SZE CHAK TONG AND ANOTHER v. CHAN CHUE LOU t/a HONG YUEN METALIC SPRING MANUFACTURING CO

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

DISTRAINT NO. 571 OF 1972

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1. Further to my ruling of 13^th July, 1972 herein, I have now received confirmation from the Crown Solicitor that 99.9% of New Territories Land designated “Inland Lot” has been exempted from the provisions of Part II of the New Territories Ordinance, and a similar proportion of land designated “Demarcation District” has not been so exempted; and this applies irrespective of what buildings if any, are created on such land.

2. In view of this, it would appear that where applications are made for the issue of Distress Warrants in relation to properties in the New Territories, for the removal of doubt, affirmations should always set out the correct designation of the property, and include an averment that the said property has been exempted from Part II of the New Territories Ordinance.

3. Should it so happen that any such application is made in relation to premises designated “Demarcation District”, then in my view the applicant should, in addition , be required to file a certificate from the Lands Officer confirming that the property has been exempted from the provisions above referred to.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

DISTRAINT NO. 571 OF 1972

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JUDGMENT

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1. Since the 7^th July, 1972 (when I directed that a Power of Attorney was required), a further difficulty has arisen, which concerns all Distress for Rent matters relating to the New Territories.

2. Section 40 of the Distress for Rent Ordinance applies the Ordinance to New Kowloon and to any other land exempted from Part II of the New Territories Ordinance.

3. Section 7(2) of the New Territories Ordinance makes provision for such exemption, but it is a question of fact in each case whether or not any particular land and/or premises situate in the New Territories has been exempted.

4. I have personally been in touch with the Crown Solicitor over this matter, and he in turn has consulted the New Territories Administration. I am informed that in general it is the case that property designated “D.D.” (Demarcation District) has not been exempted by the Governor from the provisions of Part II of the New Territories Ordinance, whereas in general, premises designated “I.L.” (inland Lot) have been so exempted.

5. At present, the Crown Solicitor is not in a position to inform me whether or not this general principle is affected by the presence of, or nature of, buildings erected on the land. It may be some days before this can be verified.

6. Meanwhile, however, it would appear that it is essential for the Plaintiff to state in his affirmation whether the premises concerned are designated “D.D.” or “I.L.”, though even that may not be conclusive. The only conclusive factor would seem to be a positive statement that the premises are exempt from the provisions of Part II of the New Territories Ordinance. Only then would it be certain that the premises are within the scope of the Distress for Rent Ordinance.

7. I much regret being obliged to refer this Application back to the Plaintiffs’ Solicitor, but I hope that the above will make my reasons clear. I would add that if the Plaintiffs’ Solicitors would welcome the opportunity to address me on this aspect of the law, I would be only too happy to afford them the opportunity to do so, and a date could be fixed by Deputy Registrar for this purpose, on application.

8. Failing this, the Plaintiffs’ affidavit must be amended to include the matters which I have referred to above.