Yiu Hoi Shan Candy v. Harbour Heights (Management) Ltd and Another
Read the full judgment text of DCCJ 4732/2013 on BabelCite. This District Court judgment was delivered on 1 June 2016.
1. The plaintiff (“Candy Yiu”) is and was the registered owner of the roof of flat C, 41 st floor, Ko Fung Court, Harbour Heights, 5 Fook Yum Road, North Point, Hong Kong (“the Roof”).
Cites 3 cases
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DCCJ 4732/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4732 OF 2013 ------------------------
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------------------------ JUDGMENT ------------------------ Background 1.The plaintiff (“Candy Yiu”) is and was the registered owner of the roof of flat C, 41st floor, Ko Fung Court, Harbour Heights, 5 Fook Yum Road, North Point, Hong Kong (“the Roof”). 2.The 1st defendant (“Manager”) is and was the manager of Harbour Heights under the deed of mutual covenant (“DMC”). 3.In about November 2011, the 2nd defendant (“Perfect Construction”) was engaged by the Manager to carry out renovation works to Harbour Heights including Ko Fung Court (“Renovation Works”). 4.Candy Yiu averred that workers of Perfect Construction had damaged the Roof during the Renovation Works and claimed damages against both the Manager and Perfect Construction. 5.Mr Lam, appearing for the plaintiff and Mr Wong, appearing for the defendants, failed to agree on the list of issues in this case. In my view, there are 3 issues:
Who damaged the Roof? P’s case 6.Candy Yiu’s case was that the workers of Perfect Construction damaged the Roof. She testified that in about early 2011, she spent more than $400,000 to renovate the Roof. Upon its completion in mid 2011, she informed the Manager who only queried that the split air-conditioner was installed at a wrong position at that time. There was no further query from the Manager. A few months afterwards, ie, in about November 2011, the Renovation Works commenced. 7.During the Renovation Works, scaffolding works extended to inside the Roof. Workers of Perfect Construction entered into the Roof from time to time. She requested prior notice before each entry. However, Perfect Construction did not inform her on each occasion and in her view, these were “unauthorized” entries. Therefore, she lodged a number of complaints to the Manager. Still, these unauthorized entries continued and she opined that the Manager had failed to sufficiently monitor Perfect Construction and/or its workers. 8.During the Renovation Works, Perfect Construction’s workers damaged the Roof. Ms Lau Shan La (“SL Lau”), the expert engaged by Candy Yiu, had prepared a survey report dated 21 May 2014 and particularized 7 items of damages to the Roof:
9.Item 2 was about the artificial timber originally fixed to the wall of the Roof. There was a water pipe for common use installed at the Roof. During the Renovation Works, some of the artificial timber fixed in front of the pipe were required to be disassembled so as to facilitate the change of the pipe. Candy Yiu instructed her contractor to disassemble some artificial timber and that was not sufficient. At the end, it was Perfect Construction’s workers who disassembled further artificial timber and that was carried out free of charge. Candy Yiu estimated that about 1/3 of the artificial timber was disassembled by her contractor whereas another 1/3 was disassembled by Perfect Construction. Her contractor, after disassembled the artificial timber, had properly stacked up and tied up the same in bundles. Present conditions of these artificial timber are still good. However, Perfect Construction’s workers simply placed those artificial timber disassembled by them on the Roof but not properly stacked up and tied up. By now, those artificial timber disassembled by Perfect Construction cannot be used anymore. 10.In respect of Item 1 and Items 3 to 7, Candy Yiu did not eye-witnessed who caused the damages. In any event, she opined it was caused by Perfect Construction’s workers. For Item 5, Candy Yiu added that Perfect Construction had already agreed to make compensation. D’s case 11.Both defendants denied causing Items 1 to 7 to the Roof. Wong Sai Kit (“Wong”), assistant property asset manager of the Manager, agreed that Candy Yiu had lodged a number of complaints for various matters arising from the commencement of the Renovation Works. He said that upon receipt of a complaint, it would be recorded down and the Manager would investigate and then follow up the matter. In particular, when Candy Yiu complained on the unauthorized entries to the Roof by Perfect Construction’s workers, he had requested Perfect Construction at the daily meeting to regulate its workers not to do so if they had not made any prior arrangement with Candy Yiu or they should improve communications with Candy Yiu. 12.Woo Kwok Hung (“Woo”), foreman of Perfect Construction, testified that he (or with his workers) did