Lam Ting Kwan and Another v. Teamwell Corporation Ltd

DCCJ 17/2016

[2019] HKDC 1593

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 17 OF 2016

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JUDGMENT

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A.   INTRODUCTION

1.This is a water seepage case involving 2 units, one situated on the ground floor and the other one on the first floor, in an old multi-storey building.

B.   BACKGROUND

2.The 1^st and 2^nd plaintiffs (“the plaintiffs”) are husband and wife.  They are the registered owners of the premises situated on the ground floor of a building located at No 2 Shim Luen Street, Tokwawan, Kowloon (“Ps’ Premises”).

3.Ps’ Premises was used for commercial purposes and was initially divided into 3 small shops, namely, (i) a real estate agency run by the plaintiffs and their family; (ii) a small Indian provision store rented out to a tenant (“the Indian Store”); and (iii) a news agency by the name of ‘Wai Wah News Agency’ run by another tenant (“the News Agency”).

4.The defendant is the registered owner of the 1^st floor of the same building (“D’s Premises”), situated immediately above that of Ps’ Premises.  When the defendant first bought D’s Premises in March 2007, it had already been divided into 5 separate self-contained rooms, which is commonly known as “sub-divided flats” (「劏房」), by its predecessor.  Those 5 rooms have been labelled respectively as Room A, B, C, D & E.

5.As Ps’ Premises and D’s Premises are situated within the same building, the terms of the Deed of Mutual Covenant registered in the Lands Registry by Memorial Number UB348217 (“the DMC”) are applicable and binding on both parties. 

B.1  The Plaintiffs’ case

6.Since or about 2010, the plaintiffs started to experience water seepage problems at Ps’ Premises which affected all 3 shops. 

7.For the News Agency, the plaintiffs started to receive complaints from their tenant in 2010 onwards. The tenant found water seepage at the ceiling at the back of the shop which is where the “resting room” of Ps’ Premises is currently located.  As for the Indian Store, the plaintiffs started to receive complaints from their tenant during the first half of 2012.  Water marks could be found on the ceiling of that shop. 

8.In 2010, the News Agency wrote to the Joint Office of the Buildings Department (“BD”) and the Food and Environmental Hygiene Department (“FEHD”) (“the Joint Office”) to complain about the water seepage.  This led the Joint Office to investigate into the cause of the seepage and subsequent actions were taken against the defendant. 

9.Due to the repeated complaints from the tenants, the plaintiffs were forced to give up renting the two shops to their tenants.  In the meantime, the interior of their own shop was also badly affected by the water seepage.  As a result, between March and May 2014, the plaintiffs arranged extensive renovation works to be carried out at Ps’ Premises, merging the three shops into one single shop.  Since May 2014, the plaintiffs have been carrying on their family’s real estate agency business at the amalgamated shop (“the Shop”). 

10.Despite the extensive renovation and the amalgamation of the Shop in 2014, the water seepage situation continued. It was so serious that it had on several occasions caused electrical hazards in the form of short circuits at the Shop.  

11.Throughout the years when the water seepage continued, the plaintiffs and their tenants repeatedly made complaints to the defendant, its tenants, the defendant’s representative and its real estate agent about the problem. 

12.Complaints had also been made to the Joint Office which issued a number of nuisance notices demanding the defendant to rectify the problems caused by the water seepage.  

13.The following table prepared by the plaintiffs’ solicitors and agreed by the defendant (save for the 4^th Nuisance Notice), has succinctly summarized the contents of the nuisance notices:-

Nuisance Notice	Date	Location(s) of seepage	Action(s) allegedly taken out by the defendant	Outcome of the Action(s) allegedly taken out by the defendant
1.	4.11.2010 (“the 1st Nuisance Notice”)	Floor slab of Room B’s bathroom	D engaged contractor to carry out repair work (eg reconnect the drainage pipes)	Seepage halted By Joint Office’s confirmation, no further actions were required from the Joint Office
2.	2.11.2011 (“the 2011 Nuisance Notice”) (This Nuisance is not relied and/or pleaded by Ps which is disagreed by the Ps)	Floor slab and surrounding walls of Room A’s bathroom	D engaged contractor to carry out water proofing work at the floor slab and surrounding walls of Room A’s bathroom	Seepage halted By Joint Office’s confirmation, no further actions were required from the Joint Office
3.	25.2.2014 (“the 2nd Nuisance Notice”)	Floor slab of Room D’s bathroom	D engaged contractor to repair the floor slab of Room D’s bathroom	Seepage halted By letter dated 10.6.2014, Joint Office’s confirmed no further actions were required from the Joint Office
4.	17.7.2015 (“the 3rd Nuisance Notice”)	Floor slab and surrounding walls of Room B’s bathroom and Room E’s bathroom	D engaged contractor to carry out water proofing work at the floor slab and surrounding walls of Room B’s bathroom and Room E’s bathroom	Seepage halted By Joint Office’s confirmation on 13.1.2016 and letter dated 4.3.2016, no further actions were required from the Joint Office
5.	28.4.2017 (“the 4th Nuisance Notice”)	Floor slab and surrounding walls of Room C’s bathroom	D removed Room C D reinstated Room C as per the Building Notice (C/TE/001739/17/K) against Room C dated 17.7.2017; D denies Room C is the cause of water seepage as per the Joint Expert Report filed on 30.3.2017	By BD’s letter dated 9.1.2018.  Room C has been reinstated

14.The plaintiffs’ case is that, the Shop had been continuously affected by the water seepage problems over the years from 2010 to 2017. They are not confined to the periods stated in the nuisance notices only.  The plaintiffs say the history of the seepage has clearly shown that the 1^st floor was the source of the leakage as repeated nuisance notices had been issued against the defendant, targeted against different areas on the 1^st floor.  The plaintiffs further say that, given the history of the water leakage, the number of complaints and the number of nuisance notices received by them, the defendant ought to have engaged a competent contractor to make a complete overhaul of the drainage system on the 1^st floor.  Hence, the plaintiffs claim that the defendant had neglected in maintaining the 1^st floor and left it in a state of disrepair.  Such neglect, according to the plaintiffs, has caused distress, discomfort and inconvenience to the plaintiffs over a period of 8 years.

B.2  The defendant’s case

15.Insofar as the defendant’s case is concerned, it says it had acquired D’s Premises in March 2007 through a real estate agent by the name of ‘New Leader Property Agency’ (“New Leader”).  At the time when the defendant acquired D’s Premises, it says it had already been converted by the previous owner into 5 sub-divided flats. 

16.The defendant’s defence in a nutshell is that it had responded to all the complaints of the plaintiffs and the nuisance notices from the Joint Office and it had taken reasonable steps or measures to stop or to prevent the water seepage. 

C.   DISCUSSION

C.1  The undisputed and/or indisputable facts

17.The following are the undisputed or indisputable facts in this case:-

(a)     D’s Premises has been converted into 5 sub-divided flats;

(b)     Each flat has its own self-contained kitchen, shower cum toilet area;

(c)     According to the originally approved building plan, there was only one kitchen and one bathroom serving the entire D’s Premises;

(d)     The conversion was done without the permission and/or approval of the relevant authorities;

(e)     There is no suggestion that any of the defendant’s shareholders or directors has ever lived at D’s Premises;

(f)     It was purchased by the defendant purely as a tool of investment and for renting out to tenants for profits;

(g)     Drainage pipes had been installed connecting the original bathroom to at least Rooms A, B & C;

(h)     The drainage pipes had been embedded underneath the concrete floor by the defendant’s predecessor(s) and no one knows the exact location of these embedded pipes;

(i)     No floor plans or layout plans were available to show the number; where and how those pipes had been laid underneath the floor;

(j)     No major overhaul or comprehensive repair work had been done to the drainage pipes since the defendant acquired D’s Premises; and

(k)     Repair works would only be done if and when a nuisance notice was issued by the Joint Office and only at the area(s) identified by the nuisance notices.

C.2  Legal principles involved

18.The law on nuisance in this area has been succinctly summarized by Deputy Judge Lawrence Ng in Lam Kit Yee v Lam Shuk Lam & Chiang Chi, unreported, DCCJ 3115 of 2011, 10 March 2017 at §§86-87:-

“86.   In relation to the tort of nuisance, in Yan Wing Fai Rick (supra), DDJ H Leong (as he then was) said that:-

Once that the defendant was made aware that there was a water leakage the source of which could reasonably be identified to be from its property, it has the duty to investigate, locate and repair such water leakage in a prompt and reasonable manner”.

