LO YIM CHUN v. WONG YU DIP

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J U D G M E N T

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Cons, V.-P.:

1. This is an appeal from the decision of Judge Scriven, sitting as a Presiding Officer of the Lands Tribunal, whereby he made an order for possession, with mesne profits, of the front portion of the 5th floor, No. 2 Bullock Lane, Wanchai. The Applicant Landlord in the court below was Lo Yim Chun ("Mrs. Lo") and the Respondent Tenant Wong Yu Dip ("Mrs. Wong'').

2. No evidence was called in the Tribunal, the trial proceeding on a set of facts agreed between the solicitors who then appeared for the parties. It was accepted that the whole of the 5th floor had originally been let to Mrs. Wong's husband, who retained for himself the use of the sitting room and one cubicle, Room No. 2. He sublet rooms 1, 3 and 4. On his death on the 1st May 1983, the tenancy, being a postwar domestic tenancy, passed to Mrs. Wong in accordance with Section 50(4)(a) of the Landlord and Tenant (Consolidation) Ordinance Cap. 7. Then, according to Agreed Fact No. 5 -

"In or about Sept 83, (Mrs. Wong) surrendered the whole premises to (Mrs Lo) who simultaneously let Room 4 to (Mrs. Wang) for a term of 3 years commencing from 1st Oct 83 at a monthly rent of $300.00.''

3. The three years expired on the 30th September 1986. Mrs. Lo eventually served a valid notice under Section 119(1) of Part TV of the Ordinance, to take effect as at 31st July 1983. No request has been made for a new tenancy. It follows that unless good reason can be shown to the contrary Mrs. Lo was entitled to the order made.

4. In the court below reliance was placed upon Section 50(6)(o) of Part II of the Ordinance -

"50(6) This part shall not apply to the following -

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(o) a tenancy or sub-tenancy created on or after 10 June 1963 of premises of which, or of part of which, the tenant or sub-tenant under that tenancy or sub-tenancy is not already in possession under another tenancy or sub-tenancy.''

5. Although primarily an exclusionary provision, it nevertheless has a positive effect where a sitting tenant takes, after the specified date; a new tenancy of premises which comprise, or include, those of which he is already in possession. It carries over, for the benefit of that tenant; the protection of Part II.

6. The judge found that Mrs. Wong was not already in possession of Room 4 at the time the three year tenancy came into existence. He accepted that the Room "must have been vacant immediately before the exchange took place" and felt he had "to consider if that fact gave (Mrs. Wong) 'possession'". His conclusion was -

"She would certainly have a reversionary right to resume possession as soon as the sub-tenant left but I think the purpose of the Ordinance, Cap. 7, is to preserve tenancies or rights in possession, that is to say, the tenants home, and I cannot equate a right to possession if that ever existed, with actual possession for the purposes of s.50(6) (o) of Cap. 7."

7. With respect to the judge he has taken too narrow an approach. Personal occupation does not play the major role in Part II of the Ordinance which it does, for example, in similar legislation in England. I see no reason therefore to put a restrictive interpretation upon the Word "possession'' in paragraph (o). In my opinion Mrs. Wong became repossessed of Room 4 at least when the sub-tenancy had terminated and the sub-tenant had moved out. She may have done so earlier, for I have heard it suggested that even during the existence of a sub-tenancy a principal tenant can be held to be in possession as against the head landlord, a point however which has at no time been taken in these proceedings.

8. It is therefore crucial to know exactly what did in fact occur with regard to the sub-tenancy. Unfortunately no mention is made of this aspect in the Agreed Facts. Nor do I  find it possible to draw any sufficient inference. With respect to those responsible they have put the judge, and thus this Court, in a position where it is not possible to come to a viable decision. For my part 1 would set aside the order below and remit the case to the Tribunal for a retrial in which the appropriate facts can be established.

9. Before leaving this appeal I should mention that the sole issue taken before the Tribunal was the applicability of Section 50(6)(o). It was accepted by all that there had been a valid surrender of the original tenancy. In this Court Mr. Sammy Lee has put forward the suggestion that by reason of Section 53(1) (a), as interpreted by the Full Court in Capital Land Investment Co. Ltd. v. Madam Se Mong Kai⁽¹⁾, there was no surrender and the original tenancy still continues in existence.

10. This suggestion raises many difficult questions, including, on reflection, whether; in the light of the subsequent enactment of Section 50(6)(o), Capital Land is still good law, whether the surrender of a tenancy is a termination "by the landlord or principal tenant'' within Section 52(l), and, if so, what is the effect. Mr. Lee's submission did not extend to the points I have mentioned. Furthermore, Mrs. Lo being unrepresented, we have not had the benefit of any argument to the contrary. In the circumstances I prefer to express no opinion at this stage.

11. Finally I wish to add, as Mrs. Lo may not appreciate the position, that although this Court may order a retrial, the parties are not necessarily bound to take the matter any further. We were told at the hearing that the only stumbling block to an amicable solution of the differences between Mrs. Lo and Mrs. Wong was the existence of the order made by the Tribunal. If that order is removed then perhaps suitable agreements can be concluded, and for my part I would be only too happy to think that all could now be settled without the need to return yet again to the Tribunal.

12. Subject to comments by counsel I would make no order as to costs on this appeal.

Clough, J.A.:

For the reasons which have been so clearly enunciated by my Lord the Vice President I agree with the order which he proposed both on the appeal and as to costs.

Rhind, J.: (read by Cons, V.-P. in the absence of Rhind J.)

I agree.

(1) [1973] H.K.L.R. 371