not disassemble the outdoor artificial timber of the Roof as alleged by Candy Yiu. He also denied that he had agreed to do so free of charge for Candy Yiu. He said that before commencement of any work relating to the pipes at the Roof, the artificial timber had already been disassembled. When he tried to change the water pipe, he was only required to demolish and then re-fix part of the iron rack. He said that was a simple work and was done upon permission by Candy Yiu. 13.Lau Man Hou (“MH Lau”), project manager of Perfect Construction, testified that upon receipt of complaints from Candy Yiu, he would immediately investigate and follow up the matter. Some of the complaints made by Candy Yiu were relating to the damages inflicted on the Roof during the Renovation Works. Those damages to the Roof had already been rectified after investigation, if they were confirmed to be caused by Perfect Construction. Regarding the “unauthorized” entries to the Roof, he said that he had reminded the workers to inform Candy Yiu before the entry if they had not done so previously. 14.There was no evidence that the Manager caused any damages to the Roof. Discussion (1) Expert evidence by SL Lau 15.Mr Wong challenged the expertise of SL Lau and submitted that she was not even qualified to give expert evidence. Mr Wong pointed out that SL Lau’s CV[1] was not accurate. 16.First of all, in respect of SL Lau’s academic qualification, Mr Wong submitted that the correct description should be BEng (ENV) instead of BSc(Eng). SL Lau admitted that in court. 17.Furthermore, SL Lau stated in her CV that during 1996 to 2010, she worked for a company by the name “Consulting Engineers Company Limited”. That company, however, did not exist. Upon enquiry by defendants’ solicitors, it was ultimately discovered that SL Lau did not put down the correct name of that company in her CV. The correct company name should be “Ho Tin & Associates Consulting Engineers Limited”. In court, SL Lau explained that she did not want to make promotion or advertisement for that company. She also said that she did not want to take advantage from mentioning the company name. 18.SL Lau further stated in her CV that she worked as a chief engineer for a company from 2011 to 2012. From 2013 until now, she has been working for another company also as a chief engineer. Under cross-examination, she admitted that she was in fact working on a part time basis for both companies. For these part time “chief engineer” works, it took her about 35% of her working time. For the rest, ie about 65% of her working time, she claimed that she engaged in building related works. 19.I agree with Mr Wong’s submission that SL Lau’s CV was full of misleading, if not incorrect, information. She should have correctly stated her qualification and provided the full name of her employer. She should have stated clearly when she was working on a part time basis. However, despite all these unsatisfactory “descriptions” in her CV, I agree that she had sufficient qualification and experience in giving expert opinion in court. Without acknowledging the way how SL Lau presented her CV, I accept her as an expert witness. Certainly, I will not blindly accept whatever an expert said. In this case, both parties had their own expert. At the end of the day, adducing expert evidence in court is not a battle of qualifications. The soundness of one’s opinion is far more important. 20.SL Lau visited the Roof. In her survey report, she said:
21.When SL Lau said “enough evidences”, I cannot accept. She could be able to tell what kind of damages had been incurred. But I do not agree that she could tell who caused the damages. She gave no explanation at all. Probably, she thought that it was a matter of course that the damages were caused by Perfect Construction when she was informed at the material time, Perfect Construction was occupying and/or having frequent entries to the Roof. In the circumstance, I reject SL Lau’s evidence as to who caused the damages to the Roof. (2) the artificial timber 22.I deal with Item 2 first, ie the claim regarding the artificial timber. I accept that prior to the Renovation Works, as shown in the photos taken by Candy Yiu[2], outdoor artificial timber was affixed to the walls of the Roof. Obviously, to facilitate the Renovation Works, some of the artificial timber should be disassembled from the wall. These disassembled artificial timber could be fixed back to the wall. 23.Candy Yiu was required to disassemble the artificial timber in order to allow Perfect Construction’s workers to fix the water pipe. According to her case, she had instructed her contractor to disassemble about 1/3 of the artificial timber. The crux of this issue was: did she (or her contractor) disassembled 1/3 or 2/3 of the artificial timber? In other words, I have to decide if Perfect Construction had disassembled 1/3 of the artificial timber. 