Mvo Management Ltd v. The Incorporated Owners of Ascot Tower (Village Road)

Case No.DCCJ 1311/2015

Court

District Court

Date21 Jun 2017

Judge—

Case Document

100%Judiciary

DCCJ 1311/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1311 OF 2015

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BETWEEN
	MVO MANAGEMENT LIMITED	Plaintiff
and
	THE INCORPORATED OWNERS OF ASCOT TOWER (VILLAGE ROAD)	Defendant

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Before: His Honour Judge MK Liu in Court

Dates of Hearing: 5-8, 12 June 2017

Date of Judgment: 21 June 2017

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JUDGMENT

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1.This case concerns disputes between the former manager (“MVO”) of a building known as Ascot Tower in Happy Valley (“the Building”) and the incorporated owners of the Building (“the IO”). MVO was appointed as the manager of the Building by the DMC of the Building with effect from 1 August 1992. The IO was incorporated on 30 September 2011. MVO’s appointment was terminated by the IO on 31 March 2015.

2.MVO sues the IO for reimbursements of some fees which, according to MVO’s case, have been paid by MVO on behalf of the IO to 4 contractors (“the 4 Companies”). The IO denies the veracity of the MVO’s case and refuses to pay the said fees to MVO.

MVO’S CASE

3.MVO claims that the 4 Companies were appointed during different periods of time to provide “General Maintenance” services to the Building on behalf of MVO.

(a) Asian Delight Engineering Limited (“AD”) 1/8/2001 - 31/7/2006 For maintenance and inspection of pumping and drainage system, water and electricity supply of Ascot Tower and water tank cleaning

(b) Asian Delight Civil Work Limited renamed as Asian Delight Civil & Building Works Limited (“ADCBW”) on 14 August 2008
1/8/2006 - 31/8/2013 For maintenance and inspection of pumping and drainage system water and electricity supply of Ascot Tower and water tank cleaning

(c) Coper Technology Limited (“Coper”) 1/8/2001 - 31/7/2005 For maintenance and inspection of fire prevention equipment and fire alarm system

(d) Happy Race Limited (“HR”) 1/8/2005 - 31/8/2013 For maintenance and inspection of fire prevention equipment and fire alarm system

4.For the water and electricity maintenance service, AD and ADCBW charged HK$3,300 per month. For the fire service maintenance service, Coper and HR charged HK$950 per month.

5.According to MVO, each of the 4 Companies was retained by MVO by a verbal agreement at the beginning.

6.MVO claims that on or about 18 May 2013, the IO’s treasurer Mr Heng Victor Ja Wei (“Heng”) requested MVO to record the verbal agreements with HR, AD and ADCBW in writing. Upon that request, MVO made the following 3 written contracts and provided the same to Heng:-

(a) a written contract between MVO and HR dated 1 August 2001 (“the HR’s Contract”), the contents of which are as follows:-

“本合約是由前公司Coper Technology Limited 在2001年8月1日起與［MVO］提供同類型服務，現從2005年8月1日起轉由［HR］負責。

［MVO］現委託［HR］為跑馬地山村道45-47號雅士閣提供消防系統維修及保養服務

服務內容

本公司將派工程技術員在大廈公共地方及設施進行下列消防系統年檢之測試：

• 消防自動花灑系統

• 消防栓／喉轆系統

• 手動及自動火警警報系統

• 緊急照明系統及出口指示牌

• 手提滅火設備

當完成上述消防系統之檢查及測試後，本公司將呈遞有關之報告，並詳列所需維修之項目及報價，一切維修完成後，將簽發消防保養証書（FS521），並呈交消防處。

每兩個月檢本各層防煙門及為防煙門唧油

若有額外服務，在辦工時間內的緊急檢查服務（兩小時內到達）另收（$700／每次）

(辦工時間：星期一至五由上午九時至下午六時正，星期六由上午九時至下午一時正）

*註（一切緊急維修所需之物料費用另計）

條款

合約期為兩年，合約屆滿，如無另行安排，合約會自動延期一年，若單方面終止合約，需於60天前作出通知

週年年檢及保養服務費：每月港幣$950” (Underline supplied)

(b) a written contract between MVO and AD dated 1 August 2001 (the AD Contract”), the contents of which are as follows:-

“［MVO］現委託［AD］提供大廈公共水電保養予大廈/屋苑：雅仕閣地址：跑馬地山村道45-47號

內容

(一) 更換大廈用公共光管及慳電膽，光管由［AD］提供

(二) 每月定期檢查各水泵之運行情況，每月定期唧油及調用各水泵

(三) 定期檢查公共水電供應，水喉管，水泵及排水系統等

(四) 定期為大廈清洗咸水缸兩個（一年兩次），淡水缸兩個（一年四次）、消防水缸（一年一次）

(五) 定期通大廈尾井

另可提供服務（費用按情況另計）

1. 細小維俢工程如水喉爆裂或渠務等由水電技工負責（實報實銷）

2. 承判人收到大厦通訊發生緊急事故時，必須盡早到達現場

緊急維修之定義，指大廈發生公眾喉管爆裂，停電，停食水等突發事故（其他非緊急性事故，亦須儘快處理）

3. 承判人需提供24小時之水電緊急服務，如大電停電停水，責任上必須第一時閴派員到大廈處理

4. ［MVO］有權對［AD］的工作進行監察，如發覺［AD］所提供的服務未如理想，［AD］必須接受［MVO］的改善建議，或［AD］收到通知後未能指定時間內到場處理有關事故，［MVO］可另派工程人員處理有關事故，若屢勸不改，［MVO］有權立即終止合約而毋須作出任何補價

合約條款

合約期兩年由2001年8月1日至2003年7月31日，合約屆滿，除另行通知外，則當自動續約論，若單方面終止合約，需於90天前作出通知

費用

每月港幣$3,300元

保養合約期

由2001年8月1日至2003年7月31日” (Underline supplied)

(c) a written contract between MVO and ADCBW dated 1 August 2006 (“the ADCBW Contract”), the contents of which are same as the contents of the AD Contract, save and except that the term of ADCBW Contract is from 1 August 2006 to 31 July 2008, and would be automatically renewed unless terminated by not less than 90-day notice.

7.MVO’s case is that the 3 written contracts are “back-dated contracts” made upon Heng’s request, and at all times Heng knows that the 3 written contracts are “back-dated contracts”.

8.MVO says that the IO’s treasurer had inspected all the monthly income and expenditure accounts produced by MVO and was satisfied that the accounts were all in order. The IO has confirmed the said accounts in the owners’ meetings held on 3 April 2012, 11 May 2012 and 20 March 2013 respectively.

9.MVO has made payments to the 4 Companies in respect of the services provided by these companies to the Building. The IO is obliged to reimburse MVO. By the end of 2012, the total amount of the reimbursements to be paid by the IO to MVO was HK$259,293.18. This amount has been confirmed by the IO in the aforesaid owners’ meetings.

