Ho Chak-tong v. Tsoi Wai-yip
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CACV000001/1980
----------------- Coram: Cons, J.A., Yang and Bewley, JJ. Date of Judgment: 18 June 1980 ----------------- JUDGMENT ----------------- Cons, J.A.: 1. This appeal concerns a small parcel of land in the Tai Po District of the New Territories. It was purchased in 1917 by a Mr. Tsoi Po-tin, whose executors are the respondents to this appeal. At that time it was agricultural land and remained so by any account until 1966 although the evidence suggests that it was not aggressively farmed. 2. On or about the 1st May, 1966 the respondents rented the land to the appellant on a three-year lease and a few months later gave him permission to erect a temporary shed thereon. The appellant obtained a similar permission from the District Office. He then used the land and the shed for the purpose of making bricks. In the course of time the respondents discovered this fact but took no action to discourage the appellant. 3. When the lease expired at the end of March, 1969 nobody took any notice. The appellant carried on making his bricks there and presumably continued to pay rent. 4. In February 1972 a second lease was granted. This time it was for six years and the amount of rent was increased slightly. The new terms were endorsed on the back of the earlier lease. That second lease expired on the 31st January two years ago. The appellant refused to give up possession. Eventually the respondents obtained an order against him in the District Court. He appeals now against that order saying that he is protected by Part I of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7. 5. It seems to have been accepted by both sides in the court below that the appellant's tenancy had been comprised throughout in one lease, first executed in 1966 and eventually renewed so as to expire in 1978. The trial judge therefore looked to see whether the appellant had brought himself within the second "saving" in section 3(1)(c) of the Ordinance, that is where land is let unbuilt upon but "a building to which this Part of the Ordinance applies has subsequently been erected thereon". The judge took the view that this saving had no application to a "temporary building". With respect we do not think he was right. 6. The true test of a "building to which this Ordinance applies" was laid down in Lo Kam-kwan v. Chan Kwong-yick(1). It should be "a structure of some substance, which is reasonably durable and suitable for business use or human habitation, according to the customs and standards of Hong Kong." We have no reason to think that the court or the Legislature intended necessarily to exclude temporary buildings from protection, particularly bearing in mind that many so-called temporary buildings, like many other arrangements intended to be temporary, so often become permanent. The actual or probable life span of the building in question may be a factor for consideration as to whether the building is substantial or not. It is not a conclusive factor. 7. Counsel for the appellant in the proceedings before us does not accept that there has been only one lease. He argues, and we think correctly, that there were two leases and that we must concern ourselves only with the second lease, which began in 1972. He contends that the appellant is protected by the first saving in section 3(1)(c), that is land let unbuilt upon but "with, and for the better enjoyment of, any building". 8. This is the only argument which counsel seeks to put forward. It is put, as we understand it, in two stages. The first is that "land let unbuilt upon" may include land with a structure or building of some kind upon it, provided that the dominant intent of the lease is to let the land qua land alone without regard to the structure or building that is there. For authority he referred us to Tsang Shiu-tim and another v. Ching Shan-firm and others(2):
9. The second stage of his argument is that although technically speaking the land is "unbuilt upon", it can still be let with and for the better enjoyment of the building that is actually thereon, whether or not it is a building to which the Ordinance applies. Counsel suggests that in the present instance this land was let for the better enjoyment of a building, namely the shed erected in 1966, because without the land the shed itself would be of very little value to the appellant. 10. We find it difficult to envisage circumstances in which this ingenious argument might succeed. For if a tenant is prepared to take a lease of land in order more fully to enjoy a building that stands thereon, it can hardly be said that the land is let qua land without regard to that building. 11. Be that as it may, we are not prepared to accept the argument in the present instance. We have seen coloured photographs of what has been referred to as the shed. It appears to consist of numerous planks or iron sheets thrown across supports to form a roof, with one, or perhaps two, side walls of some or other material. It is impossible to discern for certain what use it is put to. Probably it affords some cover for those actually engaged in pouring bricks. However it is clear that the land itself is extensively used for drying and storing the bricks once made. We have no hesitation in concluding that that was the reason why the lease was taken. 12. There is another point which in itself is fatal to the appellant's case. It is a new point that was not raised below. However, it was not called for below because of the general acceptance that there was one continuing lease throughout. We, therefore, allowed it to be argued. After a short adjournment counsel for the appellant decided not to ask for more time to meet it. 13. Section 3(1)(e) of the Ordinance excludes from protection "any business premises which may after the 1st February 1947 be let for a term of not less than 5 years". "Business premises" means premises which are not domestic premises: section 2. The 1972 lease was for a term of six years. By no stretch of the imagination could this shed be called domestic premises. 14. Counsel for the appellant suggests some possible answer by way of the judge's finding that the land remained agricultural land throughout. We cannot see how this can help him. 15. For these reasons the appeal is dismissed with costs. Representation: Ronald Mayne and David Yam (Liu, Chan & Lam) for the appellant. Alan Hoo (Philip K.H. Wong & Co.) for the respondents (1) [1963] H.K.L.R. 416 at p. 421 (2) [1955] D.C.L.R. 66. 66 AT P. 72 |