87.   In the present case, on their own case, the defendants were made aware that there was a water leakage the source of which could reasonably be identified from Flat 7A on or about early March 2011, but they did not take any step to investigate, locate and repair such water leakage in a prompt and reasonable manner.  It appears from the evidence that the defendants only investigated, located and repaired the leakage in Flat 7A after receiving the 1^st Nuisance Notice dated 19 October 2011 and the 2^nd Nuisance Notice dated 19 July 2012.  In the premises, I am of the view that the defendants are liable to the plaintiff for nuisance.”

19.The learned editors of Clerk & Lindsell on Torts 22^nd ed stated at §§20-39 & 20-40 as follows:-

“20-39 Creating nuisances Three situations may be distinguished mainly with reference to the nature of the defendant's conduct.

(a)   If the defendant deliberately or recklessly uses his land in a way which he knows will cause harm to his neighbour, and that harm is considered by a judge to be an unreasonable infringement of his neighbour’s interest in his property and therefore an unreasonable user by the defendant of his property, the defendant is liable for the foreseeable consequences. This proposition covers all those cases of obvious or “patent” nuisances, and they are peculiarly the cases which call for prevention or prohibition by injunction. It is no defence that the defendant believed that he was entitled to do as he did or that he took all possible steps to prevent his activity from amounting to a nuisance. In this sense, and in this context, it is correct to say that “at common law, if I am sued for nuisance, and the nuisance is proved, it is no defence on my part to say, and to prove. that I have taken all reasonable care to prevent it”. Similarly, Lord Simonds has said that “if a man commits a legal nuisance it is no answer to his injured neighbour that he took the utmost care not to commit it”.

(b)   If the defendant knew or ought to have known that in consequence of his conduct harm to his neighbour was reasonably foreseeable, he is under a duty of care to prevent such consequences as are reasonably foreseeable. In such case the defendant is liable because he is considered negligent in relation to his neighbor, and here nuisance and negligence coincide. Whether his liability is described as falling under one legal rubric or the other would seem to be only a difference of words.

(c)   If the defendant neither knows and intends harm nor is negligent with regard to the consequences of his conduct, then he may be nevertheless liable if the claimant can bring his case within the rule in Rylands v Fletcher, and in that event there is strict liability.  In those circumstances of non-natural user, followed by escape and consequent damage to the claimant, the defendant is held by law to be in effect the gratuitous insurer of his insurer of his neighbour’s safety, and it is immaterial that he failed to prevent the harm through his own negligence or that of his agents.  But it is important to note that even here, as a result of the actual decision in the Cambridge Water case, the damage which occurred must have been foreseeable if liability is to be imposed.”

20.The above statements are consistent with Hunter J’s decision in Chan Kwok On, Peter & Another v Roger Thomas & Others, HCA 10237/1983, 27 September 1984, §15:-

“The plain consequences of this behaviour, and the plain intention of the 1^st defendant in putting up this grille, was to move the risk of flood off his property and upstream and onto the plaintiff is property. Now the first question is: Is that an act of potential nuisance. The way in which the matter was put in one of the leading cases by no less an authority than Lord Atkin is this, and I read from his speech in Sedleigh-Denfield v. O'Callaghan (1940) A. C. 880 at page 895:-

“It created a state of things from which when the ditch was flowing in full stream, an obstruction might reasonably be expected in the pipe, from which obstruction flooding of the plaintiff’s ground might reasonably be expected to result.”

That definition by him of a potential nuisance applies directly to the facts here except that the facts here are very much stronger.  It was not so much a reasonable expectation; it was almost inevitable. It was simply a question of time before the flood came.  That that is the true principle of law I have no doubt at all.  It was applied and followed Court of Appeal in England in a case called Pemberton v. Bright (1960) 1 All E. R. 792.”

21.As to the law on negligence in this area, the court was referred to the following two authorities by the plaintiffs:-

(1)     In Yik Yuen Ling v Tso Wing Yan DCCJ 813/2014, 18 October 2017, Deputy District Judge Simon Ho held:-

“Negligence

167. My above conclusions on the defendant’s breach of the DMC covenants and her liability under nuisance are already sufficient to dispose the question of liability.

168. However, for completeness sake, since negligence was also pleaded as a cause of action against the defendant, I should also express my view on the same.

169. In the circumstances of this case, I hold that it is just fair and reasonable to impose a common law duty upon the defendant to keep the elevated flooring at the Flat Roof (as built by her predecessor and adopted by her) in proper repair and condition so as not to allow water (be it sourced from rainwater or otherwise) seeping through its elevated floor surface down to and damaging the ceiling of Office 3A (her neighbour’s property immediately below the Flat Roof) while knowing or ought to be knowing of such seepage and that the waterproofing membrane at the original floor surface had already become defective, and yet the presence of the elevated flooring as adopted by her has been preventing such waterproofing membrane from getting repaired or replaced.

170. I also hold that the kind of harm done to the ceiling of her neighbour’s property by water seeping down from the elevated floor surface of the Flat Roof is clearly foreseeable to the defendant as a result of her failure to take reasonable steps to make the elevated floor surface watertight. (see: Born Chief (supra), at p 191F-H; Lam Kit Yee v Lam Shuk Lam & Anor (DCCJ 3115 of 2011, 10 March 2017), per DDCJ Lawrence Ng, at para 88)

171. Thus, I also hold the defendant liable to the plaintiff under negligence.”

22.In Wong Ping Chun v Giant King Corporation Limited DCCJ 4020/2012, 16 March 2016, Deputy Judge Phillis Loh held that:-

“98. On that basis, D should also be held liable for breach of its duty owed to its neighbour P. It was reasonably foreseeable that P would suffer loss and damage as a result of its omission to take remedial steps to rectify the water seepage problems in the Damaged Room. I find D liable in negligence as sued.”

C.3  Issues to be decided

23.The main issue for the court to decide in this case is whether, on a balance of probabilities, the water seepage found on Ps’ Premises had originated from D’s Premises.

24.If the question is answered in the affirmative, then whether the defendant should be found liable in negligence; in creating a nuisance against the defendant; and in breach of the DMC.  If so, then the court will have to decide what reliefs the plaintiffs are entitled to.

C.4  Evidence considered

25.Besides taking into consideration of the correspondence exchanged amongst the parties; those between the parties and the relevant government departments; photographs showing the condition of both premises and the expert opinions, I have also taken into account the oral evidence given by the witnesses during the trial.

26.Mr Lam Yuk Kwong (「林旭光」) (“Mr YK Lam”), the son of the plaintiffs, who has first hand knowledge of events happened at the Shop, gave evidence on their behalf.

27.The defendant has only called the manager of New Leader, Madam Cheung Siu Yung (“Ms Cheung”) to give evidence on its behalf.  New Leader was the estate agent who had introduced the defendant to acquire D’s Premises from its predecessor.  According to Ms Cheung’s witness statement, New Leader also provided “management services” for the defendant. They covered “all matters arising out of the D’s Premises on behalf of the defendant including but not limited to handling rental and tenancy issues with the defendant’s tenants at the D’s Premises, maintenance of the D’s Premises and liaise with governmental departments on matters relating to the D’s Premises.” 

28.One of the directors of the defendant, namely, Mr Li Koon Chiu, despite having had provided a witness statement in the present proceedings, decided not to give evidence at the trial.

29.On top of the above factual witnesses, both parties have also called their respective expert to comment on the cause of the seepage.  The plaintiffs have called Ms Lau Shan La (“Ps’ Expert / Ms Lau”) while the defendant has called Mr Lam Wai Keung (“D’s Expert / Mr Lam”) to give evidence at the trial.

C.4.1  General credibility of factual witnesses

30.I find Mr YK Lam to be an honest, credible and reliable witness.  His evidence is consistent with the history of the case, the nuisance notices issued by the Joint Office and according to common sense and inherent probabilities.  However, I find the same could not be said of Ms Cheung.  I find she was merely acting as a “mouthpiece” for the defendant.  She was trying to say things on behalf of her “employer”, namely, the defendant whose directors or shareholders did not have the courage to come to court to say those things under oath themselves.  Not only her evidence was not consistent with the complaints made by the plaintiffs and their tenants; the various nuisance notices issued by the Joint Office; and the documentary evidence produced at the trial, her case in my view is simply inherently improbable and against common sense.  Hence, where there is any discrepancy between Mr KY Lam and Ms Cheung’s evidence, I would prefer that of Mr KY Lam’s and reject Ms Cheung’s.

