CHAN YUI YIN ANNIE AND ANOTHER v. CHAN TACK MING

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J U D G M E N T

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Penlington, J.A.:

1. This is the judgment of the Court.

2. This is an appeal against an order of His Honour Judge Cruden, Presiding Officer in the Lands Tribunal, dated the 6th October 1992. The order was as follows:

"(1)    Vacant possession to applicant conditional upon the Respondent failing to make the payments stipulated in paras 2 & 3 hereof within 4 weeks;

(2)    Respondent shall pay the arrears of rent/mesne profits being the balance thereof at the rate of $797 per month from 21.8.91 until 31.7.92 and thereafter monthly in advance from 1.8.92 at the full monthly rate of $3,456 per month until delivery up of vacant possession;

(3)    Costs $200".

3. The background of the matter, which is not in dispute, is that the respondents are tenants of a flat owned by the applicant at 27 Luk Ming Street, 3rd Floor, Tokwawan, Kowloon. The premises are subject to Part II of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7. The respondents have been tenants of the premises since 1979 and at the 1st January 1991 were paying a rental of $2,860 per month. On the 3rd January 1991 the applicant applied to the Commissioner of Rating and Valuation, pursuant to s. 57 of the Ordinance, for a Certificate of Increase in Rent. On the 28th March 1991 the Commissioner issued a certificate for an increase of rent of $797 per month. On the 9th April 1991 the respondents applied to the Commissioner for a review of that certificate, pursuant to s. 59 of the Ordinance. On the 9th July 1991 the applicant served a notice of increase of rent on the respondents stating that the increase would be from $2,860 per month  to $3,657 per month, i.e reflecting the certificate issued by the Commissioner, and that the increase was to take effect from the 21st August 1991. On the 13th August 1991 the Commissioner, on review, confirmed his prior decision increasing the rent by $797 per month and exercised his discretion under s. 59(4) by determining that that increase would take effect on the 21st August 1991. On the 4th September 1991 the respondent appealed to the Lands Tribunal pursuant to s. 60 against the Commissioner's decision on review. Finally, on the 11th February 1992, the respondents appealed to the Tribunal, which appeal was dismissed.

4. The respondents appeal in respect of both the increase in the rent and also the date from which it became payable. So far as the increase is concerned, i.e. from $2,860 to $3,657 per month, we are quite satisfied that there can be no possible ground of appeal for this Court to alter that decision of the Commissioner. Section 57 of the ordinance provides for a landlord to apply for a Certificate for Increase in Rent and there can be no doubt that the applicant was entitled to do so and a valid certificate was issued. The respondents duly applied for a review of that decision pursuant to s. 59 and in a letter dated the 13th August 1991 the Commissioner set out very fully his reasons for adopting the figure that he had in his Certificate for Increase in Rent. This was based on s. 58(2) of the Ordinance which provides that the certificate shall be (a) the difference between the prevailing market rent and the current rent or (b) 30% of the current rent, whichever is the lesser. He took the current rent as $2,659, being the existing rent less rates. He assessed the prevailing market rent, as at the 28th March 1991, at $4,400 per month and from this he deducted the current rent giving a difference of $1,741. However, as required by subs. (2) he then took 30% of the current rent, i.e. $797.70 as being the lesser amount and issued a certificate for that sum ignoring the amount of cents as required by s. 58(2A) of the Ordinance.

5. There is clear legislative procedure for the issue of a Certificate of Increase in Rent and for a review of that certificate. That is a decision which we are satisfied is not appealable and is final.

6. In their notice of appeal the respondents refer to numerous inquiries made by Annie Chan of property agents relative to the rent having paid for other flats in the area. She says the rents are lower than that assessed by the Commissioner. That material was put before the Commissioner when he reviewed his decision and there is no reason to suppose he has not fully considered it.

The second issue is the question of the date from which the increase should take effect. It was the respondents' main point that the increase should not arise until one month after the appeal proceedings before the Tribunal were finally concluded. This was the 9th March 1992 which was the date when the member of the Tribunal who had heard the appeal declined to review his decision.

7. As set out by the Presiding Officer of the Tribunal the position however is that a Certificate of Increase in Rent is not a means by which the rent is automatically increased. It simply gives a landlord an option to so increase it. This is governed by s. 61. In this case the applicant served the respondents with the required form and designated the 21st August 1991 as being the appropriate date. Furthermore the Commissioner, pursuant to s. 59(4) of the Ordinance, adopted the same commencement date in his decision on review. That was not affected by the applicant's appeal which was unsuccessful. Clearly, as the Presiding Officer of the Lands Tribunal said in his judgment, it would be quite wrong if the date of the increase was to be altered because of an unsuccessful appeal.

8. We are therefore satisfied that there is no ground for this appeal which is dismissed.

9. Neither party was legally represented at this appeal and we make no order as to costs.