Tam Soo-chang v. Yu Mui

DCCJ008711/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 8711 OF 1981

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Coram: Judge Caird in Court.

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RULING

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1. The plaintiff seeks possession of premises allegedly owned by her upon the grounds of the premises are required as a residence for her son aged 25 years.

2. The plaintiff has now discovered the existence of three sub-tenants and seeks an order joining them in the action, and I am informed that some informal settlement talks may be entered into between all parties. Meantime the plaintiff seeks a ruling from me as to whether a Notice to Quit should have been sent before she can seek possession under the terms of the legislation extant.

3. I have no hesitation in adding the following parties:

4. I note that I have been informed that the last named defendant uses these premises as a dormitory for some of its workers.

5. The pleadings are to be amended by addition of the parties referred to in the foregoing paragraph and to be filed and reserved upon the 1st defendant and filed and served upon the 2nd, 3rd and 4th defendants within 14 days hereof.

6. Miss Elsie Leung appearing on behalf of the plaintiff asked me to make a preliminary ruling which I indicated that I was prepared to do. This involves me in a consideration of LEUNG Wai-han v. LAU Fung-ying and others⁽¹⁾. A decision of my brother Judge Cruden which has achieved a considerable degree of acclaim or notoriety depending upon whether solicitors and Counsel concerned represent landlords or tenants.

7. In that decision the learned Judge decided that the amended provisions of Sections 52 and 53 of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7 have introduced consequences whereby he felt constrained to hold that a distinction has been legislatively introduced between fixed tenancies and periodic tenancies.

8. The whole thrust of the reasoning behind that decision as I apprehend it, is that Judge Cruden determined that in Hong Kong the Court of Appeal would adopt a literal approach to an interpretation of the provisions of this Ordinance rather than a purposive approach, and in support of that conclusion he cited Allied International Insurance Limited v. Hsia Jone Shu & another⁽²⁾ delivered on the 8th of January 1982.

9. I find myself obliged to dissent from Judge Cruden, and take considerable fortitude in doing so, from the views expressed by him at page 7 of his decision when he stated.

"I therefore if with some reluctance feel obliged to adopt a literal rather than purposive approach to the new amendments".

10. I am firmly of the view that the Courts in Hong Kong, led by the Court of Appeal, will in all cases, where justice demands, where there is an alternative approach available to statutory interpretation will adopt the purposive approach, and in fact the retrospective element inherent in adopting Judge Cruden's reasoning should in my view offend against my Court's sense of Justice, and indeed constitute an insult to common sense. The first business of the Courts is make sense of ambiguous language. Re Gilligan⁽³⁾.

"If these last words are ambiguous ... it is right that consideration should be given to the whole purposes of the section and such interpretation given to the potentially ambiguous words as shall carry out the intentions of the legislature if this can be ascertained".

11. Judge Cruden went to some pains in considering whether he should adopt a purposive approach and cited Lord Scarman in his Wilfred Fullager lecture at Melbourne, Australia.⁽⁴⁾

"In London no one would now dare to choose a literal rather than a purposive construction of a statue: and legalism is currently a term of abuse".

12. However, since Lord Scarman made these extra judicial comments, the House of Lords has had occasion to consider the case of Royal College of Nursing v. Department of Health and Social Security,⁽⁵⁾ an appeal from the Court of Appeal where the appellate judges had reversed a decision of Woolf. J.

13. I appreciate that in that case with abortion involved, the Courts, at all stages, were faced with a fact situation which to all concerned was emotionally charged as well as intellectually challenging and I also appreciate that in such a situation the individual speeches of their Lordships may have been affected by inarticulated major premises depending on their personal religious, political and social backgrounds. Despite this, I take guidance from some of the speeches in particular those of the two dissenting Lord of Appeal in Ordinary who expressly stated they were adopting the literal approach that they did so. Lord Wilberforce at page 822 said follows:-

"In my opinion this act should be construed with caution. It is dealing with controversial subject involving moral and social judgments on which opinion strongly differ. It is, if ever an act was, one for interpreting in the spirit that only that which Parliament has authorised on a fair reading of the relevant sections should be held to be within it. The new (post 1967) method of medical induction is clearly not just a fresh species or example of something already authorised. The Act is not for "purposive" or "liberal" or "equitable" construction. This is a case where the Court must hold that any-thing beyond the legislature's fairly expressed authority should be left for Parliament's fresh consideration".

14. Lord Edmond Davies at page 831 adopted the narrow restrictive literal interpretation in rejecting the argument that the proposals that nurses should continue performing most of the steps necessary for abortion (7 out of 9 steps), and said:

"My lords, this is redrafting with a vengeance".

15. I do not believe that the purposive approach to the instant problem of statutory interpretation is redrafting in the way vividly described by Lord Edmond Davies nor do I believe that the considerations expressed by Lord Wilberforce apply in the socialogical situation with which I am faced.

16. I take heart from the speeches of Lord Keith and Lord Roskill. The former at page 835 said, after making his determination that a broad interpretation is called for.

"This conclusion is the more satisfactory as it appears to me to be fully in accordance with that part of the policy and purpose of the Act which was directed to securing that socially acceptable abortions should be carried out under the safest conditions obtainable".

17. At page 838 Lord Roskill said in professing to adopt a wider construction of Section 1(1) of the Act.

"Such a construction avoided a number of anomalies as for example .....".

18. Judge Cruden in Leung v. Lau⁽¹⁾ was fully conscious of the anomaly that must pertain in his holding, as he did, that strict literal construction should be adopted in interpreting the amendments.

19. Part II of the Landlord & Tenant (Consolidation) Ordinance affects the rights duties and responsibilities of both landlords and tenants, and the Court of Appeal over a series of decisions have made it quite clear that the proper approach to interpret that legislation is one whereby a landlord's rights must be recognized by the Courts, for example, a landlord exercising his rights to claim possession, a subject on which I have been corrected on at least two occasions by that Court.

20. In these circumstances in such an important field of social and business activity where the Courts must be concerned with Landlord's rights as well as tenant's rights - as created and modified by the legislative, I believe that the purposive approach must be adopted and I note the provisions of Section 19 of the Interpretation and General Clause Ordinance, Cap. 1.

21. It is with considerable reluctance that I find myself in a position of having to dissent from a brother Judge but, of course, as I have pointed out the House of Lords reported decision in the Royal College of Nursing v. The Director of Health & Social Services⁽⁵⁾ has not been available in the official reports until very recently, and I feel that had Judge Cruden been able to have had access to that decision, he may well have felt that he was at liberty to adopt the purposive approach.

22. For purposes of this action, I rule that that Notice to Quit was not required at the relevant time and indeed go so far as to rule, that it is not at present required. However, I must advise all solicitors to issue Notices to Quit pending an authorative decision, from the Court of Appeal or the final appellate body.

(1) VCJ 3700 of 1981

(2) Civil Appeal 81/81

(3) [1950] p.32 at page 38

(4) [1981] A.L.J. 175

(5) [1981] A.C.P. p.800

Representation:

Miss E. Leung of P.H. Sin & Co. for plaintiff.

Defendant Madam YU Mui in person.