C.4.2  Overview of the evidence

31.In my judgment, the following undisputed evidence regarding the state of the drainage pipes provides a solid foundation to indicate that the defendant was responsible for the seepage over the years:-

(a)     Ms Cheung admitted that the embedded drainage pipes had never been maintained, let alone replaced.  As a matter of fact, the defendant does not even know the exact locations of those embedded drainage pipes and how they were being laid underneath the concrete floor of D’s Premises;

(b)     It has also been admitted by the defendant that Room C’s bathroom, toilet and drainage pipes had never been replaced;

(c)     A number of nuisance notices had been issued by the Joint Office. Save for the 4^th Nuisance Notice, they were not challenged by the defendant. Works had been carried out by the defendant to purportedly comply with those notices; and

(d)     After Room C’s bathroom/toilet had been removed, there was no more water seepage occurred at Ps’ Premises.

32.Further, based on the evidence, there is no question that the defendant was fully aware of the seepage problems from an early stage after they became owner of D’s Premises:-

(a)     The plaintiffs, their son Mr YK Lam and, their tenants had repeatedly complained to New Leader as well as to the Joint Office.  This is something admitted by Ms Cheung in her evidence;

(b)     There was a large number of letters and nuisance notices served on the defendant over a period of several years by the Joint Office; and

(c)     Each time, the defendant would only do the absolute minimum in order to satisfy the demands of the Joint Office, without an overall and long term plan to stop the water seepage.

33.Looking at the broader picture and at the matter objectively, the unauthorised alternations of the plumping/drainage system of D’s Premises in order to fit in 5 bathrooms/toilets/kitchens will no doubt have added unbearable amount of stress to a system which was originally designed for a single bathroom/toilet and a kitchen only.  It is not difficult to imagine that water seepage would come from these unauthorised alternations, which were done without proper planning or execution.  What is quite troubling is that the defendant was not able to produce a single piece of plan or drawing during the trial to show the current layout of the drainage system.

34.Based on the above, the irresistible inference must be that the directors/shareholders of defendant, while happily allowed their premises to be converted into 5 sub-divided flats, hence able to maximise the rental income from their tenants, have failed to fulfill their most basic duties and obligations as the property owner to keep the premises under good repairs and in preventing water from seepage onto Ps’ Premises.

D.  Findings on Specific Incidents over the Years

D.1  2010  

35.According to Mr YK Lam, of whose evidence I accept, in 2010, Ms Chan of the News Agency first made complaints to the plaintiffs about the water seepage found on the ceiling of her shop. She also made written complaints to the Joint Office on 12 August 2010 regarding the same matter. 

36.I accept Mr YK Lam’s evidence that he and Ms Chan met a representative of the defendant who was loitering around outside the News Agency soon after Ms Chan made the complaint to the Joint Office.  Apparently, this person was trying to observe the water seepage situation of the News Agency from outside.  When confronted, the representative of the defendant uttered words to the effect that “I have other properties rented out to other people, they also have water seepage but they did not care”.  I find this is exactly the kind of attitude displayed by the defendant towards their neighbours who might be adversely affected by the state of disrepair of properties owned by them.  It seems clear to me that their philosophy is, as long as they can make the maximum amount of profits out of their investments, any collateral damage is none of their concern.  I note the fact that Mr YK Lam’s evidence on this incident was not challenged by the defendant.  Under such circumstances, I am entitled to and will draw adverse inference against the defendant.

37.Ms Cheung in her evidence tried to brush off this initial complaint made by the News Agency by saying that she did send a decoration worker to inspect the property and was told that the most possible cause of the water seepage was due to the retractable metal awning installed by the plaintiffs outside the building.I find this follow-up act was grossly inadequate, whether as an attempt to find out the true cause of the seepage or as a remedy for a genuine complaint. I also find such explanation to be rather absurd as the awning is below the floor slab level of the D’s Premises. We all know that water does not travel upward in normal course of events.

38.On this occasion, the Joint Office found water seepage come from the draining pipes within the floor slab of Room B’s bathroom. They seeped through to Ps’ Premises on the ground floor.  After the Joint Office issued a nuisance notice on 4 November 2010, ie the 1^st Nuisance Notice, demanding the defendant to carry out remedial works at Room B, the defendant, through Ms Cheung, arranged a contractor to carry out the works requested.  However, again, they only did what was the absolute minimal in order to meet the Joint Office’s request. There was no attempt to find out the true cause of the seepage and an overall plan to eradicate the problem.

39.The half-hearted attempt to deal with the problem apparently was not sufficient.  The water seepage continued notwithstanding the purported remedial work carried out by the contractor at Room B.  This is confirmed by the Joint Office’s letter dated 28 January 2011 where it stated that the seepage problem continued as of the date of that letter.  Despite what Ms Cheung has stated in her witness statement alleging that the Joint Office confirmed to the defendant that the water seepage subsequently had stopped and that they would issue a letter to confirm this matter, no such letter was ever produced by the defendant at the trial. In my judgment, it is doubtful whether the Joint Office has ever issued such a letter as it would not be difficult for the defendant to obtain it and produce it at the trial. This was however not done.

40.Based on the above, I find water seepage to the News Agency in 2010 was caused by the drainage piping in the bathroom of Room B and that the defendant had not stopped the leakage despite the purported repaired work mentioned by Ms Cheung.

D.2  2011

41.In 2011, complaints were made to the Joint Office in relation to water seepage from Room A of D’s Premises.  In response to the complaints, the Joint Office engaged an external consultant to carry out further investigations.  On 9 February 2011, the Joint Office gave notice to the defendant to inform it that the external consultant would carry out inspection and test at these premises in order to find out the cause of the seepage. 

42.On 10 October 2011, the Joint Office wrote to the News Agency and informed it that the test carried out by their consultant confirmed waterproofing membrane of one of the bathrooms had been broken which led to the damage and water seepage.  However, as confirmed by Ms Cheung in her evidence, not only the defendant had done nothing to find out the cause of the water seepage in the interim period, they were happy to just wait for the Joint Office’s consultant to carry out the test (and for the results) before taking any action to rectify the problem.  That was a period of over 10 months. 

43.Under cross-examination, Ms Cheung admitted that she had a telephone conversation with Mr Cheng of the Joint Office[1] about 2 to 3 months after the 1^st Nuisance Notice was issued.  That made the telephone conversation took place sometime in or about January 2011.  Ms Cheung further admitted under cross-examination that Mr Cheng had told her during this telephone conversation that the water seepage problem was still affecting the ground floor.  I note this is very different from what she has stated in her witness statement where she said the water seepage stipulated in the 1^st Notice had stopped after actions were taken by the defendant’s contractor.  I do not accept this part of the evidence given by Ms Cheung at all.  The evidence suggests that the test must have been carried out by the external consultant appointed by the Joint Office sometimes after February 2011.  Letters must have been sent to the defendant to notify it before the consultant would carry out the necessary test.  However, the defendant has failed to disclose those letters in the present proceedings. 

44.It is also incorrect for Ms Cheung to say that it was about October 2011 that the Joint Office had required the defendant to perform the test at its premises due to “a water seepage complaint”.  Ms Cheung mentioned in her witness statement that the defendant had already complied with and allowed the Joint Office to perform the required inspection at that time.  This cannot be correct.  As the report by the consultant was dated 19 September 2011, the tests (which included visual inspection, moisture content check and pond test) must have taken place before that date.  In fact, it was the consultant who had advised the Joint Office to issue an advisory letter to the responsible party to abate the nuisance and carried out the rectification and enforcement action (see inspection report of Multiple Surveyors Limited dated 19 September 2011)[2]. The Joint Office’s letter to Miss Lee of the News Agency was only issued on 10 October 2011, attaching the consultant’s inspection report.  Thus, it could not be the case that the defendant only had come to know about the seepage in October 2011.  Therefore, I reject Ms Cheung’s evidence on this matter. 

45.Given the continuous nature of the seepage, I find the defendant must have received the complaint from the Joint Office much earlier in 2011.  I find neither Ms Cheung nor the defendant had done anything about the complaint but had simply allowed the situation to deteriorate. I therefore reject Ms Cheung’s evidence that, after the 1^st Nuisance Notice, neither she nor the defendant had received any further letters/notices regarding the water seepage until late 2011.  I find as a fact that she was well aware that there was water seepage from the D’s Premises onto Ps’ Premises throughout 2011.  I further find that, during this period, the defendant, whether through Ms Cheung or its directors/shareholders, had done nothing to resolve the problem. 

46.Based on the result of the tests carried out by the consultant, the 2011 Nuisance Notice was issued on 2 November 2011 by the Joint Office.  It was served on the defendant.  In the Notice, which was based on the findings of the consultant’s report, water seepage was found to have come from the floor slab of Room A’s bathroom (including its surrounding walls) which had been seeping onto the ceiling of Ps’ Premises.

