Law Chee Sing v. Lau Kwong Kun

IN THE SUPREME COURT OF HONG KONG

1993, NO. 102
(Civil)

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J U D G M E N T

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Hon. Barnett, J.

1. This is the judgment of the court.

2. This is an appeal from a decision of the Lands Tribunal (the Tribunal). In a judgment given on 9th June 1993, the Tribunal dismissed the Appellant landlord's application for vacant possession of certain domestic premises, to which it was agreed Part IV of the Landlord and Tenant (Consolidation) Ordinance Cap. 7 applied, and which was the subject of a tenancy created between the parties on 1st August 1986.

3. By notice dated 24th September 1992 in Form CR101, the Appellant purported to terminate the tenancy in accordance with Section 119 of Cap. 7. The Appellant sent the notice by double registered post. The post office was unable to deliver the notice on 28th or 29th September and accordingly notified the Respondent that a registered letter awaited his collection. The Respondent collected the notice on 2nd October 1992. The Respondent took no action. He did not, as he might have done, make a request for a new tenancy under Section 119A nor did he make application under Section 119D to the Tribunal for the grant of a new tenancy. The existing tenancy, therefore, appeared to have been terminated on 31st March 1993.

4. On 1st April 1993, the Appellant by Form 13, prescribed by the Lands Tribunal Rules, gave notice of application to the Tribunal under the Landlord and Tenant (Consolidation) Ordinance. The application was expressed to be "pursuant to Section 119". After furnishing the prescribed particulars and stating that he had served the necessary notices, the Appellant in his application continued "in early March 93, I contacted Mr. Lau (the Respondent) and he said he will not apply to the Lands Tribunal for the grant of a new tenancy".

5. Form 13 is prescribed for commencing proceedings under, inter alia, Part IV of Cap.7. Part IV does not, however, appear to provide for a landlord's application for vacant possession where a tenant has taken no action in response to a statutory notice and where the tenancy has accordingly come to an end. The question arises whether, in such circumstances, the Tribunal has jurisdiction to entertain such an application. The Tribunal's jurisdiction in relation to applications for possession of premises is prescribed by Section 8 of the Lands Tribunal Ordinance Cap. 17 and encompasses the following subsections:

"(6) The Tribunal shall have jurisdiction to make orders for possession under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7), including an order for possession to take effect on termination of the current tenancy where it does not make an order for the grant of a new tenancy under Section 119G of that Ordinance.

(7) The Tribunal shall have jurisdiction to make orders for possession or for ejectment in relation to premises to which Part I, or tenancies or sub-tenancies to which Part II, Part IV or Part V of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) applies where the contractual period of a tenancy or sub- tenancy has been terminated by forfeiture, by surrender or by notice to quit given by the landlord to the tenant, the tenant to the landlord, the principal tenant to the sub-tenant or the sub-tenant to the principal tenant.

(8) The Tribunal shall have jurisdiction, in any application for possession or for ejectment, under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) or otherwise, and in any application for a new tenancy under Part IV of that Ordinance, whether or not it grants any such application, to make orders for the payment of rent, mesne profits, including interim payments of rent and mesne profits, and for the payment of any other money which is due under the tenancy or sub-tenancy.

S.s.(6) does not apply to these proceedings because it is limited to the consequences of an unsuccessful application for a new tenancy by the tenant. S.s.(8) simply confers power to grant consequential relief where the Tribunal is otherwise exercising jurisdiction.

6. S.s.(7) also fails to confer jurisdiction. Forfeiture and surrender do not arise. A notice to quit is not a notice given under s.119, Cap.7. Ss. 117, 118 and 119 draw a clear distinction between a notice to quit and a statutory notice of termination.

7. In our judgment, therefore, the Tribunal does not have jurisdiction over a person whose tenancy has come to an end by virtue of notice given pursuant to s.119, Cap.7 and who has become a trespasser. In our view, jurisdiction in such circumstances is reposed in the District Court pursuant to Section 35 of the District Court Ordinance Cap. 336 or, depending on the value of the premises, in the High Court.