10.By the end of 2014, the total amount of reimbursements payable by the IO to MVO is HK$348,056.06. MVO claims against the IO for this sum plus interests.

11.MVO has called 3 factual witnesses to give evidence in support of its case:-

(a) Mr Tang Hoi Tung (“Tang”), MVO’s director since 1995;

(b) Mr Fok Kam Fung (“Fok”), joined MVO as a property management assistant on 6 July 2007; and

(c) Ms Shum Yi Man (“Shum”), joined MVO as an accounting officer on 5 September 2005.

IO’S CASE

12.The IO challenges the veracity of MVO’s case. The IO’s case is that:-

(a) there has never been any contract between MVO on the one hand and the 4 Companies on the other hand;

(b) there has never been any payment from MVO to the 4 Companies; and

(c) the 4 Companies have not provided any service to the Building.

13.The IO challenges the authenticity of some documents produced by MVO. Copies of those documents are in trial bundles C1 and C2 (“the C Bundles”). The originals of those documents have been produced by MVO’s director, Tang, while he was in the witness box. Those originals are now in a bundle marked as “Exhibit P1”.

14.The IO has arranged 3 factual witnesses to give evidence in support of its cases:-

(1) Mr To Chi Ying (“To”), an audit staff member of Wilfred Wan & Co Certified Public Accountants (“the Audit Firm”), who conducted inspection of MVO’s accounting records on 13 March 2015;

(2) Mr Wong Sai Hung (“Wong”), Chairman of the IO between 30 September 2011 and 25 October 2013; and

(3) Heng, treasurer of the IO between 30 September 2011 and 25 October 2013.

THE AGREED ISSUES

15.Pursuant to the Rules of the District Court (“RDC”) Order 18 rule 22, the parties have agreed that the issues to be determined in these proceedings are as follows:-

(1) Whether there were verbal contracts between MVO and the 4 Companies for the provision of the general maintenance services to the Ascot Tower, namely:-

(i) AD 1/8/2001 - 31/7/2006 For maintenance and inspection of pumping and drainage system, electricity supply in common area of the Building, water tank cleaning and carpenter works

(ii) ADCBW 1/8/2006 - 31/8/2013 For maintenance and inspection of pumping and drainage system, electricity supply in common area of the Building, water tank cleaning and carpenter works

(iii) Coper 1/8/2001 - 31/7/2005 For maintenance and inspection of fire prevention equipment and fire alarm system

(iv) HR 1/8/2005 - 31/8/2013 For maintenance and inspection of fire prevention equipment and fire alarm system

(2) Whether the aforesaid services at paragraph 1 were provided to the Building by the 4 Companies during the respective periods mentioned above.

(3) Whether MVO has incurred expenses as stated in the Monthly Income and Expenditure Account for the provision of the general maintenance services by the 4 Companies to the Building:-

(i) AD 1/8/2001 - 31/7/2006 HK$3,300 per month

(ii) ADCBW 1/8/2006 - 31/8/2013 HK$3,300 per month

(iii) Coper 1/8/2001 - 31/7/2005 HK$950 per month

(iv) HR 1/8/2005 - 31/8/2013 HK$950 per month

(4)   Whether there were true transactions for the following contracts:-

(i)   “大廈水電各項保養合約”signed between MVO and AD dated 1 August 2001;

(ii)   “大廈水電各項保養合約”signed between MVO and ADCBW dated 1 August 2006;

(iii)   “消防系統維修及保養服務合約”signed between MVO and HR dated 1 August 2001;

(5)   Whether IO affirmed the outstanding sum of FK$259,293.18 owed to MVO as of February 2012 in a number of the owners’ meetings of IO on or after 3 April 2012.

(6)   Whether the management account showing a total outstanding amount of HK$348,056.06 as due by IO to MVO is a true and accurate account.

(7) Whether MVO is entitled to be reimbursed with the sum of HK$348,056.06 for the work done and expenses incurred in the provision of the general maintenance by the 4 Companies to the Building.

(8) Whether MVO is entitled to the equivalent sum of HK$348,056.06 on account of the fact that IO was unjustly enriched at the expense of MVO for the provision of the general maintenance by the 4 Companies to the Building.

16.It is pertinent to note that the basis of MVO’s claim is that the 4 Companies have provided services to the Building and MVO has made payments to these companies in respect of the said services. On this basis, MVO claims against the IO for reimbursements. In these proceedings, MVO has not made any claim against the IO in respect of any service which is unrelated to the 4 Companies.

THE EVIDENCE

The principles

17.This case hinges on the credibility of the witnesses. As to assessing credibility of witnesses, DHCJ Eugene Fung SC has provided useful guidelines in Hui Cheung Fai v Daiwa Development Ltd (unreported, HCA 1734/2009, 8 April 2014), and I bear these guidelines in mind. In that case, the learned judge said:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce) ...

78. In deciding whether to accept a witness’s account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5th May 2011) §39 (Chu J).

79. In determining a witness’s credibility, I have also attached importance to the consistency of the witness’s evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36, 37 (Bokhary PJ).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:-

“Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.”

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination...” (Emphasis added)

18.I would also bear in mind Sir John Dyson’s dictum in MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65 on the effect of lies by a witness on a central issue. In that case, Sir John Dyson said:-

“31. ...... where a claimant tells lies on a central issue, his or her case will not be saved by general evidence unless that evidence is extremely strong. It is only evidence of that kind which will be sufficient to counteract the negative pull of the lie. But much depends on the bearing that the lie has on the case. ......

32. Where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence. ......

33. ...... where the appellant tells lies on a central issue in the case, the [tribunal] may conclude that they are of great significance. ...... It will be a matter for the [tribunal] to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellant’s lies.”

19.In assessing the evidence, I would begin by looking at the documents in this case.

FS251 certificates

20.MVO has produced some certificates which are usually called as FS251 certificates (“the FS251 Certificates”). All the FS251 Certificates produced concern the Building and cover the period from September 2008 to March 2013. Most of the certificates are issued by Yearman Industrial Limited (“YIL”), one is issued by China Fire Company (“CF”) and one is issued by Renoright Construction Company Limited (“RCCL”).

21.In order to understand the purpose of a FS251 certificate, one has to look at the Fire Service (Installation and Equipment) Regulations (“FS(IE)R”), which contain the following provisions:-

“8. Duty of owners of fire service installations or equipment

The owner of any fire service installation or equipment which is installed in any premises shall—

(a) keep such fire service installation or equipment in efficient working order at all times; and

(b) have such fire service installation or equipment inspected by a registered contractor at least once in every 12 months.

9. Issue of a certificates by registered contractors

(1) Whenever a registered contractor installs, maintains, repairs or inspects any fire service installation or equipment in any premises, he shall within 14 days after completion of the work issue to the person on whose instructions the work was undertaken a certificate and forward a copy thereof to the Director.