47.The findings of the consultant were not disputed by the defendant. Instead, the defendant disputes whether this particular nuisance notice had been properly pleaded by the plaintiffs in their statement of claim. To me, this is a bad point. The fact remains that the 2011 Nuisance Notice was issued and had been properly served on the defendant but was never challenged by the defendant.  Ms Cheung’s explanation is that, after receiving the 2011 Nuisance Notice, she instructed a contractor to carry out the necessary remedial works.  She says that after those works had been completed, the defendant, through New Leader, invited the Joint Office’s investigator Mr Cheng to inspect the premises and follow up with the matter.  She claims that Mr Cheng had verbally confirmed to the defendant, through New Leader, that the water seepage stipulated in the 2011 Nuisance Notice had stopped and no further action would be required on the part of the defendant. 

48.The defendant, through Ms Cheung, also claims that, it had requested the Joint Office for a copy of the confirmation letter in order to show that the 2011 Nuisance Notice had been complied with.  The defendant claims that the Joint Office had provided the letter in or about August 2016 or thereabout. The defendant says that (as mentioned in the witness statement of Ms Cheung) it would produce the letter at the trial. As a matter of fact, not only the defendant has failed to produce the letter, it has also failed to provide any quotations, contracts, receipts in relation to the alleged remedial works carried out by the contractor at the trial. In my view, had such remedial work in fact been carried out, it would not be difficult for the defendant to show to the court what exactly its contractor had done by producing the quotation, contract or receipt. But none of that has been produced.

49.The more pertinent point in my opinion is not whether the defendant had complied with the matters stipulated in the 2011 Nuisance Notice, it is whether the defendant has discharged its duty as a property owner. In particular, of its continuous duty to ensure that water would not be leaking or seeping from its premises to affect its neighbours’ premises.  As I found above, the defendant must, through Ms Cheung, knew about the complaints in relation to the water seepage coming from Room A in or about early 2011.  However, it is clear to me that it chose to do nothing about the problem at all until the Joint Office issued the 2011 Nuisance Notice in early November 2011.  In other words, it had simply allowed the seepage to last for almost a year before it took any concrete action.  To me, this could not be the act of a reasonable or responsible property owner.

50.During the trial, the defendant took a pleading point that the plaintiff has not relied on the 2011 Nuisance Notice as part of their case as it was not mentioned in the amended statement of claim.  I find this to be rather absurd.  I agree with Mr Chong for the plaintiff that the defendant has completely missed the point here. This case is not so much about whether the defendant had complied with the requirements under the Nuisance Notices.  Rather, the crux of this case is whether the defendant had allowed water seepage coming from D’s Premises throughout the periods complained of.  In my view, the Nuisance Notices help to highlight the presence of water seepage problems and the consistent failures on the part of the defendant to carry out repairs throughout the periods complained of, they do not provide a defence for the defendant to claim that it had fulfilled its duties as the owner of D’s Premises. In any event, I find section 9 of the amended statement of claim has sufficiently covered this notice.

D.3  2012 to 2014

51.According to Mr YK Lam’s evidence, the News Agency and the Indian Store continued to complain of water seepage during this period.  Mr YK Lam in his evidence has confirmed that their portion of Ps’ Premises had also been affected by the water seepage since 2011[3].  In his witness statement, Mr YK Lam has highlighted the extent of the water seepage affecting his family’s shop (before it was renovated and converted into one single shop). I accept his evidence.  I also accept his evidence that, from about middle of 2011 onwards, the front of their shop near where they placed the filing cabinets started to experience water seeping from the ceiling above.  I further accept Mr YK Lam’s evidence that the water seepage situation continued throughout 2011 to 2013, causing a lot nuisance and inconvenience to the plaintiffs’ business. They included requiring the family members in spending a lot of time in cleaning up the water leakage, using buckets to place on top of the filing cabinets in order to collect the water; short circuits to the electrical system inside the shop, etc.  I also accept Mr YK Lam’s evidence that the family had engaged Mr Wong from a nereby electrical shop for inspection as well as replacing some of the fluorescent light tubes on the ceiling.  In order to avoid further short circuits to the lighting system, the plaintiffs also accepted Mr Wong’s suggestion to turn off some of the lights inside the shop which would no doubt affect the image as well as the business of their family business. 

52.Ms Cheung in her evidence[4] stated that neither she nor the defendant had received any further letter and/or notice from the Joint Office regarding the water seepage since the 2011 Notice until early 2014.  This seems to give the impression that the plaintiffs and their tenants had ceased to complain about the water seepage in between those nuisance notices.  I find it could not be the case at all.  As Mr YK Lam has confirmed in his evidence, the water seepage continued at the News Agency from 2011.  Despite efforts to minimize the damage, it was to no avail.  He eventually made a complaint to the Joint Office in October 2013 and a confirmation letter dated 21 October 2013 from the Joint Office was sent to Mr YK Lam to confirm receipt of the complaint.  Further, the evidence also reveals that the Joint Office had made a visit to Shop 2A on 23 October 2013 and then arranged to a dye water test to be carried out at Room D of D’s Premises on 9 January 2014.     

53.The evidence also reveals that it was during the second half of 2013 that Mr YK Lam had contacted the tenants of D’s Premises to complain of the seepage. It was on that occasion when the plaintiffs found out from the tenants that another real estate agent by the name of ‘Fu Wing Real Estate’ (“Fu Wing”) was helping the defendant in renting out D’s Premises.  Under cross-examination, Ms Cheung confirms that Fu Wing did inform her about the water seepage on that occasion. She was told that the plaintiffs had to cut off the power supply in the shop as a result of the severe water seepage which occurred in late 2013.  However, this matter was never mentioned in Ms Cheung’s witness statement.

54.In my view, it is quite clear that, despite the severe water seepage which occurred in 2013, the defendant continued to turn a blind eye to the situation and did nothing to stop the seepage throughout that year. 

55.Further, based on the admission made by Ms Cheung and the evidence of Mr YK Lam, I find the plaintiffs had continuous to make complaints to the defendant and the Joint Office about the water seepage throughout 2013 and 2014.  I also find that the water seepage had continued throughout 2013 and 2014 despite the nuisance notices served on the defendant by the Joint Office during this period. 

56.Ms Cheung claims that on one occasion she called Mr Cheng of the Joint Office to enquire about the details of the complaints.  According to her, in late 2013, she asked a company by the name of “Li Fung Hong” to carry out the repair works at Room D.  A receipt purportedly issued by Li Fung Hong dated 27 January 2014 was produced during the trial to support her claim.  However, I find this receipt, together with two other receipts produced by the defendant from the same company, highly suspicious. 

57.Although the three receipts were issued by the same contractor, they were issued 20 months apart, namely, on 27 January 2014, 27 September 2014 and 26 August 2015.  What is so suspicious about them is that all three receipt numbers were consecutive to each other, meaning that they were either backdated or made up specifically for the purpose of the present proceedings.  What makes them more suspicious is that no written quotations or contracts have been produced by the defendant to support the fact that actual works had been carried out at the time as specified in the receipts. Besides, the defendant has not produced any witness to verify the fact that such work had actually been done.  Ms Cheung, who is an estate agent, could not speak to those facts.  Her claim that Li Fung Hong was a new contractor used by them does not explain why there is a dire lack of documentary evidence to support the fact that actual repair works had been carried out.  Further, since there were tenants still staying in the sub-divided flats during those periods, it is in my opinion extremely doubtful whether such repair works could be carried out while they were occupying the rooms.  Perhaps what is more alarming is the fact that, despite having been informed by the plaintiffs that the water seepage continued despite the alleged repair works, both the defendant and Ms Cheung did not carry out any follow-up action at all.  They have simply left the matter in the hands of the Joint Office. 

58.On 11 September 2014, the Joint Office informed the defendant by letter that although the colour dye test could not establish a direct relationship between the water seepage on the ground floor and the piping in Room D and Room E, the pressure test of the water supply pipes indicated that the leakage might have come from those pipes.  The Joint Office referred the matter to the Water Supplies Department for follow up action.  The letter emphasised that even though the colour dye test might not be able to establish the relationship between the seepage and the drainage pipes, the seepage situation continued.  Again, the defendant did not immediately carry out any investigation or remedial works on those water supply pipes. 

59.In her witness statement, Ms Cheung confirmed that remedial works were only carried out after the defendant had received the letter from the Water Supplies Department dated 17 September 2014 where it categorically found that “there was water seepage from the hidden water supply pipes embedded behind the water meter, immediate maintenance or replacement is required” (「在水錶位後的隱藏食水供水管漏水，應即修理或更換」). 

