LI YUK HA BETTY v. CHENG FONG

DCCJ004194A/1981

Landlord and tenant - action commenced before but heard after enactment of Landlord and Tenant (Consolidation) (Amendment) (No. 2) Ordinance - whether old or new law to be applied at hearing - whether Amendment's transitional provisions limited to jurisdiction or also relate to substantive law to be applied at hearing - whether English Rent Acts except to general principle that legislation not presumed to be retrospective still applies to Landlord and Tenant (Consolidation) Ordinance - Held new law is the substantive law to be applied at the hearing - Sections 52, 53, Landlord and Tenant (Consolidation) Ordinance, Cap. 7, Sections 1, 59 Landlord and Tenant (Consolidation) (Amendment) (No. 2) Ordinance No. 76/81.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 4194 OF 1981

________________________

BETWEEN
	LI YUK HA BETTY	Plaintiff
	AND
	CHENG FONG	Defendant

_________________________

Coram: His Honour Judge Cruden in Court

Date: 19 March 1982

 

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JUDGMENT

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1. In this action the plaintiff had claimed possession of the domestic suit premises for occupation by herself as a residence pursuant to Section 53(2) (b) of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7. After hearing the evidence, I held that I was not satisfied that the contractual periodic tenancy had been terminated by notice and judgment was given for the defendant. From the judgment the plaintiff has applied for a review, pursuant to Section 53 of the District Court Ordinance, Cap. 336. I granted the application and have heard submissions by Counsel for both parties.

2. The plaintiff's application was based on two points. First, that the provisions of the Landlord & Tenant (Consolidation) (Amendment) (No. 2) Ordinance No. 76/81 did not apply to this action at the date of the hearing, namely the 9th day of February, 1982, as the action was commenced on the 4th day of June, 1981. Secondly, that leave should be granted to the plaintiff to call further evidence to establish that the pleaded notice to quit, which I was not satisfied at the trial had been posted to the defendant, was actually posted. I am not disposed to allow further evidence to be adduced. For the service of the notice was a condition precedent to the cause of action arising. Whether it was served was a matter of substance not merely a matter of procedure. The additional evidence was available to the plaintiff at the trial but was not called. Leave to call further evidence is opposed and I am satisfied that there are no proper grounds to lead me to exercise my discretion to allow such further evidence to be called.

3. The substantial issue before me on the review is whether the provisions of the Landlord & Tenant (Consolidation) (Amendment) (No. 2)(1981) Ordinance applied to this action at the hearing. Before considering the law it may be helpful to set out the chronology of the relevant events:-

4.6.81:	Writ issued.
10.12.81:	Amending Ordinance passed.
19.12.81:	Amended Section 53 came into operation.
9.2.82:	Date of hearing.

4. Counsel for the plaintiff submitted that these dates disclosed the significant fact that here the writ was issued before both the date the Amendment was enacted and the date the amended Section 53 came into operation.

5. It was common ground that before the new amendments came into operation it was not necessary first to terminate a periodic tenancy by notice. After the amendments notice was necessary. The amended particulars of claim pleaded that such a notice had been given and served on the defendant. However, I was not satisfied the notice had been served. The plaintiff therefore had argued in the alternative that it was not necessary to either plead or prove such notice. Therefore the inability of the plaintiff at the trial to prove service of the notice was not fatal to her claim.

6. I have already, in earlier judgments, held that the proper law to apply where an action was commenced before the amendment but heard after the amendment was the new law in force at the date of the hearing. In doing so I had relied on the Court of Appeal decision in LAM Wai v. MAK Yok-jan (1980) H.K.L.R. 236. In that case the Court of Appeal considered the retrospective effect of a similar worded amendment in the Landlord & Tenant (Consolidation)(Amendment) Ordinance No. 6/80 and held that the law to be applied was the law at the date of the hearing.

