Wong Pik Ha v. 源發大廈業主立案法團

LDBM 193/2015

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 193 OF 2015

_________________

_________________

_________________

D E C I S I O N

_________________

1.The applicant is the owner of Flat 4P of Yuen Fat Building (“the Flat”) whilst the respondent is the Incorporated Owners (“IO”) of Yuen Fat Building (“the Building”).

2.This is an application by the IO for leave to adduce expert evidence of Professor Ho Siu-lau (“Professor Ho”), on the following issues (as stated at §4 of the Amended Summons):

4.1  hether the works to be taken out by the applicant, as particularised in the letter from Messrs. Jimmy K.S. Wong & Partners to Messrs. Leung, Tam & Wong dated 5 May 2016, will cause any hazard to any person lawfully in the Yuen Fat Building;

4.2  hat are the correct and safe procedures to be taken in any part of Yuen Fat Building for the purpose of restoration of electricity supply to the Flat;

4.3  hat was the cause of fire that broke out in the Flat of the Building on 9 May 2015; and

4.4  hether the different cause of fire will affect the expert’s opinion in the correct and safe procedures to take in any part of the Building for the purpose of restoration of electricity supply to the Flat.

Background

3.A fire broke out at the Flat on 9 May 2015 and electricity supply to the Flat has been suspended since this incident.  The request by the applicant for her and the registered electric contractor engaged by the applicant (“REC”) to have access to the meter room of the Building (“Meter Room”) was denied on 16 July 2015.

4.On 17 July 2015, officers of the Electrical and Mechanical Services Department (“EMSD”) came to the Building on the request of the applicant.  It is not in dispute that an Improvement Notice (“Improvement Notice”) (B/190-191) was issued to the applicant by a Mr Leung (“Mr Leung”) of EMSD.  The IO alleged that Mr Leung had requested the applicant to ask the China Light & Power Company (“CLP”) to separate the electric wires connecting the Flat and the meter before the applicant can have access to the Meter Room (“EMSD Request”).  The applicant denied that Mr Leung had ever made the EMSD Request.  This is the 1^st issue in dispute in this case (“EMSD Request Issue”). 

5.On the request of Ms Chen, manager of the Management Committee (“Ms Chen”), the REC sent a letter dated 18 July 2015 to the IO (“REC Letter”) (B/118) asking for access to the Meter Room for:

“進行更換電力總線工程，而上述工程的施工路線，需由電錶房經過走廊再進入工程單位”  (“the Intended Work”).   

6.Since the applicant was told by Ms Chen that the IO had to convene a meeting to consider whether the Intended Work was acceptable which may take months, the applicant started these proceedings on 23 July 2015 seeking for an order that the IO should allow the REC to have access to the Meter Room for repair work to be done.

7.At the management committee meeting held on 30 July 2015, it was decided that since the applicant had failed to comply with the EMSD Request, access to the Meter Room should be denied.  By a letter dated 5 October 2015 (B/193), the IO informed the applicant that access to the Meter Room will be allowed upon written confirmation from the applicant that the EMSD Request had been complied with.

8.By a letter dated 19 April 2016 from the solicitors acting for the IO to the applicant’s solicitors, the IO asked for further particulars of the Intended Work to be performed.  In its reply letter dated 5 May 2016 (B/120-121) by the solicitors for the applicant, it is stated that :

“1.  The purpose of the Work was to inspect and, if necessary, repair and/or replace damaged electricity wires and devices in the electric meter inside the meter room which are connected to Flat 4P in order to restore electricity supply to the flat.

2.  The contractor will inspect and, if necessary, repair and/or replace damaged electricity wires and devices in the electric meter inside the meter room which are connected to Flat 4P.

3.  Only the Electrical and Mechanical Services Department and a registered electrical contractor are involved in relation to the Work.

4.  No consent, approval or permission from any authority is required for the Work. The Work can be undertaken by any registered electrical contractor.

5.  “更換電力總線工程” is related to the Work as it involves replacing the main electricity wire(s) of Flat 4P which is/are connected to the electrical meter inside the meter room.

6.  “更換電力總線工程” involves replacing the main electricity wire(s) running from the electrical meter inside the meter room to Flat 4P.”

9.On 27 May 2016, the IO took out the summons (“the Summons”) seeking leave to re-amend the Notice of Opposition and to adduce expert evidence.  As a result of a consent summons filed on 31 May 2016, leave is granted for the re-amendment of the Notice of Opposition (§§1-2 of the Summons) and directions were given for the issue concerning expert evidence (§§3-7 of the Summons) to be adjourned for argument (B/61-62).

10.In the Re-Amended Notice of Opposition filed by the IO on 7 June 2016, it is pleaded that access to the Meter Room was denied since the IO had the duty to make sure that the applicant would fulfil the requirements as prescribed by EMSD and CLP and to ensure that the Intended Work would not cause any danger, annoyance and nuisance to other people in the Building in breach of clause 11(c) of the DMC, section 34I(1)(b)(ii) of the BMO as well as section 209 of the CLP Supply Rules (B/15).  This is the 2^nd issue in dispute (“Safety Issue”).

11.On 18 October 2016, the IO filed another summons (“Summons dated 18 October 2016”) seeking leave to amend §4 of the Summons.  The applicant had indicated no objection to the application for amendment at this hearing.