60.This is yet another example of how the defendant was happy to let the water seepage to continue while the authorities were finding out the origin of the leak.  It was only after receiving this letter from the Water Supplies Department that the defendant had, for the first time, bothered to ask for the Ps’ Premises floorplan. This promptly was provided to the defendant via the Joint Office on 24 September 2014.  I note that this was almost 3 years from the first complaint made by Ms Chan of the News Agency. As a responsible owner, the defendant should have asked for the floorplan of Ps’ Premises much earlier so that they could find out the likely source of the leakage from the corresponding locations on its floor.

61.As confirmed by Ms Cheung under cross-examination, nothing was done by the defendant after receiving the floorplan.  Again, this demonstrates the totally indifferent and irresponsible attitude on the part of the defendant.

62.Based on the above, I find as a fact that, throughout 2012 to 2014, the defendant, through Ms Cheung and the other estate agent Fu Wing, was fully aware of the serious and continuous water seepage problems at the Ps’ Premises.  Yet, the defendant decided either not to do anything about the situation or to do only the absolute minimum just to satisfy the demands from the authorities. 

D.4  2015

63.On 23 January 2015, the Joint Office wrote to the defendant again, notifying them that the water seepage to Ps’ premises was still continuing and an external consultant would be engaged to look into the matter.  Again, Ms Cheung in her evidence confirms that the defendant did nothing to address the issue.  They were happy just to wait for the result of the investigation to be carried out by the Joint Office while at the same time receiving rents from their sub-divided flats’ tenants. When the nuisance notice finally arrived on 17 July 2015, 6 months had passed. Nothing was done by the defendant during that time. 

64.The 3^rd Nuisance Notice was issued by the Joint Office on 17 July 2015.  Under this notice, the defendant was required to carry out remedial works as water seepage was found coming from the floor slab and its surrounding walls of Room B’s bathroom and Room E’s bathroom onto the ceiling of Ps’ Premises due to the damage to the water proofing membrane. 

65.The defendant did not challenge the contents of the 3^rd Nuisance Notice.  It was prepared to take steps to comply with the notice.

66.However, it is clear that the defendant had failed to address the issue during the interim period and had simply allowed the water seepage to continue during the 6 months in the affected area which was identified by the 3^rd Nuisance Notice. In my view, the defendant could have taken active steps to identify the source and to take steps carry out repairs on the affected areas before they received the 3^rd Nuisance Notice. It had failed to do so.

67.Further, it is extremely doubtful whether any repair works, had in fact been carried out or not. According to Ms Cheung’s evidence, after the remedial works had been carried out, she would call the Joint Office to attend D’s Premises for site inspection.  An officer from the Joint Office would then attend the site within 2 to 4 weeks to carry out such inspection. In this case, as the 3^rd Nuisance Notice was issued on 17 July 2015 and the alleged repair works, according to the receipt by Li Fung Hong dated 26 August 2015, were supposed to have been carried out on or before that date.  Thus, if Ms Cheung’s evidence were to be believed, the site inspection would have taken place sometime in September 2015.  As stated in the Joint Office letter dated 4 March 2016, the site inspection in relation to the 3^rd Nuisance Notice actually took place on 26 November 2015, which was much later than the defendant’s alleged date.  Based on the above, I have serious doubts on Ms Cheung’s evidence on this matter.

68.Further, given the above, I also find the receipts issued by Li Fung Hong could not be genuine.  I find they were produced by the defendant to create a false impression that they had attempted to comply with the nuisance notices soon after they were issued. The reality is that, despite the alleged repaired works, water was still seeping through the floor slabs onto Ps’ Premises. 

69.On 1 December 2015, the plaintiffs’ solicitors wrote a demand letter to the defendant and put on record that, since or around 2010, water seepage had been found coming from D’s Premises onto Ps’ Premises.  It also recorded the different locations where the Joint Office had carried out the inspections and investigations.  It further recorded the dates of the nuisance notices issued by the Joint Office.  As of the date of that letter, it was alleged that, the water seepage had not ceased and great nuisance had been caused to the plaintiffs as a result.  The defendant was asked to take remedial actions to stop the water from seeping and to undertake to indemnify the plaintiffs for all loss and damage suffered as a result of their breach.

70.This letter shows that the water seepage problems persisted over the years and still existed at the end of 2015. Consistent with the defendant’s stance all along, it has simply ignored the letter.  No reply was made.  No action was taken. 

D.5  2016

71.The water seepage continued in 2016.  This can be seen from the letters issued by the Joint Office on 31 March and 24 May 2016 respectively.  In the letters, it was recorded that moisture content tests had been carried out on 4 different locations in February, March and May that year at Ps’ Premises.  The findings were that various parts of Ps’ Premises recorded moisture contents of more than 35%. Many individual spots had reading of more than 90%.

72.Again, nothing was done by the defendant to put a stop to the water seepage during that year.

D.6  2017

73.According to the evidence, the 4^th Nuisance Notice was issued by the Joint Office on 28 April 2017.  This was as a result of the complaint made by the plaintiffs’ solicitors on 1 December 2015 on their behalf.  Had the defendant complied with the notice right away, the problem would have been resolved much earlier.  But it was not the case here.  Instead of complying with the 4^th Nuisance Notice, the defendant chose to dispute the contents.  It instructed Mr Lam, the defendant’s expert in the present proceedings, to write a letter on 10 May 2017 to the Joint Office arguing that the water seepage could not have come from Room C.  The Joint Office replied to Mr Lam on 29 June 2017 and confirmed that colour dye used in the test at Room C was noticed at a seepage area on the ceiling at Ps’ Premises at a later date.  Hence, the investigation concluded that the D’s Premises “was the source of seepage” leading to the nuisance. 

74.In my judgment, despite the opinions from the experts on both sides (which will be discussed later), this letter from the Joint Office has convincingly established that the water seepage mentioned in the 4^th Nuisance Notice had come from Room C of D’s Premises. On this issue, I accept the findings and conclusions made by the Joint Office.

75.On 17 July 2017, a building order was issued against the defendant by the Building Authority stating that the defendant had contravened Section 24 of the Buildings Ordinance, Cap 123 by converting the balcony of these premises into a sub-divided flat, ie Room C.  The defendant was required to reinstate the balcony to its original state.  On 9 January 2018, the Buildings Department issued a letter confirming that the building order had been compiled with by the defendant.  In other words, Room C no longer existed. 

76.It is to be noted that the water seepage problem had ceased all together in early 2018, soon after Room 3 was dismantled by the defendant. I do not consider it was a coincident. The most probable cause must be that the bathroom of Room C was the original source of the water seepage in that area at Ps’ Premises.

D.7  Summary on the factual evidence

77.Summary up the above factual evidence, I find water seepage had occurred on a continuous basis at Ps’ Premises throughout 2010 to 2017.  Throughout this lengthy period, both the plaintiffs and the plaintiffs’ tenants had made numerous complaints to the defendant and its agent.  Yet, the evidence reveals that the defendant showed very little interest or any real efforts to rectify the problems.  Instead, it only did the absolute minimum each time when the Joint Office issued nuisance notices to force it to act.  No actual repair or remedial works were carried out until and unless a nuisance notice was issued by the Joint Office. 

78.In my judgment, the defendant is clearly liable for the water seepage occurred at Ps’ Premises over the years. 

E.1  The Expert Evidence

E.1.1  The Joint Expert Report

79.As mentioned above, Ms Lau and Mr Lam were appointed as experts in this case by the plaintiffs and the defendant respectively.  The joint expert report dated 24 March 2017 was written by them after the joint site inspections on two separate occasions in December 2016 (“the Joint Expert Report”).  Before the joint site inspections, the experts agreed to carry out the following tests at the premises:-

(i)     visual inspection;

(ii)     ponding test;

(iii)     colour water test;

(iv)     flow meter test;

(v)     infrared scan; and

(vi)     microwave scan.

80.On top of the above tests, moisture content checking and result monitoring were also carried out as part of the ponding test and colour water test. 

81.In the Joint Expert Report, the following matters have been agreed by the experts:-

(i)     Water seepage still occurred at Ps’ Premises at the ceiling level at the time of the inspections;

(ii)     the water supply pipes at D’s Premises were not the cause/source of the water seepage; and

(iii)     the exact cause/source of the water seepage could not be agreed[5].

82.Ms Lau, the plaintiffs’ expert, concluded in the Joint Report as follows:-

“5.4 There is sign and evidence showing the water seepage in the main room, rest room and conference room of the Premises is caused by the defective waterproofing layer with the enclosing wall of the floor slab and the related drain pipes (including unit A, unit B, unit D and unit E) of upper unit of the Premises (1/F).”

