Chow Sui Kwan v. Ha Lin Fong

DCCJ006036/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 6035 OF 1980

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ACTION No. 6036 OF 1980

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ACTION NO. 23 OF 1981

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ACTION NO. 24 OF 1981

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Coram: H. H. Judge Wane in Court.

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RULING

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1. This is a preliminary point of some fundamental importance to the hearing of the action: The writs were issued on 10/9/80 in respect of Actions 6035 and 6036 of 1980, and on5/1/81 re actions 23 and 24 of 1981, on the ground of the plaintiff's intention to rebuild the premises under Section 53(2)(c) of the Landlord & Tenant Ordinance Cap. 7.

2. Various applications have been made and heard, since those dates e.g. to appoint a personal representative of the deceased 1st defendant in 6035/80, to amend pleadings, to give time for filing defence, and for consolidation of the actions. All pleadings were completed well before the 19/12/81, the date on which the relevant sections of the Landlord & Tenant Consolidation (Amendment)(No. 2) came into operation. The hearing of the actions commenced on 2/2/82.

3. The question is whether the sections cited in Section 1(2)(a) of the Amendment No. 2 are to be applied in these actions. The section of greatest relevance is Section 37 which amends the principal Ordinance by adding after Section 53 a new section 53A. This imposes certain conditions before an order can be made under Section 53(2)(c) and (a matter of considerable concern to the parties) requires compensation to tenants as provided.

4. Mr. R. Wong for the plaintiff landlord submits that the amended legislation should not be applied to these actions by reason of Section 59(l) and (2) and also Section 1(2)(b) of the amendment. Mr. C. Wong and Mr. Ma for the defendants, not unnaturally argue to the contrary.

5. Section 59 reads : -

"Section 59(1) A District Court or tenancy tribunal which has heard or commenced to hear any matter or proceeding which, by this Ordinance, becomes a matter or proceeding within the jurisdiction of the Lands Tribunal or the Commissioner of Rating & Valuation shall continue to have jurisdiction in relation to, and shall dispose of, such matter or proceeding as if this Ordinance had not been enacted.

(2)Any matter or proceeding pending before a District Court or tenancy tribunal but which a District Court or tenancy tribunal has not heard or commenced to hear and which, by this Ordinance, becomes a matter or proceeding within the jurisdiction of the Lands Tribunal or the Commissioner of Rating & Valuation shall be continued before the Lands Tribunal or Commissioner, as the case may be; and the Lands Tribunal may give such directions as it thinks fit as to the lodging or filing of papers and otherwise in relation to the procedure in such a matter or proceeding."

6. Mr. R. Wong argues that the various applications previously heard by this Court in these actions establish that "the District Court has heard or commenced to hear any matter or proceeding which by this Ordinance becomes a matter or proceeding within the jurisdiction of the Lands Tribunal or Commissioner of Rating & Valuation" and so the Court should continue to have jurisdiction in relation to, and dispose of such matter or proceeding as if the Ordinance had not been enacted (his emphasis) i.e. under the pre-existing law.

7. Counsel for defendants submit that the words heard or commenced to hear refer to the hearing of evidence on the main issue and do not apply to the disposal of previous interlocutory proceedings. Accordingly the Court should apply the law existing at the date of the hearing which includes the new Section 53A.

8. I accept the following principles.

1. That Section 23 of the Interpretation and General Clauses Ordinance Cap. 1 (which deals with the effect of repealing and amending Ordinances and generally preserves the status quo) operates only where no contrary intention appears either from Cap. 1 itself or from the context of any other Ordinance or instrument (Section 2(1) of Cap. 1) and see Lam Wai and Mak Yok-jan Civil Appeal No. 38 of 1980 a judgment of the Court of Appeal.

2. That the inclination of the law is to discourage a retrospective effect in legislation wherever there is no clear indication that it is intended to be applied retrospectively.

9. Maxwell on the Interpretation of Statutes (9th Edition) P229 states "in general where the law is altered during the pendency of an action the rights of the parties are decided according to the law as it existed when the action was begun, unless the new Statute shows a clear intention to vary such rights." (my emphasis).

10. C .K. Allen says in Law in the Making at P464 "a retrospective operation is not to be given to a statute so as to impair an existing right or obligation unless that effect can not be avoided without doing violence to the language of the enactment. If it is expressed in language which is fairly capable of both interpretations it ought to be construed as prospective only".

11. Allen does however accept (P463) that "new law is almost certain to affect existing rights and still more existing expectations.  It may be intended to operate in the future but the mere fact that it operates at all inevitably in the long run impinges upon rights and duties which existed long before it came into being. This is particularly true of laws concerning ......... real property".

3. That despite these general principles each case falls to be decided by reference to the intention of the Legislature as it is expressed in the relevant statute.

4. That statutes are to be construed so as to receive "such fair large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent meaning and spirit (Section 19 of Cap. 1)."