8. Be that as it may, the Tribunal assumed jurisdiction and from the "particulars of claim" inferred that the Appellant founded his claim on the ground that the contractual tenancy had been duly terminated, but the Respondent had failed to apply for a new tenancy within the time limited by Cap. 7. The Tribunal went on to point out that under Section 119, Cap. 7, a notice to terminate a tenancy shall not have effect unless it is given not more than seven nor less than six months before the date of termination. It found as a fact that the Appellant's notice was given on 2nd October 1992, the day on which the Respondent collected it from the post office; and found that the period of notice was less than six months and that the period was inadequate. It considered whether Section 10 of the Lands Tribunal Ordinance gave it power to enlarge time for the notice. Section 10 (2) provides that the Tribunal may:

"(d) for good cause, enlarge the time, whether or not that time has already expired, fixed by any Ordinance-

(i) for the giving of any notice, either before or after any proceedings have commenced;

(ii) for the taking of any step in any proceedings; or

(iii) for the filing or lodging of any document in any proceedings.

In its judgment, the Tribunal said:

"Later the Court of Appeal in Sin Hua Trust, Savings & Commercial Bank Ltd v. Ng Yee May Civil Appeal No. 137 of 1985 and by a majority in Ram Isardas Mahtani v. Wong Kwok Tai Civil Appeal No. 156 of 1989, held that the new power in Section 10(2) (d), did not enable the statutory time limits in Section 119, to be enlarged. Accordingly, those statutory prescribed time limits are mandatory. The Tribunal has no discretion to assist a party who has failed, for whatever reason, to comply with those time limits."

9. The Tribunal found it had no power to excuse the inadequate period of notice and accordingly dismissed the Appellant's application. It concluded that as the contractual tenancy had not been duly terminated, the Respondent was entitled to remain in possession at the current rent.

10. In his notice of appeal, the Appellant complained that his notice to the Respondent was just one day short of six months (in fact it was two days, as the Tribunal correctly found), and that he should not be blamed for the delay on the part of the post office in attempting to deliver the notice and the delay on the part of the Respondent in collecting it. The Tribunal dealt with this point at some length in its judgment. There is nothing in this ground of appeal. At the hearing of the appeal itself, the Appellant further complained that the Tribunal had shown bias in favour of the Respondent. There is, however, nothing in this complaint either.

11. There remains the point, now academic, namely, whether the Tribunal was correct in its ruling that it had no discretion to assist a party who had failed to comply with time limits prescribed under Section 119, Cap. 7. In the first decision of this court to which the Tribunal referred, Sin Hua Trust Savings and Commercial Bank Limited v. Ng Yee-may, the Court was concerned with an application by a tenant for a new tenancy under

12. Section 117 (1) of Cap. 7. Sir. Alan Huggins, V.P. delivered the leading judgment of the Court and said this:

"Section 117 is in Part IV of that Ordinance. It provides for the continuation and renewal of tenancies:

'A tenancy shall not come to an end unless terminated in accordance with this Part and a tenant may apply to the Lands Tribunal for a new tenancy-

(a) if the landlord has given notice under s. 119 to terminate the tenancy; or

(b) if the tenant has made a request for a new tenancy under s. 119A.'

In this case the appellant Tenant made a request to the Landlord for a new tenancy. However, the application to the Tribunal was not made at the proper time under s. 119D(3) of the Landlord and Tenant (Consolidation) Ordinance which provides, so far as material, that

'No application under s.117(1) shall be entertained if it is made - ...(3) after the current tenancy has terminated in accordance with the Part.'

The tenancy did in fact terminate because of a notice which was served by the Landlord in accordance with the provisions of s.119. That Section required that there shall be a notice given not more than seven nor less than six months before the due date of termination.