83.On the other hand, Mr Lam, the defendant’s expert, reached the following conclusion in the Joint Report:-

“8.0 Conclusion

According to my investigation and testing results, I trust that there is no solid evidences that could proof the water seepage at the Lower Unit was originated from the Premises as alleged. There is also no conclusion that what is the exact cause(s) and source(s) of water seepage to the Lower Unit.

Due to the poor condition of the external wall facing Shim Luen Street & Ma Tau Kok Road and at Light Well positions, there are chances that the scattered high moisture content at the ceiling soffit of Lower Unit may be caused by water seepage from defective external wall facing Shim Luen Street & Ma Tau Kok Road and Light Well position.”

84.Therefore, at first glance, it seems the experts have excluded:-

(i)     water supply pipes; and

(ii)     the pipes at Room C;

as the source of the water seepage at Ps’ Premises. 

E.1.2  General comments on the experts’ credibility

85.Before discussing the specific opinions given by the experts, I would like to comment on the general credibility and reliability of the two experts. 

86.Generally speaking, I find Ms Lau’s approach in the preparation of the Joint Report more disciplined and scientific.  In my opinion, she is also a much more straightforward and direct witness when giving evidence in court.  She gave her evidence in a no nonsense and unequivocal manner. 

87.On the other hand, I find Mr Lam’s evidence lacking in substance and sound scientific basis.  More importantly, for reasons which I shall expand below, I do not find Mr Lam to be an impartial expert in this case, particularly in view of his dual roles in acting as the defendant’s expert on one hand and as an advocate for the defendant on the other hand.   

E.1.3  Basis of Ms Lau’s evidence

88.Besides the visual inspections undertook by her, Ms Lau relied on the following tests in order to reach her conclusion:-

(1)     The infrared scan which confirmed the external wall was not the cause of the leakage;

(2)     The electrical conductivity sensing test, also known as the moisture content test which checks the moisture contents of the floor slab/ceiling; and

(3)     The microwave scan test which enables the detection of the path of the water seepage. 

89.The only serious challenge which the defendant’s expert Mr Lam made regarding Ms Lau’s approach is in relation to the electrical conductivity sensing test adopted by her.  Mr Lam queried that: “due to the nature of the probe (a pair of electrode pin) of the moisture meter, it is common to found (sic) that the reading obtained upon each probes (sic) may be varying since no one could probe exactly the same points upon field testing.”  According to the defendant’s expert, the slight difference in the position of the probe, contact area and hand pressure on the electrode pins will all affect the moisture content reading[6]. Essentially, Mr Lam challenged whether Ms Lau could have used the same probe and applying the same hand pressure when carrying out the test. 

90.In her evidence, Ms Lau confirms that she had taken photographs of where the spots were and confirmed that they were taken in close proximity when carrying out the “before and after” test.  And an experienced expert, I have no doubt that Ms Lau would have taken every care to ensure that the probe would be placed upon the same position as marked by her.  While Mr Lam’s criticism may be valid on a theoretical basis, I am of opinion that it would affect very little of Ms Lau’s overall opinion which was reached after taking in the consideration of number of tests and not relying on one single test only. 

E.1.4  Defendant attach on Plaintiffs’ expert approach

91.Ms Gwilt, the defendant’s counsel, has relied heavily on Deputy Judge D To’s judgment in Ma Kam Har Annie & Another v Tang Lai King, unreported DCCJ 3884/2014 (29 November 2016) as a basis to discredit Ms Lau’s opinion. 

92.In my judgment, such attacks are unwarranted and of little value for the following reasons:-

(1)     It is clear from the judgment that the case was decided in the context and based on the unique facts of that case; 

(2)     While Ms Lau’s evidence might have been rejected by the learned deputy judge in that case, there are also plenty of other occasions when Ms Lau’s evidence was accepted by the court in other cases.  On those occasions, the court had accepted Ms Lau’s evidence concerning the use of the moisture content test adopted by her: See for example Wong Ping Chun v Giant King Corporation Limited, unreported, DCCJ 4020/2012 (16 March 2016); Crystal Bright Holdings Limited v Allen Industries Limited, unreported, DCCJ 2815/2015 (5 June 2017). 

(3)     It is clear that the deputy judge’s finding was very case specific and she is not dismissing the validity of the test itself outright.  As the learned deputy judge has stated in that case, without a reference benchmark, the reading is just a relative reading and not an absolute one.  However, the difference in this case is that Ms Lau had provided the “before and after” result, hence a reference benchmark;

(4)     In my opinion, it is important to note that there was a significant increase in the general trend of the reading in this case.  I agree with Ms Lau’s conclusion that this sharp increase in the reading supports there was water seepage from the 1^st floor in this case.  I therefore would accept Ms Lau’s findings based on the moisture content test adopted by her in the Joint Report; 

(5)     It is also significant to note that, despite his criticism of the moisture test used by Ms Lau, at the end of the day, the deputy judge did find water seepage come from the flat above; and

(6)     In any event, the decision is not binding on this court.

93.What I consider is more important to note in this case is the fact that the defendant’s expert Mr Lam, while challenging the methodology of the test itself, did not challenge the accuracy of the data collected by Ms Lau.  Ms Lau in her evidence confirmed that those data were accurate and I have no reason to doubt that. 

94.I also note the fact that the moisture content test was not the only test relied on by Ms Lau.  Besides that, she has also relied on the infrared and the microwave tests.  Crucially, all the test results are consistent with the findings made by the Joint Office.  Therefore, I see no reason to exclude the data collected by Ms Lau from the moisture content test. 

95.Mr Lam also challenged Ms Lau’s data obtained from the microwave scanning test.  The defendant’s expert claims in the Joint Report that, according to the Hong Kong Institute of Surveyors Guidelines, such reading “will be affected” by the presence of metals[7]. With respect, this was not what the guidelines say.  The guidelines merely states that the presence of metals “can” give false reading.  Thus, what Mr Lam did was to point out the possibility that the presence of metals might give a false reading.  He is not saying that the reading collected by Ms Lau by such test was not reliable.  In fact, he could not pinpoint the actual data collected by Ms Lau as being inaccurate. 

96.For the aforestated reasons, I have no reason to doubt the results of the various tests undertook by Ms Lau during the joint inspections are reliable and the conclusions made by her in the Joint Report are sound.

E.2  Basis of Mr Lam’s opinion

97.There are two main reasons why I do not consider the opinion of the defendant’s expert should be accepted in this case.  They are:-

(1)     the impartiality of Mr Lam;

(2)     The unscientific approach adopted by him in the Joint Report.

E.2.1  The impartiality of the defendant’s expert

98.In this case, Mr Lam wrote to the Joint Office on behalf of the defendant after he had prepared and signed the Joint Report with the plaintiff’s expert in March 2017.  In this letter dated 10 May 2017[8], Mr Lam introduced himself as the “water seepage expert” for the captioned incident and, on behalf of the defendant, he would like to make reply on its behalf.   The letter basically consisted of representations / submissions made by Mr Lam on behalf of the defendant as to why he considered the 4^th Nuisance Notice issued by the Joint Office, which alleged the origin of the seepage was from the bathroom of Room C, was incorrect.  In the letter, Mr Lam submitted that the alleged source of water seepage from bathroom of Room C to ground floor shop is “totally untrue and illogical”.  He concluded by requesting the Joint Office to re-investigate the water seepage incident and revoked the “incorrect” nuisance notice “at the soonest possible”. 

99.When he was being cross-examined by the plaintiffs’ counsel on this, he disagreed that he was trying to “argue” with the Joint Office on behalf of the defendant.  He said that he was not “arguing” but merely “informing” them (「無理論,只係通知」). 

100.In my view, Mr Lam, who incidentally had never given evidence in court as an expert before (save on one occasion in the Small Claims Tribunal), has clearly mixed up his role as an independent expert to the court and as an advisor / advocate on behalf of his client. 

101.Under cross-examination, Mr Lam admits that he had advised the defendant that if they would like to dispute this particular nuisance notice issued by the Joint Office, the defendant should first obtain the investigation report from it in order to conduct their own further investigation.  While he denied there was any extensive discussion between him and the defendant on this matter, I find this difficult to believe. Without any detailed discussion, it is difficult to see how Mr Lam could properly understand the issue and write the letter on behalf of his client.  I find as a fact that Mr Lam had engaged in extensive discussion with the representatives of the defendant on this matter.  I also find that he had given advice to the defendant before writing the reply letter to the Joint Office on behalf of the defendant. 