5. That if it seems that the necessary intention of the statute is to affect pending actions the Court will give effect to that intention even though there is no express reference to pending actions - Hutchison v. Jauncey (1950) 1 K.B. 574 C.A. at 579. This principle has been adopted in Hong Kong in the case of Lam Wai above cited (at p.7 of the judgment of the Court of Appeal).

12. However a careful reading of Hutchison v. Jauncey shows that despite its headnote the Court did not there lay down a general rule that the law existing at the date of the hearing is the law to be applied. In that case and indeed in Lam Wai the Court first held that in the particular case the amended law was intended to apply retrospectively and then went on as a necessary consequence to say that accordingly the law existing at the hearing was to be applied to the case. If the Court had held that the law was not retrospective it must have gone on to say that it applied only to those cases that were commenced after the date on which it came into operation.

13. What there is the true effect of Section 59(1) of the Amendment?

14. Firstly it is I think clear that the Legislature intended to effect substantially the rights and obligations previously existing between landlord and tenant. The new Section 53A imposes quite severe requirements on the landlord as to the quality and extent of the proposed proposed rebuilding, provides for a number of safe guards and conditions that can be imposed on the landlord, and requires payment of compensation to tenants in certain cases. It does not appear to benefit the landlord in any way. Other sections refer to the fixing of a fair rent and the grant of new tenancies even against the opposition of the landlord. There are various other substantial changes affecting landlords. Only where a 5 year tenancy is created under Section 32 of the Amendment is there any noticeable benefit to the landlord. But where the landlord is faced with such stringent and novel obligations it is normally to be expected that he will be given notice of them before an action is issued. He should not be faced with such new obligations after the cause of action has arisen and his Writ has been issued. That is of course unless the law clearly so requires. Allen echoes this principle at P465 where he says "it is a matter for regret that this salutary principle... has been endangered by decisions which have held that a man may be liable through expost facto legislation for heavier penalties than those that existed when he committed his offence."

15. It is difficult to see from a perusal of the Amendment itself that the Legislature intended that any part of the new law should be applied retrospectively so as to apply to actions commenced before the relevant date (19/12/81) but not concluded until after that date - except perhaps where Section 59(1) does not apply. I shall touch further on this point later in this judgment.

16. The law as considered in Lam Wai was that contained in Ordinance No. 6 of 1980 and affected Section 52 of the Principal Ordinance. It is in quite different terms from Section 59 of this amended Ordinance of 1981 and depended on those terms for its resulting decision that that amendment was intended to operate retrospectively. With respect it does not seem to have laid down any general rule that all amendments to the tenancy laws should be construed retrospectively as is argued in this case.

17. It is now time to consider the actual words of Section 59 and this should be done in several stages.

1.What s the meaning of "heard or commenced to hear"? A hearing is usually the hearing of the evidence, of the issues at the trial. Does it include the hearing of preliminary and interlocutory applications before the trial?

2.What is a matter or proceeding? Are these words to apply only to the actual trial of an action, or do they include interlocutory applications of the type previously mentioned?

18. Section 2 of the District Court Ordinance Cap. 336 defines "matter" as including "every proceeding in the Court not in a cause". "Cause" is defined as "any action suit or other original proceeding between a plaintiff and a defendant". It follows that a matter or a proceeding may be had and heard independantly of a cause. Accordingly the hearing of a matter or proceeding can include the hearing of interlocutory proceedings.. Indeed in "Words and Phrases" (Vol. 4) "proceeding" is said to be frequently used as a step in an action. When used alone it can be synonymous with action. But the cases referred to there in particular the dictum of Kay (J) in Blake v. Summersby (1889) W.N.69 that "anything that precedes a final judgment or order is in my opinion a proceeding in the action" shows that "proceeding" would normally include an interlocutory application.

3.Are the matters or proceedings relied on by Mr. R. Wong (i.e. interlocutory applications) matters or proceedings within the jurisdiction of the Lands Tribunal or the Commissioner of Rating & Valuation?

19. Certainly by virtue of the amendment Section 53A is now within the jurisdiction of the Lands Tribunal and cases under Section 53A (inter alia) can now be heard by the Lands Tribunal. But has the Lands Tribunal by the amendment been given jurisdiction to hear interlocutory applications relating to the cases before it?

20. It would seem surprising, indeed absurd, if this were not so for who would in such circumstances have jurisdiction to hear such applications? But Mr. C. Wong for some of the defendants submits that a statutory body (such as the Lands Tribunal and indeed the District Court) must derive its jurisdiction solely from statutory provisions and suggests that no such authority exists in the Lands Tribunal.

21. The District Court obtains its authority from the Rules of the Supreme Court and its own Rules but though Rules are being prepared in respect of the extended Lands Tribunal these have not yet been completed. However it clearly appears from the existing Lands Tribunal Rules and the Lands Tribunal Ordinance itself that the Tribunal already has full power to hear interlocutory applications.

