Man Kwong Kau and Another v. Wong Wai Hong

DCCJ 3552/2019

[2023] HKDC 1711

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3552 OF 2019

---------------------------------------

BETWEEN

---------------------------------------

------------------------

DECISION

------------------------

Introduction

1.By a summons filed on 16 June 2023, the defendant applied for leave to appeal against my judgment dated 19 May 2023 (“my judgment”).

Legal principles

2.Section 63A(2) of the District Court Ordinance provides:-

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that…

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

3.The test of whether an appeal has a reasonable prospect of success under the new statutory provision is the same test as applied before the amendment to Cap 336, ie whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal as is laid down in Ma Bik Yung v Ko Chuen [2009] 3 HKC 359. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: see Wing Tat Haberdashery Co Ltd v Elegance Development & Industrial Co Ltd, HCMP 357/2011, 8/7/2011, unreported.

4.Where the appeal is against the exercise of a discretion, the appellant ought to demonstrate that the decision was plainly wrong, or that the trial judge has taken irrelevant matters into consideration or has ignored relevant matters: see SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37 at p 48.

Grounds of the intended appeal

5.Mr Brian Lo, counsel for the defendant, summarized his intended grounds of appeal into the following categories, which will be dealt with in turn:-

(a) Misapprehension of the plaintiff’s evidence: Grounds 1, 2 and 4;

(b) Incorrectly rejecting the defendant’s evidence: Grounds 3 and 7;

(c) Third party tests ignored: Ground 5;

(d) Wrongly applying the burden of proof: Ground 6;

(e) Scope of the injunction too wide: Grounds 8 ; and

(f) Liability under nuisance: Ground 9.

Grounds 1, 2 and 4

6.In China Gold Finance Ltd v CIL Holdings Ltd, CACV 11/2015, 27/11/2015, unreported, the Court of Appeal was at pains to stress that the appellate process is not designed to give an unsatisfied litigant (or his counsel) a platform for regurgitating his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view. To do so is not only unhelpful but also a misuse of the appellate process.

7.It is with regret to say that Mr Lo is doing just that.

8.Grounds 1 and 2 were covered in details in the closing submission in paragraph 29(a) to (o) consisting of 5 pages.

9.In paragraphs 27 and 28 of my judgment, I expressed my view that the fact that the coloured water could not have reached the area under the defendant’ washbasin cabinet had negatived the validity of the coloured water test, the infra-red scanning and the electrical conductivity sensing which were done before and after the ponding.

10.This seems to have been ignored by Mr Lo. Rather than reading my judgment fairly, Mr Lo has regrettably chosen to repeat what he had submitted in the closing submission and formulated his ground as wrong application of the burden of proof on the part of the court. With due respect, I am unable to see any logical connection between the two.

11.Ground 4 complains that in paragraph 23 of my judgment, I “relied on Miss Lau’s evidence that darkness and water marks were observed at the washbasin cabinet near the plastic drainage pipe to suggest that the base of D’s washbasin was affected by water”. And it was the basis upon which Miss Lau suggested that the leakage originated from the connection-point.

12.This is another example of Mr Lo’s failure to read my judgment fairly. Paragraph 23 of my judgment reads:-

“23. Miss Lau observed that the body of the plastic drainage pipe of the washbasin in the defendant’s master bathroom was leaking. Darkness and water marks in the area in the defendant’s washbasin cabinet around the leaking plastic drainage were seen. Such darkness and water marks are apparent from Fig 19 and 20 in Miss Lau’s report. There can be no doubt that the base of the defendant’s washbasin cabinet was affected by water. It is Miss Lau’s evidence that she could not further examine the space underneath because the base of the defendant’s washbasin cabinet was not opened up. She also had not dug out the concrete in order to inspect the connection point. That is why her conclusion is that it cannot be ruled out that the connection point was leaking.”

13.Any average reader would have understood it that it is Miss Lau’s direct observation that the body of the plastic drainage pipe was leaking. The darkness and water marks in the area in the washbasin cabinet close to the leaking pipe were seen in addition to the actual leaking of the pipe.

14.Therefore, Ground 4 is premised on a misreading of my judgment on the part of Mr Lo.

15.As pointed out by Mr Lawrence Ngai, counsel for the plaintiffs, the inspection of Miss Lau was conducted in September/October 2020 whereas Mr Choi of the management office attended the defendant’s flat in August 2018. The 2 pieces of evidence are not directly contradictory and mutually exclusive.

16.With due respect, the criticism of Mr Lo has no substance at all.

