WAI HING ENTERPRISES LTD v. MR. DAYRAM LEONEL AND ANOTHER

-------------------

--------------------------------------

REASONS FOR JUDGMENT

--------------------------------------

Liu, J. : (giving the reasons of the Court)

1. By a Tenancy Agreement dated the 27th January 1977, the premises in this appeal were let by the applicant to the 1st respondent for a term of two years. The original term expired by effluxion of time, and the 1st respondent has since held over as a statutory tenant. The current rate of rental stands at $5,072.50 per month.

2. Clause 2(m)of the said Tenancy Agreement imposed a restriction against assignment, subletting of parting with possession of the suit premises or any part thereof or the taking in of a lodger. Clause 4 (a) of the said Tenancy Agreement was a proviso for re-entry.

3. By a letter before action dated the 8th August 1989, the applicant through its solicitors complained of breaches of Clause 2(m). Pursuant to s.58 of the Conveyancing and Property Ordinance, a notice of the same date was also served on the 1st respondent. The alleged breaches were not duly remedied, and an application was made to the Lands Tribunal for possession and consequential relief. The application was dismissed by the Presiding Officer, and from that decision the applicant now appeals.

4. Clause 2(m) of the said Tenancy Agreement is a provision in a private document intended, quite obviously, to be used for any member of the public at large as a prospective tenant. The general rule is that in the absence of indication to the contrary, words are to be given their natural, literal and grammatical meaning. The dictionary would provide the best source. The dictionary meaning of the word "lodger" relied upon by the Presiding Officer is : "inmate paying for accommodation in another house". The English Shorter Dictionary gives a definition of "One who, or that which, lodges; esp. One who occupies hired rooms in another person's house". It was open to, and in the circumstances incumbent upon the Presiding Officer so to construe the word "lodger" in its literal and ordinary sense.

5. Since October 1988, the 1st respondent has been commuting between Macau and Hong Kong. His activities in Macau are quite immaterial. The 2nd respondent is his godson and was expected to have his own accommodation sometime in early 1990. In fact, we have been told that his new accommodation will be ready for occupation in three, four weeks from today.

6. On or about the 23rd July 1989, the 2nd respondant moved into the suit premises with his family. They had the use of virtually the entire flat, but whenever the 1st respondent returns from Macau, he stays with his mother or sleeps in the sitting room of the premises. The furniture in the suit premises is all his. He receives no rent, but the 2nd respondent has been paying the water and electricity charges. The 2nd respondent and his wife are given keys to the premises. It is not a matter in dispute that the 1st respondent has nevertheless retained control and dominion over the whole of the premises and that he has been and still is "master of the house".

7. The short point is whether the 2nd respondent is a lodger by the definition adopted by the Presiding Officer. He is not. The 2nd respondent is decidedly not a lodger within the meaning of that word in Clause 2(m) of the said Tenancy Agreement.

8. For the true interpretation of a word in a private document for liberal use, it would not be profitable to go into the authorities cited by counsel who has made the best of a difficult brief.

9. We dismissed the appeal at the conclusion of the hearing on 6th February for reasons to be given later, which we now do.