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HCA007605/1996
1996 No. A7605
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
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FAREHAM LIMITED |
Plaintiff |
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KAI TAI |
First Defendant |
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CHAU PAN WAN LING trading as
KAM WAI PROPERTY AGENCY |
Second Defendant |
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KAI TAI TEA COMPANY |
Third Defendant |
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YICK KEE HO |
Fourth Defendant |
Coram: the Hon Mr Justice Findlay, in Chambers
Date of hearing: 6 December 1996
Date of handing down judgment: 9 December 1996
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REASONS FOR JUDGMENT
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1. The plaintiff is the landlord of the premises concerned in this case, having acquired them by assignment from Dor Nam Tea House. The first defendant is the tenant of the property and the other defendants are subtenants.
2. The plaintiff claimed possession of the property, and this was granted by the Master. The second defendant now appeals against that decision. I dismissed the appeal with costs, and said that I would hand down reasons later. These are the reasons.
3. Mr Lo for the second defendant argues his case on two grounds.
4. Firstly, he says that the notice to quit was given by the Dor Nam Tea House, the plaintiff's predecessor in title. Mr Lo says that the notice must be given by the landlord. The simple answer to this is that the notice was given by the person who was landlord at the time notice was given, and, in my judgment, this is sufficient.
5. The second point taken is based on section 122(3) of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7). This says -
"(3) Where notice of termination is served on a tenant and in addition is posted on 3 successive days, together with a copy in Chinese, upon the main door or entrance of the premises affected, such notice of termination shall . . . take effect terminating also any sub-tenancies created under the tenancy to which it relates."
6. The landlord did not do this.
7. The question is: What is the effect of the failure of the landlord to give the notice prescribed?
8. The answer to that must be that the failure has no effect at all. The failure cannot result in the sub-tenancy remaining alive. If a tenancy is validly brought to an end, the sub-tenancies must follow suit. They cannot subsist without the tenancy. Mr Lo suggests that the effect is that the landlord steps into the shoes of the tenant, but this cannot be the implied intention of the legislature. If this is what was intended, the legislature would have made such provision expressly and in detail, as it did in relation to protected tenancies by section 21 of the Ordinance.
9. I do not know what the draftsman intended to achieve by section 122(3), but I suspect he did not know himself. On the one hand, he seems to have assumed that the sub-tenancies could subsist without the head tenancy, and that they had to be brought to an end by the landlord. But the apparent confusion of the draftsman is emphasised by section 127B, inserted into the Ordinance at the same time, where he provided that "Nothing in this Part shall afford to any sub-tenant any security of tenure greater than that enjoyed by his principal tenant.". Presumably, he was trying to say - "If anything I have said earlier might make you think that a sub-tenant may continue to have tenure after the principal tenancy has gone, this is not so."
10. The whole thing is confusing, and the second defendant and his advisers are not to be blamed for being confused. But confusing as it may be, and whatever the draftsman was struggling to achieve, he did not achieve the situation where the sub-tenant can remain in possession after the head tenancy has been brought to an end.
JK FINDLAY
Judge of the High Court
Representation:
Mr Alan KK Leong, instructed by Messrs MK Lam & Co, for the plaintiff.
Mr Raymond Lo, instructed by Messrs Ng & Co, for the second defendant.
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