1963-HKRS28-8-30_Part01 — Page 20

(68 of 1955).

(Cap. 116),

(e) a tenancy or sub-tenancy of land unbuilt on, but such a tenancy shall cease to be excluded so soon as there is built on the land in accordance with the provisions of the agreement for the tenancy any building in respect of which an occupation permit is issued under the Buildings Ordinance, 1955, or under any Ordinance replaced thereby:

() a tenancy or sub-tenancy of agricultural land, which expression shall have the meaning assigned to it by the Rating Ordinance, including such a tenancy or sub-tenancy where there exists on the land any dwelling house occupied by persons working the land;

(e) a tenancy or sub-tenancy where the landlord is the employer and the tenant is the employee in possession of the premises in accordance with the terms and conditions of his employment where such terms and conditions require him to vacate the accommodation upon ceasing to be so employed;

(A) a tenancy held from the Crown, the Hong Kong Housing Authority, the Hong Kong Housing Society, or the Hong Kong Model Housing Society, or a sub-lenancy created out of such

a tenancy.

(6) In addition to the tenancies and sub-tenancies excluded by virtue of subsection (5), this Ordinance shall not apply to a tenancy or sub-tenancy devised for a particular purpose and in the circumstances effective for fulfilling that purpose only if it is for a limited term ter- minable without the period of notice required under section 3 of the

(14 of 1963). Tenancy (Notice of Termination) Ordinance, 1962. A dispute as to whether a tenancy or sub-tenancy is excluded by reason of this sub- section shall not be justiciable in the courts but shall be determined by the Secretary for Chinese Affairs in a summary manner on application in writing being made to him, and his decision shall be final and bind- ing. The Secretary for Chinese Affairs may authorize by name or office such officers of his department as he may think fit to exercise on his behalf his functions under this subsection.

(7) The Governor in Council may in his absolute discretion by order exclude from the further application of this Ordinance any class of tenancy or sub-tenancy, any class of premises or any particular tenancy or sub-tenancy or premises.

"domnestic lecancy" and

4. (1) For the purposes of this Ordinance "domestic tenancy" Meaning of and "domestic sub-tenancy" mean a tenancy or sub-tenancy of premises let as a dwelling. In determining whether premises are let as a dwelling determina the following rules shall apply-

lico of disputes relating

(a) any agreement in writing between a landlord or tenant, of thereto.

between a tenant and sub-tenant, that the premises are let otherwise than as a dwelling shall be conclusive evidence that the tenancy or sub-tenancy in respect thereof is not domestic, notwithstanding that the tenant or sub-tenant, as the case may be, may be dwelling in the premises so let;

(b) where there exists insufficient evidence as to the purposes for which the premises were let, the nature of the tenancy shall be determined by the user of the premises by the tenant, and the nature of the sub-tenancy shall, subject to paragraph (ɗ), be determined by the user of the premises by the sub-tenant:

(c) notwithstanding any evidence that premises were let as a dwell- ing the tenancy or sub-tenancy in respect thereof shall be deemed not to be domestic as from the date on which, in the case of a tenancy, such premises were used otherwise than as a dwelling by the tenant and, in the case of a sub-tenancy, such premises are used otherwise than as a dwelling by the sub-tenant;

(d) where at the commencement of a sub-tenancy the tenancy out of which it was created was non-domestic, the sub-tenancy shall, subject to paragraph (a), be deemed to be of a like nature until the sub-tenant satisfies the Commissioner or the District Court to the contrary in an application made under subsec- tion (2) or (4) as the case may be.

(2) Where a dispute arises as to whether a tenancy or sub-tenancy is domestic, the landlord, tenant, principal tenant or sub-tenant con- cerned may apply to the Commissioner for his certificate stating whether in his opinion, (having regard to subsections (1) and (5)) the tenancy or sub-tenancy is on the date thereof domestic.

(3) The Commissioner may decline to give a certificate where he is not satisfied on the evidence available as to the nature of the tenancy or sub-tenancy.

(4) The landlord, tenant, principal tenant or sub-tenant concerned may apply to the District Court for a review of the certificate of the Commissioner or for a determination where the Commissioner bas de- clined to issue his certificate.