LEUNG PING t/a SUN WIN WAH IRON FOUNDRY v. LEE CHUNG INDUSTRIAL CO LTD

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 47 OF 1970

(On appeal from V.C.J. 1517/1970)

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JUDGMENT

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Huggins, J.:

1. For my part I would have thought that the words “so far as the defendant’s tenancy or lease is concerned” were inconsistent with a conclusion that the learned judge made no finding of a tenancy, although in view of other passages in his judgment one would have expected an express finding one way or the other. Since counsel on both sides think that there is a doubt, which is shared by the other members of the court, I agree that the judge should be asked to certify whether or not he did find a tenancy to exist and, if so, what were its terms.

2. I cannot help thinking that the learned judge confused himself by his reference to “the defendant’s tenancy or lease”.  The Defendant had said that his tenancy was “on a yearly basis” and there was no evidence of a lease for a term exceeding three years.  That being so, the Land Registration Ordinance could have no relevance (see s.3(2)) and, in so far as the learned judge based his decision wholly upon that Ordinance, it cannot stand.  Accordingly I agree that there should be an order in the terms proposed by Blair-Kerr, J. 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 47 OF 1970

(On appeal from V.C.J. 1517/1970)

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________________________

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JUDGMENT

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Blair-Kerr, S.P.J.:

1. This case concerns a piece of agricultural land in the New Territories registered in the District Office as Section “A” of Lot no.173 in Demarcation District no.187.

2. The plaintiff company purchased the land in 1966 from a Mr. CHOI Wan-kwan, and the conveyance was duly registered in the Land Office at Taipo.  There is nothing in the conveyance to indicate that the land was purchased subject to any tenancy; and the plaintiff company claims that the defendant is a trespasser, and they seek an order for ejectment and damages for trespass.

3. According to the defendant, the land was once owned by a Mr. NG Bo-kwan; and the defendant claims that he has been a tenant since 1963 when, he says, he rented the land from Mr. Ng at a yearly rental of $500, subsequently reduced to $180 per year in 1964.  The defendant says that if the plaintiff company purchased the land in 1966 from Mr. Choi, it is subject to his (the defendant’s) tenancy thereof.

4. Before Hopper D.J., there was a clear issue of fact as to whether the defendant is a tenant; but there is no clear finding by the judge one way or the other.  At page 1 of his judgment he says:

“The defendant claims that he is a tenant ...”.

At page 3, he says:

“The proof of the defendant’s tenancy is therefore not without difficulties and it would appear that the terms of the alleged lease were never drawn up in any deed or other formal document.”

At page 4, there occur these words:

“...... so far as the defendant’s tenancy or lease is concerned ......”

But, at this point the judge was dealing with the applicability of s.3 of the Land Registration Ordinance to the facts before him; and it is at least arguable that when the judge spoke of the defendant’s “tenancy or lease”, he meant to say the defendant’s “alleged tenancy or lease”, because what he was saying was, in effect: it matters not whether the defendant is, or is not, a tenant.  His lease has not been registered; and he is in law a trespasser.

5. Before the judge, the parties appeared by counsel.  Neither side suggested that the Land Registration Ordinance could possibly apply to the facts of the case; but it appears that the judge took the point himself without hearing counsel.  He said:

“It would appear that the rights of the parties are governed by the Land Registration Ordinance.”

And, having set out the provisions of s.3; he then compared the facts to the facts in KWOK Siu-lan v. KAN Yang-chi^([1]), a case in which there was a written lease of land for 5 years, which lease had not been registered.  Reverting to this case, he continued thus:–

“..... so far as the defendant’s tenancy or lease is concerned, it is null and void as against the claims of the registered owner i.e. the plaintiff company.”

6. In our view, the provisions of the Land Registration Ordinance have no application to the facts of this case.  A tenancy may well have been created by parole; and the land may have been purchased by the plaintiff company subject to that tenancy.

7. On the case coming up before this court on appeal, counsel for the plaintiff company agreed that the reasons given by the judge for his decision could not be supported. But, we could not deal with the appeal because it was impossible to say whether the judge had found that the defendant is a tenant.

8. Therefore, with the consent of both parties, we adjourned the appeal and directed that the judge certify whether or not he did find that the defendant is a tenant, and if so on what terms.  If the judge should certify that he made no findings on these matters, it is ordered that the appeal shall be allowed without further order; and that there be a new trial as to whether or not the defendant is a tenant of all or part of, and if so what part of, section A of Lot no.173 in D.D. no.187, and if so on what terms.

9. We reserve all the costs here and in the court below for the trial judge’s decision.

Jackson-Lipkin (instructed by Messrs. Mak & Co.) for appellant.

Denis Chang (instructed by Messrs. C.P. Lin & Co.) for respondent.

([1]) [1913] 8 H.K.L.R. p.52.