HERMINIA LAO JEZ v. SIU WAI KEUNG

CACV 333/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 333 OF 1998

(ON APPEAL FROM LDNT 662 OF 1998)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The appellant Ms Herminia Lao Jez is the landlord of Flat 11-B, Parkview Mansion, No. 3, Lau Sin Street, Causeway Bay, Hong Kong. The Respondent Siu Wai-keung is the tenant of these premises. On 25th September 1998, Mr. Siu applied to the Lands Tribunal for a new tenancy for three years at market rent. The application was served on Ms Lao Jez on the same day by post. On 9th October 1998 Ms Lao Jez filed a notice of opposition to the application on the grounds that Mr. Siu had caused unnecessary annoyance, inconvenience or disturbance to the landlord and also failed to pay rent when due.

2. Mr. Siu's application came about in this way. Ms Lao Jez sought to terminate Mr. Siu's tenancy under s.119 of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7. She purported to serve by post a CR101 notice of termination on Mr. Siu. By this notice dated 17th June 1997 (not, be it noted 17th June 1998), Ms Lao Jez sought to terminate Mr. Siu's tenancy on 31st December 1998. S. 119 requires such notice to be given not more than seven nor less than six months before the date of termination. Otherwise, the notice would be ineffective. Therefore the notice dated 17th June 1997 was not a valid notice. Ms Lao Jez realised this and she sought to make amends. She claimed that the year in the date should have been 1998. She then sent a second CR101 notice to Mr. Siu. This second notice bore a date, 17th June 1998. This notice was sent by fax, not by post. On 13th August 1998, Mr. Siu sent to Ms Lao Jez a CR102 notice stating that in response to the CR101 notice dated 17th June 1998, he gave notice that he would not give up possession of the premises and intended to apply to the Lands Tribunal for a new tenancy. On 7th October 1998, Ms Lao Jez gave notice to Mr. Siu requiring him to apply to the Lands Tribunal for a new tenancy. Accordingly, on 23rd October 1998 Mr. Siu made his application to the Lands Tribunal.

3. Before the Presiding Officer of the Lands Tribunal, Mr. Siu denied that he had received the second CR101 notice by fax or otherwise. He claimed that he received only one copy of CR101 notice and that was the notice dated 17th June 1997. The date of 17th June 1998 which he stated in his CR102 notice was the date on which he received the notice dated 17th June 1997.

4. The Presiding Officer dismissed Mr. Siu's application. She held that the first CR101 notice dated 17th June 1997 was invalid because it was more than seven months from the date of the effective termination of the tenancy. She did not decide whether the second CR101 notice had been received by Mr. Siu, but that notice was not served in the way as prescribed by law. Referring to s.7 of the Lands Tribunal Ordinance, the Presiding Officer concluded that service by fax transmission was not good service of the notice. In effect, she decided that service of the second CR101 notice was not effected.

5. It was a decision against Mr. Siu who did not appeal. Ms Lao Jez appealed and she appealed against an order in her favour. She sought an order that the decision of the Presiding Officer be set aside and that an order for possession be substituted.

6. Ms Lao Jez, represented in this appeal by her daughter Ms Rosita Li, advanced two grounds. Her first complaint was that the Presiding Officer was wrong to hold that Mr. Siu had not received the notice of termination since he had acknowledged in his CR102 notice receipt of the second CR101 notice. Secondly, she complained that there was no rule against service by fax. She maintained, provided that contents of the document were brought to the notice of the recipient, it did not matter in what way the document was transmitted. She relied on an English case of Hastie & Jenkerson (a firm) v. McMahon [1991] 1 All ER 255. Before this court, Ms Rosita Li pressed upon us that in the circumstances the Presiding Officer should have held the notice to be have been duly served.

7. In our view, s.119Y of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 prescribes modes in which a notice under Part IV of that Ordinance may be served. It could be effected by personal service, by post, or by leaving it with an adult occupier of the premises of the tenant or by affixing it to the premises. Section 7 of the Lands Tribunal Ordinance provides for similar modes of service of document in Lands Tribunal proceedings. In either case, service by fax transmission is not prescribed. Service of a notice under s.119 outside these provisions is invalid.

8. The authority cited by the appellant is irrelevant. That authority dealt with whether an order of the court to serve a list of documents could be satisfactorily complied via a fax transmission, whereas the present case concerns a statutory notice for determinating a landlord/tenant relationship under the provisions of the Landlord and Tenant (Consolidation) Ordinance. A notice of termination must be properly served. Service by fax of the second CR101 notice was not be good service.

9. Mr. Siu in his CR102 notice acknowledged receipt of the second CR101 notice, but Mr. Siu had denied having seen such notice by fax or otherwise. The Presiding Officer having found that the service of the second CR101 notice was not good service, it would be unnecessary for her to proceed to decide on the factual issue.

10. The Presiding Officer is correct. In our opinion, this appeal must be dismissed.

Liu, J.A.

11. The appeal is dismissed.