(2) A certificate issued under paragraph (1) shall state—

(a) the address of the premises in which the work was carried out;

(b) a description of the fire service installation or equipment concerned;

(ba) the date of the completion of the work;

(c) the nature of the work carried out; and

(d) whether or not the fire service installation or equipment is in efficient working order.

(2A) A certificate issued under paragraph (1) shall be signed by the person authorized to do so under regulation 3A of the Fire Service (Installation Contractors) Regulations (Cap. 95 sub. leg. A) and any person who signs a certificate which is false or misleading in any material particular commits an offence and is liable on conviction to a fine at level 5.”

22.Fire Service (Installation Contractors) Regulations, regulation 3A stipulates that:-

“Persons authorized to sign certificates issued under the Fire Service (Installations and Equipment) Regulations

(1) Persons authorized to sign a certificate issued under regulation 9 of the Fire Service (Installations and Equipment) Regulations (Cap. 95 sub. leg. B) shall be—

(a) in the case of a company which is a registered contractor such director, employee or other officer of such company as the company may appoint;

(b) in the case of a firm which is a registered contractor—

(i) one of the partners thereof; or

(ii) an employee or partner authorized by the firm to sign certificates when the partner responsible for signing under sub-sub-paragraph (i) is for any reason unable to sign; and

(c) in any other case, the registered contractor.”

23.Each of the FS251 Certificates is divided into 3 parts:-

(a) Part 1 concerns the annual maintenance required under FS(IE)R, regulation 8(2);

(b) Part 2 concerns the installation, modification, repairing and inspection works done by the registered contractor;

(c) Part 3 concerns the defects discovered by the registered contractor.

Each certificate is signed by an individual, who a director or a partner of the registered contractor, or an employee or officer authorized by the registered contractor.

24.It is important to note that Coper’s name and HR’s name have never appeared in any of the FS251 Certificates. The FS251 Certificates are evidence showing that MVO has arranged some companies to provide some fire services maintenances to the Building, and YIL, CF, and RCCL are registered contractors for the purposes of the FS(IE)R. At the same time the FS 251 Certificates are also evidence showing that Coper and HR are not the providers of these services.

Originals in Exhibit P1

25.The IO challenges the authenticity of the originals in Exhibit P1. The point made by Mr Ma, counsel for the IO, is that in respect of all the documents in Exhibit P1, the colour of the paper is snow white and there is no crease mark on any paper. Mr Ma’s point is that these documents, if authentic, would be documents which have been kept for many years. Given the passage of time and the documents would have been handled by many persons over the years, it would not be possible that these documents remain to be snow white and there is no crease mark on any of these documents. Mr Ma is suggesting that these documents are all fabricated by MVO, and that MVO made up all these documents in one go for the purpose of these proceedings.

26.The IO’s witness, Fok, offered an explanation under cross-examination. Fok said that the documents were kept in different plastic bags and there was air-conditioning in MVO’s office. So even after many years, the physical conditions of the documents would still be very good. For reasons set out in a later part of this judgment, I do not find Fok as a credible and reliable witness. However, rejecting Fok’s evidence does not mean that I accept Mr Ma’s suggestion.

27.The allegation put forward by Mr Ma is a very serious allegation, and the IO bears the burden to adduce cogent evidence to prove this allegation. The storage environment would no doubt affect the physical condition of a document. In order to make good its challenge, the IO should make enquiries to discover the storage environment of the documents, and to adduce expert evidence showing whether there would be any change in the physical conditions of the documents (for example, the colour of the papers) in this storage environment given the passage of time. All these have not been done.

28.Based upon the evidence before me, I do not regard that the IO has adduced sufficient evidence to prove its challenge.

Fire services maintenance checklists (in C Bundles)

29.MVO has produced various Fire Services Maintenance Checklists spanning the period from January 2007 to august 2013. There is a checklist for each month. According to MVO, each month HR would send its technician to the Building to do the fire services checking. The findings would be recorded by the technician or by MVO’s staff on the checklist.

30.Each checklist bears MVO’s name and MVO’s chop. HR’s name has never appeared on any checklist.

Water and electricity maintenance checklists (in C Bundles)

31.MVO has also produced Water and Electricity Maintenance Checklists covering the period from January 2007 to August 2013. Again there is a checklist for every month. According to MVO, each month AD or ADCBW would send its technician to the Building to do the checking. The findings would be recorded by the technician or by MVO’s staff on the checklist.

32.Each checklist bears MVO’s name and MVO’s chop. AD’s name or ADCBW’s name has never appeared on any checklist.

Slip to HR (in C Bundles)

33.MVO has produced one slip. On the face of it, that slip is a notice from MVO to HR, asking HR to come to the Building to do maintenance work on 25 January 2010 at 9:30 am. There is no documentary evidence showing whether this slip has in fact been sent to HR, and in what way the slip was passed to HR.

Slip to ADCBW (in C Bundle)

34.MVO has produced another slip. On the face of it, this slip is a notice from MVO to ADCBW, asking ADCBW to come to the Building to do maintenance work on 6 January 2009 at 11:30 am. There is no documentary evidence showing whether this slip has in fact been sent to ADCBW, and in what way the slip was passed to ADCBW.

Notices concerning the scope of service

35.MVO says that it has published 2 notices to let the owners of the Building know the scope of the general maintenance work. One notice was published before 2013 and the other was published in 2013. The contents of the 2 notices are the same, which are as follows:-

“Ascot Tower General Maintenance Work done by Asian Delight Engineering Ltd and its associate.

Monthly inspection the performance on Public Electrical supply source inspection include:

1. Source of Electricity supply on Plant Room

2. Source of Electricity supply on lighting of staircases

3. Source of Electricity supply on lighting car park and garden area

4. Source of Electricity supply on lighting, air condition of lobby and each corridor

5. Source of Electricity supply on swimming pool fighting and roof area

6. Source of Electricity supply on plumbing system and water tank

7. Source of Electricity supply before the electrical meters of all flats.

As Per fire service department regulation to perform annual inspection of the fire prevention system public area.

Including the fire service alarm system, fire prevention hydrant, water tank and linking tape system.

Validation check of the fire prevention equipment’s’ its capacity and validity on fire prevention, such as sand, fire extinguishers. Confirmation of the satisfactory by fire and report to the Hong Kong fire service department.

Pumping and drainage checking and water tank cleaning

Water tank cleaning by competent technician (with confined space certificate) For marine water tank twice a year

Pumping system check on the capacity and validity of plumbing and shift/cycling application of pumps and spare pumps(Electrician prefer)

Concrete and carpenter works

All prevention doors and doors for validity and perform lubricating, hinge and framework rectification.

There is no specified number of units for maintenance like the escalator /lift maintenance.”

