Chan Wai Shin v. Pang Chung Kong and Another
Read the full judgment text of DCCJ 2346/2017 on BabelCite. This District Court judgment was delivered on 27 September 2019.
1. This is a water seepage case. The plaintiff is the owner of Flat A, 6 th Floor, Block 11, Braemar Hill Mansion, 15-43 Braemar Hill Road, Hong Kong. He claims damages and injunctive relief against the 1 st and 2 nd defendants, who are the co-owners of the flat directly above his, ie Flat A on the 7 th Floor. The defendants are husband and wife. They have owned the property since August 1997.
Cited by 7 cases · Cites 5 cases
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DCCJ 2346/2017 [2019] HKDC 1289 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2346 OF 2017 -------------------------
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----------------------- JUDGMENT ---------------------- INTRODUCTION 1.This is a water seepage case. The plaintiff is the owner of Flat A, 6th Floor, Block 11, Braemar Hill Mansion, 15-43 Braemar Hill Road, Hong Kong. He claims damages and injunctive relief against the 1st and 2nd defendants, who are the co-owners of the flat directly above his, ie Flat A on the 7th Floor. The defendants are husband and wife. They have owned the property since August 1997. 2.The plaintiff initially pursued his claim in the Small Claims Tribunal in April 2016. As the plaintiff alleged that the water seepage was subsisting and he would seek injunctive relief in order to resolve the problem, the presiding officer transferred the claim to the District Court. 3.In gist, the plaintiff says that there has been water seeping from the defendants’ flat to his flat affecting his master bathroom and guest bathroom since about June 2015. That was shortly after he took possession of the flat as owner. The seepage has continued to this day. In addition to injunctive relief, the plaintiff seeks damages. As confirmed at closing by his counsel, Ms Denise Tso, he claims a total sum of $236,930. 4.The defendants do not accept that there has been water seepage inside the plaintiff’s flat. Even if there has been, they strongly deny that their flat is the source. They contend that there are three sources:-
5.The defendants make a counterclaim against the plaintiff for, first, removing part of the enclosing walls of the pipe duct in his flat and shortening the pipes within the duct; and, secondly, for continuing making false claims of water seepage against them. They claim $491,000 as damages. 6.Ms Lai Nga Ting Anthea, the plaintiff’s wife, testified at trial, giving a narrative of how their flat has been affected by the water seepage problem over the past four years and how they have attempted to resolve the problem by seeking assistance from the management office of the building, the Buildings Department and the Food and Environmental Hygiene Department Joint Office 1 and the Water Supplies Department. In the process, however, the defendants have not been co-operative. And the water seepage problem remains unresolved. 7.The 1st defendant gave evidence for himself and the 2nd defendant. They act in person in this action. 8.By order dated 8 February 2018, leave was given to the parties to adduce expert evidence on liability and quantum. Mr Jacob Tsang, the plaintiff’s expert, and Mr Anthony Poon, the defendants’ expert, conducted a joint inspection of the two flats on 28 May 2018. The experts have compiled a joint report dated 16 August 2018 (“the joint expert report”). At the pre-trial review, by consent, I directed that the report be admitted into evidence without calling the experts. 9.Also before the court are inspection records and test reports produced by the management office, the Joint Office, the Water Supplies Department and the external consultants appointed by the latter departments. They are quite voluminous. This is perhaps not surprising, given that the water seepage, as alleged, have persisted for over four years. 10.There is also a large collection of correspondence exchanged among the parties, the management office and the government departments. The mere size of this collection reflects the extraordinary amount of time and efforts spent on this matter. If the plaintiff’s case is proved, it is a sign of the unfortunate ordeal which his family has endured and gone through over the years. 11.I should also note at the outset that the 1st defendant stated that he has a professional qualification in quantity surveying. In 2010, he retired as senior quantity surveyor of the Housing Authority after a service of about 27 years. At the pre-trial review, he asked the court to allow him to give expert opinion at the trial, given that he has professional knowledge and extensive working experiences in water seepage cases. I refused the application. He is a party to this action. This is inconsistent and incompatible with an expert’s overriding duty to assist the court impartially and independently. 12.Notwithstanding that, in the course of his oral testimony and during his closing submissions, the 1st defendant from time to time made statements which in substance amount to opinions. That is perhaps inevitable, given his background. However, these statements, being opinion in nature and coming from a factual witness, are not admissible. I shall highlight them in the discussion below. THE PLAINTIFF’S CASE 13.The plaintiff became the registered owner of Flat A on the 6th Floor in June 2015. Lai was aware that there had been water seepage problem affecting the ceiling of the guest bedroom and the guest bathroom of the flat. But she was given to understand that the problem had been resolved. Water seepage emerged in June 2015 14.In June 2015, Lai found that there was water dripping at the pipe duct located within the master bathroom and water seepage at the ceiling of the master bathroom. She complained to the management office. 15.Upon inspection, the management office found that the moisture content readings at the ceiling of the master bathroom were as high as 90.5% and water was dripping from the pipes in the pipe duct. This is documented in the letter issued by the management office to the defendants dated 26 June 2015. In the letter, the management office recommended that the defendants should engage a contractor to check the floor slab and the pipes inside their flat. On the same day, the management office notified the Joint Office of the problem. The investigation from July 2015 onwards 16.On 9 July 2015, the Joint Office inspected the plaintiff’s flat. A representative of the management office and the 1st defendant were also present. This is the first visit paid by the 1st defendant to the plaintiff’s flat. What was observed on that occasion is hotly disputed. It is Lai’s evidence that one could see signs of water leakage in the master bathroom. These were documented in the summary of actions produced by the Joint Office annexed to their letter dated 2 August 2016 (“the first Joint Office summary”). The following observations were made in relation to the master bathroom:-
