Wong Tak Keung Stanley v. Aaron Ky Chan and Another

LDBM000348B/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

Dates of Hearing: 7 May 2004 and 24 May 2004

Date of handing down Decision: 23 June 2004

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D E C I S I O N

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1.This is an application by the 1st Respondent to strike out the Notice of Application instituted against him. The Notice of Application was taken out 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." By virtue of its contents, there cannot be a breach of this section. The following parts of the Second Schedule which may be relevant to this application are paragraphs 10(4) and (4A), which read: -

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

(4A) The minutes referred to in subparagraph (4) shall be certified by the person presiding over the meeting as containing a true record of the proceedings of the meeting of the management committee to which they related."

2.1In the Notice of Application, the 1st Respondent is stated to be the Chairman of the management committee of the Incorporated Owners of Grenville House. The Applicant's allegation is not that the 1st Respondent did not certify the minutes in question. His allegation is that the 1st Respondent committed a breach of section 6 of the BMO by knowingly overstating the number of the management committee members who attended the meeting on August 25, 2003 in the minutes of this meeting certified by him. But the Applicant did not state what order he wanted the Tribunal to impose be a breach of this paragraph. By virture of section 45(1) of the BMO, the Lands Tribunal has 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 since he did not specify what order he wished the Tribunal to impose, therefore there is no order which the Tribunal can impose. Consequently there is nothing to be enforced between the Applicant and the 1st Respondent under paragraph 10(4A) of the Second Schedule, and the Lands Tribunal has no jurisdiction to entertain the application on this issue.

3.Conviction under section 36 of the BMO

Section 36 of the BMO reads: -

"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 for committing a criminal offence. This power lies in the hand of a magistrate. Therefore there is nothing to be enforced between the Applicant and the 1st Respondent. Having only civil jurisdiction, the Lands Tribunal has no power to try and convict any person who has committed a breach of section 36. The Lands Tribunal has no jurisdiction to hear and determine this issue.

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 in question, the proper respondent is the management committee, and not the 1st Respondent. There is nothing to be tried and nothing to be enforced between the Applicant and the 1st Respondent under paragraph 1 of the Tenth Schedule. Therefore the Tribunal has no jurisdiction to hear and determine this matter relating to the alleged matters and contracts.

5.For the above reasons, the Tribunal has no jurisdiction to hear and determine the Applicant's application instituted against the 1st Respondent and the said application is struck out.

6.The application to disallow legal representation

6.1During the hearing of the summons application on 24th May, 2004. I invited the Applicant to address me on the legal representation of the 1st Respondent. The 1st Respondent was represented by Messrs. S. K. Lam, Alfred Chan & Co., Solicitors ("the Solicitors' firm").

6.2On 12th February, 2004, the Applicant wrote to me, asking me not to allow the Solicitors' firm to represent the 1st Respondent for the reasons stated therein. Judging from the contents of this letter, I observed that a copy of this letter was not sent to the Solicitors' firm. On 28th April, 2004, the Applicant wrote to me, asking me to respond to this letter. Meanwhile on 16th February 2004 and 25th March, 2004, I heard a summons application taken out by the 1st Respondent and a summons application taken out by the 2nd Respondent against the Applicant. Decisions of these 2 summons applications were handed down on 29th March, 2004. During the hearing of these 2 applications, the Applicant did not apply to me to disallow the Solicitors' firm to represent the 1st Respondent.

6.3On 24th May, 2004, in the course of the present summons application taken out by the 1st Respondent, I enquired with the Applicant whether he wished to apply to me to disallow the Solicitors' firm to represent the 1st Respondent. His answer was in the affirmation. He addressed me on this issue. His arguments were those set out in the letter dated 28th April, 2004 and 12th February, 2004. In essence he alleged that Mr. Chan Chun Wah, (who is a solicitor of the Solicitors' firm), the lawyer representing the 1st Respondent, was present in the 25th August, 2003 management committee meeting and had first hand knowledge about the members of the Management Committee who might or might not have been present in the meeting. Furthermore, the Solicitors' firm is clearly an interested party in the said meeting, since one of the resolutions that was allegedly present in the said meeting was to authorize this Solicitors' firm to act on behalf of the Incorporated Owners of Grenville House. The Applicant contended that this appointment was ultra vires since there was insufficient quorum in that meeting, and it would be improper for this firm to represent the 1st Respondent in this matter since the interests of the 1st Respondent and the other 119 owners of Grenville House are not aligned in this matter.

6.4First of all, the fact that Mr. Chan Chun Wah was present in the said meeting and therefore had first hand knowledge about who was present in the said meeting was neither here nor there for the purpose of the present summons application. It is not known whether he would be summoned as a witness in the future. But he was not called a witness in the present summons application. Secondly, having gone through the minutes of the said meeting (which is attached to the Notice of Application) I was unable to find any resolution relating to the appointment of the Solicitors' firm to act on behalf of the Incorporated Owners of Grenville House. Item 2.2 of the minutes is only related to an appeal case (LDBM76/2003), and not related to the present case. In any event even if there was such resolution, the said appointment cannot be ultra vires, because no application has been made for a declaration that the said meeting was invalid, and therefore the appointment cannot be ultra vires.

7.The Applicant's application in this regard is totally ungrounded and I dismiss it.

8.Costs

The Applicant is to bear costs of this summons (with no certificate for counsel) to be taxed, if not agreed, according to District Court Scale.

Representation:

Applicant: In person, represented by Mdm. FUNG Shuk-tuen

1st Respondent: Represented by M/S S. K. Lam, Alfred Chan & Co., Solicitors