The tenancy having expired, the Tenant now comes and seeks to have an extension of time, and he relies upon s.10(2)(d) of the Lands Tribunal Ordinance, which provides that for good cause the Tribunal may

'enlarge the time, whether or not that time has already expired, fixed by any Ordinance - ... (2) for the taking of any step in any proceedings; or (3) for the filing or lodging of any document in any proceedings.'

It is suggested that s.10(2)(d) of this Ordinance permits the extension of the time within which notice of application may be given to the Tribunal under s.119D of the Landlord and Tenant (Consolidation) Ordinance.

As I see it this argument cannot be sustained. To start with, the Section of the Landlord and Tenant (Consolidation) Ordinance does not prescribe a period of time: it merely states that after a certain thing has happened the right to apply to the Tribunal shall no longer exist. The effect of the termination of the notice is that the tenant ceases to be a tenant and therefore he has no locus standi to come forward to ask for a renewal of the tenancy. In my view this Section of the Lands Tribunal Ordinance has no relevance to s.119D(2)(3)(iii). Whether or not it relates to the earlier two paragraphs of sub-s.(3) it is not necessary for us to say, but I am satisfied that this application was misconceived and that the judge was right to dismiss it."

13. Cons and Fuad, J.J.A. (as they then were) agreed. Cons. J.A. said:

"Section 10(2)(d) of the Lands Tribunal Ordinance to my mind does not apply, because the application to the Tribunal is not a step in any proceedings nor is it the filing or lodging of any document in any proceedings. Furthermore the time in respect of which application is now made is not a time which is fixed by any ordinance, it is a time which is fixed by the landlord. It is fixed in accordance with the Ordinance, but not by the Ordinance.

One of the chief arguments below, as I read the proceedings, was based on comments made by His Honour Judge Cruden in Union Carbide Asia Ltd. v. The Hong Kong Land Co. Ltd. [1982] 6 D.C.L.R.75, where he pointed out what he thought were unduly severe provisions in Part IV which could work to the prejudice of a tenant. It was after his comments had been reported that s.10(2)(d) was brought into the Lands Tribunal Ordinance, which may suggest that its purpose was to remedy the defects that he had pointed out. Even so it does not necessarily follow that the legislature intended to remedy all the defects which appeared to the judge, and where, as here, the words of a new Section are quite clear, it would be quite wrong for us to try and extend them."

14. The next case to which the Tribunal referred, Ram Isardas Mahtani v. Wong Kwok Tai is now reported in (1989) 2 HKLR 296. There again the appellant was a tenant who on this occasion had made his application more than two months after the landlord's notice requiring him to make application for a new tenancy. The Tribunal had purported to extend the tenant's time by virtue of Section 10 (2) (d) of Cap. 17. Cons. V.P. delivered the leading judgment. He set out the provisions of s.119D(3)(a):

"No application under s. 117(1) shall be entertained if it is made-

(i) less than two months after, either, the giving of the landlord's notice under s. 119 or, as the case may be, the making of the tenant's request for a new tenancy under s. 119A;

or

(ii) more than two months after the giving of a notice in the specified form by the landlord to the tenant requiring the tenant to make such an application;

or

(iii) after the current tenancy has terminated in accordance with this Part."

15. The Vice-President next referred to s. 10(2)(d) of Cap. 17 and went on:

"The effect of this provision upon s. 119D(3)(a)(iii) was considered by this Court in Sin Hua Trust, Savings & Commercial Bank Ltd. v. Ng Yee-may 15th November 1985 Civ App No. 137 of 85 unreported. While expressly reserving his opinion as to its effect upon sub-paragraphs (i) or (ii) of that sub- section Sir Alan Huggins took the view that it could provide no assistance to a tenant who had allowed the date of termination to pass before he made his application to the Tribunal, for by that time he had ceased to be a tenant and had no locus standi to ask for a renewal. The other two members of the Court, i.e. Fuad, J.A. and myself agreed. I added that-

'Section 10(2)(d) of the Land Tribunal Ordinance to my mind does not apply, because the application to the Tribunal is not a step in any proceedings nor is it the filing or lodging of any document in any proceedings.'