17.On 21 July 2015, the Joint Office visited the plaintiff’s flat again. This was documented in the first Joint Office summary. Similar observations were made in respect of the master bathroom save that no water sample could be collected this time. 18.Meanwhile, the defendants refused to allow the staff of the management office to go inside their flat to investigate the water seepage problem. 19.The plaintiff’s flat underwent refurbishment in about August 2015. In order to install air-conditioners, scaffolding was erected on the external wall. The management office made use of the opportunity to renovate the external wall outside the plaintiff’s flat to ensure that there would not be any water seeping from the external wall into his flat. 20.On 10 September 2015, the Joint Office inspected the plaintiff’s flat again. This time, as recorded in the first Joint Office summary, the same signs were observed in the master bathroom. Further, the following observations were made in respect of the guest bathroom:-
21.This was followed by a visit by the management office to the plaintiff’s flat on 11 September 2015. Upon investigation, the management office found that the water seepage problem was still subsisting, based on the high moisture content readings taken at both the master and guest bathrooms. This was documented by photographs taken by the management office on the day and sent to the defendants under a covering letter dated 12 September 2015 requesting remedial action. The visit was also referred to in a chronology of events compiled by the management office in May 2016. 22.On a day in September 2015, the 1st defendant entered the plaintiff’s flat for a second time for an inspection. Also present were the plaintiff, a workman and representatives from the management office. After the inspection, however, the 1st defendant refused to allow the plaintiff to enter his flat. Lai pointed out that it was only one of many instances showing the uncooperative attitude of the defendants which have hindered the resolution of the water seepage problem. 23.On about 8 October 2015, the Joint Office attempted to carry out a colour water test at the defendants’ flat. However, the defendants refused to let their staff enter their property. 24.On 22 October 2015, the Joint Office was finally able to gain access to the defendants’ flat to conduct the colour water test. This was performed by pouring colour water into the drainage outlets inside the master and guest bathrooms in the defendants’ flat, including the water closet, the wash hand basin and the bathtub. The test however produced a negative result. 25.On 17 November 2015, the Joint Office inspected the plaintiff’s flat again. Similar signs of water seepage as those appearing in September 2015 were observed. This was recorded in the first Joint Office summary. 26.Upon Lai’s request, on 24 November 2015, the Water Supplies Department inspected the plaintiff’s flat. Water was seen dripping. This was documented in a written summary prepared by the department in the letter dated 1 June 2016 (“the WSD summary”). The summary stated that “water dripping was found at your premises” but did not specify the dripping area. The Water Supplies Department tried to arrange an inspection at the defendants’ flat. They had no success as there was no reply. 27.The fact that dripping, as opposed to “serious damp patch”, was observed would indicate that the problem was getting more serious. 28.This was followed by the Joint Office’s visit to the plaintiff’s flat on 9 December 2015. They also detected water dripping in the guest bathroom. This was recorded in the first Joint Office summary. The reversible pressure test conducted in January 2016 29.By letter dated 6 January 2016, the Joint Office proposed to visit the defendants’ flat to conduct a reversible pressure test. The letter explained how the test would be performed and suggested a date for the test:-
30.Tse, who was referred to in the letter, was the Joint Office staff handling the matter. I highlight this here as, the defendants seem to harbour grave grievance against him, which was apparent at the trial. 31.On the day of the proposed test, however, the defendants refused to let Tse enter the flat. Tse then posted a “Notice of Intended Entry” on their door, stating that he intended to enter the property on 4 February 2016 to investigate the water seepage complaint. 32.At about 1pm on the same day, the 1st defendant went to the plaintiff’s flat and hurled insults at Lai. He claimed that he is much more knowledgeable about buildings than she. Lai and her young children were very frightened by his aggressive manner and from then on were fearful of letting him into their flat again. In cross-examination, Lai added that there were occasions when the 1st defendant followed her and her young children in the park. 33.On 22, 25 and 28 January 2016, the Joint Office conducted the reversible pressure test at the plaintiff’s flat. 34.The reversible pressure test produced a positive result. The result is heavily relied on by the plaintiff. The details were recorded in the first Joint Office summary:-
35.The Joint Office was of the view that the fresh water pipes in the defendants’ flat were suspected to be the source of the water seepage observed in the plaintiff’s flat. 36.The accuracy of the reversible pressure test is hotly disputed by the defendants. In particular, they queried why it was performed over three days when normally it would be conducted within the same day. In cross-examination, Lai explained how the test came about to be done this way. On 25 January 2016, fresh water for the whole building was suspended due to an emergency. Lai therefore called Tse and enquired whether he could visit the flat that day to make a record of the water dripping. Tse did so in the presence of the management office staff. Lai said that it was not a deliberate decision to spread the test over three days. Since the 1st defendant was not co-operative on the previously scheduled test day, Lai needed to find a way to have the test done. 37.Upon being notified of the test result, the Water Supplies Department issued a repair notice to the defendants on 4 February 2016 requesting the latter to repair their fresh water pipes within 14 days. 38.On 19 February 2016, the Water Supplies Department staff inspected the plaintiff’s flat and found that water dripping was still subsisting. Given that the defendants failed to comply with the repair notice, a disconnection notice was issued on 26 February 2016. 39.Meanwhile, the 1st defendant took the initiative to request the Joint Office to conduct a reversible pressure test at their flat on 1 March 2016. The abnormal water dripping on 1 March 2016 40.The events taking place on 1 March 2016, as recounted by Lai, are notable. On that day, at around 10.15 am, the Joint Office staff was at the plaintiff’s flat and found continuous water dripping. Lai noticed an abnormal and sudden decrease in the dripping rate at around 11 am, which was the time when the Joint Office was scheduled to visit the defendants’ flat. 41.Seepage investigation was carried out there. The plaintiff noticed that their flat’s layout was different from the original design. In the course of the investigation:-
42.In the circumstances, the plaintiff and Lai suspected that the 1st defendant was being dishonest when he alleged that there was dripping from the floor above. They were concerned that he could have used his knowledge to manipulate the result of the reversible pressure test. Also, given the unusual slowing in the dripping rate observed at their own flat earlier in the morning, they decided not to go ahead with the test. 43.At 10.10 pm of the same day, Lai was alarmed to observe severe dripping from the ceiling of the master bathroom. Lai has produced a video footage which captures the dripping at that time. The management office was called. The following morning, the management office went to knock on the defendants’ flat and found that one of the valves installed on his pipes had broken. 44.The management office shut off the water supply to the defendants’ flat to allow his valve to be repaired. The severe leaking in the plaintiff’s flat stopped immediately after that. However, when the water supply was resumed, the water seepage problem started again. 45.On 3 March 2016, Lai wrote to the Water Supplies Department recounting what had happened on 1 March. Her conclusion was:-
