Pang Hang Fong v. To Yuk Lin

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 2158 OF 1971

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Between

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Coram: D. Cons, D.J.

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JUDGMENT

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1. This is an action to recover premises based on a notice to quit issued in accordance with Section 7(2)(a) of the Rent Increases (Domestic Premises) Control Ordinance specifying that the landlord required possession for use as a dwelling by herself. The writ further alleges that no counter-notice was served in accordance with Section 7(6) of the same Ordinance. The plaintiff now applies for summary judgment.

2. The defendant appears in person. Taken through the Particulars of Claim in Court she admitted every matter alleged therein except the lack of a counter notice. It appears now that she did serve a notice and she has produced to me a “copy” of a document in Chinese characters. The “original” was a translation thereof sent to the plaintiff’s then solicitors by registered post. The plaintiff acknowledges receipt of such a document but submits that, as it is not in the form specified by the Commissioner of Rating and Valuation under Section 19 of the Ordinance, it is of non-effect.

3. It is difficult to avoid sympathy with the defendant. This is not a case where a tenant has been too idle to avail himself of the rights clearly brought to his attention in a notice to quit. The defendant did within the 2 weeks prescribed make known in writing to the plaintiff both her objection to moving out of the premises and the possibility of hardship. Unfortunately she did not use the officially sanctioned words. On the other hand it would be unfair to imply that the plaintiff has acted harshly. She has not seriously pressed her claim for almost one year and is still willing to delay for a further six months if the defendant would agree to vacate at that stage.

4. When this matter was raised in Court my immediate instinct was that the plaintiff’s application was unanswerable. Section 7(6) leaves room for no possible doubt. It says expressly that the tenant may serve “a counter notice in the specified form”. But I reserved judgment in the hope that upon research some means might be found to mitigate the effect of those words in these particular circumstances.

5. There is no assistance to be derived from the Ordinance itself. Section 19(3) gives the Commissioner of Rating and Valuation a discretion to accept notices or applications which are not in the prescribed form. It gives no such discretion to the Court.

6. Section 37 of the District Court (Civil Jurisdiction & Procedure) Ordinance deals with proceedings generally in this Court. It provides:

“No action or other proceeding in the Court shall be treated or considered as invalid or subject to be set aside on account of any verbal or technical errors or other defect in form and any such error or mistake may in any such case be amended or corrected by the Court.”

The difficulty here is that service of a counter notice is not in itself an action or proceeding in this Court. It is merely a condition precedent to a particular proceeding, an act upon which some other person may, if he thinks fit, bring a proceeding. There is a temptation to extend the section with the help of section 19 of the Interpretation and General Cause Ordinance. It is easy to accept that the true intent of the legislature was that no person should be defeated in the District Court by technicalities alone and that by deliberately placing these matters within the jurisdiction of the District Court the legislature intended that every tenant should enjoy a similar privilege in all his undertakings. Or it might be argued that bearing in mind Section 19(3) of the Rent Increases Ordinance to which I have already referred that the true intent of the legislature was that the prescribed forms could be dispensed with by the Court. But I do not think that I can go that far. A “fair, large and liberal construction” permits the Court considerable latitude with words that are not in themselves clear, but it does not entitle it to ignore or to twist words out of their natural meaning. The prescribed form is a simple document. It may well be that its use is of no practical benefit to a landlord or this Court. But so long as its use is commanded by statute this Court must give effect to that command. I therefore enter judgment for possession and mesne profits as claimed with costs on Scale IV.

Miss Pamela Lee, instructed by Patrick Chan & Co for plaintiff

Defendant in person