7. I am aware that another District Judge in CHOW Sui-kwan v. Estate Sum Yat Ming VCJ No. 6035/80 has suggested the effect of Section 59 of the new Amendment in relation to actions commenced before the Amendment but not heard until after the Amendment, is that the old law continues to apply at the hearing. With respect, the transitional provisions of Section 59, seem to me, to be limited to jurisdiction. They are only concerned with the otherwise competing jurisdiction of the District Court and the Tenancy Tribunal on the one hand and of the Lands Tribunal and the Commissioner of Rating & Valuation on the other hand, in respect of pending proceedings. They are not concerned with the different question of what law is applicable. Counsel for the plaintiff referred me to that other District Court decision, but expressly stated that he did not adopt its reasoning for he considered, with respect, that to the extent that judgment made observations on the present issue, they were wrong. I accept that submission.

8. Counsel for the plaintiff commenced his submissions with the general proposition that where the legislation is changed when an action is pending, the amendment has no retrospective effect unless the contrary is clearly shown. The decision of the then Chief Justice in In re Arjan Heera Sakhrani (1968) H.K.L.R. 389 was cited to me where that principle was applied in respect of the Legal Practitioners Ordinance, Cap. 159. The Chief Justice held that as the amending legislation did not indicate that it was to affect pending actions, an application for admission by a barrister filed before the amendment was enacted, fell to be determined in accordance with the law in force on that date the application was filed and not in accordance with the law in force at the date of the hearing. With respect I would not be disposed to quibble with that decision or that general principle.

9. As to the Court of Appeal's decision in LAM Wai v. MAK Yok-jan the Ordinance had been amended on 15th February 1980 with retrospective effect to 18th December 1979. So there was express retrospective provision in the 1980 Amendment whereas in the 1981 Amendment there is no express retrospective provision. All the various dates when different portions of the Amendment would come into operation are after and not before the date of its enactment, namely the 10th day of December 1981. Counsel for the plaintiff placed more importance on the fact that the writ in LAM Wai v. MAK Yok-jan was issued on the 21st day of January 1980. This was after the new law came into force on 18th December 1979. Whereas in the instant case the writ was issued on the 4th day of June 1981, so before the Amendment came into force on the 19th day of December 1981.

10. I recognise at once that this is a major factual distinction and the crucial question is whether these different facts are of legal significance.

11. At least at the date of the Court of Appeal's decision in LAM Wai v. MAK Yok-jan it was clear that Hong Kong Courts in interpreting such of the provisions of the Landlord & Tenant (Consolidation) Ordinance as are analogous with the English Rent Acts, followed the English decisions that the law to apply, where there have been amendments of the kind I am considering, is the law as at the date of the hearing. The two leading English decisions which are most frequently cited in this connection are Remon v. City of London Real Property Co. Ltd. (1921) 1 K.B. 49 and Hutchison v. Jauncey (1960) 1 K.B. 574. Both those decisions recognise that because of the exceptional nature of the various provisions of the Rent Acts, which interfere on social grounds with the contracting rights of the parties, the general principles of legislation prima facie not being retrospective, is changed. In approaching the Hong Kong legislation the Chief Justice in LAM Wai v. MAK Yok-jan himselfrefers to Hutchison v. Jauncey. In adopting the principle of that decision the Chief Justice cited the 1980 Amendment to Section 52 in these terms:-

12. 'The amendment to Section 52 of the principal Ordinance reads -

"... no tenancy, whether created before or after the 18th December 1979 shall terminate during the continuance in force of this Part." '

13. The italics are the Chief Justice's. Turning to the 1981 Amendment it is to be noted that in again amending Section 52 the legislature has once more used precisely the same words as those italicised by the Chief Justice in the prior Amendment. For the new Section 52 provides:

"... tenancy, whether created before or after 19 December 1981 ..."

14. I have added the latter italics.

15. After considering, in particular, those words of Section 52 of the 1980 Amendment, the Chief Justice for the Court of Appeal concluded:

"We have no doubt that the Legislature intended all tenancies of the classes described to fall within the protection of Part II from the 18th December 1979, including those which were the subject of pending proceedings."

16. The earlier decision of WONG Chang-sung v. Margaret TSE & Anor. (1974) H.K.L.R. 350 was also cited to me as a Hong Kong decision in part considering the present Ordinance, where it was held that:

"The writ in the present case was issued before the commencement of the New Part II, the rights of the parties therefore crystallised on the date of the writ."

