IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT VICTORIA
ACTION NO. 2713 OF 1970
|CHAN WING TO
|KIN TUNG CO., LTD.
Coram: Hooper, District Judge
Date of Judgment: 28 September 1970
1. This is an action by the plaintiff for recovery of possession of premises under the provisions of the Security of Tenure (Domestic Premises) Ordinance No.8 of 1970. The defendant company is the tenant of the said premises, and it is not disputed that the premises are domestic premises within the meaning of the Ordinance, or that they fell within the protection of the ordinance. It is common ground that on the 11th of May 1970 the plaintiff served on the defendant a notice to quit under Sec.6(2)(a) of the Security of Tenure (Domestic Premises) Ordinance on the ground that he required possession for use as a dwelling by himself and his family. By the said notice the plaintiff required possession on the 30th day of June 1970. It is also common ground that on the 22nd of May 1970 the defendant company through their solicitors Messrs. Johnson, Stokes & Master, served a counter notice under the provisions of Sec.6(6) of the said Ordinance disputing the notice to quit. The plaintiff commenced his action in this Court on the 22nd of July 1970.
2. Before this action was filed, and before the expiry of the notice to quit, the Security of Tenure (Domestic Premises) Ordinance was repealed by Sec.25 of the Rent Increases (Domestic Premises) Control Ordinance No.56 of 1970, which came into force on the 5th of June 1970. Mr. McElney for the defendant has conceded that he cannot defend this action on the issue of greater hardship, but he submits that the notice given by the plaintiff is not effective to determine the tenancy, because the notice was given under the Security of Tenure (Domestic Premises) Ordinance which was repealed by the Rent Increases (Domestic Premises) Control Ordinance on the 5th of June this year.
3. As there will be a number of references to these two Ordinances, I will hereafter refer to the former as the "Old Domestic Premises Ordinance" and the latter as the "New Domestic Premises Ordinance".
4. Mr. McElney claims on behalf of his client the protection of the New Domestic Premises Ordinance on the ground that this particular tenancy still existed on the 5th of June 1970. In this connection he refers in particular to Sec.3(1) and in particular to the following words:-
"Save as otherwise provided in this section and in Sec.4, this Ordinance shall apply to every domestic tenancy and domestic sub-tenancy existing at the date of the commencement of this ordinance .........."
5. Mr. McElney develops his argument further by referring to Sec.6(1) of the New Domestic Premises Ordinance which provides as follows:-
"Section 6 Sub-section 1. Save as is provided in Section 7 no tenancy or sub-tenancy existing at the date of commencement of this Ordinance shall terminate during the continuance in force of this Ordinance."
And he therefore argues that the only way in which this tenancy can be brought to an end, is under the provisions of Section 7. He refers to Section 7(1) which states how a tenancy or sub-tenancy shall terminate pointing out that the provisions of this section are exclusive. He submits that if the plaintiff wishes to recover possession of these premises for use as a dwelling by himself and his family, the only way in which he can do this is to serve a notice to quit under Sec.7(2)(a) of the New Domestic Premises Ordinance. In other words he argues that the plaintiff will have to go through the same procedure again under the New Domestic Premises Ordinance, that he has already been through under the Old Domestic Premises Ordinance.
6. Mr. Benjamin Liu who has argued the case most ably on behalf of the plaintiff has conceded that the notice to quit was served under the Old Domestic Premises Ordinance and cannot therefore be a notice to quit under the New Domestic Premises...