Shek Kau v Poon Kam Cheung

Court:District Court (Hong Kong)
Judgement Number:DCCJ1770/1970
Judgment Date:18 Sep 1970
DCCJ001770A/1970 SHEK KAU v. POON KAM CHEUNG

DCCJ001770A/1970

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1770 of 1970

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BETWEEN
Shek Kau (a male) Plaintiff
AND
Poon Kam Cheung (a male) Defendant

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Coram: District Judge D. Cons in Court.

Date of Judgment: 18 September 1970

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JUDGMENT

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1. This matter first came before me in the form of short legal submissions upon the undisputed terms of a lease. Judgment was immediately given extempore and later reduced to writing at the request of the plaintiff landlord. I am now indebted to the solicitors on either side for more extensive arguments addressed to me upon the landlord's application for review.

2. The question to be decided is simply this: Is a tenancy for three years, which gives an option to the tenant, and to the tenant alone, to determine the same at any time within that period upon one month's notice to quit, a tenancy excluded from the application of the Tenancy (Notice of Termination) Ordinance (Cap. 335) by reason of section 2 subsection 2(a) thereof, which provides that the Ordinance shall not apply to:-

"a tenancy for a fixed term of three years or more the agreement for which contains no provision for earlier determination of the same other than for breach of any of the provisions of the agreement",

or to put it in other words, does the qualification contained in that subsection relate only to options for the benefit of the landlord. To arrive at a solution it may perhaps be helpful to trace the history of similar provisions in other tenancy legislation. To avoid needless repetition and confusion from the various lengths of the terms involved I will speak merely of "long leases".

3. Rent acts were first introduced into England at the time of the first world war. Section 8(3) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 prohibited the payment of premiums for controlled dwellings, but the restriction did "not apply to the grant, renewal or continuance [of long leases]". The 1923 Act decontrolled otherwise rent restricted dwellings which were the subject of long leases, although control was re-imposed again some fifteen years later. During the respite, however, the point was taken that a long lease was not properly so called if it gave to the tenant an option to determine within the prescribed length: Quinlan v. Avis(1). But the Court rejected the argument, basing its decision upon the intention of Parliament to give the tenant security for at least that length of time and being of the opinion that such security was not in anyway lessened by the tenant's option to determine sooner.

4. After the last war similar legislation was introduced into this Colony by the British Military Administration, whose proclamations were later embodied, with amendments, into the Landlord and Tenant Ordinance, 1947, (Cap. 255). Excluded from the operation of that Ordinance were, "business premises which may .......... be let for a [long lease]". That exclusion has remained to the present day, and has been interpreted upon the same principle as that adopted by the English Divisional Court. In Tse Chuen Wing & others v. Tak Wing Firm(2) the District Court held...

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