Director of Public Works v Ho Po Sang

APPEAL (No. 14 of 1960) from a judgment of the Supreme Court of Hong Kong (Appellate Jurisdiction) (Blair-Kerr and Mills-Owens JJ.) (December 31, 1959) allowing an appeal by the plaintiffs in the action from a judgment of the Supreme Court of Hong Kong (Original Jurisdiction) (Gregg J.) (July 13, 1959) by which the claims of the plaintiffs were dismissed.

The following facts are taken from the judgment of the Judicial Committee: There were two groups of plaintiffs. The first plaintiffs were the tenants of property known as Nos. 230, 232, 234 and 236, Temple Street, Kowloon, in the colony of Hong Kong. The second plaintiffs were the subtenants of these premises. (Hereinafter referred to as the tenants and the subtenants.) The action was brought against two defendants. The first, who may be referred to as the director, was the Director of Public Works of the colony of Hong Kong. The second defendant, Kwong Siu Kau, may be referred to as the lessee. He had held a Crown lease in respect of the above-mentioned premises. The tenants were his tenants. His Crown lease expired on December 24, 1951. He had, however, applied on April 9, 1950, for a renewal of his lease. Negotiations took place between him and the director as to the particulars and conditions for the grant of a new Crown lease. These were agreed and were reduced to writing. A memorandum of agreement was signed by the director and by the lessee on June 7, 1955. The lessee had continued to pay rent down to that date: he had paid at the rate prescribed by the terms of his expired Crown lease.

Stating the matter very generally, the new terms provided that the lessee was to develop the site by erecting buildings on it within a certain time. The buildings were to involve a certain minimum expenditure. The lessee was then to have a new lease or leases on terms which, effectively, would give him a period of 75 years from December 24, 1951. A premium was to be payable and the rent was to be higher than before. It had been assumed for the purposes of the litigation that the erection of the buildings contemplated by the new agreement would necessitate the demolition of the then existing buildings and that such buildings were premises which were subject to the Landlord and Tenant Ordinance (chapter 255). Before the lessee could proceed to demolish the existing buildings he would need to have vacant possession. There were provisions in the Ordinance under which in certain circumstances the director could give a rebuilding certificate. If such a certificate were given to a lessee he was enabled, on taking certain steps, to call upon those in occupation to quit. The parts of the Ordinance containing those provisions were repealed as from April 9, 1957. Before that date steps had been taken with a view to obtaining a rebuilding certificate, and one of the questions raised in the appeal was whether, despite the repeal, the provisions of the Interpretation Ordinance enabled the procedure to be followed through to a conclusion so as to result in the giving of a valid rebuilding certificate after April 9, 1957.

The Landlord and Tenant Ordinance, cap. 255, was amended by Ordinance 22 of 1953 by the addition, inter alia, of sections 3 A–E. There was a further amendment by Ordinance No. 11 of 1954. Section 3A so far as material read as follows:

“3A (1) Whenever any person becomes liable to the Crown under a building covenant compliance wherewith involves the demolition of premises subject to this Ordinance of which premises such person is in law or equity the lessee of the Crown, vacant possession of such premises shall, subject to the provisions of this section and of sections 3B, 3C, 3D and 3E, be recoverable by such lessee upon the expiration of two months from the giving of a certificate by the Director of Public Works (in this Ordinance referred to as a rebuilding certificate) that in the opinion of the Director of Public Works it is reasonable that in order to comply with the building covenant aforesaid, such person should be given vacant possession of the premises.

“(2) After due consideration of an application for a rebuilding certificate, the Director of Public Works shall deliver written notice to the applicant of his intention either to give or not to give such certificate.

“(3) No rebuilding certificate shall be given until the applicant has proved to the satisfaction of the Director of Public Works that he has complied with section 3B, nor until after the time for any appeal provided for by that section has expired nor, in the event of any such appeal being made, until it has been determined.

“(4) This section shall apply notwithstanding...