24.The whole purpose for disassembling artificial timber was to allow Perfect Construction’s workers to fix the water pipe. Candy Yiu (or her contractor) should have known the reason and should have disassembled the same sufficiently to allow Perfect Construction to carry out the works. Therefore, it was unreasonable for her not to instruct the contractor to disassemble sufficient artificial timber. 25.From the record of complaints kept by the Manager, Candy Yiu had lodged various complaints relating to the Renovation Works. She complained that the workers had used lifts no. 1 and no. 2, instead of the approved lift no. 3. She complained there was dirtiness at the Roof, at the staircase leading to the Roof and also the corridor at the 41st floor. She complained the workers of Perfect Construction had smoked at the Roof. Also, she complained for the “unauthorized” entries. She had other complaints but there is no need to particularize all of them. From the record of complaint, I find that she would lodge complaints to the Manager for matters which she was not satisfied with. So, had Perfect Construction assumed the responsibility to disassemble artificial timber but failed to properly stack up and tie up the same, I think that she would have lodged such a complaint to the Manager at that time. There was no such record. 26.Furthermore, it was not the duty of Perfect Construction to disassemble the artificial timber. Woo testified that it required a long time to do so and in view of the tight manpower at the material time, there was no reason for him to assist Candy Yiu. I accept his explanation. I do not think that Woo, or anybody from Perfect Construction, would have agreed to disassemble the artificial timber. They simply had no reason to assume that responsibility. On balance, I do not accept that the 1/3 of the artificial timber was disassembled by Perfect Construction. I find that it was Candy Yiu’s contractor who disassembled 2/3 of the timber but did not properly stack up and tie up all of them. Therefore, about 1/3 of them were placed on the Roof in a disorderly manner. 27.For those disassembled artificial timber that had been properly stacked up and tied up, they are still reusable. Those disorderly placed timber were not properly stacked up and tied up and without sufficient protection. The damages incurred thereby should be borne by Candy Yiu and/or her contractor, but not Perfect Construction. 28.Mr Wong submitted that even if it were found that Perfect Construction had disassembled those timber as alleged by Candy Yiu, Perfect Construction had no duty to stack up and tie up the same in an orderly manner. Candy Yiu should have done so. Had Candy Yiu arranged her own contractor to stack up and tie up those artificial timber, no damages would have incurred. I accept Mr Wong’s submission. In the circumstance, the damages incurred to those timber, if any, should not be borne by Perfect Construction. (3) other items 29.I shall now deal with Item 1 and Items 3 to 7. Mr Lam submitted that the doctrine of res ipsa loquitur applies in this case. Mr Wong did not agree and submitted that Candy Yiu maintained the exclusive possession of the Roof. Mr Wong further submitted that Candy Yiu did not eye-witnessed who damaged these 6 items and raised a proposition that there could be trespassers entered into the Roof and caused the damages. In other words, Candy Yiu’s visitors, contractors and/or other trespassers could have done so. 30.According to Clerk & Lindsell on Tort, 21ed :
31.Harbour Heights was and is still a residential premises. All owners could, in theory, go to the roof top and enter into the Roof after breaking the locks. The Renovation Works commenced in November 2011. Since then, Perfect Construction’s workers entered into the Roof from time to time. Equipments were placed or stored and scaffolding was also rooted inside the Roof. The photos taken by Candy Yiu clearly show that there was debris on the Roof. I do not think that Candy Yiu, under that environment, preferred to go up to the Roof to enjoy. I accept Candy Yiu had from time to time gone to the Roof but her primary concern was to make sure that the Roof was free from unnecessary dirtiness. 32.The record of complaint showed that Candy Yiu had lodged many complaints about the Renovation Works, particularly from March to August 2012. From the record of complaint, the Manager kept on reminding the workers accordingly. The Manager did not dispute that Perfect Construction’ workers were not working and/or entering the Roof. I find that during that period of time, Perfect Constructions’ workers had from time to time entered into the Roof in order to carry out the Renovation Works. 