said above, it is not possible to make the declarations sought and the claim of the plaintiff must be dismissed. 32. I cannot help referring to a matter which arose during the presentation of this case. The agreed bundle contained a number of documents with translations attached which were also agreed but which were not made by the court interpreter. It turned out that at least two of these translations were grossly inaccurate, and indeed when this inaccuracy was discovered counsel for the Crown had to withdraw part of his cross-examination of the plaintiff. It is essential that when translations of documents are included in an agreed bundle that they are agreed as being and are in fact accurate translations. This is not the first occasion on which this has happened in this Court. I hope I shall not have to draw attention to what is a very obvious point again. 33. Judgment for defendant with costs.
Representation: Bernacchi Q.C. & H.C. Miu (L.S. Shum & Co.) for the Plaintiff Eric Thisltewaite, C.C. for the Defendant. Judgment read in Court. (1) 1968 H.K.L.R. 176 (2) 1896 12 T.L.R. at page 426 (3) 1874 19 Eq. 166 at p.169. |