The invoices and receipts (in C Bundles)

36.MVO has produced the following invoices and receipts:-

(a) 2 receipts issued by Coper for fire services maintenance, one for the period from December 2004 to February 2005 with the amount of HK$2,850 (HK$950 x 3), and the other for March 2005 to July 2005 with the amount of HK$4,750 (HK$950 x 5) (“the 2 Coper Receipts);

(b) 1 receipt issued by HR to MVO dated 28 May 2013 for the fire services maintenance work in April 2013 with the amount HK$950 (“the HR Receipt”);

(c) Invoices from HR to MVO from December 2008 to July 2013 – there is one invoice each month, and each invoice is for “monthly fire service maintenance fee”, and the amount on it is HK$950;

(d) Invoices from AD to MVO from November 2004 to June 2005 – there is one invoice each month, and the amount on each invoice is HK$3,300. There is no description of work on any invoice;

(e) Debit notes from ADCBW to MVO from December 2008 to July 2013 – there is one debit note for each month, and the amount of each invoice is HK$3,300. There is no description of work on any invoice.

The table showing the payments from MVO to HR, AD and ADCBW (“the Table”)

37.The IO has prepared a table summarizing the payments from MVO to HR, AD and ADCBW (“the Table”) as shown in the documents disclosed by MVO. Ms Lam, counsel for the MVO, and Mr Ma have agreed that the Table is an accurate summary of the said payments. For ease of reference, the Table is annexed to this judgment.

Minutes of the IO’s meetings

38.MVO raises a point that the IO has confirmed that up to February 2012, the IO owed to MVO HK$259,293.18 in the owners’ meetings on 3 April 2012 (“the April 2012 Meeting”), 11 May 2012 (“the May 2012 Meeting”) and 20 March 2013 (“the March 2013 Meeting”). The IO says that they are unable to confirm whether the minutes of these meetings are accurate or not. Having seen the minutes, I accept that these minutes are not verbatim records in the sense that not every word said by everyone in the meeting has been recorded down. However, in the absence of any evidence showing the contrary, I accept that what have been recorded in these meetings are matters occurred in the meetings.

39.The relevant parts of these meetings are as follows:-

(a) the April 2012 Meeting:-

“法團司庫已檢查核對了MVO管理有限公司交出的帳目,並檢查得出大廈共欠ＭVＯ管理有限公司20多萬（截至2012年2月份的欠款為$259,293.18），各業主表示願意清還該數目，但必須先決定清還攤分的方法，因有業主提出各業主的購入單位年份不同，應該要跟據購入單位的年份按比例計算攤分有關數目，有關事宜將留待日後大廈管理委員會再作決定。

此外，有業主提出與MVO多年合作愉快，詢問MVO能否調低有關欠費，有關事宜將稍後再與MVO商議。

另外，法團司庫望能加以了解MVO的帳目支出的內容細節（MVO已於2012年4月12日主動致電司庫解釋有關內容數目，並會於稍向司庫提供FS251消防檢查保養証書）。” (Underline supplied)

(b) The May 2012 Meeting:-

“查上次業主會議已通過大廈對MVO的管理費支出欠款事宜，而出席業主均認為不應該按入住年份攤分有關欠費，因為此舉難以計算及容易引起爭拗混亂，因此各業主要求先由MVO資詢法律意見定下付款分配方法，以便安排付款。” (Underline supplied)

(c) The March 2013 Meeting:-

“2013年5月1日起，將會按法例規定調整保安員及清潔員的最低工資；再加上通貨膨漲，各項成本支出日益增加，而大廈亦帶有MVO的20多萬管理費開支赤字，因此，各業主同意確實有增加管理費的必要性，而且各業主不但希望調整後沒有赤字，更希望能有盈餘作「維修基金」，而各業主亦一致通過由2013年5月1日起，所有管理存入「大廈業主立案法戶口」，MVO稍後會將有關預算方案提交給大廈業主立案法團。此外，有業主建議進行物業管理公司招標，但亦有業主說MVO確實比以前有進步，因此，有關物業管理公司招標一事，將於兩個月後再作決定。＂(Underline supplied)

MVO’s witness - Tang

40.Tang is a director and shareholder of MVO. He in fact has close relationship with the 4 Companies. During his evidence, Tang told this court:-

(a) Coper – Although Tang was not a shareholder or a director of Coper, in respect of all businesses introduced to Coper by Tang, Tang would share 80% of the profits from those businesses. Fire services maintenance concerning the Building was business introduced to Coper by Tang.

(b) In HR, AD and ADCBW, Tang directly or indirectly holds more than 90% of shareholdings. These companies in fact are companies controlled by Tang.

41.Tang is an evasive witness. He often shied away from the questions put to him and just said whatever he wanted to say. His evidence is untrue on various issues.

42.Disclosure of interest in 1999:-

(a) Tang said that he disclosed that he had engaged associated companies to provide services to the Building in the owners’ meeting held in 1999. That meeting was held on 2 September 1999. However, from the minutes of that meeting, no such disclosure was made by Tang in that meeting.

(b) Tang said that he had made the disclosure to the owners of the Building. No doubt, Tang realized that the disclosure would be an important matter, for he had personal interests in procuring associated companies to provide services to the Building.

(c) If Tang has really made the disclosure in the owners’ meeting in 1999, the disclosure would have been recorded in the minutes. If the disclosure was made in the meeting but the recorder missed out this item in the minutes, Tang would certainly point this out and require an amendment.

(d) However, the fact is there is no record of any disclosure made by Tang in the minutes of the owners’ meeting in 1999, and there is no amendment to the said minutes. Over the years, there has never been any attempt to amend the minutes.

(e) The alleged disclosure said by Tang is untrue.

(f) In fact, not only the minutes of the owners’ meeting in 1999, but all the documents in this case have not shown that Tang has ever disclosed his connection with the 4 Companies to the owners of the Building.

43.Coper and HR:-

(a) Tang’s evidence is that both the agreement between MVO and Coper and the agreement between MVO and HR are verbal agreements. The contents of these verbal agreements were reduced into writing and recorded in the HR Contract in May 2013.

(b) Tang said that before May 2013, there was nothing in writing recording what have been agreed between MVO and Coper, and later between MVO and HR.

(c) So, if Tang’s evidence is true, when MVO was engaging Coper to provide fire services maintenance to the Building between 2001 to 2005, there was nothing recording the scope of services included in the agreement between the parties. Similarly, when MVO was engaging HR to provide the fire services maintenance to the Building from 2005 until May 2013, there was nothing recording the scope of services included in the agreement between the parties.

(d) Tang’s evidence cannot be true. If there is any agreement between the parties, there must be something in writing recording what have been included in monthly service fee of HK$950. Knowing the scope of services included in the monthly service fee is important. There would be no extra fee for matters included in the HK$950, but there would be additional fees for anything not included in the package. It is stipulated in the HR Contract that for additional services, there would be a charge of HK$700 every time. Without anything in writing, it is inherently improbable that the parties would be able to remember what are included in the HK$950 and what are not included. In fact, during his evidence, Tang was unable to tell the exact scope of services included in the monthly package without looking at any document.