33.Item 1 and Item 7 related to the dirt stains and cement sand patches found on the floor tiles and on the wash basin and the stone desk. From the record of complaint, there were 4 complaints lodged by Candy Yiu in relation to dirtiness caused to the Roof, ie on 23 March 2012, twice on 16 May 2012 and on 24 May 2012. From the “follow-up action” column in those records, the Manager had followed up the matter. The Manager did not mention in the record of complaint that Candy Yiu was making false allegation. In the circumstance, I accept that in carrying out the Renovation Works, Perfect Construction had occasionally caused dirtiness to the Roof. 34.Further, one of the photos taken by Candy Yiu[3] clearly shows that a worker wearing the uniform of Perfect Construction was squatting on the stone desk with a cement bucket placed inside the wash basin, when the wash basin was apparently not protected. That photo supported Candy Yiu’s version. 35.According to the record of complaint, Candy Yiu complained there were scratch marks on the 2 cabinets on 16 May 2012. On 24 May 2012, it was recorded that that the iron gate and the 2 cabinets were damaged. On 17 July 2012, it was recorded that the lock to the Roof was damaged. On 28 August 2012, it was recorded that 3 lights in the Roof were damaged. I accept that at the material time, workers of Perfect Construction entered the Roof from time to time. I find that they almost occupied the Roof. There was no evidence to support that any outsider, be it owner, visitor or trespasser of Harbour Height, had entered into the Roof at the material time. There was no evidence that Item 1 and Items 3 to 7 were damaged prior to the commencement of the Renovation Work. 36.Taking all circumstance into account and applying the doctrine of res ipsa loquitur, I find that Item 1 and Items 3 to 7 were caused by Perfect Construction’s workers. 37.During trial, one dispute between the parties was: did Perfect Construction promise to compensate the 2 cabinets? Having decided that Item 5 was damaged by Perfect Construction’s workers, I do not consider that is an issue anymore. Further, I do not think that a promise to compensate equals to admission of liability. In any event, the defence’s case was that Woo and Man denied that there was any promise to compensate the 2 cabinets. According to the record of complaint, it merely recorded down that Candy Yiu had complained for the damages caused to 2 cabinets without mentioning any promise to compensate. 38.However, during the trial, Wong gave evidence and testified that he overheard someone from Perfect Construction had promised to take responsibility for damages to the 2 cabinets, ie Item 5. I have no reason not to believe him. Although other witnesses for the defendants testified that they did not hear such kind of promise, probably they just failed to pay attention to that. I find that Perfect Construction had promised to take responsibility for damages to the 2 cabinets. Who was liable for the damages to the Roof? 39.Perfect Construction shall be liable for the damages incurred so far as the same was caused by its workers, ie Item 1 and Items 3 to 7. The position of the Manager, however, was different. There was no allegation that the Manager (or its staffs) damaged the Roof. According to the pleaded case, the Manager was alleged to be negligent in:
40.Obviously, the Manager owed a contractual duty to the Candy Yiu under DMC. However, it was not pleaded in the statement of claim that the Manager was in breach of any clause in the DMC. The case against the Manager was based upon negligence. Anyway, a claim in negligence adds nothing further to the claim in breach of DMC. Lo Yuk Chu v Hang Yick Properties Management Ltd[4] was a case about whether or not the building manager had breached its contractual duties under the deed of mutual covenant. In Ma Chung Lam and another v Citybase Property Management Ltd[5], the court of appeal held that :
41.In order to fend off Candy Yiu’s claim, Mr Wong referred me to clause 26.01 of the DMC, which provides:
42.It is trite law that the contractual duty imposed upon the Manager was not absolute. The Manager was required to act reasonably in the circumstances. In Lo Yuk Chu, the court of appeal held that:
43.Therefore, the crux must be what the Manager had done (or not done) in this case. 44.What had been done was well documented. From the record of complaint, the Manager had handled Candy Yiu’s complaints and informed Perfect Construction to follow up the matter and/or to resolve the problem within the same day or days. I have no reason not to believe those records and find that the Manager had responded to each of Candy Yiu’s complaint within a short and reasonable time. 45.Further, I accept the evidence of MH Lau and Wong that upon received complaints regarding the unauthorized entries, they had duly reminded Perfect Construction’s workers to give prior notice to Candy Yiu before entry in the Roof. 46.In fact, the Renovation Works had been contracted out to Perfect Construction. Even if the Manager sent a security guard stationed at the Roof, damages to the Roof might still be unavoidable. It was the negligent act of the workers that caused the damages. The Manager should be duty bound to remind Perfect Construction to carry out the Renovation Works carefully. From the “Follow-up action” column of the record of complaint, the Manager had repeatedly reminded Perfect Construction to attach protective plywood and to keep the place clean. The photos show that there was plywood placed on top of the floor tile of the Roof. On the face of it, there was sufficient protection to the floor tile. In the circumstance, I accept that the Manager had acted reasonably to handle Candy Yiu’s complaint. 