Grounds 3 and 7

17.In my judgment, I am of the view that the coloured water test performed on the defendant’s master bathroom was inadequate because the coloured water did not reach the entire floor of the bathroom.

18.Mr Lo submitted that such view is illogical but offered nothing in support of his contention.

19.Mr Lo however submitted that “the dye water colour test in the washbasin would have sufficed to reveal any result”.

20.Mr Lo is of course not qualified to give opinion on the question of whether the dyed water test on the washbasin could have the same effect as a ponding test on the floor. Given the difference in methodology and purpose of the 2 tests, to say that the dyed water test on the washbasin could replace the ponding test is an affront to common sense.

21.With due respect, I do not see any force in Mr Lo’s submission.

22.Ground 7 complains about the rejection of Mr Chung’s theory that the water was coming from the flat or flats above the defendant’s flat. Mr Lo emphasized that no scientific test was conducted by Miss Lau to eliminate the unit above the defendant’s flat as the source of water leakage.

23.It must be remembered that the role of the expert is to assist the court. He or she is not the advocate of the party who engages him or her. As such, both Miss Lau and Mr Chung are free to give their opinion and put forward their theories for the court’s consideration. However, it is unrealistic to say that no scientific test was conducted by Miss Lau which serves to rebut the theory of Mr Chung for the simple reason that they were not the advocates of the party who engaged them.

24.Paragraphs 16 to 32 of my judgment dealt with the respective opinion and theories of the two experts, my findings and the reasons therefor. Disagreement to the findings of the court alone is insufficient to demonstrate a reasonable prospect of success of the appeal.

Ground 5

25.Ground 5 is a repetition of paragraphs 7 to 21 of the closing submission.

26.I have indeed taken note of that. As there is no evidence that there is any change in the layout of the defendant’s master bathroom, for the reasons stated in paragraph 27 of my judgment, I do not consider there is a need to discuss those tests.

Ground 6

27.With due respect, the criticism of Mr Lo the way in which I wrote my judgment is totally uncalled for.

28.Mr Lo is particularly critical of paragraphs 29 and 32 of my judgment, which necessitates a recitation:-

“29. It is trite that the defendant is under no duty to identify the source of the water leakage or that its origin did not come from his property. Nevertheless, Mr Chung put forward a theory that the water was coming from the flat or flats above the defendant’s flat by mere visual observation. No test of any kind was done to verify his theory.

…

32. The remaining question is whether the plaintiffs have proved, on balance of probabilities, that the water leakage originated from the defendant’s flat. As I do not accept that the flat or flats above the defendant’s flat is the source of the water leakage in the plaintiffs’ flat, and all other possible sources have been eliminated by the common opinion of the 2 experts, the only probable cause of the water leakage must be from the defendant’s flat. The answer to the question, in my judgment, is in the affirmative.”

29.It is a fact that no test was done by Mr Chung to verify his theory. The submission of Mr Lo that I was “overly critical” of Mr Chung is simply, with respect, perverse and unfair.

30.I am puzzled by the submission of Mr Lo that I accepted the plaintiff’s case on the basis that I rejected the defendant’s evidence. Again, any reasonable reader of paragraph 32 of my judgment would have understood it that due to the elimination of all possible sources of water leakage, including the flat or flats above the defendant’s flat as suggested by Mr Chung, I have come to the conclusion that the defendant’s flat was the cause of the water leakage. This is also the understanding of Mr Ngai.

31.I see no merits in Ground 6.

Grounds 8 and 9

32.As stated in paragraph 30 above, my finding is that the defendant’s flat was the cause of the water leakage, not the connection point as understood by Mr Lo.

33.Notwithstanding all the actions taken by the defendant, the water leakage was still continuing. The defendant is liable take action to stop and prevent the water leakage.

34.Viewed in that light, it cannot be said that the scope of the injunction that I have granted is too wide or that it should not be granted.

Conclusion and order

35.By reasons of the foregoing, the defendant’s intended appeal has failed to reach the threshold of granting leave and it must therefore be dismissed.

Costs

36.I make a costs order nisi that the defendant shall pay the plaintiffs the costs of this application with certificate for counsel. Such costs to be assessed summarily.

37.In the absence of any application by summons within 14 days from the date of this decision to vary the same, the costs order nisi shall become absolute.

38.For the purpose of summary assessment of costs, the plaintiffs shall lodge and serve a statement of costs within 14 days from the date of the costs order absolute, followed by a list of objections of the defendant within 7 days thereafter.

Mr Lawrence LK Ngai, instructed by CL & Co, for the 1^st and 2^nd plaintiffs

Mr Brian TY Lo, instructed by KC Ho & Fong, for the defendant