Respondent’s Contention

12.Counsel for the IO agreed that the EMSD Request Issue and the Safety Issue are the only issues required a determination of this Tribunal in this case.  On the EMSD Request Issue, apart from the factual dispute as to whether such request had been made, it is also in issue as to whether such step in the request has to be taken.  On the Safety Issue, since the REC failed to provide sufficient particulars for the Intended Work, the IO had concern over the safety aspect of the work to be done since it was not in line with the EMSD and CLP advice.

13.So expert evidence particularised at §4.1 and 4.2 of the Amended Summons is required to assist the Tribunal to determine what should be the proper and correct procedures to be taken for the purpose of restoration of electricity supply to the Flat and whether the Intended Work proposed by the REC will cause any hazard to any person lawfully in the Building.  The cause of the fire is also relevant in that such may turn on the opinion as to what are the correct and safe procedures to be taken which may vary if different cause is found (§4.1 and 4.2 of the Amended Summons refers).

14.In order for the expert to give his expert opinion, the IO also seeks direction for the applicant to allow the expert to have an inspection of the Flat, should the Tribunal allow expert evidence to be adduced.

Applicant’s Contention

15.Mr Tang submitted that expert evidence is not necessary in this case since the EMSD Request Issue only involved a factual dispute.  As for the Safety Issue, this is only raised in the Re-Amended Notice of Opposition and never before.  This raises a doubt as to the genuineness of the IO in refusing access on this ground.  Be that as it may, it has never been the IO’s case that the applicant should not follow the guidelines of the EMSD and the CLP or such guidelines are dangerous, incorrect or unsafe.  It is the applicant’s case that she had all along been following the EMSD and CLP guidelines.  The EMSD and CLP guidelines are contained in the correspondence with the parties in this case and these are the best evidence to show what are the proper, safe and correct procedures to be adopted, so expert evidence is not necessary.  In any event, such concern of the IO on safety of the Intended Work should be factual evidence from those responsible in refusing access on this ground and should not be told by the expert.

16.Should this Tribunal allow expert evidence to be adduced, the applicant agrees to allow the expert to have an inspection of the Flat.

Legal Principles

17.It is not in dispute that the criteria for expert evidence to be adduced is that :

a.  the expert evidence sought is necessary, relevant and of probative value;

b.  the court has to examine the pleadings to determine whether the proposed expert evidence is required in the pleaded case;

c.  relevant in the sense that it is helpful in arriving in decisions on the issues involved; and

d.  of probative value if it is particularly persuasive in its tendency to prove or disprove particular matters in issue.

Discussion

18.I agree with the submission of the applicant and find that expert evidence is not necessary in this case, and are irrelevant and of no probative value.

19.On the issue as to whether the EMSD Request had been made is undoubtedly a factual dispute which the expert will be in no position to tell.  As to the suggestion that whether such EMSD Request should be complied with, this is not an issue in this case since it is the IO’s case that the applicant should comply with this whilst the applicant’s case is that no such request had ever been made.  It was neither party’s case to raise query as to whether such EMSD Request is reasonable or should be followed.  The expert evidence sought to be adduced to cover this point is neither necessary nor relevant to the issues in dispute.

20.As for the Safety Issue, the crux of the matter is what was in the mind of the IO at the time of refusal of access to the Meter Room so as to raise the concern over the safety of the Intended Work.  This must involve some factual evidence from the IO which is present at the time of the refusal of access and not something as a result of an afterthought after the filing of the Notice of Opposition.  As confirmed by counsel for the IO, the IO’s concern over the safety aspect is it is not in line with the EMSD and CLP advice.  To allow the IO to adduce expert evidence now to tell what are the concern of the Safety Issue or what are the proper and correct procedure to justify that the Intended Work is dangerous or may cause hazard to other occupiers of the Building is putting the cart before the horse and clearly unnecessary and irrelevant.  The move by the IO in seeking leave to adduce expert evidence is not to prove anything contended by the IO but instead to collect evidence to justify its defence.

21.In any event, as appeared from the correspondence, the EMSD and the CLP are more than prepared to give guidelines as to what should the applicant do in order to get the electricity supply to be resumed.  They are in the best position to tell what are the proper and correct procedures to take.  And even the EMSD and the CLP are contend to rely on the expertise of a registered electrical contractor in the performance of the electricity work and also for the registered electrical contractor to certify that the work is properly done, this Tribunal fail to see why we need an another guidance from the expert as to what precise steps should be taken in order to resume the electricity supply to the Flat.

22.As to the cause of the fire, I failed to see how the different cause of the fire would turn on the 2 issues in dispute in this case.  Even if different cause of the fire may result in different procedures to be taken in the resumption of the electricity supply, this is not something that concerns this Tribunal since the issue involved is whether the Intended Work is safe or not.  What should be the proper procedure is neither here nor there.  Even if expert’s assistance is required to tell the proper procedure, all that the expert is required to do is to tell the proper procedure on the resumption of electricity in the case of the Flat and based on the existing condition of the Flat and the Meter Room and need not concern about the actual cause of the fire. 

23.Having considered the above, leave sought by the IO for expert evidence to be adduced must be refused.

The Order

24.It is ordered that :

a.  Order in terms of Summons dated 18 October 2016;

b.  §§3-7 on the Amended Summons be dismissed;

c.  costs of and occasioned by the Summons and the Amended Summons including all costs reserved be to the applicant, to be taxed if not agreed on party and party basis, at District Court scale with certificate for counsel.

Mr Kelvin Tang, instructed by Jimmie K S Wong & Partners, for the applicant

Mr Herbert Leung, instructed by Leung, Tam & Wong, for the respondent