102.On the proper role of an expert, I echo the comments made by Deputy Judge Lawrence Ng in the case of Lam Kit Yee v Lam Shuk Lam & Chiang Chi, unreported, DCCJ 3115/2011 (10 March 2017):-

“45. In analysing the expert evidence in this case, I found the following principles as being most important (Chinachem Charitable Foundation Ltd v Chan Chun Chung, supra, at §§483 to 493, 498 and 500 per Lam J (as he then was)):-

“483. ... one of the important criteria that the court adopt in testing the reliability of the evidence of an expert is his impartiality and due observance of his overriding duty to the court. Though judges may not be as well qualified as experts in the areas of the latter’s experience, we are experienced and well trained in detecting partisan and biased witnesses (both in respect of ordinary factual witnesses and expert witnesses)...

484. An expert should not advance an argument or use a piece of information or data to support his opinion unless he is professionally convinced of the validity of the argument or the appropriateness of the use of that supporting material...

485. ... what the court wishes to hear is the expert’s own independent professional opinion on the topic instead of a biased view constructed and put forward for the purpose of advancing a party’s case...

486. ... the court is vigilant in ensuring that the integrity of the legal process would not be tainted by evidence of an expert who put a party’s interest above his professional duty to the court. If it can be shown that a party persistently adopted a stance which he himself had difficulty in sustaining, most of the time this is the hallmark of the expert’s failure to adhere to the duty of independence.

487. ... Very often, the most telling indicia of the professionalism and impartiality of an expert witness is how he deals with his weakest point under cross-examination. In Best Origin, I have set out what this court expects from an expert witness when he is faced with his own mistake after he produced his report. Instead of keeping silent and hoping that the point would not be discovered, he should correct it on his own volition as soon as possible.

491. ... Unfortunately, there are occasions ... where some experts jumped straight to a defensive mode instead of adopting a ‘step-back and look’ approach in considering the other side’s arguments. In so doing, I am afraid that such expert is abandoning his impartiality and neglecting his overriding duty to the court.

498.  Paragraph 8(c) of the Code of Conduct requires an expert witness to set out the reasons for his opinion in his report.   The purpose is to inform the court and the other parties the reasoning process of the expert witness ...  Unless an expert set out in his report his reasons for arriving at his opinion in a matter that is comprehensible to a layman, the report would not of be much use to the court ...”

103.It is trite that an expert should always ensure that he does not omit to consider the material facts which could detract from his concluded opinion.  He also needs to understand that he has a duty to ensure his evidence does not omit any relevant matters: See HH Judge Mimmie Chan (as she then was) in Maysun Engineering, supra citing Lam J (as the VP then was) in Hong Kong Air Cargo Terminals Ltd v Commissioner of Rating and Valuation [2004] 2 HKLRD 702 at 709.

104.In my judgment, as a matter of law and good practice, it is wrong for a person, who has been engaged to act as an expert on behalf of a party in a particular case, to give any further advice and/or to act as the party’s advocate or “mouthpiece” towards any other related parties, be it they are government departments or other parties in the case: See Tang Ping-Choi & Another v The Secretary for Transport [2004] 2 HKLRD 284 at §14, per Rogers VP.

105.In this case, I find Mr Lam has failed to understand his overriding duty owed to the court when he acted as an “advocate” on behalf of the defendant. This could render his expert evidence inadmissible: See Maysun Engineering Company Limited v International Education and Academic Exchanges Foundation Company, unreported, DCCJ 27/2006, (22 September 2010; Her Honour Judge Mimmie Chan (as she then was).

106.Regrettably, I find the defendant’s expert has allowed himself to be placed in the position of a “hired gun” rather than an independent expert in this case.  In writing such a letter, I find he was in fact advocating for the defendant’s cause rather than acting impartially as an independent expert to the court.  I agree with the plaintiffs’ counsel that, the more relevant point here is, without first obtaining the relevant investigation report from the Joint Office, he simply jumped to the conclusion that the water seepage could not have come from Room C.  Under cross-examination, Mr Lam agreed that by the time he wrote this letter, he had already prepared the Joint Report with Ms Lau where Ms Lau concluded that the water seepage could not have come from Room C.  This is clearly not something which he had independently arrived at and certainly was not mentioned by him in the Joint Report.  However, in court, he insisted that this was in accordance with his own understanding and it so happened that his conclusion on this was the same as Ms Lau’s.  When asked by the court to find this in the Joint Report, after searching for 3 to 4 minutes, Mr Lam conceded that he had never mentioned this matter in the Joint Report. In my view, his evidence on this is simply not believable. 

107.In my judgment, under similar circumstances, a reasonable and independent expert would have, firstly, obtained the investigation report from the Joint Office; then studying the contents of the report, before he would make such bold assertion regarding the source of the water seepage.  His failure to do so leads me to come to the only logical conclusion that: (1) he has acted improperly by advocating on behalf of the defendant after having accepted instructions to act as an independent expert to the court in this case; and (2) that he was far from being independent in this matter. 

108.In my view, what makes it worse in this case is the fact that Mr Lam had never bothered to ask the Joint Office for the investigation report.  I agree with the plaintiffs’ counsel’s submission that if he was of the genuine view that the Joint Office had come to the wrong conclusion, he should have obtained the investigation report from the Joint Office to look into the basis of its findings first before coming to the conclusion that the Joint Office’s findings were “totally untrue and illogical”.  In answering to a question posted by the court, Mr Lam further admitted that this letter was written according to the instructions directly coming from the defendant and not from the defendant’s solicitors who had appointed him as the defendant’s expert according to the directions given by the court. 

109.In my judgment, the defendant’s expert ought not to have jumped to the conclusion that the Joint Office had made the wrong finding without first sight of the investigation report.  It is my view he should have adopted a “step-back and look” approach as mentioned by Mr Justice Lam (as VP then was) and study the investigation report first before he came to the conclusion in the letter to the Joint Office.

110.Ultimately, under cross-examination, Mr Lam accepts:-

(a)     The seepage could have come from the embedded drainage pipes connected to Room C;

(b)     If fluorescent dye test conducted by him as yielded positive result, he would have agreed that the source of the seepage would have come from the 1^st floor.

111.Seen in such light, what the defendant’s expert stated in the letter to the Joint Office was simply without any solid foundation and no more than what typically a “hired gun” would try to advocate on behalf of his client.  To me, it certainty goes beyond the scope and duties of an independent expert and such conduct is highly undesirable. 

112.While I would not go as far as his evidence is totally inadmissible, it does, in my opinion, severely undermining the credibility and reliability of the defendant’s expert.  I therefore shall attach very little weight to his evidence.   

E.3  The approach of the defendant expert

113.Mr Lam has essentially given 3 reasons why he considers the source of the seepage could not have from D’s Premises.  They are:

(1)     The negative result of the Ponding Test and Colour Water Test definitely excluded the possible of water seepage from the enclosure of the toilets/kitchens and the embedded drainage pipe at the first floor[9];

(2)     Solely based on his visual inspection, he formed the view that the scattered high moisture content “may be caused by water seepage from defective external wall facing Shim Luen Street & Ma Tau Kok Road and Light Well position”[10] ;

(3)     Based on the moisture content test carried out by him, the moisture content readings maintained consistently before and after carrying out of the Ponding Test and colour Water Test[11];

114.I am of the opinion that the conclusions arrived at by Mr Lam based on the above reasons are unsound and unscientific and should be rejected.

115.First, it has been held by the court on many occasions that negative result from a seepage test is not conclusive evidence that there was no water seepage: See for example, Yeung Chiu Wing & Chan Nga Sze v Ho Chi Ming, unreported, DCCJ 3244/2015; (17 November 2017; Deputy Judge SP Yip); Good Century Investment Limited v Yim Kin Kuo & Another, unreported, DCCJ 4980/ 2013 (23 November 2015; Deputy Judge D Ho).  This is consistent with the guideline published by The Hong Kong Institute of Surveyors where it is stated that “In certain cases, the dye may not be seen within a short period of time.  Sufficient time should be allowed for it to seep through the alleged leak path….”[12].  This is also supported by Ms Lau where she expressed the view that “….the negative result of the fluorescent dye test may due to the absorption or filtration of the dye solutions along the slab, the insufficient time allowed between the addition of the dye and the chance of inadequate flushing water.  This can result in the dye being unable to reach the damp zone.”[13]

116.Under cross-examination, Mr Lam admits that the cause of the seepage “could” come from the embedded drainage pipes connected to Room C.  This is in direct contradiction to the conclusions reached by him in his own earlier report and in the Joint Report.

117.In this case, the colour dye test carried out by the Joint Office’s consultant at the floor slabs of the bathrooms and kitchens of D’s Premises on 14 September 2016 has confirmed that “the colour dye used in the test at sub-room C of Flat 1/F was noted at the seepage area of the ceiling of the Shop on 30 November 2017”  The investigation result therefore indicated that the first floor flat was the source of seepage leading to an existence of a nuisance.”[14]  Mr Lam seems to have completely ignored the findings of such tests by the Joint Office and had only belatedly conceded that the seepage could have come from the bathroom of Room C at the trial only.      

