The Ching Sum Co Ltd v. The Occupiers of No 16 Tai Yuen Street, 2nd Floor

DCMP000012/1946

GENERAL MILITARY COURT

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Tenancy Tribunal

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Appeal No.12/46

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Application No.255

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Coram: Leo D'Almada, President

Date of Judgment: 15 March 1946

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JUDGMENT

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(Delivered in Court and taken down in shorthand).

1. In this case the applicants seek to recover possession of certain premises under section 5(1)(a) of the Landlord & Tenant Proclamation No.15. The Respondents resist and resisted that application on the ground that they became tenants of the Appellants by reason of their being permitted to live in the premises by one Chan Po who, according to their Answer, claimed to be the caretaker of those premises. They supported their case with a statement as to the terms upon which Chan Po allowed them so to remain. The sole issue in this case is therefore whether or not the Respondents are persons who can bona fide claim possession under the Proclamation.

2. The evidence in this case was very short. A representative of the Appellants stated before the Tribunal that he did not know Chan Po at all. That evidence having been adduced before the Tribunal, and there being no reason to disbelieve it, the onus shifted to the Respondents to prove that in fact Chan Po was the agent of the Appellants and that therefore they were bona fide claimants to possession through the letting of those premises to them by Chan Po on the terms which they allege.

3. The Tribunal having heard the evidence dismissed the application. I can only conclude that it did so in this case because they felt that the word "may" in sub-section 1 of Article 5 vested them with the discretion to make or not to make an order for possession as they might think fit.

4. In a sense I welcome this decision of the Tribunal, for this reason: it gives me the opportunity to say something with regard to the criticisms of these Tribunals which I have heard in the last two or three weeks. It has been suggested that these Tribunals have not acted fairly because amongst their members are a number of landlords and that their decisions therefore might be biased in favour of the class to which they belong. This particular Tribunal, if it erred at all, and I think it did err, did so in the other direction. It was actuated by motives of sympathy for the tenants and I think that it must have allowed that sympathy to get the better of their judgment which of course in their opinion was a matter of discretion by reason of the employment of the word "may" to which I have referred.

5. Numerous cases have been fought over the meaning of words such as "may" and "it shall be lawful". There is no doubt that standing by itself a word like "may" is merely permissive and does not place any obligation upon the person or persons to whom the powers are given by the act or proclamation in which the word is used. In order to ascertain whether the word therefore is merely permissive or means "must" it is necessary to examine the context in which it appears. It is clear to me that in Article 5 "may" does not allow any discretion in the matter when a party who seeks remedy in the Proclamation has proved his right to it. The duties of a Tribunal dealing with the Tenancy Proclamation are judicial. They perform judicial acts and when the right is given to one party and he comes before the Tribunal for the enforcement of that right he having proved his case and established his right the Tribunal can have no option in the matter but to give a decision whereby that right may be enforced or implemented. This interpretation of the meaning of the word "may" is in conformity with the best authorities and reference is made to it in Maxwell's Interpretation of the Statutes 8th Edition at pp.210 and following. Perhaps the leading case is that of Julius vs. The Bishop of Oxford, L.R. 5 A.C. p.214 at p.222-225, 229, 230, 235 and 241. I need not quote in extenso from these judgments but one line from the judgment of Lord Blackburn sufficiently summarized the position. Lord Blackburn says this of the words "it may be lawful" : "...... if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the ...(illegible) of those who have that right, when required on their behalf."

6. It is perfectly clear from the evidence in this case that Chan Po is disowned, stated to be unknown to the applicants. There is no evidence to contradict that, adduced on behalf of the respondents. In the circumstances they are not bona fide claimants to possession and however much the Tribunal may be in sympathy with them they had no alternative in my opinion but to grant the application in the terms in which it was made. The decision of the Tribunal is therefore reversed. There will be an order for possession of the premises in the terms of the application, the respondents to give up possession to the appellants before 1st April, 1946.

15.3.46.