HUI LING LING v. YU SHUI YING

DCCJ 2223/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2223 OF 2011

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JUDGMENT

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1.  The plaintiff is the Chairperson of the Management Committee of the Incorporated Owners (“the Incorporated Owners”) of Provident Centre (“the Estate”), which is situated at Nos 21-53 Wharf Road, North Point, Hong Kong. The defendant is a member of the Management Committee of the Incorporated Owners. The plaintiff’s claim against the defendant is for, inter alias, an injunction order, restraining her from further publishing or causing to be published a defamatory statement, or similar words defamatory of the plaintiff.

2.  At the material times, Whampoa Property Management Company Ltd. (“the Whampoa Property”) was the management company serving the owners of the shopping arcade of the Estate.  On 4 November 2005, the Incorporated Owners passed a resolution at an extraordinary general meeting to carry out general maintenance and overall renovation of the Estate (“the Renovation Project”).  On 25 August 2009, the Incorporated Owners passed a resolution at an extraordinary general meeting on the manner of renovation of the external walls of the Estate in the Renovation Project.  On 25 August 2009, the defendant together with other owners of the Estate delivered a request to the plaintiff requiring her to convene a general meeting of the Incorporated Owners for some agendas, which included an agenda to overturn the resolution passed on 25 August.  Pursuant to therequest the plaintiff issued a notice to convene an extraordinary general meeting on 28 September 2009.

3.  On 19 September 2009, the defendant issued an open letter dated the same day to the owners of the Estate. Paragraph 4 of the letter states (“the Statement”):-

“依目前法團主席認同商場車場無需分攤，住宅業主即要額外負責約5,000萬，和富住宅1450戶，平均每戶需額外為他人承擔分攤約3萬5千元！”

4.  Paragraph 7 of the Amended Statement of Claim provides the following translation in English of paragraph 4: -

“Based on the fact that currently the Chairperson agreed to the notion that [the owners of] the shopping arcade and the car parking spaces are not obliged to share [the cost of the maintenance of the external wall]: the owners of residential units consequentially have to shoulder in addition about $50,000,000. [Granted there are] 1450 residential units in Provident Centre, on average each [residential] unit has to extra shoulder for [the owners of the shopping arcade and car parking spaces] about $35,000”

5.  According to the plaintiff, the words in the Statement were defamatory, and she set out under paragraph 7 of the Statement of Claim, the natural and ordinary meaning of the defamatory statement:-

(a) The plaintiff agreed to the view that the owners of the commercial units and carparking spaces of the estate are not obliged to share in the costs for the Renovation Project of the Estate;

(b)  As a result, owners of domestic units in the estate would each have to pay an additional amount of HK$35,000.00 in renovation costs for other owners, namely those of the commercial units and carparking spaces;

(c) The plaintiff has thereby failed to act fairly and impartially in discharging her duties as the Chairperson in dealing with the issue of the costs of the Renovation Project of the estate, and that she favoured the interest of the owners of the commercial units and carparking spaces of the estate over and prejudicial to the interest of owners of domestic units of the Estate;

(d)  The plaintiff has failed to safeguard but has acted in detriment to the interest of the owners of domestic units of the estate; and

(e) The plaintiff in carrying out her duties as Chairperson has acted in complete disregard of the Deed of Mutual Covenant for the estate and the Ordinance, and has failed to seek proper professional advice.

6.  According to the Plaintiff’s analysis the stance of the Whampoa Property is that the owners of the shopping arcade were not obliged to contribute to the renovation of the external wall of the residential blocks.  On 22 August 2009, the defendant wrote to the owners, reminding them of the stance of the owners of the shopping arcade. So the owners must have known that if such stance prevails, the owners of the residential blocks would have to pay more.  The owners of the residential blocks must know that the plaintiff was the Chairperson and as such she has a duty owed to them to serve to their best interest but not the interest of the owners of the shopping arcade only.  The owners of the buildings must be expecting their right and interest to be protected and governed by the DMC and the relevant law instead of any self-interest view or assertion of any particular owner.  When there are any legal problems, they would naturally expect the plaintiff and the Management Committee members to seek professional guidance. 

7.  For such a stance to prevail, it must be approved by the Management Committee (the representatives of the owners) or by the Incorporated Owners (the owners being members of the Incorporated Owners).  When this happens, the stance is adopted by the Management Committee or the Incorporated Owners as their respective stance, and not the stance of any individual member of the Management Committee.  In other words the stance is adopted by the owners themselves.  So it cannot be said that the owners of the residential blocks have to pay more.  The notion of “paying more” simply does not arise, because the amount to be paid is decided by the Management Committee or the Incorporated Owners.  There is only one amount to be paid by the owners.  There cannot be any “paying more” situation.  Hence the notion of detriment to the interests of the owners concerned simply does not arise, because it is the owners themselves who decide who are liable to pay, and the amount to be paid.  In my judgment, the plaintiff’s analysis cannot stand.