(e) Tang’s evidence is that initially the verbal agreement was made by him representing MVO and a Mr Ho representing Coper (Mr Ho was the sole shareholder and director of Coper). In 2005, he informed a Mr Leung of MVO that Coper’s jobs would be taken up by HR. Leung was a supervisor working in MVO.

(f) It is inherently improbable that when Tang told Leung that Coper’s jobs would be taken up by HR, in the absence of anything in writing, Tang would be able to tell and Leung would be able to remember what have now been reduced into writing in the HR Contract.

(g) One of the services included in the monthly package is that Coper and HR should issue the FS251 certificates and submit the same to the Fire Services Department. However, MVO has not produced any FS251 certificate issued by Coper or HR. In fact, all the FS 251 Certificates produced by MVO are issued by other companies, i.e. YIL, CF and RCCL. In his evidence, Tang emphasized a point that MVO would keep documents for 7 years only, for this is the statutory requirements. However, these proceedings were commenced by MVO on 27 March 2015. There is no reason why MVO is unable to produce any documents in relation to the period from 2008 to 2015. Not even one single FS251 certificate issued by HR has been produced.

(h) Tang said that he engaged Coper and HR to do the fire services maintenance work because Coper and HR had licences (有牌). However, there is no documentary evidence showing that Coper or HR has ever had any licence in respect of fire services maintenance.

(i) If Coper or HR was a registered contractor for the purpose of FS(IE)R during the relevant times, Coper or HR would have issued the FS251 certificates. But the fact is not even one single FS251 certificate was issued by Coper or HR.

(j) If Coper or HR really has the licence to provide fire services maintenance, it would be important to have their names and their chops on the Fire Services Maintenance Checklists. It is important to show that the checking and maintenance are done by them, for they have the necessary expertise and qualifications to do these works. However, the fact is the names of Coper and HR have never appeared on any Fire Services Maintenance Checklists.

(k) Tang said that all the checking was done by Coper or HR’s technicians, although the checklists were marked by the technicians or MVO’s staff. This is unbelievable. If Tang’s evidence is true, Coper or HR is paid to do the checking, and the checking has to be done by them for they have the necessary qualifications to do so. It is unbelievable that in these circumstances, Coper or HR would not be required to put their names on the checklists to show that the checking is done by them.

(l) I have considered the 2 Coper Receipts, the invoices issued by HR to MVO mentioned in paragraph 36(c) above and the HR Receipt. Bearing in mind the circumstances described in the aforesaid sub-paragraphs, and bearing in mind Tang’s personal interests in business from him to Coper and Tang’s interest in HR, the said receipts and invoices cannot be sufficient evidence showing the verbal agreements as contended by Tang, and that services have in fact been provided by Coper and HR to the Building.

(m) I have also considered the slip to HR mentioned in paragraph 33 above. Apart from the problems concerning this slip mentioned in paragraph 33, I note that there is no production of any other similar slips. If HR has gone to the Building to do fire services maintenance work every month, there would be a similar slip every month, and MVO should at least have the slips for the period from 2008 to 2015. There is no satisfactory explanation to all these problems. Coupled with the reasons stated in subparagraph (j) above, I do not regard the slip as sufficient evidence supporting Tang’s contentions.

44.AD and ADCBW:-

(a) According to Tang, the agreement between MVO and AD and the agreement between MVO and ADCBW are verbal agreements. The contents of these verbal agreements were reduced into writing and recorded in the AD Contract and ADCBW in May 2013.

(b) Before May 2013, there was nothing in writing recording the aforesaid verbal agreements.

(c) So, if Tang’s evidence in true, before May 2013, there was nothing recording the scope of services included in the monthly service fee of HK$3,300.

(d) Tang’s evidence cannot be true. The agreed package only cover some agreed services. For services outside the agreed scope, there would be extra charges. See the AD Contract. Without anything in writing, it is inherently improbable that the parties would be able to remember what are included in the monthly package and what are not included. During his evidence, Tang was unable to tell the exact scope of services included in the monthly package without looking at any document.

(e) Tang said that in 2001, he just instructed Leung and a Mr Cheung (a supervisor in AD) to sit together, and Tang told them that the water and electricity maintenance works would be done by AD. In 2006, he instructed his staff（“我啲伙記”） that the electricity and maintenance works would be done by ADCBW. It is inherently improbable that when Tang told his staff all these, in the absence of anything in writing, Tang would be able to tell and his staff would be able to remember what have now been reduced into writing in the AD Contract.

(f) Tang said that he engaged AD and ADCBW because they had licences (有牌). However, there is no documentary evidence showing that AD or ADCBW has ever had any licence in respect of water and electricity maintenance.

(g) If AD or ADCBW really has the licence to provide water and electricity maintenance, it would be important to have their names and their chops on the Water and Electricity Maintenance Checklists. It is important to show that the checking and maintenance are done by them, for they have the necessary expertise and qualifications to do these works. However, the fact is the names of AD and ADCBW have never appeared on any Water and Electricity Maintenance Checklists.

(h) It is unbelievable that although all the checking was done by AD or ADCBW’s technicians (only AD or ADCBW has the necessary expertise or qualifications to do the checking), it would not be necessary for AD or ADCBW to put their names on the checklists.

(i) I have considered the invoices issued by AD and ADCBW mentioned in paragraph 36(d) and (e) above. Bearing in mind the circumstances described in the aforesaid sub-paragraphs, and bearing in mind Tang’s personal interests in AD and ADCBW, the said invoices cannot be sufficient evidence showing the verbal agreements as contended by Tang, and that services have in fact been provided by AD and ADCBW to the Building.

(j) I have also considered the slip to ADCBW mentioned in paragraph 34 above. Apart from the problems concerning this slip mentioned in paragraph 34, I note that there is no production of any other similar slips. If ADCBW has gone to the Building to do the water and electricity maintenance works every month, there would be a similar slip every month, and MVO should at least have the slips for the period from 2008 to 2015. There is no satisfactory explanation to all these problems. Coupled with the reasons stated in subparagraph (i) above, I do not regard the slip as sufficient evidence supporting Tang’s contentions.

45.Payments:-

(a) Tang said that when MVO issued a cheque to a service provider, the amount in that cheque might be the payment for services provided by that service provider to several buildings and estates.

(b) According to Tang, the payments as shown in the Table are not all related to the Building. Amounts concerning other buildings or estates are also included in the payments as shown in the Table.

(c) If that is the case, in respect of each cheque shown in the Table, there would be documents showing that the cheque is for services provided to which buildings or estates, and the respective portions for the buildings or estates (“the Underlying Documents”). Not even one underlying document is disclosed by MVO.

(d) The payments as shown in the Table are all payments made by MVO within the 7-year period before the commencement of these proceedings. Obviously, that MVO would only keep documents for 7 years cannot be a satisfactory explanation for the non-production of the Underlying Documents.

