Q1. What is the role of the Commissioner of the Rates and Valuation Department (Commissioner) in executing the regulated tenancy?

Q1. What is the role of the Commissioner of the Rates and Valuation Department (Commissioner) in executing the regulated tenancy?

Duties

To enforce Part IVA of Landlord and Tenant (Consolidation) Ordinance (Cap. 7), the Commissioner has three main duties:

1. endorse the Notice of Tenancy (Form AR2) submitted by the landlord;
2. determine the primary user of the premises upon receiving an application;
3. ascertain whether an offence under Part IVA of the Ordinance is being, or has been, committed in relation to the premises.

Power

The last two duties (duties 2 and 3) may require the Commissioner to gather evidence through the service of documents or forms, and entry into the premises. For these purposes, the Commissioner is given the power to:

1. serve on any person a requisition in the specified form in relation to any premises and reasonably require them to provide any particulars in writing within specified period (Section 120AAZV);
2. require the landlord or tenant of any premises to provide any reference document within specified period, including:
   • a document related to the tenancy of the premises;
   • a document related to the user of the premises;
   • a tenancy in writing;
   • a receipt for rent;
   • a rent-book;
   • accounts; and,
   • a bill for any of the specified utilities and services;

(Section 120AAZW):

3. with the occupier’s consent, enter any premises at any reasonable time (Section 120AAZX);
4. without the occupier’s consent, apply to a magistrate for a warrant to enter the premises for the purposes mentioned and, with a warrant issued, enter (by the use of reasonable force if necessary) the premises (Section 120AAZY);
5. after entry into the premises with a warrant issued, for the purpose of determining the primary user of the premises:
   • inspect the premises;
   • take any measurements and other particulars of the premises that the Commissioner considers appropriate;
   • take any photograph and video recording inside the premises;
   • require any person present on the premises to provide any assistance or information necessary for the purpose;

(Section 120AAZZ(1))

6. after entry into the premises with a warrant issued, for the purpose of ascertaining whether an offence under Part IVA of the Ordinance is being, or has been, committed in relation to the premises:

• inspect and search the premises;
• examine any document found on the premises;
• take any measurements and other particulars of the premises that the Commissioner considers appropriate;
• take any photograph and video recording inside the premises;
• to seize and detain anything that is, or that appears to be or to contain, or that is likely to be or to contain, evidence of the commission of an offence in relation to the Ordinance and the premises, and to take the steps that appear to be necessary for preserving the thing so seized or preventing interference with it;
• to do anything necessary for the purpose;
• to require any person present on the premises to provide any assistance or information necessary for the purpose.

(Section 120AAZZ(2))

Related offences

If a person, without reasonable excuse, refuses or neglects to comply with Commissioner’s requisition in specified form (power 1) or requests to provide reference documents (power 2), the person commits an offence and is liable on a conviction to a fine at level 3 (HK$10,000) and to imprisonment for 3 months (see Sections 120AAZV and 120AAZW).

Moreover, if a person in purported compliance with Commissioner’s requisition or request knows that or is reckless as to whether or not, the particulars, reference documents or information, or the thing said or stated, is false or misleading in a material particular, the person commits an offence and is liable on a conviction to a fine at level 3 (HK$10,000) and to imprisonment for 3 months. This offence is also applicable to particulars provided in the Notice of Tenancy (Form AR2) submitted by the landlord (see Section 120AAZZE).

Giving evidence in proceedings

Although the Commissioner has the duty and power to collect evidence related to regulated tenancies, the Ordinance stipulates that the Commissioner or an RVD officer may only be called to give evidence in any proceedings before the court for determining whether or not a tenancy is a domestic tenancy (duty 2). In other proceedings including those between a landlord and a tenant of a subdivided unit, no subpoena may be issued against the Commissioner or an RVD officer to give evidence before the court (see Section 120AAZZC).