FINANCIAL SECRETARY INCORPORATED v. CHAN PO KEE

IN THE COURT OF APPEAL

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J U D G M E N T

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Kempster, J.A. :

1. This is an appeal from a judgment of Mayo J given on 26th January last whereby he declared that as from 23rd April 1985 Part IV of the Landlord & Tenant (Consolidation) Ordinance (Cap 7) had not applied to the appellant's tenancy of appartment B1 in Po Shan Mansion and, in consequence, ordered that possession be given to the respondent, Financial Secretary Incorporated.

2. The outcome of the hearing below turned, as that before us will turn, on the construction of section 50(6)(e) of the Ordinance which reads

"This Part (being Part II) shall not apply to .... a tenancy held from the Crown .... or a sub tenancy created out of such a tenancy".

By section 116(2)(6) Part IV of the ordinance has no application to a tenancy "which is excluded from Part II by paragraph .... (e) .... of section 50(6)".

3. By an instrument in writing made on 1st December 1982 the assignee both of the appartment in question and of another on the eighth floor, together with associated car-praking spaces, of the building in which he held two equal undivided 40th parts or shares, leased such appartment to the appellant for a term of three years expiring on 30th November 1985. As at that date she had every reason to expect that, by reason of the provisions of section 116, her interest in the appartment would continue until and unless terminated in accordance with Part IV in which event she might apply to the Lands Tribunal for a new tenancy. However, on 3rd May 1984 an order was made in the High Court requiring the grantor of the appellant's lease to transfer his interest in Po Shan Mansions to the Attorney General "or as he may direct". Following the Attorney General's direction such interest was then vested in the Colonial Treasurer Incorporated by assignment dated 23rd April 1985. By Declaration of 20th June 1985 made under section 55 of the Interpretation and General Clauses ordinance (Cap l) the title of the assignee was changed to that of the respondent. That corporation Mayo J approximated with "the Crown"; holding that as from the latter date the appellant, could not avail herself of the provisions of Part IV. Thus, as from 30th November 1985 when her lease expired, she had no right to remain in Possession_.

4. For the appellant it was and is submitted that the true intention of the legislation was that, assuming it to be "the Crown", Colonial Treasurer Incorporated should acquire its interest in domestic tenancies subject to the rights and expectations of lawful sub-tenants. Such a construction runs counter to the wording of section 50(6)(e) which excepts tenancies "held from" as opposed to "granted by" the Crown. Further, for the purposes of section 119, read in conjunction with the definition of "landlord'" in section 115(1), there is no means whereby the Crown can terminate a tenancy, which may well exist by reason privity of estate, by notice. I accordingly agree with the judgment of Mayo J on the point of construction which he had to determine.

5. Prompted, no doubt, by questions from the Bench Mr. Mok, for the appellant, has applied so to amend the Notice of Appeal as to challenge the hypothesis upon which the case was argued below namely that the respondent is "the Crown" for the purposes of the ordinance. Counsel for the appellant had expressly informed Mayo J that he would not seek to argue to the contrary. Although we have hard argument on the point a ruling on Mr. Mok's application has been deferred.

6. It is now my opinion that when reference is made to "the Crown" in a statute or ordinance which, like that under consideration, the Crown Proceedings Ordinance (Cap 300) or the Crown Leases Ordinance (Cap 40) does not condescend to definition, what is meant is the Sovereign acting in His or Her executive capacity within the relevant jurisdiction and, since the Sovereign acts through agents, that the expression covers all the government ministers, officers and servants who act on His or Her behalf. I am further persuaded that it also comprehends a government servant who, as in the instant case, has by statute been accorded the legal status of a corporation sole.

7. Although it was decided by Judge Wane in District Court Action No 6052 of 1979 that the Colonial Treasurer Incorporated was and always had been an emanation of the Crown" and an appeal against that finding was dismissed by this Courton 28th July 1900 after argument it appears that no reasons were given (Civil Appeal No 59 of 1980 Unreported). Binding is that decision may be I more particularly rely, therefore, on the speeches of Lord Diplock and Lord Simon in Town Investments Ltd v Department of the Environment⁽¹⁾. At p 381 the former said:

"Where, as in the instant case, we are concerned with the legal nature of the exercise of the executive powers of government, I believe that some of the more Athanasian-like features of the debate it your Lordships House could have been eliminated if Instead of speaking of "the Crown'' we were to speak of government" - a term appropriate to embrace both collectively and the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments. It is through them that the executive powers of Her Majesty's government in the United Kingdom are exercised sometimes in the more important administrative matters in Her Majesty's name, but most often under their own official designation. Executive acts of government that are done by any of them are acts done by "the Crown" In the fictional sense in which that expression is now used in English public law".

This analysis applies mutatis mutandis to acts of government in Hong Kong and, by analogy, the officers responsible for executive acts are to be regarded as "the Crown" for purpose s of statutory definition.

"The Minister of Works and the Secretary of State for the Environment are aspects of or members of the Crown, incorporated and charged for administrative convenience with holding and administering property - The mere fact of incorporation, which is only for administrative convenience, does not make a Secretary of State or a minister or a ministry an entity separate from the Crown".

per Lord Simon at pp 399 - 401.

8. I am satisfied chat the respondent to this appeal is and at all material times was acting as "the Crown". Further, in the absence of exclusion and unless the ordinance had been expressed to bind the Crown it would, in any event, have been "the duty of the Courts so to construe (it) that the Crown and its property are in no way prejudicially affected ...." per Romer LJ in Wirral Estates Ltd v Shaw⁽²⁾ at p 263.

9. I would refuse the application for leave to amend the Notice of Appeal and dismiss the appeal.

Cons, V.-P. :

10. I have had the advantage of reading my Lord's judgment in draft. I agree entirely with what has been said and I too would refuse the application for leave to amend and dismiss the appeal.

Power, J.A. :

11. I also agree.

(1) [1978] AC 359

(2) [1932] 2 KB 247