47.Mr Lam tried to emphasize that there were unauthorized entries to the Roof and that caused damages to the Roof. Candy Yiu’s case was that she had not been notified of every entry by Perfect Construction. Still, she agreed that she had given approval to Perfect Construction’s workers to work at the Roof. Therefore, there must be occasions that there were authorized entries. It would be difficult to tell if the damages to the Roof were caused during those “authorized” or “unauthorized” entries. More importantly, it was not the unauthorized entries that caused damages to the Roof. It was the negligent act of the workers that caused damages. I therefore find that Candy Yiu failed to prove the causation between the “unauthorized” entries and the damages to the Roof. 48.Duty of the Manager was not absolute. Taking all the circumstance into account, I find that the Manager had already acted reasonably in response to the complaints lodged by Candy Yiu and/or had sufficiently prevented Perfect Construction from entering, using or damaging the Roof. I therefore accept that the Manager was not liable in this case. Furthermore, I do not accept that what the Manager had done (or had not done) could be categorized as “gross negligent” and/or “wilful default”. The claim against the Manager is dismissed. 49.To conclude, Perfect Construction is liable to compensate Candy Yiu for Item 1 and Items 3 to 7. The quantum of damages 50.SL Lau and Ng Yik Hei (“Ng”), expert for the defendants, prepared a joint expert report to particularize their respective views over the quantum of damages. I accept that both SL Lau and Ng could give expert evidence in this case after reading their respective CVs. 51.For Item 1, both experts agreed that the costs for repair ranged from $5,000 to $8,810. I agree that it probably requires 3 general workers (at $753 per day) to work for 3 days. The 30% contractor profit, as suggested by SL Lau, is also reasonable. I accept that $8,810 is a reasonable sum. 52.I shall also consider Item 2 for the sake of completeness. Assuming that it was Perfect Construction who disassembled 1/3 of the artificial timber, Perfect Construction would be liable to compensate for the damages incurred. SL Lau opined that a total replacement was required and the total costs would be $117,441.70. Ng opined that the damaged artificial timber shall be discarded and replaced with matching artificial timber and then clean all of them with approved non-acid type stains. Total costs would be $19,000. 53.For the different views held by SL Lau and Ng, I accept Ng’s. According to Candy Yiu, only 1/3 of the timber was disassembled by Perfect Construction. There is no reason for Perfect Construction to replace all artificial timber. In court, Ng admitted that after replacement of the damaged artificial timber and reused the un-damaged artificial timber, there might still be different extent of the colour deviation after cleaning. I accept Ng’s explanation that it was due to different weather exposure for timber members facing inside and outside of the stack that caused the colour deviation. Perfect Construction had no duty to stack up any disassembled artificial timber. I am therefore not persuaded that in the circumstance, Perfect Construction would be liable for replacement of all the artificial timber. 54.Among the estimated costs of $19,000 by Ng, $4,000 was reinstatement costs. I agree with Mr Wong’s submission that there was no evidence to support that Perfect Construction had agreed to reinstate the timber fence. In the circumstance, the reasonable sum for compensation of Item 2 should be $15,000 ($19,000 - $4,000). 55.For Item 3, both experts agreed that the reasonable sum should be about $16,000. I accept that amount. 56.For Item 4, both experts agreed that the costs can be adjusted to $5,470 and I accept that amount. 57.For Item 5, SL Lau opined that it would be more economic to replace the 2 cabinets with new ones than to repair them because the roofs of the cabinets were deformed and damaged, with signs of leakage and rusting of metal structure. Her assessment was $26,978.90. On the other hand, Ng suggested that spending $7,000 on re-cladding with new metallic synthetic panels would be sufficient. 58.I prefer Ng’s view. Unless the 2 cabinets cannot be re-instated, it was not reasonable to replace them with new ones. I accept the reasonable sum of compensation for Item 5 is $7,000. 