(e) In 2009, the total paid to HR was HK$5,580 (first three rows of the Table). Tang explained that the payments were irregular because MVO would pay whenever they wished. However, the total paid to HR was far below the total payable to HR in that year, which would be HK$950 x 12 = HK$11,400. Tang explained that the unpaid part would be settled in the next year. Whether this explanation is true or not would be easily known if MVO has disclosed its audited accounts.

(f) MVO is a company limited incorporated in Hong Kong, and must have audited accounts (“the Audited Accounts”) in each and every year. The Audited Accounts would show whether any sum is due to the 4 Companies as a result of the services provided by these companies to the Building. However, no Audited Accounts have ever been disclosed by MVO.

(g) The Underlying Documents and the Audited Accounts are obviously relevant documents in these proceedings. If MVO may derive any support from these documents, there is no reason why MVO would not produce the same.

(h) In the absence of the Underlying Documents and the Audited Accounts, coupled with the non-disclosure of these documents, I do not regard Tang’s evidence concerning the payments made by MVO as true and correct.

46.As a result of Tang’s untrue evidence on various issues, in particular his untrue evidence on the central issues in these proceedings (ie the existence of the alleged verbal agreements, the existence of the services allegedly provided by the 4 Companies to the Building, the alleged payments concerning the services provided to the Building by any of these companies), save and except Tang’s admission of his personal interest in business introduced by him to Coper and his personal interest in HR, AD and ADCBW, I have no hesitation in rejecting Tang’s evidence in its entirety.

MVO’s witness - Fok

47.Fok is an untruthful witness. His evidence on 2 important issues are clearly lies.

48.Existence of the alleged oral guidelines and the alleged notes recording those oral guidelines:-

(a) During cross-examination, Fok was asked that since he was responsible for property management matters in MVO, in what way he would know the scope of services of each of the 4 Companies before the appearance of the HR Contract, the AD Contract and the ADCBW Contract in May 2013.

(b) Fok answered that there were oral guidelines, and from the oral guidelines he would know the scope of services of each company. Later, in response to the enquiries from the court, Fok answered that he had reduced the oral guidelines into writing, and the notes recording the oral guidelines were kept in MVO’s office. When MVO made the HR Contract, the AD Contract, and the ADCBW Contract in May 2013, he just copied the contents of the said notes to the said contracts.

(c) Fok has never mentioned the oral guidelines and the notes recording the oral guidelines in his witness statement. Further, if Fok’s evidence is true, the notes kept by MVO must be relevant documents and must be disclosed. The fact is that MVO has never disclosed those notes.

(d) Obviously, the so-called oral guidelines and the alleged notes are stories made up by Fok.

49.Whether Heng knew that the HR Contract, the AD Contract and the ADCBW Contract were “back-dated contracts”:-

(a) Fok said that Heng called him on 18 May 2013 and asked him to provide the information concerning the service providers retained by MVO, and he told Heng that there was no contract between MVO and the service providers. Heng said that if there were service providers, there should be contracts, and Heng requested to see the contracts.

(b) Fok said that according to his understanding, Heng was asking MVO to create some back-dated written contracts. MVO then made the 3 written contracts. On 20 May 2013, he emailed the HR Contract and the AD Contract to Heng. Fok also said later (at a time before 23 May 2013), Tang and him met Heng in a restaurant in Wan Chai (“the Wan Chai Meeting”), and Tang explained to Heng during the meeting that the 2 contracts provided to him were “back-dated contracts”.

(c) Reading Fok’s email dated 20 May 2013 and the HR Contract and the AD Contract enclosed therewith, there is nothing in the email or in the said contracts indicating that the 2 written contracts provided to Heng were “back-dated contracts”. A reasonable man reading the email and the 2 contracts would not have the impression that the 2 contracts were back-dated. On the contrary, the email and the 2 contracts give an impression to the readers that each of the 2 contracts was made on the date stipulated on the contract.

(d) On 23 May 2013, Heng made a reply to Fok’s email. In the reply, Heng asked the following questions:-

“1) Happy Race Limited的合約已到期（2005年8月1日起，為期兩年)。有否簽署新合同？或服務已終止？或自動續約？

2) Asian Delight Engineering Limited的合約已到期（2001年8月1日至2003年7月31日）。有否簽署新合同？或服務已終止？或自動續約？

3) MOV是否每年（從2005年到現在）向Happy Race Limited及Asian Delight Engineering Limited繳交合同上的費用?

4) Happy Race Limited及Asian Delight Engineering Limited是否每年（從2005年到現在)都按保養服務合約中的內容提供服務?

5） Happy Race Limited及Asian Delight Engineering Limited有否出任何報告，發票，收據等文件?” (Underline supplied)

(e) In respect of the 2 contracts, Heng asked “合約已到期 ……有否簽署新合同 ……” Obviously, Heng’s impression was that each of the 2 contracts were signed by the parties on the date shown on the contract. Heng would like to know after the expiration of the terms as stipulated in the contract, whether the parties have signed a new contract.

(f) Under cross-examination, Fok said that he did not hear the conversations between Tang and Heng during the Wan Chai Meeting. However, Fok said that in that meeting, Tang had explained to Heng that the written contracts were “back-dated contracts”. Fok’s evidence is internally inconsistent and cannot be believed.

(g) Further, reading Heng’s email dated 23 May 2013, Fok’s evidence in respect of the Wan Chai Meeting cannot be true. As said in the above, at the time of that email, Heng was under an impression that the 2 contracts provided by Fok were signed by the parties on the dates shown on the contracts. If the Wan Chai Meeting did take place as alleged by Fok, the questions asked by Heng in that email would be very different.

(h) Fok alleged that Heng had known that the written contracts were back-dated by 23 May 2013. This is untrue.

50.As a result of Fok’s lies on these important issues, I do not regard Fok as a truthful and reliable witness. I reject his evidence.

MVO’s witness - Shum

51.In my judgment, Shum is also an unreliable witness.

52.Shum is the accounting officer in MVO. While MVO was the manager of the Building, Shum was responsible for the accounting matters relating to the Building.

53.Shum said that concerning the Building, MVO would settle the bills from the service providers every 3-6 months, and would certainly make settlement not more than 9 months. Looking at the payment information as shown in the Table, it is difficult to discern such a payment pattern from the Table.

54.When Shum was asked whether there was no payment from MVO to ADCBW in 2011, Shum said that all the fees for 2011 (ie HK$3,300 x 12 = HK$39,600) were prepaid in 2010:-

(a) This prepayment event has never been mentioned in Shum’s witness statement. Nor this prepayment event has been mentioned by Tang or Fok at anywhere.

(b) This prepayment event is not consistent with the payment habit mentioned by Shum as recorded in the paragraph above.

(c) This is no document from ADCBW requesting for such a prepayment. On the contrary, according to the ADCBW’s invoices produced by MVO, ADCBW issued one invoice to MVO every month in 2011.