Further investigation in 2016 46.On 7 March 2016, the Water Supplies Department attended the plaintiff’s flat. The WSD summary recorded their findings:-
47.Being wary of the 1st defendant’s ability to manipulate the result, the plaintiff declined to have another reversible pressure test conducted. 48.The Water Supplies Department visited again on 29 March and noted that “the seeping situation had worsened and no salty water was detected in the seepage this time”. Having failed in their attempt to contact the 1st defendant, the Water Supplies Department issued a written notice to the defendants on 5 April 2016. 49.On 22 April 2016, the management office and the Joint Office inspected the plaintiff’s flat. No water dripping was detected but “serious damp patch” was still observed, and high moisture content readings obtained, on the ceiling of the master and guest bathrooms. 50.Following some correspondence between the 1st defendant and the Water Supplies Department, the latter gained access to the defendants’ flat on 12 May 2016. This was documented in the WSD summary. It further stated:-
51.On 8 June 2016, the Water Supplies Department visited the plaintiff’s flat. On this occasion, wet water marks were detected at the ceiling of the master and guest bathrooms and water droplets were found hanging at the ceiling of the master bathroom. Strip tests revealed that all the wet marks contained salt water. This was documented in the department’s letter to the defendants dated 7 July 2016. 52.On 17 June 2016, the Joint Office inspected the plaintiff’s flat and found that the water seepage problem was still continuing. This was documented in another summary of actions produced by the Joint Office annexed to their letter dated 7 September 2016. 53.The Joint Office appointed an external consultant to follow up in July and August 2016. It was confirmed that there was water seepage at the ceiling of the master and guest bathrooms of the plaintiff’s flat but the source of the seepage was not identified. The consultant managed to gain access to the defendants’ flat on 30 August, having failed to do so on two previous occasions. Visual examination revealed that the suspected area was generally in a dry condition. 54.On 18 August 2016, the Joint Office’s external consultant conducted a microwave tomography survey at the ceiling soffit of the master and guest bathrooms of the plaintiff’s flat. According to the Joint Office’s letter issued to the plaintiff dated 5 October 2016, the survey revealed that there was water seepage from the master and guest bathrooms of the defendants’ flat into the plaintiff’s. 55.However, in the consultant’s report dated 23 August 2016, two possible sources were identified in the conclusion:-
56.This conclusion is now heavily relied upon by the defendants in their defence. I shall refer to this report as “the 2016 microwave tomography report”. Prosecution action taken against the defendants 57.On 28 October 2016, the Joint Office wrote to the defendants stating that their investigation results indicated their flat was the source of water seepage leading to a nuisance. They issued a nuisance notice to the defendants under section 127(1) of the Public Health and Municipal Services Ordinance, Cap 132, requiring them to “repair satisfactorily the floor slab of master bathroom and the floor slab of guest bathroom” of their flat “by suitably maintaining and providing properly well-protected water-proofing material to prevent water seepage to the premises below” within 28 days. 58.On 11, 12 and 13 December 2016, the Joint Office’s consultant conducted a follow-up microwave tomography test at the plaintiff’s flat. It was found that water seepage still existed at the ceiling soffit of the master and guest bathrooms. It was recorded that the weather condition for those three days was “Sunny”. 59.In light of that, the Joint Office prosecuted the defendants for non-compliance with the nuisance notice at the Kwun Tong Magistrates’ Court under ESS 14120/2017 and ESS 14121/2017. After a nine-day trial, the defendants were convicted on 24 April 2018. They were fined and a nuisance order was made against them. 60.On 6 August 2018, the Buildings Department’s external consultant inspected the plaintiff’s flat and performed infra-red thermographic test and microwave tomography test. According to the written report, water seepage at the ceiling of the master and guest bathrooms was found. 61.Following this, the Joint Office prosecuted the defendants for a second time for non-compliance with the nuisance order made on 24 April 2018 under ESS 42206/2018 and ESS 42207/2018. The case is still pending. Water seepage problem is continuing to this day 62.Lai testified that she has been monitoring the problem on a daily basis and confirmed that the seepage has been continuing to this day, regardless of the weather condition. In her witness statement, she said that pieces of concrete were dislodged from the bathroom ceiling on more than one occasion. That clearly shows that the water seepage is corroding the building structure. 63.In examination-in-chief, she recounted another incident of dislodging which happened at the weekend just before the trial started. This time, a concrete block, resembling a long rectangle in shape and measuring just over one foot in length, fell onto the false ceiling in the guest bathroom. She produced the concrete block at the trial. She reported the incident to the management office. A letter issued by the latter dated 19 June 2018 (ie the second day of the trial) recording the incident was also produced. Attached to that were photographs showing the location from which the block fell and the block itself. Lai added that the situation is becoming more serious. Every day, she needs to open up the false ceiling to allow the moisture to dry and there was an unbearable foul smell. She has two young children and the water seepage problem has been a grave nuisance affecting her family’s daily lives. The expert evidence 64.The plaintiff commissioned his own expert, Mr Tsang, to ascertain the cause of the water seepage. Mr Tsang compiled a report dated 7 October 2016. Meanwhile, Mr Poon, the defendants’ expert, has also prepared two reports dated 11 and 12 September 2017. These reports were compiled without the prior leave of the court. At the pre-trial review, Ms Tso expressly agreed that Mr Tsang’s report should be admitted as factual evidence insofar as it contains factual allegations. The same treatment should be accorded to Mr Poon’s reports. 65.Pursuant to the leave of the court, the parties’ experts conducted a joint inspection of the flats on 28 May 2018. Moisture measurements were taken but no tests were conducted on that day. The court had earlier directed the parties to commission “such tests as may be agreed between the experts”. Mr Tsang then proposed a list of tests to be conducted to Mr Poon. But there was no positive reply from the latter. That was followed shortly by two letters from the plaintiff’s solicitors to the defendants reiterating the need to conduct tests in order to compile a joint expert report. That met with no success. 66.Ms Tso highlighted in her submissions that Mr Poon’s stance (and the defendants’) stands in stark contrast with his own opinion set forth earlier in his reports in September 2017. There, he said:-