118.Second, Mr Lam’s theory that the seepage could have come from the external wall of the Building is so farfetched and absurd that it is not worth serious consideration.  In my view, this is the typical mode of a “hire gun” expert who, when runs out any sound of forming a credible opinion in the face of overwhelming evidence to the contrary will come up with some totally unconvincing and unscientific theory.  His “opinion” that the water might have come from the outer wall of the building was based solely on his visual inspection without any empirical evidence in support. This is as good as any wild guess from any layman on the street.  With respect, the court does not need an expert to tell us such “opinion”.

119.In my view, had Mr Lam bothered to carry out the infrared test and the microwave test as Ms Lau did, I have no doubt that he would able to find out the seepage in fact did not come from the external walls.  In this regard, I accept Ms Lau’s evidence that there was no obvious damage and sign of water seepage found on the external walls based on the result of the infrared tests carried out by her on the external walls.[15]

120.It is important to note that the positions which were affected by the water seepage were not close to the lightwell and external walls.  Thus, as a matter of common sense, it is unlikely that water came from the “cracks and holes” of the external walls when there are ample of other much more convincing evidence to indicate that they had in fact come from the floor slabs of the D’s Premises. 

121.Another telling piece of evidence why I consider the Joint Office’s findings in regard to the seepage came from Room C is correct is that, after the bathroom/toilet was removed (as a result of the order from the Buildings Department), the water seepage in the area ceased.  To me, this could hardly be a coincident. The irresistible inference must be that the water seepage in the area had originated from the bathroom of Room C.

122.For the above reasons, I have no hesitation to reject Mr Lam’s claim that the water seepage had come from the external walls of the building in this case.

Conclusion on Liability

123.In conclusion, based on the evidence given by Mr YK Lam for the plaintiffs and the expert opinion of Ms Lau, I find on a balance of probabilities that the water seepage occurred on the ceiling of the Ps’ Premises, in particular, at the main room, rest room and the conference room areas of the Shop, was due to the defective waterproofing layer within the enclosing walls, floor slab and the related drain pipes of D’s Premises.

124.Further, based on the investigations carried out by the consultant appointed by the Joint office in August 2016[16], I find the bathroom of Room C was also part of the source of the seepage.

125.I further find that the defendant had, despite having had knowledge of the water seepage throughout the material time, had failed to take any concrete or effective measures to eradicate the problems.  I find the defendant negligent in failing to carry out regular maintenance as well as to undertake a complete overhaul of the drainage system of the sub-divided flats when they knew that it was most likely the source of the seepage over the years.  I find not only such overloading of and altering a system which was originally designed for a single bathroom and kitchen unlawful, it had created a serious risk of causing leakage or seepage of water from the overcrowded and unregulated piping.  Such risk was entirely foreseeable on the part of the defendant.  To choose not to do anything to prevent or to stop the continuous water seepage over a lengthy period of time was clearly negligent.           

126.For the same reasons, I find the defendant had committed the tort of nuisance against the plaintiffs over the period complained of.

127.I also find that the defendant had been in breach of the provisions of the DMC.

128.I therefore find the defendant liable towards the plaintiffs in this case.

F.  QUANTUM

129.There are 2 limbs to the plaintiffs’ claim in terms of remedies in this case.  They are: (1) an injunction; and (2) damages for the loss and damage caused by the seepage over the years.

F.1  Injunction

130.The evidence transpired during the trial shows that, following the order issued by the Building Authority, the defendant has completely removed Room C, together with its bathroom/toilet.  Since then, the water seepage in Ps’ Premises has stopped. Thus, an injunction at first glance seems to be unnecessary at this stage.

131.However, given the long history of the seepage and the irresponsible attitude displayed by the defendant over the years, I think an injunction sought by the plaintiffs in this case is reasonable and necessary.  This is particular in view of the fact that the defendant still has four sub-divided flats being rented out to different tenants at D’s Premises.  Taking into account of the fact that there was no properly devised layout plans for the drainage pipes and this was done in a flat which was originally designed for a single bathroom and kitchen, the chance of further water seepage in future is quite real.  On balance, I consider that an injunctive order in the terms sought by the plaintiffs are reasonable.

132.I so grant such an injunctive relief:

(i)     to restrain the defendant from causing or allowing water seepage; and

(ii)     to carry out all necessary repair and remedial works to stop or prevent any water to seep from the 1^st floor to the ground floor.

F.2  Damages

133.The plaintiffs claim for both special and general damages resulting from the water seepage.

F.2.1  Special damages

134.The plaintiffs claim a total of $113,458 as special damages in this case.

135.For the replacement of a fan (at $988) and a calculator (at $60), given the fact that the first item was supported by a receipt and the second item was not seriously challenged by the defendant, I shall allow both items at the amount claimed.

136.For the sum of $2,650 as expenses for carrying out inspection and repair works of the electrical circuits, since they are supported by receipts produced[17], I shall allow the sum in full.

137.The plaintiffs also claim for the cost in (1) repairing and repainting the ceiling; and (2) carrying out inspection and repair for the electrical circuits.  They have provided a quotation at $109,760 from a decoration company for the purpose. However, Ms Lau in her report has assessed the cost for these 2 items at $60,562.60. This later sum has not been seriously challenged under cross-examination.  The only item which was challenged by the defendant is that it submits the ceiling of the ground floor above the false ceiling needs not to be repaired.    

138.I do not agree. Although the ceiling concealed by the false ceiling tiles might not be visible, it remained severely damaged by the water seepage as the photographs produced by the plaintiffs have shown.  Just because they could not be seen does not mean they should not be repaired.  If not for now, then one day in future, whether when the false ceiling has to be replaced or when the Shop is to be rented or sold, it has to be done.  I would allow such sum.

139.Therefore, I shall allow a total of $64,260.60 ($988+$60+$2,650+$60,562.60) as special damages in this case.

F.2.2  General damages

140.I am of the view that the plaintiffs are entitled to general damages for the obvious distress, discomfort and inconvenience suffered as a result of the various breaches by the defendant over the years.

141.In my judgment, the damages should reflect the length, the degree and the extent of the water seepage.  It should also reflect the lack of response and action on the part of the defendant over the years because they have aggravated the distress, inconvenience and discomfort experienced by the affected party. In this case, I accept the plaintiffs’ evidence that they were affected by the nuisance caused by the water seepage over a period of almost 8 years. 

142.I have taken into account of the cases considered by deputy judge Lawrence Ng in Lam Kit Yee v Lam Shum Lam, supra, and also the award made in that case.  They are all in the range of $30,000 to $60,000.  However, both the extent and length of the nuisance in those cases are far less serious than the present case.

143.In my view, the inconvenience and distress caused to the plaintiffs are much worse in this case is that:

(i)     the plaintiffs had to use containers and buckers of various sizes to catch water leakage / droppings from the 1^st floor at different locations within the Shop;

(ii)     the unsightly scene of the plastic covers and buckets used to catch the leaking water no doubt had affected the business image and day to day operation of the plaintiffs’ business; and

(iii)     the continuous water seepage also affected the enjoyment of their own property.

144.Taking into account of the above factors, I am of the view that a sum of $100,000 should be considered as reasonable as general damages in this case.

G.  Order made

145.Following my rulings above, the plaintiffs have succeeded in their claim against the defendant.  I therefore will enter judgment against the defendant in the sum of HK$164,260.60.

146.There will be interest for the $164,260.60 at half judgment rate from the date of the writ until date of judgment and thereafter at judgment rate until full payment. 

147.I also grant a mandatory injunction:

(i)     to restrain the defendant, whether by itself, its servants or agents from causing or allowing the water seepage from D’s Premises onto Ps’ Premises;

(ii)     to require the defendant to carry out all necessary repair or remedial works to stop or prevent any further water seepage from D’s Premises to Ps’ Premises.

H.  Costs

148.Costs will follow the event.  I make an order nisi that the defendant to pay the costs of the plaintiffs of the action, including all previously reserved costs order, with certificate for counsel.  Such costs to be taxed if not agreed.  The order will become absolute in the absence of any application to vary the same within 14 days.

149.Lastly, I would like to thank counsel on both sides for their helpful assistance.

Mr Patrick Chong, instructed by Robertsons, for the 1^st and 2^nd plaintiff

Ms Angela Gwilt & Ms Vivian Lam, instructed by Cheung, Chan & Wong, for the defendant