I cannot now recall if any particular argument was advanced on that occasion or whether I simply thought that by the natural use of language a "step in proceedings" means a step in proceedings which are already in existence and does not include the act which initiates the proceedings themselves. Indeed, by its common use in that sense for so long the phrase may well now have acquired the mantle of a term of art. Counsel were unable to assist in this respect and for myself I have been unable to find any instance where the phrase has been accorded a wider meaning.

For this reason I am satisfied that in the present instance the Presiding Officer ought not to have entertained the application of the tenant. I would therefore, for my part, allow the appeal and set aside the order made below."

16. Kempster, J.A. agreed. Power J.A. (as he then was) dissented. He said at p.299:

"The term "step in the proceedings" is usually, it is true, used as it is in s. 6 of the Arbitration Ordinance, to describe a step taken in the course of proceedings. However, the context in which it is used in an ordinance such as the Arbitration Ordinance clearly indicates that this is so. There is, in my view, no such indication in s. 10(2)(d) of the Lands Tribunal Ordinance except insofar as it might be said to spring from the use of the word "in". It can, of course, be suggested that the use of that word indicates that the step to which reference is made must be a step, within those proceedings and that the step which initiates the proceedings cannot be properly so described. Was this the intention of the legislature?

One must, I am satisfied, seek that intention by reading these words in the context of the Ordinance in which they appear and one is not assisted by reference to similar words in other legislation where different considerations apply.

Section 10 when applied to Part IV of Landlord and Tenant Ordinance was clearly intended to give the court extensive powers. It can enlarge time for notices required to be given prior to the

commencement of proceedings, enlarge time for any steps in the proceedings and enlarge time for the filing or lodging of any documents in the proceedings. Were these powers meant to have application to everything except the initiating step in the proceedings? If a restrictive interpretation is given to s.10(2)(d) anomalous consequences which in my view cannot have been intended by the legislature would be produced. The court would, for instance, prior to the commencement of the proceedings, be empowered to enlarge the time for the giving of a notice by the landlord terminating a tenancy under s.119(2) whereas, should the tenant make application to enlarge the time for his application to the Lands Tribunal, which he is required to make in consequence of the landlord's notice, the court would have no power to deal with his application. The intention of the legislature seems to me clearly to require that a liberal interpretation be given to the words and that the initiating step, once it has brought the proceeding into being, can be properly described as a step therein, i.e. as "a step in the proceedings"

17. Those words, of course, are particularly apposite to the instant appeal.

18. In our judgment, these decisions of this Court, by which we are bound, are restricted to an interpretation of s.10(2)(d)(ii) and (iii) in relation to s.119D(3)(a)(ii) and (iii) upon an application by a tenant for a grant of a new tenancy. The ratio was either that the right to apply had been extinguished because of the provisions of Section 119D (3)(a)(iii) or that the application was neither a step nor the filing or lodging of a document in the proceedings. The Court was not dealing with s.119, Cap. 7. An application by a landlord for possession, on the basis that the tenancy has terminated because the tenant has made no request or application for a new tenancy, is inhibited by no such provisions. The landlord simply bases his application upon his notice given under Section 119, Cap. 7, a notice for which the time is fixed by Cap. 7. We are satisfied that the Tribunal does have discretion under Section 10 (2) (d) to enlarge the time for the giving of notice by the landlord under Section 119, Cap. 7.

19. However, as we have found the Tribunal to lack jurisdiction, this appeal must be dismissed. The Appellant may, if he wishes, commence fresh proceedings in the appropriate court. As the Respondent indicated to us that he would move if possession is granted, it might be sensible if the parties put their heads together and save themselves further time and trouble.