LO SIU YIN v. HA SHEUNG PING

IN THE COURT OF APPEAL

1994, No.7
(Civil)

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J U D G M E N T

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Nazareth, J.A.:

1. This is an appeal against the order of Her Honour Judge Bokhary made on 3rd December 1993. By that order she dismissed the appellant's application to set aside a warrant of distress granted by His Honour Judge Caird on 18th June 1993.

2. The facts can be stated quite shortly. The appellant was the tenant of the respondent landlady's flat at 388 Shanghai Street in Kowloon. The tenant lived there with her husband. In February 1993 the tenant and her husband went to China, simply locking up the flat with their belongings in it. They remained in China for some time and the rent of $5,200 per month fell into arrears.

3. Sometime in June 1993, the landlady applied for a distress warrant which she obtained from His Honour Judge Caird on 18th June 1993. The flat was then broken into by a bailiff on 13th August and distress levied upon the contents by the bailiff. About 16th September the tenant and her husband returned. The difficulties they encountered in obtaining access to the flat need not concern us, but on 14th October 1993, the tenant took out a summons to set aside the distress warrant on the ground of non-disclosure by the landlady of certain matters. Judge Bokhary, as I have said, dismissed that summons on 3rd December and the appellant now appeals to this Court against that order.

4. Mr Chain, for the appellant, relies on the ground of non-disclosure. He submits that three matters should have been disclosed:

1. That the defendant had paid a two month's rent deposit before she left for China. Indeed the defendant claimed that she did so, but this is denied by the landlady;

2. That there should have been disclosure that the tenant was out of the jurisdiction; and

3. That she had not deserted or abandoned the premises.

5. It seems to me that this ground and the appeal, notwithstanding the number of incidental and related matters that are of interest which might have been said to have operated to the advantage of the tenant, can be quite simply disposed of. The statutory scheme for warrants of distress is set out in Part III of the Landlord and Tenant Consolidation).Ordinance, Cap 7. It is of significance that the Ordinance is entitled a consolidating ordinance relating to landlord and tenant protection, determination of tenancies and control and recovery of rent. The point is that as a consolidating Ordinance it must be assumed to provide comprehensively for the law upon matters within its ambit; that, in my view, would be so notwithstanding that at the time it was enacted it is said also to have been entitled an Ordinance to amend the law.

6. Turning to Part III, s.82 provides:

"Every application for a warrant shall be supported by an affidavit in Form 1 in the Fifth Schedule, sworn in like manner as other affidavits in the court."

Form 1 provides for the applicant to make oath and to state that the person indebted is justly indebted in a specified sum being arrears of rent, and also for the period in respect of which that rent is due.

7. The application made by the tenant which appears in the agreed bundle of documents is dated 9th June 1993 and clearly meets all the requirements of Form 1 in the Fifth Schedule; the amount of arrears being specified, the period also is specified as being from 15th March to 14th June 1993, the premises are specified. And it is affirmed that the tenant is justly and truly indebted to the landlady in the specified sum. Not surprisingly therefore, Judge Caird ordered a warrant of distress to issue.

8. Proceeding then to the application made to Her Honour Judge Bokhary, this was done by summons dated 14th October and it was for an order that the plaintiff's warrant of distress issued on 18th June be set aside on the ground of non- disclosure on the part of the plaintiff and, which seems remarkable to say the least, "and/or the bailiff upon execution of the said warrant of distress". It may be asked what the bailiff could have disclosed. However, when Judge Bokhary came to address the matter, the particulars which the applicant landlady had to provide in her application, as I have said, had all been provided and the application could not have been faulted in that respect.

9. More to the point, I can find nothing in Part III that requires the disclosure contended for by Mr Chain, nor anything that would require the tenant to have been heard as Mr Chain has also contended. In those circumstances, it seems to me that Judge Bokhary had no reason to grant the application and she was right to dismiss it. I see no reason to address the larger and incidental issues that Mr Chain has invited this Court to consider. It may be that they will fall to be considered in other actions or circumstances. They do not fall to be considered here.

10. For the reasons I have given, I would dismiss the appeal.

Litton, J.A.:

11. I concur and have nothing to add.

Mortimer, J.A.:

12. I also agree that this appeal must be dismissed.