Wong Lian Chiou v. Leung Koi Ling and Others
Read the full judgment text of DCCJ 326/1972 on BabelCite. This District Court judgment was delivered on 21 August 1972.
1. I am reducing the judgment in this case into writing because the subject-matter is of general interest to solicitors in particular, and the profession in general and also because it is of interest to the Commissioner of Rating and Valuation and also to the Law Officers.
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IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION RENT INCREASES APPLICATION NO. 326 OF 1972 _________________ Between
_________________ Coram: W.S. Collier, D.J. Date: 21 August 1972 ___________________________________________________ VERBAL JUDGMENT REDUCED INTO WRITING ___________________________________________________ 1. I am reducing the judgment in this case into writing because the subject-matter is of general interest to solicitors in particular, and the profession in general and also because it is of interest to the Commissioner of Rating and Valuation and also to the Law Officers. 2. The Rent Increases (Domestic Premises) Ordinance has now been with us for some time. 3. Since its inception many solicitors fell foul of subsection (5) of section 7 because they had paraphrased the provisions of subsection (6) and the provisions of the proviso to subsection (7) or had omitted them, or put them as a footnote to the notice to quit. Having got over these initial difficulties, it was rare, indeed, to see a bad notice to quit. 4. It was not until the Gazette of 5th May, 1972 that the Commissioner of Rating and Valuation exercised his power to specify forms under section 19, that a form of notice to quit was specified (vide Gazette 5, May 1972 at p.1644). It is with regret that I was forced to hold that this form is invalid in that it does not comply with subsection (5) of section 7 of the Ordinance. 5. Subsection (5) of section 7 reads as follows:
The form specified by the Commissioner of Rating and Valuation appears on two sides of a sheet of paper. 6. On the first side appears a bare notice to quit, with a space at the bottom for the signature of the landlord issuing the notice. There is no reference whatever to the provisions of subsection (6) and the provisions of the proviso to subsection (7). 7. Right at the foot of the front page appears the words “Please read notes overleaf”. 8. Here, it is necessary to place emphasis on the words “Please” and “notes”. 9. Overleaf one finds set out the provisions of subsection (6) and if the proviso to subsection (7). 10. Apart from the fact that a tenant receiving the notice may not see the words “Please read notes overleaf”, there is no indication in those brief words to indicate that a matter of the utmost importance to him appears overleaf, namely of his right to serve a counter-notice. (If he does not serve a counter-notice, he cannot dispute the landlord’s right to serve it: if no counter-notice is served the landlord may sue for possession by way of writ to which there is no defence.) The word “Please” is anything but mandatory and the word “notes” is clearly wrong because what appears overleaf are reproductions of portions of the law, not notes explanatory of something. Even overleaf there is no stronger indication to a tenant if the gravamen of what is there set out, merely the words “Note carefully”. 11. I have referred to these matters of what appears overleaf and the words “Please read notes overleaf” because I thought at one stage, that it may be possible to hold that the words “Please read notes over-leaf” would be sufficient so as to import the provisions reproduced upon the back into what appears on the front i.e. into the notice to quit, so as to be able to hold that the notice complied with subsection (5) of section 7, but, in my judgment that would be stretching the general layout and the language of the form too far. 12. Without doubt, subsection (6) of section 7 makes it mandatory for the landlord to inform his tenant of the tenant’s rights in the body of the notice to quit and if he does not, the notice is invalid. The language is clear. It says “A notice to quit …… SHALL NOT BE VALID unless there are set out THEREIN the provisions” etc. 13. The case of the form specified by the Commissioner of Rating and Valuation, the provisions are not set out therein i.e. in the notice, but on the back of it. 14. In my judgment, the form does not comply with the provisions of subsection (5) of section 7 and is therefore bad. Had the form been prescribed by the Legislative Council, it would have been possible to consider whether or not there had been an implied amendment of subsection (5) of section 6. However, it is well settled that those entrusted with subsidiary legislation cannot amend or repeal the principal legislation from which their powers are derived. 15. I may add that Mr. Hon, who issued the notice in this case on behalf of the landlord, did not seek to argue that it complied with subsection (5) of section 7, but said that he followed it because it had been made by the Commissioner. 16. It appears to me that the form should be revoked and if it is replaced, it should be replaced in a manner so as to conform with subsection )(5) of section (7).
Mr. Peter Hon (Hon & Co) for Applicant Mr. Munro (Hastings) for all 5 Respondents |