59.For Item 6, it was agreed that the costs should be $4,879. I accept that amount. 60.For Item 7, SL Lau opined that a complete replacement of the washing basin is needed. She stated in the joint report that crack was found. She was, however, unable to identify the crack in court by reference to the photos. More surprisingly, she did not even mention any crack found on the washing basin in her survey report. In my view, a crack in the wash basin was an important finding. SL Lau was unable to explain why she failed to mention such an important finding in her survey report, which was made soon after her inspection to the Roof. I reject her evidence and find that there was no crack in the washing basin. In the circumstance, I do not accept her opinion regarding Item 7. 61.Ng clearly pointed out in the joint report that the dirt stain and cement sand patches on the basin and stone desk can be removed and re-polished similar to Item 1. In his view, such reinstatement cost can readily be absorbed in Item 1 if the upper range of costs is adopted. I doubted how could the cleaning work to the Item 1 could be so absorbed. I assess that the cleaning work to Item 7 could be performed by 1 general worker in 1 day. 1 general worker’s costs is about $750. Taking into account the normal contractor’s profit and the material or cleanser involved, I assessed that a reasonable sum should be $1,000. 62.Both experts agreed that protection, removal of waste material, insurance were required. A costs ranging from $3,000 to $4,759 was agreed. I assess that $4,759 would be more reasonable. 63.The total amount for re-instatement should be:
64.Mr Wong also submitted that Candy Yiu’s renovation work at the Roof top amounted to illegal structure and therefore in the absence of any written approval from the Manager, Candy Yiu was not permitted to re-instate anything. 65.I cannot agree with Mr Wong’s submission. Even if, which is not my finding, that the Roof were full of illegal structures, it did not follow that the workers from Perfect Construction would be allowed to damage them. In Legent Ceramic Limited v Rainbow Choice Investment Limited and ors[6], His Honour Judge Leung decided to discount the amount of the damages incurred after taking into account that an award should not reflect the court’s condoning of the extra space created as a result of an unauthorized structure. 66.In this case, there was no evidence that the Manager had issued even one warning letter to Candy Yiu demanding her to demolish any of those alleged illegal structure. This is not a trial to make declaration if any illegal structure existed at the Roof. Even if it is proved that there were illegal structure at the Roof, Candy Yiu could have, after re-instated the damages incurred, moved the illegal structure elsewhere. For example, she could move away the 2 cabinets. I am not persuaded by Mr Wong’s submission and will not deduct any sum because the damaged items were alleged to be an illegal structure. 67.Candy Yiu also claimed for the loss of use of the Roof at $4,000 per month. There is no dispute that Candy Yiu had a duty to mitigate the loss. There were ongoing suggestions by the defendants’ side to make good the damages at the Roof. Perfect Construction assessed it took 15 days to complete the remedial works. It was Candy Yiu’s decision not to allow the defendants, nor instruct other contractors, to carry out remedial works. Her “loss of enjoyment” of the Roof was because of her own decision, not caused by Perfect Construction. Her claim for $4,000 per month until the repair works to be done to the Roof have been finished is dismissed. Still, I agree that it took some time to make good the damages. I think one month would be a reasonable time. Although the figure $4,000 per month was only an estimation by Candy Yiu without supporting evidence, I accept that is a reasonable sum and award $4,000 as loss of usage of the Roof. 68.The total award is $51,918 ($47,918 + $4,000). Orders 69.As between the plaintiff and the Manager, the plaintiffs’ claims are dismissed. Costs should follow event. I make an order nisi that the plaintiff do pay costs to the Manager (include all reserved costs, if any), with certificate for counsel, to be taxed if not agreed. 70.As between the plaintiff and Perfect Construction, judgment be entered for the plaintiff for the sum of $51,918, with interest at the judgment rate from the date of writ until judgment and thereafter at judgment rate until satisfaction. I make an order nisi that Perfect Construction do pay costs to the plaintiff (include all reserved costs, if any) to be taxed if not agreed. 71.The said costs order nisi shall become absolute after 14 days from the date hereof in the absence of application to vary by summons.
Mr Alex Lam Chi Yau, of CY Lam & Co for the plaintiff Mr King Wong, instructed by Simon Ho & Co for the 1st and 2nd defendants |
Cases cited in this judgment