67.Yet when Mr Tsang proposed the exact same test, namely colour dye water flooding test, to be conducted after the joint inspection, Mr Poon did not accede to it. In the circumstances, Mr Tsang had no choice but to go ahead with only those tests which could be performed without have to enter the defendants’ flat. In the end, he carried out the microwave moisture measurement and chloride content test at the plaintiff’s flat on 31 July 2018 in the absence of Mr Poon. Further, he had a chance to conduct a site visit at the defendants’ flat on 14 August 2018. 68.The experts have reached a common opinion on the following:-
69.However, the experts disagreed on the causes of the water seepage problem and the costs of repair works to be done at the plaintiff’s flat. Mr Tsang’s opinion 70.Mr Tsang concluded that there are multiple causes. They occur at different times and contribute to the water seepage problem with different degrees. The defective fresh water pipes, defective flushing water pipes, defective soil and waste pipes and defective floor waterproofing system at the master and guest bathrooms of the defendants’ flat are the causes. The sunken floor slab is an ancillary cause. Mr Tsang estimated that the repair works at the plaintiff’s flat would cost $78,000. The fresh water pipes 71.In concluding the fresh water pipes as one of the causes, Mr Tsang drew specific support from, amongst other things, the positive reversible pressure test carried out in January 2016. He pointed out that there are no common fresh water pipes within the two flats. Further, he considered the possibility that there are defective fresh water pipes at floors above the defendants’ flat from which water is leaked into the plaintiff’s flat. In theory, water can travel through the external wall or the walls of the pipe duct. 72.On the former route, he opined that:-
73.On the latter route, the walls of the pipe duct at the flat on the 8th Floor, similar to the plaintiff’s flat, have been demolished. 74.In sum, water leaking from fresh water pipes from upper floors can be eliminated. 75.Mr Tsang also drew support from the WSD summary which recorded that after some improvement works were carried out at the defendants’ flat in about April or May 2016, a negative meter flow test was recorded. Mr Tsang highlighted this chronology as support that the fresh water pipes were defective but the leakage was lessened due to the defendants’ “improvement works”. However, he opined that the works were “piecemeal and temporary measures”. The defective flushing water pipes 76.In concluding the flushing water pipes as one of the causes, Mr Tsang drew specific support from the positive strip tests conducted by the Water Supplies Department on 8 June 2016 and the salinity reading recorded in the first Joint Office summary. Chloride content is a good indicator of salty flushing water. 77.Furthermore, Mr Tsang took samples of concrete powder from the soffits of the master and guest bathrooms for chemical analysis. The chloride contents by percentage of cement content are of a high level. But he opined that the cause should have been cured. The defective soil and waste pipes 78.In concluding the soil and waste pipes as one of the causes, Mr Tsang pointed to the findings of foul smell and high chloride contents by the Water Supplies Department on 7 March 2016. Foul smell is the characteristic of soil and waste water. Presence of high chloride content is another indication that there was leakage from the soil and waste pipes since salty flushing water is used to flush the toilet bowls. The defective floor waterproofing system 79.In concluding the defective floor waterproofing system as one of the causes, Mr Tsang relied on the microwave moisture measurements taken by him on 31 July 2018. Measurements were taken at three depths – 30mm, 70mm and 110mm. The results showed that the moisture contents were comparatively higher at 110mm and comparatively lower at 30mm. There was therefore a pattern of moisture travelling downward from the defendants’ flat to the plaintiff’s. Furthermore, the moisture contents distribution was rather even with the higher levels found at the mid portions or portions away from the external walls. This distribution pattern would militate against the conclusion that water was seeping from the external wall. The sunken floor slab 80.Mr Tsang opined that the sunken floor slab which measures 230mm deep acts like a container to retain any seeped water. If construction debris instead of solid cement and sand have been used to fill the void, there is no natural means for the entrapped moisture (which had leaked from the defective pipes) to evaporate. He considered that the sunken floor slab is an ancillary cause leading to the seepage problem. In his opinion, the flooring of that area should be re-laid so as to allow any entrapped moisture to evaporate by natural ventilation. Ruling out the external wall as a possible source 81.Mr Tsang ruled out the external wall as one of the causes. First, the moisture measurements taken by him on 28 May 2018 revealed higher moisture contents at the soffits of the master and guest bathrooms. Secondly, the microwave measurements taken by him on 31 July 2018 also revealed higher moisture contents at the same location. Thirdly, waterproof reinforcement works were done on the external wall in August 2015 according to the management office records. Fourthly, if the external wall is the source, symptoms of water dripping would be more apparent during rainy days. Contrary to that, however, the water seepage problem continued regardless of the weather, as noted by the plaintiff. Fifthly, there is no symptom of mould growth, efflorescence, stains and wild vegetation growth on the external walls outside the plaintiff’s or the defendants’ flat. Summary 82.In summary, the plaintiff says that there has been water seepage at the ceiling of the master and guest bathrooms of his flat since June 2015 up to now and that the sources of the seepage include the fresh water pipes, the flush water pipes, the soil and waste water pipes, the floor slab and the sunken floor slab in the defendants’ bathrooms. Notwithstanding the severe problem, the defendants have adopted an extremely uncooperative attitude and repeatedly declined to have their property inspected. 83.He relies on the opinion to that effect expressed by Mr Tsang, the conviction of the defendants under ESS 14120 and 14121 of 2017 (which, however, relates only to the floor slabs in the defendants’ flat) as well as the numerous conclusions drawn by the Joint Office and the Water Supplies Department over the years. 84.Accordingly, he claims against the defendants for negligence, breach of the deed of mutual covenant governing the rights and obligations of the owners of the building and breach of section 34H of the Building Management Ordinance, Cap 344. 85.Given that the water seepage is still subsisting, the plaintiff seeks the following injunctions:
86.Since the leakage of the flushing water pipes have ceased, the plaintiff no longer requires an injunction in respect of those pipes. 87.Further, the plaintiff claims damages totaling $236,930 as follows:-
THE DEFENDANTS’ CASE 88.In gist, the defendants’ case is that:-