17. In approaching that decision it is important to take into account that the proceedings were an action for trespass. In addition, the defendants had held over at sufferance when the Domestic Premises (Tenure and Rent) (Temporary Provisions) Ordinance came into effect. That Ordinance and the subsequent Part II of the Landlord & Tenant (Consolidation) Ordinance, it was held, applied only to parties under tenancies. In that case there was no tenancy. In this case the continuing relationship of the parties as landlord and tenant under a tenancy has never been disputed. So on those grounds that decision may be distinguished. Even if it were not distinguished, it would also require to be considered in the light of the Court of Appeal's more recent decision in LAM Wai v. MAK Yok-jan.

18. The Privy Council decision of Zainal bin Hashim v. Government of Malaysia (1979) 3 All E.R. 241, also cited, may be similarly distinguished. The Privy Council considered whether a pending action for a declaration by a police officer for wrongful dismissal was affected by retrospective legislation. The advice of the Privy Council reaffirmed the settled principle that for pending actions to be affected by retrospective legislation the enactment did not have to state expressly that it applied to such actions, but its language had to be such that the only possible conclusion was that the Legislature had intended it to so apply. The Privy Council had no difficulty in finding that the amendment before it did have retrospective effect. This was hardly surprising as it appears to have been passed specifically, inter alia, to destroy the police officer's cause of action.

19. Clearly where landlord and tenant legislation is concerned, a Court is readier than in other cases to hold that an amendment does have retrospective effect. Further as the Privy Council declared it is not necessary for any express provision to be included declaring that the amendment is to be retrospective. I appreciate that it is a matter of construction in each case.

20. In approaching the new Amendment on this basis I also remind myself of the recent decision of the English Court of Appeal in Harrison v. Hammersmith (1981) 1 W.L.R. 650. In considering whether certain provisions of the Housing Act 1980 were retrospective, the line of cases under the Rent Acts commencing with Remon v. City of London Real Property were considered. On that point it was held that the particular Housing Act's provisions were not retrospective. The Court of Appeal recognised that cases under the Rent Acts are an exception to the general rule that legislation is not presumed to be retrospective. However, it held that there were fundamental differences between the Rent Acts and the Housing Act and that the general principle applied to the latter Act. I accept that this decision may be an indicator that at least in England for social or other reasons, the exceptional principle applicable to the Rent Acts may in future be increasingly restricted. Further, it was obviously very relevant that landlords under the Housing Act are local authorities.

21. However that may be, in my view, the position in Hong Kong is clear. I am satisfied that no legal significance attaches to the fact that in this case the writ was issued before the amendment came into operation whereas in LAM Wai v. MAK Yok-jan the writ was issued after the amendment came into force. The Court of Appeal in the latter case held that words similar to the instant provisions meant that the proper law to apply at the hearing was the new law in force at the hearing. Within twelve months of the 1980 Amendment, which the Court of Appeal considered, the legislature passed the present Amendment to the same Ordinance. The legislature used the very same words as to the application of the Amendment, as were considered by the Court of Appeal only a few months earlier.

22. When I consider the terms of the new Amendment against that background and in relation to the other provisions of the Ordinance I have arrived at the conclusion that the new Amendment equally intends that the law to be applied at the hearing of a pending action, such as the instant action, is the new law in force at the date of the hearing.

23. As I applied the new law at the hearing there seems to be no reason why my prior judgment should be varied on this review. That judgment delivered on the 12th day of February, 1982 is therefore confirmed.

DATED this 19th day of March, 1982.

(G.N. Cruden) District Judge

Representation:

Mr. B. Yu instructed by K.M. Lai & Li for the plaintiff.

Mr. S.S.W. Chan of Hastings & Co. for the defendant.

DCCJ004194/1981

Landlord and tenant - service of notice to quit by ordinary post - where service disputed whether in absence of direct evidence of posting landlord can rely on internal system of management of landlord's solicitors as to posting - Section 53(2) Landlord and Tenant (Consolidation) Ordinance, Cap. 7, Section 8 Interpretation and General Clauses Ordinance, Cap. 1

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 4194 OF 1981

___________________

BETWEEN
	LI Yuk-ha betty	Plaintiff
	AND
	CHENG Fong	Defendant

_________________

Coram : His Honour Judge Cruden in Court

Date: 12 February 1982

 

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JUDGMENT

----------------------

 

1. In this action the plaintiff claims possession of the domestic suit premises for occupation by herself as her residence pursuant to Section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7.

