SINO MOUNT LTD v. MA HON CHEUNG, ANDREW, PRINCIPAL MAGISTRATE PRESIDING AT KOWLOON CITY MAGISTRATE'S COURT

HCAL 142/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

 NO. 142 OF 2009

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D E C I S I O N

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1.  Sino Mount seeks leave to apply for judicial review.

2. Sino Mount leases premises as tenant from Canton as landlord.  The premises form part of Mainway Court.  Canton is the present owner of the premises.  Sino Mount runs a restaurant in such premises.  Sino Mount originally leased the premises from Top Venture.  Canton acquired the premises subject to Sino Mount’s tenancy.

3. In December 2008 the Building Authority ordered the Incorporated Owners to carry out remedial work on the 1^st floor slab canopy of Mainway Court.  Such remedial work would need workmen to go into the premises. The work would also require certain areas of the premises to be blocked off.  The work would accordingly cause some disruption to Sino Mount’s business.

4. Clause 3(d) of the DMC governing Mainway Court permits each owner “to enter into ... other parts of the building ... for the purpose of carrying out any work necessary for the maintenance and repair of the said building” but subject to “causing as little disturbance as possible and making good any damage caused thereby”.

5. Sino Mount says that it “has all along not objected to the carrying out of the remedial works and is willing to cooperate in their execution”.  But relying on DMC cl. 3(d), it has requested the Incorporated Owners before carrying out remedial works to pay “reasonable compensation for the loss of custom to the business occasioned by the execution of the remedial works”.

6. Sino Mount has been negotiating with the Incorporated Owners since April 2009 for compensation without success.  In the mean time, the repair work has not been done.

7. In October 2009 the Incorporated Owners applied to the Magistrate for a warrant under Building Management Ordinance (Cap. 344) s. 40(2).  By the latter provision the Incorporated Owners may, on giving “reasonable notice to the owner or occupier [of a flat],” apply for a warrant authorising a building management committee member to break into a flat for the purpose of “abating any hazard or nuisance which does or may adversely affect the common parts or other owners”. 

8. Sino Mount seeks judicial review to set aside the Magistrate’s grant of such a warrant.  It argues that, being a person affected by the warrant, it had a right to be heard by the Magistrate.  Sino Mount also requested to see the affirmation evidence relied on by the Incorporated Owners when applying for a warrant. 

9.  The Magistrate replied to Sino Mount’s application by denying that it had a right to apply for a review of the grant of the warrant.  As far as the Magistrate was concerned, Sino Mount was not a party to the proceedings and so was not entitled to sight of the affirmations filed.  In any event, the Magistrate refused to review his decision.

10. Mr James Collins (appearing for Sino Mount) argues that Sino Mount should be granted leave because it has not been given a reasonable chance to be heard by the Magistrate, because it has the right to know the basis on which the warrant was issued, and because the Magistrate’s decision was unreasonably made “without ... full appreciation of the relevant facts”.

11.  I am not persuaded.

12.  In my view, Sino Mount does not have locus to challenge the warrant. 

13.  Sino Mount only occupies the premises as Canton’s tenant.  The warrant was rightly addressed to Canton as the owner of the premises.  It is for Canton as owner to object to the warrant, not Sino Mount.  There is no evidence that Canton objects in any way to the warrant.

14.  Insofar as Sino Mount relies on DMC cl. 3(d) to argue that it must first be compensated by the Incorporated Owners before it allows any repairs to go ahead on the 1^st floor slab, I do not think that the argument is right.  Clause 3(d) empowers owners to enter into each other’s units for the purpose of effecting repairs subject to an obligation to compensate an affected owner (not a tenant occupier) for damage caused. 

15.  If Sino Mount has a remedy for any disturbance caused, such can only arise from the breach of some express or implied covenant (such as a covenant of quiet enjoyment) against a landlord who is party to Sino Mount’s Tenancy Agreement.  However, I note, in this connection, that by the Tenancy Agreement Sino Mount itself expressly covenanted “[n]ot to do or permit to be done in or upon the said premises anything which may be or become a nuisance annoyance damage or disturbances to ... the tenants or occupiers of other portions of the building ... or anywise against the law or regulation of Hong Kong”. 

16.  In any case, whatever remedies Sino Mount may have against a counterparty to the Tenancy Agreement, such could not give Sino Mount any rights against the Incorporated Owners.  The Incorporated Owners are not parties to the Tenancy Agreement.

17.  It follows that Canton as owner had, but Sino Mount as tenant did not have, the right to be heard in the proceedings before the Magistrate.  There has been no breach of the principle of audi alteram partem before the Magistrate as claimed by Sino Mount.  If Sino Mount has a remedy, it would be a civil one in a private law suit for breach of the Tenancy Agreement.

18.  I would add the following observations. 

19.  Even on the assumption that there is locus, if the complaint is that the basis of the warrant is unclear, this suggestion is untenable.  The warrant states on its face that it was issued “for the purpose of inspection and carrying out the necessary repair works of the said premises according to section 40(2) of the Building Management Ordinance”.

20.  The Building Authority’s order has to be complied with promptly.  Otherwise, there will be an obvious and ever-present risk of the canopy slab collapsing and causing human tragedy.  I am unable to see how, once the Building Authority’s order had been produced to him, the Magistrate could have refused to issue the warrant.  This is regardless of whatever bargaining or negotiation may have been taking place between the Incorporated Owners and Sino Mount.  One has to act with a sense of urgency.  Where human life is potentially at stake, one should not delay taking appropriate safety measures merely to engage in protracted haggling. 

21.  I do not see how the Magistrate’s decision can in any way be characterised as unreasonable.

22.  Leave to apply for judicial review is refused.