WONG KAI LEUNG v. WAI KWOK CHI and Another

IN THE COURT OF APPEAL

1995, No. 221
(Civil)

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J U D G M E N T

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Ching, J.A. :

1. The applicant is the landlord of premises let as domestic premises and known as 8th floor, No. 189, Shaukeiwan Road, Hong Kong. The first and second respondents are respectively the monthly tenant and sub-tenant. The applicant applied for possession to the Lands Tribunal under the provisions of section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance, Cap.7, on the grounds that the premises were reasonably required for occupation as a residence for his son and daughter-in-law. The Presiding Officer dismissed the application and the applicant now appeals.

2. By a letter dated 13th July, 1995, the applicant gave notice to quit requiring the delivery up of vacant possession on or before 18th August, 1995. Vacant possession was not delivered up by that date and on 19th August, 1995, the applicant lodged his application. It was common ground between the applicant and the tenant that the premises were subject to Part II of the Ordinance.

3. The Presiding Officer gave his reasons for rejecting the application in a brief paragraph which reads,

"Since this is a monthly tenancy the law requires a 6-month notice to quit. As the Applicant on his own admission has given only 1 month's notice to quit the application is doomed right from the start. I therefore dismissed his application."

This is clearly wrong. At common law a monthly tenancy can be determined by a month's notice. The Landlord and Tenant (Consolidation) Ordinance, Cap.7, provides no length of notice for a tenancy falling under Part II and it was held in Ngai Sau Ying v. Henry Chue Kwok Keung (No.2) [1982] HKLR 256 at 270 that there was no statutory minimum period of notice prescribed for such a tenancy.

4. This appeal must therefore succeed. Unfortunately, the Presiding Officer made no findings of fact and therefore this matter must be remitted to the Lands Tribunal for a proper hearing and determination. We order that to be done and for the matter to be heard by a different Presiding Officer.