Wong Tak Keung Stanley v. Aaron Ky Chan and Another

LDBM000348A/2003

LDBM 348 OF 2003

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 348 OF 2003

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Coram: H. H. Judge CHOW, Presiding Officer of the Lands Tribunal

Hearing dates: 16 February, 2004 and 25 March 2004

Date of handing down Decision: 29 March 2004

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D E C I S I O N

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1.This is an application by the 2nd Respondent to strike out the Notice of Application against the 2nd Respondent. The Notice of Application was instituted pursuant to paragraph 1 of the Tenth Schedule of the Building Management Ordinance ("BMO"), and it has the following contents: -

"1. The Applicant(s) apply(ies) for an order relating to breach of Part II, Section 6 of the Building Management Ordinance by knowingly overstating the number of management committee members in attendance in a Management Committee meeting dated August 25, 2003 in the minutes of the meeting prepared by Mr K C Wong and certified by Mr Aaron K Y Chan.

2. The question of law, interpretation and enforcement or other issue to be determined is:

The Respondents have knowingly prepared and certified the minutes of the Management Committee meeting with the intention to fraudulently represent the resolutions to have been passed in a valid Management Committee meeting despite the absence of the necessary quorum. Respondents shall be liable on conviction to fine as well as imprisonment pursuant to Part VII Section 36 of the Building Management Ordinance.

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Various matters and contracts which were awarded based on the August 25th meeting may be considered as ultra vires."

2.Breach of section 6 of BMO

Section 6 of the BMO provides that "The Second Schedule shall have effect with respect to the composition and procedure of a management committee." The relevant part of the Second Schedule to this application is paragraph 10(4), which provides: -

"The secretary shall keep minutes of the proceedings at every meeting of a management committee."

2.1In the Notice of Application, the 2nd Respondent is stated to be the Acting Secretary of the Management Committee. The allegation of the Applicant is not that the 2nd Respondent did not keep the minutes in question. His allegation is that a breach of section 6 was committed by the 2nd Respondent by knowingly overstating the number of management committee members in attendance in a Management Committee meeting dated August 25, 2003 in the minutes of meeting prepared by him. This allegation has nothing to do with the keeping of minutes under paragraph 10(4), and therefore there cannot be a breach of paragraph 10(4). By virture of section 45(1) of the BMO, the Tribunal shall have jurisdiction to hear and determine any proceedings specified in the Tenth Schedule. The proceedings under paragraph 1 of the Tenth Schedule are proceedings relating to the interpretation and enforcement of the provisions of the BMO. But there is nothing to be enforced between the Applicant and the 2nd Respondent under paragraph 10(4) of the Second Schedule.

3.Conviction under section 36 of BMO

"Any person who -

(a) in any form required by this Ordinance, or in any notice or document given, issued or made for the purposes of this Ordinance, makes any statement or furnishes any information; or

(b) furnishes any information required to be furnished under this Ordinance,

which he knows, or reasonably ought to know, to be false in a material particular, shall be guilty of an offence and shall be liable on conviction to a fine at level 3 and to imprisonment for 6 months."

Being an owner of a building, the Applicant has no power to convict any person in respect of a criminal offence. This power lies in the hand of a magistrate. Having only civil jurisdiction, the Tribunal has no power to convict any person in breach of section 36. Therefore there is nothing to be enforced between the Applicant and the 2nd Respondent under paragraph 1 of the Tenth Schedule.

4.Various matters and contracts considered as ultra vires

The 25th August meeting was a meeting of the management committee of the Incorporated Owners of Grenville House. They were decisions made by the management committee. If there is any contested issue relating to the matters and contracts, the proper respondent is the management committee, and not the 2nd Respondent. Therefore there is nothing to be tried and nothing to be enforced between the Applicant and the 2nd Respondent under paragraph 1 of the Tenth Schedule, and the Tribunal has no jurisdiction to hear and determine the matter relating to the alleged matters and contracts.

5.For these reasons, the Tribunal has no jurisdiction to hear and determine the application instituted against the 2nd Respondent, and therefore the application against the 2nd Respondent is struck out.

6.Costs

The Applicant is to bear costs of this summons (without certificate for counsel) to be taxed, if not agreed, according to District Court Scale.

Representation:

Applicant: In Person, unrepresented

2nd Respondent: Represented by M/S Lo & Lo, Solicitors