2. When the action was commenced on the 4th day of June 1981 there was no necessity to first terminate the monthly periodic tenancy between the parties. No doubt for that then very good reason no notice to quit was pleaded.

3. On 19th December 1981, however, as a consequence of the Landlord and Tenant (Consolidation)(Amendment No. 2) Ordinance No. 76/81 it became necessary for such a periodic tenancy to be first terminated before a cause of action under Section 53(2) could arise.

4. I was informed by Counsel for the plaintiff that although no notice to quit had been pleaded a notice had in fact been served. He therefore orally applied at the hearing to amend the particulars of claim by the addition of he following new paragraph:-

"3A.

By a notice to quit in a letter dated 23rd April 1981 the plaintiff has through her solicitors required the defendant to deliver up the said premises to the plaintiff upon the expiring of the complete month of the tenancy thereby terminating the same on 31st May 1981."

5. The defendant opposed the amendment. I considered that the necessity for the amendment had only arisen because of the recent statutory amendment which was enacted after the present proceedings were commenced. In the exercise of my discretion I held that this was a proper application and allowed the particulars of claim to be amended accordingly. I intimated to the defendant's solicitor that if he wished he might apply for an adjournment to consider the matter and file any amended defence that might be necessary. After a short adjourment I was informed that the defendant wished the hearing to proceed subject to the defence being amended by the addition of the following new paragraph:

"3A.

Paragraph 3A of the Particulars of Claim is not admitted and the plaintiff is put to strict proof thereof."

6. I ordered that the defence be amended accordingly; reservice being dispensed with in respect of both amendments.

7. In view of the express defence denial as to service of the notice to quit, the plaintiff could not rely on the principle set out in Chan Oi-ho v. Hong Kong and Kowloon Carving Association (1965) D. C. L. R. 119 but was put to proof. So the trial continued. Counsel for the plaintiff intimated that he hoped to call the clerk who effected service of the notice to quit or if he was not available the plaintiff would give evidence, that in a subsequent discussion with the defendant, the defendant acknowledged receipt of the notice.

8. The plaintiff called Mr. LAI Chak-sum a clerk employed by her solicitors. His evidence was that he drafted and personally typed the letter constituting the notice a copy of which he produced as Exhibit P.1. He further stated that he obtained its signature by Mr. LI, a partner of the firm, and then handed it to a person employed by the firm and asked that person to mail the letter by normal post. The letter he stated was to be mailed by normal post and not registered. When the plaintiff gave evidence she was not questioned on the issue of service nor when the defendant gave evidence was she cross-examined whether she received the letter.

9. After hearing the whole of the evidence I reserved my decision in order to give further consideration to whether the plaintiff had established on the balance of probabilities that the letter, which constituted the notice, had been served on the defendant.

10. The letter was addressed to the defendant at the suit premises. I find she then resided and continues to reside at that address. I was satisfied that its contents constituted a valid notice to quit. The defence drew my attention to the fact that the letter went on to state that the reason for wanting possession was to use the premises as a residence for the plaintiff and members of her family whereas paragraph 5 merely refers to the plaintiff requiring possession of the premises for herself. If the position was as stated in the letter then the pleading is still accurate for her family in these proceedings have no status other than as members of her household.

11. To refer to them in the particulars of claim was unnecessary and in the view of the Court of Appeal improper. In any event the law is well settled that a notice to quit otherwise valid is not invalidated by the addition of other words or statements provided the notice itself remains clear and certain in its terms and not subject to any contingency - Norfolk County Council v. Child (1918) 2 K.D. 805, C.A. This notice was clear and certain in its terms.

12. The issue of service of the notice raises, on the instant facts, two points. First, may service be effected by unregistered post? Secondly, if so, is there evidence from which it may be held that the letter containing the notice was so posted?

13. The notice to quit must be duly served on the defendant. In other words, the service must be sufficient for the notice to be brought to her personal attention. For example it is not sufficient merely to affix the notice to the suit premises or leave the notice at those premises, unless there is evidence that it actually came to the defendant's notice. Hill and Redman (16th Edn.) at page 505 point out it is sufficient if the notice is sent by post to the tenant's address:-

"If the posting is proved, the notice will be presumed in the absence of evidence to the contrary to have been delivered in due course of post ..."

