WONG SUK YEE v. NORTH SEA FISHING VILLAGE CO. LTD. AND ANOTHER

CACV000105/1991

IN THE COURT OF APPEAL 1991, No. 105
(Civil)

BETWEEN

WONG SUK YEE Plaintiff

and

NORTH SEA FISHING VILLAGE CO. LTD. 1st Defendant
IP CHI MING 2nd Defendant

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Coram: Hon. Sir Derek Cons, Ag. C.J., Fuad, V.P., & Clough, J.A.

Date of hearing: 5 November 1991

Date of delivery of judgment: 5 November 1991

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JUDGMENT

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Sir Derek Cons, Ag. C.J.:

1. This is an appeal from the decision of Mayo, J., given on a preliminary point. The simple question for our consideration is whethera particular tenancy falls within the ambit of Part V of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7. By s. 121 subs. (1) that Part of the Ordinance applies to every tenancy, but subs. (2) provides for exceptions. Paragraph (a) of the subsectionis the exemption that is relied upon in the present instance, that is

“a tenancy for a fixed term of three years or more the agreement for which contains no provision for earlier determination of thesame other than for breach of any of the provisions of the agreement or under a provision of the tenancy allowing forfeiture or determinationfollowing the destruction, or partial destruction, of or damage to the premises.”

The second alternative was added by an amendment in 1984.

2. The material clause in the tenancy in question, which is for three years exactly, is clause 4(b). It provides that:

“If the said premises or any part thereof are rendered unfit for use or inaccessible by fire water storm wind typhoon Act of God whiteants earthquake subsidence of the ground or any other cause beyond the control of the Landlord and not attribute (sic) to any failureof the Tenant to observe and carry out the terms and conditions of this Agreement the rent or any part thereof in proportion to theextent to which the said premises shall have been so rendered unfit for use or inaccessible shall abate and cease to be payable untilthe same shall have been again rendered fit for occupation or use or accessible PROVIDED ALWAYS that the Landlord shall not be requiredto reinstate the said premises if by reason of the condition of the same or any local regulations or other circumstances beyond thecontrol of the Landlord it is not in the Landlord’s opinion practicable or reasonable to do so. If the said premises shall not berendered fit for occupation or use or accessible within two calendar months of the date of the occurrence of the event renderingit unfit or inaccessible then the Tenant shall be at liberty to terminate this Agreement by serving on the Landlord not less thanone calendar month’s notice in writing to this effect.”

The argument before the judge below was that this clause did not satisfy the conditions set out in s. 121 (2) (a), and that the tenancyis therefore within the general ambit of the Ordinance, in that it is wide enough to include situations which do not destroy or partlydestroy or damage the premises. The argument did not impress the judge below. He said:

” With the greatest respect to Mr. Chow (who is counsel for the tenant below and again today) I considerthat these arguments are rather artificial. What I think is necessary is to have regard to the wording of the said section and todetermine whether clause 4(b) is the type of situation which the amendment was designed to deal with.

In adopting this approach I have no doubt that Clause 4(b) was exactly the type of clause which the amendment was designedto embrace. The fact that it might contemplate some other obscure situations which may arise does not take the clause outside theoperation of the section.”

3. With very great respect to the judge below, in my view he did not in fact have regard to the wording of the section. The sectiondoes not refer to a type of situation. It refers to provisions which “allow forfeiture or determination following the destruction,or partial destruction, of or damage to the premises”. The case of Joseph Edward Hotung v. Jimmy’s Kitchen Limited [1982] HKLR 196, to which the judge below was referred, dealt with subs. (2)(a) as it stood in that year (and possibly led to the amendment whichwe are now considering). Fuad, J., as he then was, drew attention at p. 201 to a passage in the 12th Edition of Maxwell on the Interpretationof Statutes:

“Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. ‘The decisionin this case,’ said Lord Morris of Borth-y-Gest in a revenue case, ‘calls for a full and fair application of particular statutorylanguage to particular facts as found. The desirability or the undesirability of one conclusion as compared with another cannot furnisha guide in reaching a decision.’ Where, by the use of clear and unequivocal language capable of only one meaning, anything is enactedby the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretationof a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient. Wordsare not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why theyshould not be embraced or excluded. The duty of the court is to expound the law as it stands, and to leave the remedy (if one beresolved upon) to others.”

4. In my view the language of the amendment to subs. (2) (a) is in clear and unequivocal terms. Its effect is limited to the words thatI quoted a moment ago. In my view too it is equally clear that the clause in question, 4(b), contains provisions which are not withinthat category. I am unable to accede to the argument of Mr. Lo for the landlord that the phraseology of the subsection should beextended to include matters which affect the use of the premises rather than the premises themselves.

5. For these reasons I would allow the appeal and adjudge, as requested in the notice of appeal, that part V of the Ordinance does haveapplication to the tenancy.

Fuad, J.A.:

6. I agree that the appeal should be allowed for the reason given by my Lord.

Clough, J.:

7. I also agree.

(Sir Derek Cons) (K.T. Fuad) (P.G. Clough)

Acting Chief Justice

Vice President

Justice of Appeal

Representation:

Anderson Chow (M/s. Sit Fung Kwong & Shum) for defendants/appellants

Henry Lo (M/s. Edmond W.H. Chow & Co.) for plaintiff/respondent