Shek Kau v Poon Kam Cheung

Court:District Court (Hong Kong)
Judgement Number:DCCJ1770/1970
Judgment Date:30 Jul 1970
DCCJ001770/1970 SHEK KAU v. POON KAM CHEUNG

DCCJ001770/1970

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: Cons, D.J.

Date of Judgment: 30 July 1970

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REASONS FOR JUDGMENT

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1. This action raises a question that is short, fascinating and by no means easy of decision, a question of the correct interpretation of the Tenancy (Notice of Termination) Ordinance Cap. 335. Section 2(2) thereof provides inter alia that that 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;".

2. The tenancy to which the section must be applied in the present instance is in writing, although not professionally drafted nor divided into clauses. I must refer to three material provisions:-


translation line 9. " The period of the tenancy is stated expressly to be three years (i.e. from 5/3/1967 to 4/3/1970)."

translation line 15. " One month's notice to (the landlord) for possession of the said premises is required if (the tenant) intends to give up the tenancy before its determination."

translation line 23. " If (the landlord) asks for possession of the said premises before the determination of the tenancy for self-occupying purpose, the consent of (the tenant) is required and shall compensate (the tenant) for the loss incurred."

3. It also contains provisions for re-entry for non-payment of rent and otherwise.

4. It will be seen immediately that although the tenancy may be determined other than for breach of its provisions within three years, such determination can only take place at the instance of or with the agreement of the tenant. In other words, at the commencement of the tenancy, he is assured that it will continue for three years if he so desires.

5. In earlier cases where the tenant has sought the protection of the Landlord and Tenant Ordinance (Cap. 255) with regard to business premises, it has been held that the tenant's prospect of security, as apparent at the time the tenancy is granted, is the decisive...

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