Virginia Moh Pedron v Chan Suk Chu

CourtDistrict Court (Hong Kong)
Judgement NumberDCCJ1744/1980
Subject MatterCivil Action





ACTION NO. 1744 OF 1980


CHAN SUK CHU Defendant


Coram: H.H. Judge Caird in Court

Date of Judgment: 8 August 1980




1. It is admitted that the plaintiff is the registered owner of Flat A10 on the 18th floor of Pearl City Court, Hong Kong erected on Section A of Marine Lot No. 231 and Section B of Marine Lot No. 231 and she seeks possession of these premises from the defendant pursuant to Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7 of the Laws of Hong Kong.

2. It is also admitted that these premises form part of an entirely new building within the meaning of Section 3(1)(a) of the said Landlord & Tenant (Consolidation) Ordinance and that these premises were let to the defendant for domestic purposes at the monthly rental of $1000 and that no key or construction money or other premium has been paid by the defendant to the plaintiff.

3. The plaintiff bases her claim for possession upon the ground that she requires the said premises for occupation as a residence for herself, her youngest daughter aged 20 and her son aged 17. There was reference in the pleadings to "daughters" but the evidence, in my view, made it quite clear that there is only one daughter who would accompany the plaintiff if she were to obtain possession.

4. The principal witness called on behalf of the plaintiff was her 20 year-old daughter, Clare Pedron, and much of her evidence was hearsay. This evidence was adduced without objection from Mr. Glass on behalf of the defendant as it was made clear by Mr. Sit for the plaintiff that he felt that he could not call the plaintiff as the main witness to carry the crux of this case because of her allegedly poor state of health. I shall have more to say about her state of health later. Accordingly the case proceeded with the evidence of Clare followed up by the evidence of her mother, the plaintiff, who confirmed what Clare had said. I am indebted to both Mr. Sit and Mr. Glass for proceeding in a practical and humane way in adducing evidence on behalf of the pleaintiff.

5. The Section with which I am concerned was substantially amended on the 15th day of February this year by Section 5 of the Landlord & Tenant (Consolidation)(Amendment) Ordinance, Ordinance No. 6/80. This was enacted on the 15th day of February 1980 but was made retrospective to the 18th day of December 1979 and reads as follows:

"(2) A court shall not make an order for possession of premises in respect of which there is a tenancy .... to which this Part applies unless it is satisfied that -
(b) the premises are reasonably required by the landlord ... for occuatpion as a residence for himself, his father, his mother or any son or daughter of his over the age of 18.

Provided that the court shall not make or order by reason only that the circumstances of the case fall within this paragraph if -

(i) in the case of a tenancy, the tenant satisfies the court that in all the circumstances of the case it would manifestly not be just and equitable to do so;
(ii) in the case of a sub-tenancy, the court is satisfied having regard to all the circumstances of the case, including the question whether other accommodation is available for the principal tenant or the sub-tenant, greater hardship would be caused by granting the order than by refusing it."

6. In the instant case I am concerned with Section 53(2)(b)(i) which in its effect abolishes the consideration contained in the predecessor, of "greater hardship", as between landlord and tenant and substitutes the criteria that the Court should not make an order if ".... that in all the circumstances of the case it would manifestly not be just and equitable to do so". However, greater hardship remains as the expressed statutory criteria as between a principal tenant and a sub-tenant.

7. I am indebted to my brothers de Basto and Cruden for their careful reasoned judgments in the respective cases Luxor v Hillard(1) and LEE Ho-yuen v. LI Chi and FAN Lai-kee(2).

8. I agree with de Basto, D.J. that the legislature by introducing the word "reasonably" in the amended section has introduced an element of objectivity and that if a landlord establishes on the balance of probabilities that he reasonably requires possession for occupation as a residence for one of the persons specified in the section then he is, as a matter of law, entitled to an order for possession unless and until the defendant/tenant satisfies the Court under Section 53(2)(b)(i) that such an order for possession would, in all the circumstances of the case, "manifestly not be just and equitable". This is dealt with under the heading "2nd step" by Cruden, D.J. in Action 2186 of 1980.

9. As I stated earlier the landlady has two children who would accompany her, so she claims, if she were to obtain an order for possession of the premises in dispute. However, the younger child, Patrick, is aged 17 and accordingly does not come within the ambit of the relatives as defined in Section 53(2)(b). The daughter, Clare, of course at age 20 falls within the classes of relatives enumerated. However, there can be no doubt but that Patrick's position as a dependant son of the plaintiff brings him underneath her umbrella, and this is a factor which in my view must be taken into consideration in determining whether the plaintiff "reasonably" requires the premises in question. Although it does not fall to me to determine the position, I take the view that the relatives listed in Subsection 2(b) are classes of relatives for whom the landlord may reasonably seek possession of domestic premises for their own separate occupation, although he himself may be unable to live on the premises. In this determination I agree with de Basto, D.J. when he follows Smith v. Penny(3).

" Just and Equitable"

10. The legislature in its wisdom has chosen the test of "just and equitable" to replace the former test of greater hardship and it falls to me to determine the meaning of these words.

11. It is purely a matter of conjecture as to why the legislature, with the assistance of the draftsman, has chosen these particular words. They are used or rather have been used in other jurisdictions and in many types of situation just as words analogies have been used, for example, "just" or the term "Just and beneficial" "just and proper" "just and convenient" "just and expedient" "just and reasonable".

12. As pointed out by Cruden, D.J. to date there are no Hong Kong decisions binding upon the Judges of the District Court as to the meaning of these words in the context of Section 53, as amended. In these circumstances are most to consider the findings of Hillbury J. in Daniel v. Rickett Cockerall & Co. Ltd & Raymond (4) where he said:

"I am told that nobody, up to the present has decided what is the proper interpretation to put upon the words "just and equitable" appearing in that subsection. We are not unaccustomed to finding the word 'just' in a statute .... I must therefore do what I can to construe those words 'just and equitable' having regard to the context in which I find them, and I cannot believe that they are intended to be used here strictly as terms of art. When I see those words are coupled with "having regard to the extent of that person's responsibility", I think the meaning of the sub-section is that exercising a judicial discretion in the matter I am intended to do that which I think is right between the parties, having regard to what I think on the true facts of the case, is the fair division of responsibility between them."

13. I am of the opinion that the legislature intended to create a judicial discretion empowering a Court to refuse to grant an order for...

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