That textbook goes on to emphasise: -

"It is desirable in such a case to send it by registered post or by the recorded delivery service so that an offic al record of the posting may be obtained ;"

14. In the instant case the notice was not sent by registered post but it is asserted it was sent by ordinary post. I note that Hill and Redman merely states that it is desirable that the notice is sent by registered post if service is to be attempted to be effected by post. That is certainly a counsel of common sense but it is obligatory. If the evidence establishes that the notice is sent by ordinary post to the proven address of the defendant then I would accept that is prima facie evidence of service. As was also said in CHAN Oi-ho v. Hong Kong and Kowloon Carving Association (Supra) : -

"A notice to quit may be served upon the tenant personally or by post and in other ways, but it is not a good service to simply affix it to the premises."

15. A Court must be satisfied the defendant has actual knowledge of the notice. Service by ordinary post is prima facie evidence of such knowledge. Although it would need far less powerful evidence by a defendant that he nevertheless did not receive the notice than if it were sent by registered post. Certainly while it is not essential to use registered post it is most "desirable" if service by post is selected.

16. I am also conscious of the fact that Section 8 of the Interpretation and General Clauses Ordinance which deals with service by post makes no distinction between ordinary "post" and "registered post" in caseswhere an Ordinance requires or authorises service by those means. However, that Section is only of passing interest for it does not apply to service of the instant notice to quit. Part II of the Landlord and Tenant (Consolidation) Ordinance does not require or authorise notices served thereunder to be by post registered or otherwise.

17. The defence evidence was silent on the issue of service so I am not here concerned with any denial or other evidence as to service which might rebut the prima facie evidence of service if I were satisfied that the notice was sent by ordinary post. While it would not need very strong evidence to rebut allegations of service, limited to using the ordinary post, that obligation would only arise where there is first prima facie evidence in favour of service.

18. So the important question on the issue of service is whether I am satisfied that the notice to quit was sent to the defendant by ordinary post. The evidence is that PW1 gave the letter to a member of his firm's staff and instructed him to post the letter by ordinary post. It was put to Counsel for the plaintiff that the employee who posted the letter was not called. To this Counsel replied that the Court could rely on the firm's system of internal management. As to this it may be observed that PW1 did not give evidence as to that system and no postage record book of the firm or other evidence was called on this point.

19. Can the Court rely on the firm's system of internal management on this issue? I approach this question against the background that due service of a proper notice to quit is a condition precedent to the statutory cause of action arising under Section 53(2). Service of the notice is on the pleadings expressly disputed.

20. I appreciate, that at common law, once a letter is posted, in the absence of evidence to the contrary, a presumption of delivery in due course of post arises. Equally where there is statutory provision for service by post a similar statutory presumption arises in Hong Kong under Section 8 of the Interpretation and General Clauses Ordinance. What the plaintiff asks is that I apply a similar presumption as to the internal steps taken in the plaintiff's solicitor firm once one employee instructs another employee to send by post a particular letter. To apply such a presumption in respect of a firm's internal system of management, on the evidence before me in this case, would be different not only in degree but in kind to the various presumptions as to delivery by post which may arise  once a Court is first satisfied that a particular letter has been posted. No authority for such a wider presumption in these circumstances has been cited.

21. When I take all these matters into account I am of the view that the absence of direct evidence, on such an important element of the plaintiff's claim, is not cured by invoking the firm's system of internal management, particularly when the evidence of that system too, is sparse. I have come to the conclusion, if with some reluctance, that the plaintiff has not established on the balance of probabilities that the pleaded notice to quit was served on the defendant. It follows that I am not satisfied that the contractual periodic tenancy has been terminated. There must in these circumstances be judgment for the defendant who is also given 21 days to pay any arrears of rent. There will be no order as to costs.

DATED this 12th day of February 1982.

(G.N. Cruden) District Judge

Representation:

Mr. B Yu instructed by K. ?? Lai &. Li for the plaintiff.

Mr. S. S. W. Chan of Hastings & Co. for the defendant.