Fung Shiu and Another v. Fok Hoi Ho and Another

DCCJ005278/1983

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO.5278 OF 1983

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BETWEEN

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Coram: H.H. Judge Roy in Court.

Date of judgment: 2nd March 1984.

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JUDGMENT

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1. This case first came before me for hearing on 31st January 1984. Judgment by default had previously been entered against the Defendant on 19th August 1983, but this was set aside on 28th December 1983 when the sub-tenant on his own application was also joined as 2nd Defendant.

2. It was contended by the Plaintiffs that the second defendant had not in fact moved into the suit premises until after the commencement of the action the date of which was 25th June 1983. Since the first defendant the principal tenant did not appear at the hearing before me there were basically two issues for me to determine (a) whether or not the judgment against the first defendant should stand and (b) the position of the second defendant in particular whether or not he was a lawful sub-tenant. I answered both of these questions in the affirmative after hearing the evidence, i.e. I decided that the judgment against the first defendant should be reinstated and that the second defendant was a lawful sub-tenant. By agreement with both parties however I adjourned the matter further to 14th February 1984 for submissions as to the exact form my order should take and the law to be applied.

3. It seems that both Miss Leung for the Plaintiff and Mr. Waley for the second defendant are in agreement that S.53(6A) of the Landlord and Tenant (Consolidation) Ordinance, Chapter 7 can only be applied in the Lands Tribunal and not in the District Court. After examining the legislation I agree with this submission. This particular action was one commenced in the District Court long after the Lands Tribunal assumed the functions of disposing of cases arising under Sections 53, 53A and 68B of the Ordinance. Under S.74D the District Court was to have jurisdiction in such cases pursuant to a transitional provision until a day appointed by the Governor by notice in the Gazette. That day was 1st October 1982 (see L.N. 338/82). I can find nothing in Part II of the Ordinance or elsewhere which would enable me sitting as a District Court Judge to apply the provisions of S.53 ss.6A to a case commenced and heard in the District Court after that date. The wording of the subsection itself clearly restricts jurisdiction to the Lands Tribunal.

4. Miss Leung in her final submission said that the suit premises in the present case have always been let as one unit and it would not be just and equitable to allow the landlord to assume possession of the balance of the suit premises viz. the position not in possession of the second defendant as sub-tenant, and try to let that remaining part. She said difficulties would clearly arise and cited the case of Sylvia Szeto v. Kowloon Shoppjng Centre & Others 1980 H.K.L.R. 717 in support. She further submitted it would be open to the Plaintiffs to apply by way of substantive application to the Lands Tribunal under subsection 6A of Section 53 Chapter 7 for an order for possession of the whole premises or an order that the sub-tenant shall accept a tenancy of the whole of the premises on the same terms as those under which the first defendant held the suit premises. She suggested that the sub-tenant should be ordered to pay the whole of the arrears of rent under the head tenancy as a condition of granting him relief.

5. For the second defendant Mr. Waley agreed that the original judgment against the first defendant should stand. He argued that there was no provision for a landlord to make a substantive application under S.53 ss.6A, which was an ancillary provision taking effect following the determination of an issue by the Tribunal. As for the sub-tenant's position he said the common law must apply, which meant the sub-lease died with the head-lease, thus creating hardship, and relief should be granted.

6. In the course of argument two other cases were cited to me. They were Yim Mui Fai v. Annie Chan 1976 H.K.L.R. 1040 which I found particularly helpful, and Wong Chi Shing v. Cheung Choi Lee - a judgment of the Court of Appeal in Civil Appeal No.95 of 1982.

7. In Yim Mui Fai's case the judge held that a sub-tenant who was joined in proceedings by the landlord against his principal tenant, was a lawful sub-tenant entitled to security of tenure but imposed conditions that he should pay rent of $700 per month and that he should discharge all the arrears of rent owed by the original defendants. The Court of Appeal decided there was no provision in the Landlord and Tenant (Consolidation) Ordinance giving power to the Court to impose conditions of any kind and struck out the condition as to payment of rent arrears from the Order made by the District Judge. The other case related to entirely different issues but the judgment contained useful observations by their Lordships on the effect of subsections (6) and (6A) of Section 53 of the Landlord and Tenant (Consolidation) Ordinance.

8. Since Section 53(6A) has no application to the facts of this case the common law will take effect. This means that the sub-tenancy will terminate with the termination of the head-lease out of which it was itself created. I do not regard this case as one in which an order similar to that made in Sylvia Szeto & Another v. Kowloon Shopping Centre & Others should be made. Firstly the facts are entirely different. Secondly the second defendant on the evidence is unemployed and impecunious and it would clearly not be practicable to order him or even give him the option of stepping into the shoes of the first defendant, assuming I have the power to do so.

9. As to whether the Plaintiffs may make a substantive application to the Lands Tribunal under subsection 6A of Section 53 Cap. 7, I do not think this is strictly a question which cames within the ambit of my judgment. Should I be permitted to express an opinion however, it seems to me, bearing in mind the observations of Fuad, J.A. at pages 16 and 17 of Wong Chi Shing v. Cheung Choi Lee (Civil Appeal No.95 of 1982) concerning the effect of subsections 6 and 6A, that the legislation does not contemplate a right to apply to the Lands Tribunal other than as an ancillary step following the prior determination of an issue by the Tribunal itself.

10. In my opinion the Order which should be made in this case is simply one similar to that in Yin Mui Fai v. Annie Chan preserving the 2nd defendant's security of tenure provided he pays the outstanding rent for his sub-tenancy direct to the Plaintiff.

11. Accordingly there will be judgment for the Plaintiff against the first Defendant for vacant possession of the suit premises and mesne profits as claimed down to the date vacant possession is delivered to the Plaintiff; the order to take effect at the expiration of 4 weeks from the giving of notice of judgment unless within that period the first defendant pays into Court all the rent in arrear together with such sum as would have been payable as rent if there had been no forfeiture and the costs of this action, which are to the Plaintiff to be taxed on the Upper Scale.

12. As regards the second defendant I hold that as a lawful sub-tenant he is entitled to security of tenure of the cubicle occupied by him, provided he pays to the Plaintiff rent at the rate of $900 per month from 1st September 1983 down to 29th February 1984 within 4 weeks from the giving of notice to him and current rent thereafter monthly as and when it falls due and ought to be paid. In the circumstances I make no order as to costs affecting the second defendant.

Representation: