A resident was dissatisfied with the management of her residential complex and filed numaerous complaints. She wrote to the members of the Incorporated Owners and asked for individual responses. The letters were subsequently passed to the management office for reply. The appeal related to whether there was a breach of DPP3 by the Incorporated Owners as a result of the transfer of the letters. (AAB Appeal No. 4 of 2010)
The Complaint
The complainant resided in a flat at a residential complex which was owned by her husband and another person. She was dissatisfied with the management of the residential complex and made numerous complaints and enquiries, which were all being dealt with by the management office. The complainant was not satisfied with the replies and the way in which her complaints were being dealt with. She then sent two letters to the members of the Incorporated Owners and asked them not to appoint others to respond but to provide their own individual responses to her. The Incorporated Owners subsequently passed the letters to the management office for reply. Dissatisfied with the treatment, the complainant lodged a complaint with the Commissioner.
Findings of the Commissioner
The Commissioner was of the view that the original purpose of collection of the letters (which contained her personal data) by the Incorporated Owners was to deal with her enquiries regarding the management issues of the residential complex. The subsequent disclosure of the letters to the management office by the Incorporated Owners was for the purpose of handling her enquiries, which was directly related to the original purpose of collection of the data. Hence, there was no contravention of DPP3. Even though the complainant had requested the Incorporated Owners not to appoint others to reply to her, it was not within the jurisdiction of the Commissioner to oversee such compliance. The Commissioner thus decided under section 39(2)(d) of the Ordinance that it was unnecessary to carry out a formal investigation of the complaint. Dissatisfied with the decision, the complainant appealed.
The Appeal
The major argument in the appeal was on the declaration made by the complainant at the end of her letters sent to the Incorporated Owners. The complainant argued that her declaration was to “prohibit” the Incorporated Owners from passing her letters to the management office, while the Commissioner considered that there was no such prohibition. Upon examination of the declaration, the AAB found that it was a “request” and should not be interpreted as a “prohibition” against the disclosure of the letters to the management office.
The solicitor of the Incorporated Owners submitted that the Incorporated Owners had to rely on the management company to confirm the identity of the writer of the letters, which contained criticisms and comments. The AAB accepted the submission and stated further that the Building Management Ordinance conferred power on the Incorporated Owners to appoint professionals to assist in the handling of building management matters and that the appointment of a management company to handle enquiries or complaints made by owners and other related persons was very common and was based on valid legal grounds. To prohibit the Incorporated Owners from allowing the management office to verify the identity of the writer of the letters or to refer to the letters would render the Incorporated Owners not being able to obtain the necessary assistance and would make it impossible to enhance work efficiency.
The AAB found that there was no prima facie evidence of contravention on the part of Incorporated Owners or its individual members. The Commissioner had no power to compel individual committee members to respond to the complainant’s letter. The AAB decided that the Commissioner’s decision under section 39(2)(d) of the Ordinance to refuse to initiate a formal investigation was in accordance with its established policy and hence a correct decision.
The AAB's Decision
The AAB upheld the Commissioner’s decision in refusing to pursue the complaint further and dismissed the appeal.
uploaded on web in March 2014