No water seepage at the plaintiff’s flat 89.The 1st defendant inspected the flat on three occasions in 2015. On each occasion, he did not see any water seepage at all. In fact, there was no damp patch and the condition was all dry. (One would however immediately recall that Mr Poon, the defendants’ expert, confirmed that there was still water seepage while he inspected the flat in May 2018.) 90.On 9 July 2015, he was there in the presence of the plaintiff, Tse from the Joint Office, a staff from the management office and a workman. This is his testimony:-
91.Further, on that day, he observed that the enclosing walls of the pipe duct had been illegally removed. He pointed out that the removal was against the deed of mutual covenant, the Building Management Ordinance and other regulations. However, no one responded. He also said that such illegal removal would result in entry of water from unknown sources from upper floors through the pipe duct to the plaintiff’s flat. He also pointed out that the overhanging pipes in the pipe duct belonging to his flat had been altered and shortened without his permission or knowledge. That had been done apparently to create more headroom for an in-built cabinet. The 1st defendant also inspected the entire flat for signs of seepage. He found none. 92.The defendants contend that the observation recorded in the first Joint Office summary for that day is fake. It recorded that serious damp patch was observed in the ceiling and internal wall of the master bathroom. That is not true as those areas were all dry, according to his inspection. 93.He cannot now recall the exact date of his second visit to the plaintiff’s flat. That would be in about September. 94.His last visit was on 8 October 2015. The defendants’ comments on the tests and inspections performed over the years 95.In respect of the various tests performed to investigate the alleged seepage problem and the steps taken by the government departments, the defendants’ stance is as follows. 96.As regards the colour water test conducted in October 2015, the defendants highlight that the test result was negative. They say it shows that their flat is not the source. 97.As regards the reversible pressure test conducted in January 2016:-
98.The repair notice and disconnection notice issued by the Water Supplies Department in February 2016 were never enforced. 99.As regards the inspection of the plaintiff’s flat by the Water Supplies Department on 8 June 2016:-
100.The defendants place specific reliance on the 2016 microwave tomography report. The report highlighted two “possible sources”, namely the floors of upper floors and the external wall. The defendants emphasise that they are not liable for any water coming through the external wall. Nor are they liable for sources of water which have not been proved. 101.As regards their conviction in the magistrates’ proceedings, the 1st defendant made the following complaints in his witness statement:-
102.In their closing submissions, the defendants claimed that “it is highly probable that seepage records by JO1 were corrupted and the seepage records by all experts and/or consultants were distorted due to tempering by acts of [Lai], P and/or P’s representatives, such as wetting the surface of ceiling prior to inspections/tests”. Further, they claim that “the legal system has been corrupted and abused apparently by a number of individuals acting in concert” and that “it is of great doubt if a fair trial had been exercised and justice safe guarded under these circumstances.” The external wall 103.The defendants contend that the external wall is one of the sources of the alleged water seepage. He draws support from the following matters. 104.First, emphasis is repeatedly placed on the 2016 microwave tomography survey report. The report drew the conclusion that the external wall was one of two “possible sources”. This, the defendants say, confirms that water was entering from the external wall. 105.Secondly, there are inherent defects in the design and construction of the building. There have been numerous complaints of water seepage through the external wall. This is evidenced by the management office’s letter dated 20 December 2017. According to their records, there had been 50 reported cases of external wall repair work arranged by the management office since July 2015. 106.Thirdly, there are photographs showing that there were mould and holes on the external wall of the defendants’ flat. Water could enter the inside of the building through the holes. And water spot was found on the wall inside the guest bathroom of their flat. 107.Fourthly, so far no test has been performed to test the water-tightness of the external wall in order to eliminate it as the source of the alleged water seepage. A water spray test could have been conducted to confirm if there are defects, such as cracks, holes, spalled concrete etc, on the external wall which would allow rainwater to enter the inside of the building. 108.Fifthly, the letter issued by the Joint Office on 21 June 2017 to the defendants is further proof that the external wall is the source. The Joint Office carried out investigation in their flat on 29 May and 15 June 2017. The moisture content readings were within the normal range on the first day, which was a sunny day whereas the readings were higher and as high as 100% on the second day, which was a rainy day. The Joint Office stated that the water seepage at the guest bathroom of the defendants’ flat was suspected to be caused by penetration of rainwater through the external wall. Accordingly, the defendants say that it cannot be eliminated that water also travels downward through the external wall to the plaintiff’s ceiling. 109.Overall speaking, the external wall cannot be ruled out as a source. The pipe duct 110.Water dripping inside the pipe duct of the plaintiff’s flat have been observed and recorded by the Joint Office and the management office. This would lead to seepage to the ceiling of the adjoining master bathroom of the plaintiff’s flat. 111.Here are some of the relevant entries from the summary of actions compiled by the management office dated 12 May 2016:-
112.There was also a metal tray placed under the pipes there to collect water in the plaintiff’s flat. 113.The investigation at the defendants’ flat on 1 March 2016 revealed very high moisture contents in the middle portion of their pipe duct. See para 41 above. 114.To date, nothing was done to eliminate the pipe duct as a source. Condensation 115.The defendants contend that condensation is a common phenomenon and is a likely cause of water seepage. Here, there are two sources of condensation, both of which have caused the water seepage alleged by the plaintiff. First, the condensation within the plaintiff’s flat. Second, if there is condensed water on the pipes in the pipe duct, it would drop to the floor of the duct and seep into the ceiling of the plaintiff’s flat. The defendants would not be responsible for these two sources. Reply to the plaintiff’s alleged sources 116.The defendants deny that the fresh water pipes are a source. They argue that such a claim is based on the reversible pressure test, which is “not correct but faked”. 117.They deny that the flushing water pipes are defective. 118.The defendants deny that there was leakage from the soil and waste pipes. If they had been defective and leaking, the foul smell would last forever and not just once. 119.Lastly, they say that there is no sunken floor slab in their flat. Works carried out by the defendants 120.The defendants deny that they were being uncooperative. 