(d) If Shum’s evidence is true, there must be documents concerning this prepayment. The fact is no such document has ever been disclosed by MVO.

(e) I do not accept the prepayment alleged by Shum as true.

55.Like Tang, Shum said that not all the payments shown in the Table concerned the Building. The amount in a particular cheque would cover a sum relating to services provided to the Building and other sums relating to services provided to other buildings or estates. However, MVO has not produced the Underlying Documents and the Audited Accounts. If any part of the payments as shown in the Table is relating to services provided to the Building by HR, AD or ADCBW, MVO would have no reason not to produce the Underlying Documents and the Audited Accounts. In the absence of these documents, coupled with the non-disclosure of the same, I refuse to accept Shum’s evidence that the payments as shown in the Table include sums arising from services provided to the Building by HR, AD, or ADCBW.

56.For the reasons above, I refuse to accept Shum’s evidence.

IO’s witness - To

57.To is a staff member of the Audit Firm, which was retained by the IO to investigate the accounts and the financial matters concerning MVO while MVO was the manager of the Building. He went to MVO’s office to conduct an inspection on 13 March 2015 and had some further communications with Tang and Fok thereafter. He did not have any communication with MVO after 16 April 2015.

58.To’s evidence is that he and his colleague Mr Andrew Lee went to MVO’s office to conduct an inspection on 13 March 2015. Tang was present during the inspection. To requested for various documents but Tang refused to produce the same to To. Tang produced some other documents. To requested for permission to photocopy some of the documents produced by Tang, but Tang refused. At the end of the inspection, Tang agreed to supply some further documents to To at a later time. On 16 March 2015, To wrote an email to Tang to ask for the further documents, in respect of which Tang had agreed to supply to To on 13 March 2015.

59.Tang’s evidence is that To was satisfied in the inspection on 13 March 2015. MVO produced all the documents requested by To in the inspection, and agreed to produce the other documents requested by To (which were the documents mentioned in To’s email dated 16 March 2015) at a later time. MVO did not refuse to produce any document requested by To.

60.During cross-examination, questions concerning To’s email dated 16 March 2015 were put to To. To was asked that in that email, he did not express any dissatisfaction, and he did not say that MVO had refused to produce any document or refused to let him make copy of any document. To answered that at that time, he did not think that there would be litigation between MVO and the IO, and hence he did not record everything occurred during the inspection in the email. He did not record MVO’s refusals in the email, for Tang had already clearly made the refusals. To’s concern at that time was to get the documents which Tang had agreed to produce, and hence To only mentioned these documents in the email. In my judgment, To’s explanation is reasonable and is in accordance with common sense.

61.To impressed me as an honest and straightforward witness. Notwithstanding the lengthy and intensive cross-examination, his evidence remains unshaken. I accept his evidence.

IO’s witness - Wong

62.Wong’s evidence is relating to the April 2012 Meeting, the May 2012 Meeting and the March 2013 Meeting. Wong said that he was present in these meetings. According to his memory, MVO’s representatives raised the issue that the IO owed MVO more than HK$200,000 in these meetings, but there was no detailed discussion on this issue in these meetings, and no resolution concerning this issue had been passed in any of these meetings. Wong said that while he was the chairman of the IO, the IO’s chop was kept by MVO. All the minutes were written by MVO, and the IO’s chop was put on these minutes by MVO. In respect of the minutes of the 3 aforesaid meetings, MVO had not given him an opportunity to check and to confirm the minutes. Wong also denied that he knew that the HR Contract, the AD Contract and the ADCBW Contract were “back-dated contracts”.

63.The minutes of the 3 meetings bear the IO’s chop. There is another owners’ meeting held on 20 June 2012 (“the June 2012 Meeting”). The minutes of the June 2012 Meeting bear both the IO’s chop and Wong’s signature.

64.Wong said that he was present in the June 2012 Meeting, and the minutes of that meeting were the only minutes given to him by MVO. After seeing the contents of the minutes, he put his signature thereon to confirm the correctness of the same.

65.Fok’s evidence is that the minutes of the 4 meeting mentioned above were prepared by him. He passed all the minutes to Wong, and Wong appended the IO’s chop on these minutes.

66.A significant feature here is that in respect of the minutes of the 4 meetings, only the minutes of the June 2012 Meeting bear Wong’s signature. If Wong has seen the minutes of all the 4 meetings and agreed with the contents thereof, there is no reason why he only signed the minutes of the June 2012 Meeting but not the minutes of the other meetings. I am of the view that Wong’s evidence is the truth, and Fok’s evidence is untrue.

67.Wong’s evidence is clear and straightforward. I accept his evidence.

IO’s witness - Heng

68.Heng said that in the April 2012 Meeting, MVO mentioned that the IO owed an outstanding sum to MVO of about HK$200,000. At the time, from the documents produced by MVO, that appeared to be the situation. However, Heng said at that time he had not been given the HR Contract, the AD Contract, the ADCBW Contract, and all the documents in C Bundles. He also did not know that the 3 written contracts were “back-dated contracts”. Heng said in the meeting, he and other owners doubted the accuracy of MVO’s accounts.

69.Heng’s evidence is supported by the minutes of the April 2012 Meeting. It is recorded in the minutes that the IO’s treasurer (ie Heng) wanted to have more details of the expenses in MVO’s accounts. Clearly, Heng did not unreservedly confirm that the IO owed to MVO for more than HK$200,000. Heng specifically requested and required MVO to provide more details of its expenses in the meeting.

70.Heng also said that he had not asked MVO to make the 3 “back-dated contracts”, and he did not know that the 3 written contracts were “back-dated contracts” before these proceedings. Heng’s evidence is in accordance with common sense. Heng was the IO’s treasurer at the material times. He on behalf of the IO checked MVO’s accounts, and requested MVO to produce documents. Absence of any document showing any contractual relationship between MVO and the alleged service providers is MVO’s problem, not Heng’s problem. Heng has no reason to suggest a solution to MVO to solve MVO’s problem. For this reason, and for the reasons set out in paragraph 49 above, I hold that what has been said by Heng is the truth.

71.I am of the view that Heng’s evidence is clear and cogent evidence. I accept his evidence.

MY FINDINGS

72.For the reasons above, I reject the evidence given by MVO’s witnesses and accept the evidence given by the IO’s witnesses.

73.Although there is no sufficient evidence showing that the documents in Exhibit P1 were made up by MVO in one go for the purposes of these proceedings, in my judgment, those documents cannot prove MVO’s case:-

(a) None of the Fire Services Maintenance Checklists bears Coper’s or HR’s name. On the face of these checklists, the checking was done by MVO, not by Coper or HR.

(b) Similarly, none of the Water and Electricity Maintenance Checklists bears AD’s or ADCBW’s name. On the face of these checklists, all the works were done by MVO, not by AD or ADCBW.

