Hau Gay Yau v. Wong Muk Din

DCCJ 1052/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1052 OF 2010

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JUDGMENT

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1.The plaintiff and his brother (now deceased) are the registered owners of the land known as Lot Nos 1075, 1076, 1080, 1081 and 1085 in Demarcation District 92 (“the Premises”), whereas the defendant is the tenant of the Premises. In this action, the plaintiff seeks to recover the Premises from the defendant.

Notice to quit

2.The issue I have to decide is whether the notice to quit issued by the plaintiff was validly served.  On 28.5.2008, the plaintiff’s solicitors (Messrs Alan Ho & Co, Solicitors), wrote to the defendant’s solicitors Messrs Paul Kwong & Company the following letter:-

“ Re: Lots 1075, 1076, 1080, 1081 and 1085

In DD92, Sheung Shui, NT

……

As said in our previous letter to you, we can locate records of your client’s payment of rental for 2006, 2007 and 2008 under your cover letters to us dated 29^th May 2007, 18^th July 2007 and 5^th May 2008. By your said letter dated 26^th May 2008, we received another payment of HK$14,000.00 without specifying for which year’s outstanding rental.

We understand that the file has been lasted for years but we shall be much obliged if you could check your file clearly and tell us specifically when your client’s rental have been made to us over the past few years.

For the rent review, it is your client’s own decision to surrender to the Government the licence to operate a big farm. Further, we believe your client has already received a lump sum compensation from the Government for his surrender of the licence to the Government.

In addition, considering the area of the captioned lots our client believe that HK$4,000.00 monthly rental is reasonable.  Accordingly, your client’s offer is not agreeable and we are instructed by our client to give you notice that the tenancy will be terminated on 31^st May 2009 and your client shall deliver vacant possession of the captioned lots to us thereupon.”

(Underlines provided)

3.The plaintiff’s counsel submits that the notice to quit was validly served and validly terminated the tenancy.  The defendant submits that the notice is ineffective, and was not served on the tenant (the defendant).  It is very clear that in the above letter the phrase “to give you notice” denotes to give notice to Messrs Paul Kwong & Company, and not “to give your client notice”. In this letter Messrs Alan Ho & Co, Solicitors repeatedly refers to “your client”, which means the defendant.  When it referred to “you” in the phrase “to give you notice”, it cannot be the defendant.  So the notice was to be given to Messrs. Paul Kwong & Company, Solicitors.  No witness from the plaintiff testified in court, to say that “to give you notice” means “to give your client notice”.  The plaintiff’s counsel submits that the notice to quit was validly served on the tenant through service on his solicitors in their capacity as the defendant’s agent and authorized representatives.  This cannot be correct.  If Messrs Alan Ho had intended to do this, they should have stated in the letter “to give your client notice”.  But this was not done. 

4.Section 62(2) of the Conveyancing and Property Ordinance (“the Ordinance”) stipulates:-

“Any notice required to be served on a …… lessee shall be sufficient, although only addressed to the …… lessee by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn or unascertained.”

The letter was addressed to Messrs Paul Kwong & Co, Solicitors.  It was not addressed to the defendant.  Messrs Paul Kwong & Co has no interest in the lease.  Messrs Alan Ho & Co, Solicitors did not make enquiry as to whether Messrs Paul Kwong & Co, Solicitors had the authority to accept service of the notice to quit on behalf of the defendant.  There is no evidence that Messrs Paul Kwong & Co, Solicitors had the authority to accept service of the notice to quit on behalf of the defendant.  Hence, the plaintiff failed to comply with section 62(2) of the Ordinance.

5.Section 62(3) of the Ordinance states that:-

“Any notice required …… to be served shall be sufficiently served if it is left at the last known place of abode or business in Hong Kong of the …… lessee or other person to be served, or …... is to be affixed or left for him on the land comprised in the ……. lease.”

The letter was sent to the address of Messrs Paul Kwong & Company at flat A, 11^th Floor, Shun Pont Commercial Building, Nos 5-11 Thomas Road, Wanchai, Hong Kong.  This is not the last known place of abode or business of the lease, and not the land comprised in the lease. Accordingly, the plaintiff failed to comply with section 62(3) of the Ordinance. 

6.The notice contained in the letter was not addressed to the defendant. The issue of as to whether it was served on the defendant simply does not arise, because it was not addressed to him  but to Messrs Paul Kwong & Company, Solicitors.  The effect of the notice does not operate on the defendant.  It only operates on Messrs Paul Kwong & Company, Solicitors. In the result, the lease of the Lots in question has not been terminated by any notice to quit.  The lease is still continuing.  For the above reasons, I dismiss the plaintiff’s claim against the defendant.

Costs

7.I make an order nisi, to be made absolute in 14 days’ time, that the plaintiff do pay costs of this action, to be taxed, if not agreed.

Mr Richard Leung, instructed by Alan Ho & Co, Solicitors, for the plaintiff

Mr Paul Kwong, of Paul Kwong & Co, Solicitors, for the defendant

Please refer to CACV15/2014 for the relevant appeal(s) to the Court of Appeal.