121.On 22 January 2016, the appointment day for the reversible pressure test, Tse and a management office staff came to the defendants’ flat at 9.03am. However, the scheduled appointment time was 10.30am. The 1st defendant asked why they arrived so early. He had to accompany the 2nd defendant to attend a scheduled appointment for 9.45am at the Pamela Youde Nethersole Eastern Hospital. He was planning to drive and estimated that he would manage to return by 10.30am. Tse ignored him and posted a notice of intended entry on his door for a future date. The 1st defendant felt very upset by Tse’s behaviour. Given that there was a new appointment, the 1st defendant did not return for the test at 10.30am on that day. 122.As regards the alleged incident on 1 March 2016, he denied that he turned off the fresh water pipes in the morning. In cross-examination, he said that after the inspection on 1 March, he checked the pipes in the pipe duct and there appeared to be some water drops. He suspected that the pipes had been tampered with during the inspection. Therefore, on the following day, he asked his contractor to check the pipes. 123.There are two valves installed on the fresh water pipes so that he could turn off the supply if needed by simply turning off the valves. On 2 March, his contractor simply replaced the plastic ring around one of the valves. That had nothing to do with any alleged water seepage at the plaintiff’s flat. There was no other pipe works done on that day. 124.It was put to him that in preparation for the reversible pressure test on 1 March 2016, he attempted to tamper with the fresh water pipes with a view to manipulating the test result. In the process, he broke the pipes which caused the severe water dripping at the plaintiff’s that night. On the following day, he asked a contractor to fix the problem and that was why he requested the management office to turn off the main water supply. The 1st defendant denied all these allegations. He denied that he could manipulate the results. 125.Instead, the defendants now say that the reversible pressure test scheduled for 1 March 2016 was unreasonably refused by the plaintiff. 126.In cross-examination, the 1st defendant was asked about his request to the management office to turn off the main fresh water pipe on 12 April 2016. It was put to him that he engaged a contractor to work on the pipes on that day and had therefore made the request. This was all prompted by the disconnection notice issued by the Water Supplies Department in February 2016. The 1st defendant denied that and claimed that the work done on 12 April 2016 had nothing to do with the Water Supplies Department. He had asked his contractor to change the shower head in his master bathroom. And since the contractor was there, he also asked him to carry out a thorough check of the plumbing works inside his flat. Although he could have turned off the fresh water supply by using the two valves on his pipes, it would be better for the main supply to be closed just to play safe. 127.In cross-examination, the 1st defendant said that after receiving the nuisance notice, he engaged a contractor to apply four layers of waterproofing materials on the floor of the shower tray in the master bathroom. While he did not accept that there was water leaking from there, he just wanted to do something about the situation. Mr Poon’s opinion 128.In gist, Mr Poon’s opinion is that the defendants’ flat is not the source of the water seepage found at the plaintiff’s flat. His main argument is that there is a lack of scientific evidence to prove that there is leakage from the five sources identified by Mr Tsang. On the other hand, there is evidence showing that there is rainwater seepage through the external walls. Another possibility is that water is seeping from floor above the defendants’ flat. These two possibilities “should not be subjectively ruled out but should be scientifically tested”. Lastly, he would estimate that the reinstatement works at the plaintiff’s flat would cost $9,500. 129.One would immediately note that out of the three sources of water seepage alleged by the defendants, Mr Poon only referred to the external wall in the joint expert report. 130.Since Mr Poon did not agree to conduct the tests proposed by Mr Tsang, his opinion was primarily based on the joint inspection, his own reports compiled in September 2017 and a review of the letters and records made by the government departments involved. 131.He disagreed that the fresh water pipes and the flushing water pipes were sources of the water seepage. Same as the defendants, he relied on the particular sentence stating “no conclusive evidence” in the Water Supplies Department’s letter dated 7 July 2016 – see para 99(a) above. 132.He disagreed that the soil and waste water pipes were one of the sources. He relied on the negative result of the colour water test carried out in October 2015. 133.As regards the floor waterproofing system, he made comments on the reports on the microwave tomography and infrared thermography tests, including the 2016 microwave tomography report. The tests indicated that there was water accumulation on the ceiling. The microwave tomography test “only concluded the possible, but NOT CONFIRMED, sources of water … were water from floors of upper floors”. 134.As regards the external wall, same as the defendants, Mr Poon relied on the Joint Office’s letter issued to the defendants dated 21 June 2017 – see para 108 above. He also referred to a steel wall tie on the wall of the pipe duct where “water seepage was found”. Mr Poon further relied on the conclusion in the 2016 microwave tomography report which pointed to the external wall as one of the two possible sources. He also doubted the effectiveness of the repair conducted by the management office since it “had never been proven”. 135.Mr Poon concluded:-
Summary 136.On the whole, the defendants say that it was in fact the plaintiff who was being uncooperative in the whole matter. He had refused to allow the defendants to enter his flat to investigate “on various occasions”. This was documented in a letter he wrote to the plaintiff dated 8 March 2016. 137.The plaintiff, say the defendants, showed no intention to resolve the seepage problem. He refused the defendants’ entry after the colour water test done in October 2015. He refused to proceed with the reversible pressure test in early March 2016. Subsequently, he also refused entry by the management office to repair the external wall. 138.The alleged seepage problem is self-inflicted due to the unauthorised and illegal alteration of the pipes inside the pipe duct by the plaintiff. 139.The defendants concluded in their closing submissions:-