(c) If the works as shown on the aforesaid checklists were actually done by the 4 Companies, there is no reason why their names do not appear on those checklists.

(d) The invoices from HR to MVO from December 2008 to July 2013 show that during this period, HR would send an invoice to MVO for “monthly fire service maintenance fee”, which is HK$950. However, in the absence of any document showing any work has actually been done by HR, and in the absence of the Underlying Documents and the Audited Accounts, and bearing in mind Tang’s personal interest in HR, I am not satisfied that these invoices can show that HR has actually provided services to the Building and MVO has actually made payments to HR.

(e) The aforesaid also applies to the invoices from AD to MVO from November 2004 to June 2005, and the invoices from ADCBW to MVO from December 2008 to July 2013.

(f) The 2 Coper Receipts cannot be sufficient evidence showing that Coper has ever provided any fire services maintenance to the Building. If the verbal agreement between MVO and Coper is true, Coper would be responsible for issuing the FS251 certificates. However, no FS251 certificate signed by Coper has been produced. Further, there is no evidence showing that Coper has ever been a registered contractor who is capable of issuing a FS251 certificate.

(g) The deficiencies of the Slip to HR and the Slip to ADCBW have been discussed in paragraphs 33 and 34 above. If MVO has ever notified HR and ADCBW to come to the Building to do maintenance works in writing, it would be very strange that there is no written record showing that these companies have come and have provided what services to the Building.

(h) The last document in Exhibit P is a 1-page document with the title “2011年大廈日常事故記錄簿（公司用）”. Fok said that he made the records on this document. Suffice to say that this document does not show that any of the 4 Companies has provided any service to the Building.

74.The HR Receipt is a document in the C Bundles but MVO does not have the original of the same. What has been said in paragraph 73 (f) above also applies to this receipt.

75.The notices concerning the scope of service are documents containing merely the words of MVO. The important point is there is no documentary record showing AD or ADCBW has ever provided any service to the Building.

76.I have also considered the minutes of the IO’s meetings. In my judgment, the IO has not passed any resolution confirming any indebtedness owed to MVO in these meetings.

(a) As said in paragraph 69 above, in the April 2012 Meeting, Heng did not unreservedly accept that the IO owed MVO for more than HK$200,000. He specifically requested and required MVO to produce more details of its expenses. No resolution concerning any indebtedness owed to MVO was passed in that meeting.

(b) In the minutes of May 2012 Meeting, although the words “查上次業主會議已通過大廈對MVO的管理費支出欠款事宜” appear in the minutes, there is no doubt that“上次業主會議”is the April 2012 Meeting. As no resolution concerning any indebtedness owed to MVO was passed in the April 2012 Meeting, the true meaning of this sentence in the minutes of the May 2012 Meeting is that matters concerning the sums due to MVO were discussed in the last meeting.

(c) There is no resolution concerning any indebtedness owed to MVO in the minutes of the June 2012 Meeting.

(d) In the minutes of the March 2013 Meeting, the deficits of more than HK$200,000 concerning MVO is mentioned as a background of the resolution that all the management fees would be deposited in the IO’s account with effect from 1 May 2013. There is no resolution concerning any indebtedness owed to MVO in this meeting.

(e) I have also seen and considered other minutes of the IO meetings. In my judgment, there is no resolution confirming any indebtedness owed to MVO in those meetings.

77.In the light of the aforesaid, I now set out my findings on the agreed issues.

Issue No 1 - Any verbal agreements as contented by MVO?

78.Based upon the evidence accepted by this court and the documents before me, I am not satisfied that there is any reliable evidence proving any of the verbal agreements as contended by MVO. My answer to issue no 1 is “No”.

Issue No 2 - Any services provided by the 4 Companies to the Building?

79.In my judgment, there is no reliable showing that any services have actually been provided by the 4 Companies to the Building.

80.I have no doubt that MVO has provided some services to the Building. The Fire Services Maintenance Checklists and the Water and Electricity Maintenance Checklists show that MVO has done some works. Equally, I have no doubt that MVO has engaged some registered contractors to do the works required by FS(IE) R and to issue the FS251 Certificates. However, there is no reliable evidence showing that these works or any part thereof were done by the 4 Companies.

81.My answer to issue no 2 is “No”.

Issue No 3 - Any expenses incurred by MVO for the provision of the general maintenance services by the 4 Companies?

82.There is no reliable evidence showing that MVO has made any payments to the 4 Companies in respect of the services provided by them to the Building. My answer to issue no 3 is “No”.

Issue No 4 - Any true transactions for the HR Contract, the AD Contract and the ADCBW Contract?

83.Following from the above, my answer to issue no 4 is “No”.

Issue No 5 - Any affirmation by the IO in respect of the sum of HK$259,293.18?

84.Since the answers to issues nos 1-4 are all in the negative, MVO is not entitled to claim the HK$259,293.18 from the IO, for there is no reliable evidence showing that MVO has incurred any expenses to retain the 4 Companies to provide services to the Building. In these circumstances, issue no 5 is irrelevant, for the IO simply cannot confirm something which MVO is not entitled to have.

85.For the sake of completeness, for the reasons set out in paragraph 76 above, my answer to issue no 5 is “No”.

Issue No 6 - Whether the MVO’s management account showing a total outstanding amount of HK$348,056.08 as due by the IO to MVO is a true and accurate account?

86.The meaning of “true and accurate” here is MVO has retained the 4 Companies, the 4 Companies have provided services to the Building, and MVO has made payments to the 4 Companies in respect of those services. Following from the answers to issues nos 1 to 4, the answer to issue no 6 is “No”.

Issue No 7 - Whether MVO is entitled to be reimbursed by the IO with the sum of HK$348,056.08 for the work done and expenses incurred in the provision of the general maintenance by the 4 Companies to the Building?

87.Following from the answers to issues nos 1 to 4, the answer to issue no 7 is “No”.

Issue No 8 - Whether MVO is entitled to claim against the IO for HK$348,056.08 on the basis that the IO was unjustly enriched at the expense of MVO for the provision of the general maintenance by the 4 Companies?

88.Following from the answers to issues nos 1 to 4, the answer to issue no.8 is “No”.

CONCLUSION

89.For the reasons above, I dismiss MVO’s claim.

90.Ms Lam and Mr Ma have agreed that costs should follow the event, with a certificate for counsel. I order that costs of these proceedings be to the IO (including all costs reserved, if any), with a certificate for counsel, to be taxed if not agreed.

91.Exhibit P1 would be kept in court. After seeing this judgment, if any party would like to seek an order in relation to the disposal of Exhibit P1, that party may do so by an inter-partes application.

92.Lastly, it remains for me to thank Ms Lam and Mr Ma for the assistance provided to this court.

(MK Liu)
District Judge

Ms Jacqueline Lam, instructed by Kelvin Cheung & Co, for the plaintiff

Mr Amos Ma, instructed by Fung & Fung, for the defendant