22. See Section 10(1) & (2) of the Lands Tribunal Ordinance, Cap. 17.

"Section 10(1) - The Tribunal shall have the powers which are vested in the High Court in the exercise of its civil jurisdiction in respect of the following matters:-

(a) the attendance, examination and payment of witnesses;

(b) the hearing of any matter with the assistance of an assessor or assessors;

(c) the consolidation or hearing of any matters;

(d) the punishment of persons guilty of contempt;

(e) the ordering of inspection of any premises or place;

(f) the entering and viewing of any premises or place;

and, so far as circumstances permit, shall follow the practice and procedure of the High Court in the exercise of its civil jurisdiction.

Section 10(2) - Without prejudice to the generality of the powers vested in it under subsection (1), the Tribunal may -

(a) on the application of any party to any proceedings before it, or of its own motion, order any party to the proceedings to disclose to the Tribunal the existence of any document which is in the power of such party to produce and which the Tribunal considers is or may be material to the determination of the matter being heard by the Tribunal;

(b) order any party to any proceedings before it  (i) to produce to the Tribunal any document which it may require and which is in the power of such party to produce; and (ii)to afford to any other party to the proceedings an opportunity to examine any such document or copy thereof and to take copies thereof; and

(c) together with the parties to any proceedings before it and any expert witness of any such party, enter on and inspect any land, premises or place which relates to the proceedings before the Tribunal or any land, premises or place contiguous or adjacent thereto."

Interlocutory applications are expressly provided for in R. 5 of the Lands Tribunal Rules. It follows that the amendment, by giving the Lands Tribunal jurisdiction to hear causes under Section 53, also gives jurisdiction to hear interlocutory applications in such causes.

23. Reverting then to the point in issue. I rule that in respect of the interlocutory applications heard prior to the relevant date (19/12/81) the District Court has heard or commenced to hear matters and proceedings which by the Amendment Ordinance become matters or proceedings with the jurisdiction of the Lands Tribunal. Accordingly this Court is bound to continue to have jurisdiction in relation to and shall dispose of such matters or proceedings as if the Amendment Ordinance had not been enacted. (My emphasis)

24. As the matters or proceedings referred to have in fact been concluded before the relevant date and the trial itself began only after the relevant date does this mean that the amended ordinance does not apply to the hearing itself? If the words "heard or" had not been included in Section 59 I think it would have been tolerably clear that the District Court would only have jurisdiction to conclude part heard applications. But how can one continue to have jurisdiction and to dispose of a matter already heard and thus finally disposed of. Surely the Ordinance contemplates that the Court is to continue with and dispose of matters or proceedings even where earlier matters have already been heard. i. e. that once the Court has commenced to hear any matters in a cause it shall continue with and dispose of the cause itself.

25. Section 59(1) is not easy to understand unless interpreted meticulously and the same can be said of subsection (2) of Section 59 and subsection (2) of Section 1. But in my view the overall intention of the Legislature emerges as a direction that while cases arising after the relevant date should be dealt with by the Lands Tribunal under the amended law(albeit by District Judges and for some time yet) those cases already pending before the relevant date and at least partly heard shall be concluded by the District Court just as if the amendments had never been enacted.

26. What is the position then of the case issued before the 19/12/81 where no hearing of any sort has been had? I do not know for that is not the case here and it has not been argued but it may well be that the maxim "Inclusio UNIUS Exclusio ALTERIUS" is of some assistance.

27. It could perhaps be argued that Section 59(1) has as its purpose merely the authorisation of the District Court to have jurisdiction in and to continue dealing with cases issued before the relevant sections came into operation, as a District Court but nevertheless applying the new law to those cases. If so the language of that subsection is quite inappropriate. It would have been easy for the legislature to have said quite simply that the District Court could continue with and dispose of the case as if for "Lands Tribunal" there were substituted "District Court". This expression has been used in Section 1(2)(b) but not in Section 59. If S.59 is to mean the same as Section 1(2)(b) the former would be otiose. Finally the words "as if this Ordinance had not been enacted" is in my mind a very clear indication that a pending case should be disposed of under the old law, that existing before the enactment of the amended ordinance.

28. It may well be that the Legislation intended by Section 59(2) that a pending case where no part had yet been heard should be henceforth dealt with by the Lands Tribunal under the new law. The question of which law is applicable is not here in issue, and I have not considered it. The key phrase, however, "shall dispose of ... as if this ordinance had not been enacted" is not to be found in subsection (1). This while in itself reinforcing my view that the amendment is not to be applied to cases coming within Section 59(1) may possibly indicate that the amendment is intended to apply retrospectively to all other cases not within Section 59(1). I do not of course express any view on that issue.

29. Accordingly I rule that the actions should proceed under the pre-existing law and so that the provisions of the new Section 53A in particular should not be applied to these actions.