The counterclaim 140.The defendants contend that the plaintiff has removed the enclosing walls of the pipe duct and altered and shortened the drainage pipes there to make room for a cabinet. This is in violation of the DMC and the Building Management Ordinance. This has caused nuisance to the defendants as there is frequent blockage of water closets inside the defendants’ flat. Furthermore, the plaintiff continues to make false complaints of water seepage without establishing the source of the water. His conduct has caused annoyance, discomfort, inconvenience and mental, physical and psychological stress and pressure to the defendants. 141.For these reasons, the defendants claim against the plaintiff an injunction that he forthwith reinstate the enclosing walls of the pipe duct and the altered and shortened drainage pipes there; stop making complaints and/or judicial proceedings against the defendants; and cease causing nuisance. The defendants further claim a sum of $491,000 as damages. DISCUSSION 142.In a water seepage claim, the burden is squarely on a plaintiff to prove the source of the water seepage in his property. There is no presumption in law that water found at the flat below must have originated from the flat above: 張秀玲及吳炳漢 對 鄭禮莊 CACV 268/1998, 9 April 1999, para 21. It is not for a defendant to find out or identify the correct source of water seepage or to prove that its origin did not come from his property: see, eg, Hui Ling Ling v Sky Field Development Ltd HCA 35/2007, 8 May 2012, para 23. 143.In this action, the court’s ultimate task is to decide, on the balance of probabilities, whether the plaintiff’s flat has been suffering from the alleged water seepage problem and, if so, what have been the source (or sources). The court will have to evaluate and weigh the factual evidence and the expert evidence on both issues. The former includes the testimonies of Lai and the 1st defendant and the documentary records of the investigations made by the management office, the Joint Office and the Water Supplies Department. 144.Lai and the 1st defendant gave opposite accounts of what were observed at the plaintiff’s flat on different occasions. They also spoke adversely of the other’s conduct, each accusing the other of uncooperative attitude. The court will have to take a view of the credibility of their testimonies. 145.The burden of proof is on the plaintiff to prove his case on both issues. In this regard, Ms Tso, in her closing submissions, briefly referred to the nuisance orders made against the defendants in April 2018. However, she did not spell out the extent to which those orders would shift the burden of proof to the defendants by virtue of section 62 of the Evidence Ordinance, Cap 8. In any event, it would be recalled that the nuisance orders were issued in relation to the floor slabs of the defendants’ master and guest bathrooms only. They did not on their face cover the other pipes which the plaintiff now alleges to be the sources of the water seepage. In that sense, the nuisance orders are of limited assistance to the plaintiff in this case. Credibility of Lai and the 1st defendant 146.Having heard oral testimonies of Lai and the 1st defendant and having assessed them against the contemporaneous documents and reflecting on the inherent probabilities of their respective cases, the overwhelming conclusion is that Lai’s account of events is more reliable and credible and where they are in conflict, I prefer her evidence to the 1st defendant’s. 147.Lai’s account of how the plaintiff’s flat has been affected by water seepage since June 2015 and up to now is consistent, coherent and inherently plausible. Furthermore, her description of the observations made of the ceiling of the master and guest bathrooms over the past four years is strongly supported by a voluminous collection of letters and records issued by the management office, the Joint Office and the Water Supplies Department. These bodies have conducted inspections and tests at the flat. The observations made by them and documented with particulars are wholly consistent with Lai’s account. 148.I have set out the plaintiff’s evidence at length above. It is plain and clear that there has been water seepage at the ceiling of the master and guest bathrooms of the plaintiff’s flat. The problem is ongoing. But the extent of seepage and what was leaked into the ceiling has varied from time to time. On some occasions, salty water was detected. And on others, a foul smell was present. All of these are well documented in the reports compiled from time to time by third parties over the past four years. There is no apparent reason why the truth or accuracy of the facts recorded in these reports should be doubted. 149.On the contrary, the defendants’ factual allegations in many respects are doubtful and unreliable. 150.The 1st defendant made the allegation that on 9 July 2015, when he visited the plaintiff’s flat for the first time, no water seepage could be found at all. This flies in the face of the contemporaneous records compiled by the Joint Office, which noted that there was “serious damp patch” on the ceiling and internal wall of the master bathroom. In closing, the defendants did not accept that there has been water seepage at the plaintiff’s flat. This is irreconcilable with their own expert’s observation that on the date of the joint inspection, water seepage was found. 151.The defendants repeatedly made the submission that the records produced by the Joint Office, which are on their face unfavourable to their case, are “distorted”, “corrupted” and “fake” etc. But they have put forward no good reason to substantiate these serious accusations. The suggestion that the staff of the Joint Office would fabricate records in this water seepage investigation is simply far-fetched and against inherent probabilities. So is the suggestion that Lai had engaged in “wetting the surface of ceiling prior to inspections/tests”. 152.I also accept Ms Tso’s submission that the 1st defendant’s allegation that he had requested the management office to turn off the main fresh water supply on 12 April 2016 in order to have his contractor change the showerhead is unconvincing and not credible. The expert evidence 153.In relation to the expert evidence, the stance adopted by Mr Poon on Mr Tsang’s proposed tests is puzzling and not understood. For reasons unknown, Mr Poon did not go along with any of the proposed tests, even though in his earlier reports, he had commented on the usefulness of a ponding test. Nevertheless, the main thrust of his ultimate opinion is that there has so far been no scientific test conducted to confirm the five sources suggested by Mr Tsang. This renders his opinion self-serving and unconvincing. Furthermore, Mr Poon had made no serious effort to deal with the positive findings and test results recorded by the Joint Office and the Water Supplies Department. Instead, he had only focused on those statements, which on their face, tend to support the defendants’ case. This piecemeal approach is not helpful when it comes to determining the sources of the water seepage. 154.In contrast with Mr Poon’s broadbrush approach, Mr Tsang put forward his opinions and conclusions in a detailed and logical manner, with supporting justification clearly spelt out. I have set out his analysis at length above. On its face, it is coherent and convincing. It takes into account the various test results and contemporaneous records. Mr Tsang’s conclusions appear to be sound. Findings of water seepage 155.Based on the contemporaneous records and photographs, the consensus reached by the experts and Lai’s evidence, I find that there has been water seepage affecting the ceiling of the master and guest bathrooms of the plaintiff’s flat since June 2015 and the situation is still continuing. I find as facts the observations and test results recorded by the management office, the Joint Office and the Water Supplies Department over the past four years. I reject the defendants’ submission that they are corrupted or fake in any way. 156.I also find as facts Lai’s account of what she has observed in her flat and the steps she has taken to resolve the problem. As to the incidents on 1 and 2 March 2016 and 12 April 2016, the plaintiff and Lai are simply in the dark about what the 1st defendant was doing in his own flat on those occasions. Nevertheless, I accept the account given by Lai about the unusual and abnormal water seepage and dripping on 1 March 2016. Based on that, I draw the inference that the 1st defendant was executing some works to the fresh water pipes in his bathrooms, which led to the unusual pattern of water dripping inside the plaintiff’s flat. Based on the chronology highlighted in Mr Tsang’s report (see para 75 above), I also draw the inference that on 12 April 2016, some works were undertaken at the defendants’ flat, which played a part in the subsequent negative meter flow test. The source of the water seepage 157.The defendants put forward three causes accounting for the water seepage. But, as noted above, the causes of pipe duct and condensation were not even referred to by Mr Poon in the joint expert report. 