8.  The plaintiff also submitted that it is not difficult at all to imagine there would be owners understanding the words of the letters as:

(a) The plaintiff agreed to the view that the owners of the commercial units and carparking spaces of the Estate are not obliged to share in the costs for the Renovation Project of the Estate;

(b)  As a result, owners of domestic units in the Estate would each have to pay an additional amount of HK$35,000.00 in renovation costs for other owners, namely, those of the commercial units and carparking spaces.

9.  The plaintiff further submitted that in the context of the case and bearing in mind the status of the plaintiff as the Chairperson and the recipients of the letter were the owners and/or representatives of the residential blocks, there are the following implications:

(a) The plaintiff has thereby failed to act fairly and impartially in discharging her duties as the Chairperson in dealing with the issue of the costs of the Renovation Project of the Estate, and that she favoured the interest of the owners of the commercial units and carparking spaces of the Estate over and prejudicial to the interest of owners of domestic units of the Estate;

(b)  The plaintiff has failed to safeguard but has acted in detriment to the interest of the owners of domestic units of the Estate; and

(c) The plaintiff in carrying out her duties as Chairperson has acted in complete disregard of the Deed of Mutual Covenant for the Estate and the Ordinance, and has failed to seek proper professional advice.

10.  The Statement shows that the Plaintiff is agreeing to a certain view.  Agreeing to a certain view on her part cannot be equated with a failure on her part to act fairly and impartially in discharging her duties as the Chairperson  and that she favoured the interest of the owners of the commercial units over and prejudicial to the interest of the owners of the domestic units.  There is nothing wrong for her to hold a certain view and make it known to the public.  She did not transform her view into an “act”.  In order to perform any act as the Chairperson of the Management Committee, the act must be approved by the decision of the Management Committee.  That has not happened in this case.

11.  Even if her view is wrong, it is only a view, and not an “act”.  So how can her agreeing to a certain view be regarded as a failure on her part to safeguard but has acted in detriment to the interest of the owners of the domestic units!  She has not turned her “view” into an “act”.  It is the Management Committee, and not the Chairperson of the Management Committee, which decides who are liable to contribute to share the costs of the Renovation Project.  So the plaintiff cannot act to the detriment of the owners of the residential blocks simply by holding a view which agrees to the stance of the Whampoa Property. 

12.  I cannot see how holding a view cannot be regarded as the plaintiff’s complete disregard of the Deed of Mutual Covenant of the Estate and the Building Management Ordinance, in carrying out her duties as the Chairperson.  I cannot see how holding a certain view can be regarded as a failure to seek proper professional advice.

13.  The plaintiff submitted that accusing someone of breach of duties could be defamatory.  It is common sense that the duties and obligations of different owners in multi-storey buildings are governed by the relevant DMC and by the Building Management Ordinance.  The plaintiff being the Chairperson in the circumstances ought to have sought professional advice as to how the law (including the DMC) governs the obligations of the owners of the shopping arcade instead of agreeing to the notion put up by the owners of the shopping arcade.  That being so, the plaintiff as the Chairperson in agreeing to the views of owners of the shopping arcade had failed to safeguard the interest of the owners of the residential units and was in breach of her duties.  This submission is wrong.  Neither the Deed of Mutual Covenant of the Estate, nor the provisions of the Building Management Ordinance empowers the chairperson of a management committee (being merely a member of the management committee) of an incorporated owners to seek any legal professional advice.  It is the management committee, and not any individual committee member (including the Chairperson), which decides whether to seek legal advice.  To do so is only an administrative discretion of the management committee.  It is not under any legal obligation to do so.  Thus it would be wrong to cast such a duty upon her.  She is under no such duty, and hence she cannot be guilty of a breach of such duty.

14.  In my judgment, no ordinary, reasonable, fair-minded readers of the Statement could have implied or inferred from the words contained therein as bearing any defamatory meaning in their natural and ordinary meaning as alleged by the plaintiff.  Accordingly I dismiss the plaintiff’s claim against the defendant.

Costs

15.  I make an order nisi, to be made absolute in 14 days’ time, that the plaintiff do pay the defendant costs of this action, to be taxed, if not agreed, with certificate for counsel.