CHEUNG YING v. CHUNG YIN WAN

DCCJ002180/1974

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 2180 OF 1974

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BETWEEN
CHEUNG YING Plaintiff
and
CHUNG YIN WAN (female) Defendant

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Coram: Judge Jones in Court.

Date of Judgment: 2nd August, 1974.

Mr. Cheng of Philip K.H. Wong & Co. for Plaintiff.

Mr. Tang of Patrick Poon & Co. for Defendant.

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RULING

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1. A preliminary issue was raised in this action as to whether it is now necessary to serve a notice to quit where possession of premisesis claimed under section 53(2) of the Landlord and Tenant (Consolidation) Ordinance Cap. 7. Prior to the introduction of the Landlord and Tenant (Consolidation)(Amendment)(No.2) Ordinance on the 15th December 1973,section 54 governed the termination of tenancies under Part II of the ordinance and by subsection (1)(c) expressly provided that’A tenancy or sub-tenancy shall terminate where – a notice to quit given under subsect (2) or (4) or an order made under subsection(7) takes effect; The provision relating to the termination of tenancies is now contained in section 53, but subsection (1)(c) ofsection 54 of the previous ordinance has been omitted.

2. Accordingly it has been contended for the Plaintiff that in view of its omission it is no longer necessary to serve a notice to quit.If this argument is correct it is open to a landlord to seek an order of the court for possession at any time during the contractualperiod of the tenancy whether it be monthly, quarterly, yearly etc. As a result the first notice that a tenant will receive thathis landlord wishes to obtain possession will be when he is served with a writ of summons. However, it is pertinent to observe thatunder the common law a notice to quit is necessary in the case of yearly and other periodic tenancies. The obligation to give a noticeto quit and the length of the notice in each case will be determined by the terms of the tenancy or local custom or the common lawor statutory enactment.

3. I do not consider that by omitting the provision with regard to notice to quit that it was the intention of the legislature to deprivea tenant of his entitlement to notice.

4. In the absence of such a provision in the present ordinance the Plaintiff can rely upon common law principles which clearly givehim a right to a notice to quit.

5. As a result I hold that under these circumstances before a writ of summons can be issued it is necessary to serve a notice to quitto determine the tenant’s contractual rights.

6. Dated this the 2nd day of August, 1974.

(B.L. Jones)
Temporary Additional District Judge

Representation:

Mr. Cheng of Philip K.H. Wong & Co. for Plaintiff.

Mr. Tang of Patrick Poon & Co. for Defendant.