YIP CHEONG COMPANY LIMITED v. TAM SANG

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J.A.:

1. This is the judgment of the Court on an appeal from a decision of Judge Roy, sitting as Presiding Officer of the Lands Tribunal, given on the 27th of May last, whereby he dismissed the application of Yip Cheong Co., Ltd. for an order for possession of premises known as No. 483 Lockhart Road, Hong Kong.

2. It was common ground at the hearing that the premises were subject to the provisions of Part II of the Landlord & Tenant (Consolidation) Ordinance (Cap. 7) and. that it was for the applicants to establish both that the contractual tenancy which had obtained between the landlord and the tenant had been determined and that one or more of the conditions set out in section 53(2). of the Ordinance was or were satisfied. The terms of the contractual tenancy had not been reduced to writing but it may be. that a provision for re-entry in default of payment of rent was to be implied. If so, the applicants prima facie forfeited the lease by letter from their solicitors dated 23rd October 1984. The point is, however, academic as the forfeiture was subsequently waived by receipt of rent and Notice to Quit in comprehensive form was given to the respondent by letter dated 18th January 1985. Notice of Application issued from the Lands Tribunal on the 12th of March of this year.

3. The applicants relied not upon the respondent's non-payment of rent as and when it fell due simpliciter under section 53(2)(a) but in the context of section 53(2)(d) and (2A)(b) on the footing that by persistently failing to pay rent as and when it had fallen due the respondent was to be regarded as having caused the applicants unnecessary inconvenience. This saddled them with the further burden of showing that the "disturbance had continued after a warning in writing had been served by the landlord -on the tenant - causing the same.' The Presiding Officer held that the applicants had failed to discharge this burden and the initial point of law for our determination is whether or not he misdirected himself having regard. to the terms of letters dated 23rd and 29th October 1984. The first of these communications told the tenant that his failure to pay on time had. caused inconvenience and that in the event of continued breaches of the relevant covenant legal proceedings would be taken to recover possession pursuant to section 53(2)(d) of the Ordinance as, in the event, they were. The second communication reiterated that warning. The President of the Tribunal, fastening on a phrase in the earlier letter making the warning conditional upon a successful application for relief against forfeiture, held it outside the ambit of the proviso to section 54(2)(d) which reads:

"      Provided that no order shall be made under this paragraph unless the Tribunal is satisfied that the annoyance, inconvenience or disturbance had continued after a warning in writing had been served by the landlord or principal tenant on the tenant or sub-tenant causing the same."

4. Subject to a fresh point of chronology raised by the Respondent's Notice we have no hesitation in holding that both warnings satisfied the proviso. The first was in no way vitiated by the condition mentioned and gave the tenant the full and fair warning required by the legislation. The second was equally explicit in its reference to section 53(2)(d), thereby incorporating reference to unnecessary inconvenience, and was not even conditional. We can in no way regard Ho Siu-kan v. Wing Hong Investment Co. Ltd. ⁽¹⁾ as authority for any abstruse construction of the plain and simple words already quoted.

5. The Presiding Officer held that he would have found in the applicants' favour in relation to the proof of unnecessary inconvenience and to the respondents' plea of waiver by acceptance of rent after service of the Notice to Quit and no point arises in relation thereto. What has been drawn to our attention in course of the hearing, as envisaged by the Respondents' Notice, is that the warnings were Given prior to the expiry of the Notice to Quit relied upon by the applicants. In Wong Yuen-wah v. Chun King ⁽²⁾ this Court held that such a warning as is required by the proviso must be given at a time when the contractual tenancy has been determined and when, therefore, the tenancy continues by virtue of the Ordinance. That combination of fact and law is conclusive of the matter in favour of the respondent if it is proper to allow the point to be taken for the first time before us. It was a point not raised. on the pleadings or argued before the Lands Tribunal and the applicant does not suggest that he could adduce evidence of a warning notice given at a material time. But it is argued on his behalf that by some historic research he might be able to put his application on the entirely different footing that what he really enjoyed as from some time in 1981 or 1982 was a statutorily extended tenancy of the premises. This is no more than a hypothesis and the principles upon which this Court acts when invited to consider a fresh point were considered by it in Ngai Sau-ying v. Henry Chue Kwok- keung (No. 1) ⁽³⁾. It was there held that a litigant is barred from raising a new point on appeal in circumstances where the appellate tribunal does not have before it all the relevant facts. If, however, all the facts are available the Court of Appeal can properly exercise its discretion to consider the fresh point. In that case fresh evidence was admitted. Here no such application is made.

6. In our opinion we are in possession of all the material necessary to enable us to dispose of the matter in dispute finally and without injustice to the applicants. Accordingly, we allow the respondent to take this fresh point whereby the appeal must fail.

(1)    1980 HKLR 850

(2)     Civil Appeal No. 91 of 1984 (unreported)

(3)    1982 HKLR 253