158.Despite his qualification and experiences, the 1st defendant appeared as a factual witness in this action. His own opinion as to what had contributed to the water seepage is inadmissible (although the related factual allegations which he put forward are). In the circumstances, I reject the submission that the water seepage is, in whole or in part, attributable by the pipe duct and/or condensation. 159.I also reject the external wall as a source of the water seepage happening at the plaintiff’s flat. In this regard, I accept Mr Tsang’s conclusion to that effect and adopt his reasoning. I take into account the fact that the management office conducted repair work on the external wall in August 2015, although it is a fact that no test was conducted on the wall. Furthermore, one detects no discernible correlation between the seriousness of the water seepage and rainy weather in the course of more than four years. On this issue, I have accepted Lai’s evidence that the water seepage problem has continued, regardless of the weather. Another relevant matter is the pattern observed from the microwave tomography results. They did not point to a higher degree of water seepage in areas closer to the external wall. All these matters strongly militate against the possibility of water seeping through the external wall. 160.I accept Mr Tsang’s opinion (and his reasoning), and hold, that the water seepage has been due to the five causes spelt out in the joint expert report. 161.The conclusion is strongly supported by objective test results recorded over the past four years. See, most notably, the reversible pressure test (in relation to the fresh water pipes), the presence of chloride content in the water sample (in relation to the flushing water pipes and the soil and waste pipes), the presence of foul smell (in relation to the soil and waste pipes) and the microwave tomography results (in relation to the floor waterproofing system). I also accept Mr Tsang’s analysis in relation to the sunken floor slab. I should add that (a) the sequence of events on 1 and 2 March 2016 (paras 43 and 44), and (b) the “improvements works” carried out by the defendants and the consequent negative meter flow test (para 75) also provide strong support for the conclusion that the fresh water pipes are one of the sources of the seepage. 162.It is an objective fact that the colour water test conducted in October 2015 revealed a negative result. However, it is well-recognised that dye tests are not always successful and negative results alone are not definite evidence against the suspected source: see, Professional Guide to Water Seepage published by The Hong Kong Institute of Surveyors (2014), at para 4.2.1. (Both parties referred to and relied on this guide in the trial.) 163.The 1st defendant made strong criticism of the reversible pressure test on the basis that it had not been properly done and the results were therefore inaccurate and unreliable. Again, his opinion on the legitimacy of the test procedures is inadmissible. On this front, it is notable that his own expert, Mr Poon, did not make the same or any complaint about the procedure. 164.In summary, the defendants are in breach of the DMC by allowing water leaking from their flat into the plaintiff’s. They are responsible for the plaintiff’s loss. The counterclaim 165.It is an objective fact that the enclosing walls of the pipe duct in the plaintiff’s flat had been removed and the pipes inside the pipe duct had been shortened. However, there is simply no evidence, factual or expert, to substantiate the counterclaim that it has led to frequent blockage of the water closets inside the defendants’ flat. And I decline to find that as a fact. Furthermore, the complaints made by the plaintiff and Lai against the defendants are well-founded. As such, the counterclaim must fail. Relief 166.As the plaintiff has established liability and the water seepage is ongoing, he is entitled to both injunctive relief and damages. 167.On the basis of the receipts produced, I am satisfied that he has incurred special damages in the total sum of $8,730. (A sum of $200 is deducted as the expenditure seems to relate to a door hinge, unconnected with the water seepage problem.). He should also be awarded the sum of $78,000 as future repair expenses. 168.The plaintiff is entitled to general damages for discomfort and inconvenience. It is a recoverable item in water seepage cases and the award should be a conventional sum: John So v Lau Hon Man CACV 110/1993, 5 October 1993, paras 11 and 18. 169.The plaintiff has made out an overwhelmingly strong case of grave disturbance and mental distress. This has been caused by the continuous water seepage from the defendants’ flat into his flat. There are a number of aggravating features – the long duration of over four years, the seeping of soil and waste water (and the flush water which has now ceased), the unpleasantness and the obvious health and hygiene hazard associated with such leakage, the dislodging of concrete pieces on several occasions and the consequent fear for one’s safety at one’s own home, and the defendants’ persistent denial of the problem. I allow the claim under this head in full and award the sum of $150,000. In arriving at that conclusion, I have taken into account the authorities cited by Ms Tso, namely Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456 at 462J-463E; Chung Yin Ha v Tse Shui Sum DCCJ 2605/2016, 22 February 2019, para 50. The present case is more serious than the facts disclosed in the two authorities. CONCLUSION 170.For the above reasons, I award damages in the sum of $236,730 to the plaintiff. I grant the injunctive relief set out in para 85 above. The counterclaim is dismissed. 171.On the damages for discomfort and inconvenience, the plaintiff should have interest at half the judgment rate from the date of writ to judgment and after that at judgment rate until payment. Ms Tso confirmed in closing that the plaintiff waives any pre-judgment interest on the special damages, given the modest amount. 172.I further make an order nisi that the plaintiff do have costs of the action and the counterclaim, to be taxed if not agreed, with certificate for counsel. The plaintiff should also have costs of the proceedings before the Small Claims Tribunal and the costs of the transfer.
Ms Denise Tso, instructed by Ernest Li & Co, for the plaintiff The 1st and 2nd defendants appeared in person | |||||||||||||||||||||||||||||||||||||||||||||||||||||
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