Pun Chung Yue v. Yum Wai Tong
Read the full judgment text of DCMP 53/1946 on BabelCite. This District Court judgment was delivered on 6 January 1947.
1. This appeal was from the decision of a Tenancy Tribunal directing the surrender by the respondent to the appellant of the ground floor and garage at No. 8, Strafford Rd., Kowloon Tong; the appeal was heard on the 2nd January 1947 and was allowed, the Court agreeing to give it's reasons in writing. The application before the Tribunal was in respect of both ground and first floors and the appellant contended at the hearing that the order as made was bad in law.
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DCMP000053/1946 IN THE SUPREME COURT OF HONG KONG SUMMARY JURISDICTION TENANCY APPEAL No. 53 of 1946. -----------------
Coram: Mr. Justice T.J. Gould Date of Judgment: 6 January 1947 ----------------- JUDGMENT ----------------- 1. This appeal was from the decision of a Tenancy Tribunal directing the surrender by the respondent to the appellant of the ground floor and garage at No. 8, Strafford Rd., Kowloon Tong; the appeal was heard on the 2nd January 1947 and was allowed, the Court agreeing to give it's reasons in writing. The application before the Tribunal was in respect of both ground and first floors and the appellant contended at the hearing that the order as made was bad in law. 2. The facts are straight forward and it is acknowledged that the Tribunal found as a fact that the appellant had no suitable alternative accommodation available; this finding was not challenged at the hearing of the appeal. The ground floor of the premises is in occupation of a subtenant (though it appears that this fact was unknown to the appellant until after his application had been filed) and the subtenant was not made a party to the proceedings. Nevertheless the Tribunal made an order which was in effect an order for the eviction of the subtenant, leaving the respondent in undisturbed possession of the first floor. 3. The grounds reiled upon by counsel for the appellant are two: (a) That the order was bad inasmuch as it evicted a subtenant who was not a party to the proceedings without evicting the principal tenant. (b) That the Tribunal had no power under the Proclamation to order a division of the promises and should therefore, upon the finding that the appellant had no suitable alternative accomodation, have made an order for the possession of the whole. 4. In support of the first ground the appellant relied on Article 5 (4) of the Proclamation which is as follows:- "(4) Any order of eviction against any Principal Tenant shall not unless the Tribunal otherwise directs operate as an eviction of any Sub-tenant". It follows from this that a Tribunal which makes an eviction order against a principal tenant may direct the eviction of a subtenant as well. But here the Tribunal has made an order which is in affect an eviction of the sub-tenant, who has not been made a party to the proceeding, without evicting the principal tenant. It was submitted on behalf of the appellant that this is contrary to all legal principle and practice and beyond the power of the Tribunal, as even under Article 5 (4) a subtenant who was not made a party could only be evicted by a special direction as part of an order evicting his principal tenant. With this submission I agree and I accordingly allowed the appeal. 5. In view of this decision it is not necessary for me to consider the second ground of appeal but as it has not, to my knowledge, hitherto been raised in an appeal. I may perhaps offer certain observations upon it. The argument put before me was, in essence, that "the dwelling house or portion thereof" mentioned in Article 5 1A(1) meant the whole "dwelling house" or the whole "portion" thereof held by the opponent as tenant of the appellant. This argument disregarded the fact that the dwelling house or portion might have been subdivided by subletting or other not of the opponent. That is what has occurred in the present case - I disregard or negligible for the purposes of the argument the garage, in respect of which there is no evidence as to whether it forms part of the subtenancy or not. I think it is clear that in such circumstances, in view of the general objects of the proclamation and of the definition of "promises" in Article 1 and the use of that word as a convenient description of "any dwelling house or portion thereof in Article 3 1A(1), the Tribunal has power to order possession of the "portion" comprising the sub-tenancy. The order of the Tribunal would therefore not in my opinion have been bad upon this ground. On the facts of this case it would not be necessary or proper to express any view as to the position if the premises had not already been subdivided.
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