Wong Wah on Edward v. Lok Shor Bing
Read the full judgment text of DCCJ 954/2019 on BabelCite. This District Court judgment was delivered on 8 January 2024.
1. This is yet another water seepage case. But perhaps unlike the typical case coming before this Court, the total amount of damages claimed is merely HK$21,600, [1] well below the Small Claims Tribunal’s jurisdictional limit. Instead of going there, the Plaintiff has had to come to this Court because he is, in addition, seeking injunctive relief (for due repair etc. ). I say more about the desirability of resolving this and other similar disputes amicably at the concluding part of this Judgment
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DCCJ 954/2019 [2024] HKDC 16 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 954 OF 2019 ————————
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———————— JUDGMENT ———————— A. INTRODUCTION 1.This is yet another water seepage case. But perhaps unlike the typical case coming before this Court, the total amount of damages claimed is merely HK$21,600,[1] well below the Small Claims Tribunal’s jurisdictional limit. Instead of going there, the Plaintiff has had to come to this Court because he is, in addition, seeking injunctive relief (for due repair etc.). I say more about the desirability of resolving this and other similar disputes amicably at the concluding part of this Judgment. B. BACKGROUND AND RELEVANT FACTS 2.The Plaintiff and the Defendant were and are, respectively, the registered owners of the 2/F premises (“P’s Premises”) and 3/F premises (“D’s Premises”) of the same building known as No 67, Third Street, Hong Kong (“Building”). In other words, D’s Premises were and are situated immediately above P’s Premises. 3.Both parties had made certain modifications to their respective Premises before the water seepage the subject-matter of these proceedings, resulting in discrepancies between the actual layouts and the approved building plans. The Plaintiff had enclosed the balcony of P’s Premises, thereby effectively enlarging the size of the living room (“Balcony”). D’s Premises had been modified to a flat with sub-divided units. In the sub-divided unit near the windows facing Third Street (“Room A”), a toilet was constructed; in particular, in 2013, the Defendant constructed a water basin and water closet with a raised floor slab connected with concealed drainage pipe (“Additional Works”). The Additional Works are above part of the living room (the Balcony) of P’s Premises, and have not been modified since 2013. More specifically, I also find (as Mr Poon submits at §21 of his Closing Submissions) that the incoming and outgoing water pipes of the washing basin were running alongside and concealed in a casing immediately adjacent to the wall facing Third Street, and that the pipes ran underneath the raised floor of the bathroom and extended to another casing, which was in turn connected to the Building’s rear side; these pipes were right above the affected area of the Balcony’s ceiling. 4.In 2016, the Plaintiff discovered water seepage on part of the ceiling of the Balcony and/or the adjacent wall with windows facing Third Street on 2/F. Arising from a suspicion of water seepage from D’s Premises, the Plaintiff lodged a complaint to the Joint Office of Food and Environmental Hygiene Department and Buildings Department (“Joint Office”). Subsequently, on 20 October and 10 November 2016, the Joint Office conducted inspections and investigations, including a colour water test. However, the source of seepage could not be identified. 5.On 19 April and 9, 17 and 31 May 2017, the Joint Office appointed David S.K. Au & Associates Ltd to inspect Room A and to conduct tests, including a ponding test on the floor slab and a spray test on the walls. Again, the source of water seepage could not be identified. 6.In a letter dated 9 November 2018 from the Plaintiff’s solicitor to the Defendant, the Plaintiff alleged, essentially, that Room A was the source of seepage, and thus requested the Defendant to carry out remedial works. In response, the Defendant faxed to the Plaintiff’s solicitors a handwritten letter in Chinese dated 22 November 2018, informing the Plaintiff of her hardship and offering to reimburse the Plaintiff after the Plaintiff had carried out any necessary repair works (which could not wait). 7.The Plaintiff then engaged Savills Project Consultancy Limited (“Savills”) to conduct further investigations and tests at both P’s Premises and D’s Premises. The Plaintiff claimed that, albeit with prior notice and appointment, Savills’s representatives were denied access to D’s Premises on 5 and 7 December 2018. 8.On 14 December 2018, Savills’s representatives, with the Plaintiff, visited and performed tests on both P’s Premises and D’s Premises. Room A’s tenants and later the Defendant herself were present during the inspection. The Defendant complained that Room A’s inspection was unauthorised, and during the inspection, some unknown representatives from Savills shook and hit the pipes located in the area of the Additional Works. The Plaintiff denies this. 9.Respective Counsel for both the Plaintiff and the Defendant have now confirmed that all aforementioned inspections and the respective reports are adduced as factual evidence only. In any event, neither party has obtained the Court’s leave to adduce anything in any of those reports as expert evidence, and as such I disregard any opinion expressed therein. 10.After the Writ of Summons had been issued on 26 February 2019, the Plaintiff engaged Mr Vincent Chung Wai Hoi (“Mr Chung”) of Hong Kong Building Inspection & Structural Diagnostic Limited (“HKBI”), the Plaintiff’s expert witness in this Action, to conduct another round of inspection on P’s Premises on 5 November 2019. 11.On 12 November 2019, the Plaintiff’s solicitors wrote a letter to the Defendant, requesting access to D’s Premises and permission for HKBI to inspect D’s Premises. By a handwritten reply letter in Chinese dated 19 November 2019 from the Defendant to the Plaintiff’s solicitors, the Defendant accused the Plaintiff and Savills’s representatives of damaging her property during the inspection on 14 December 2018. The Defendant ended the letter with these words:
12.Without thus having been given an opportunity to inspect D’s Premises, Mr Chung issued his expert report (“Mr Chung’s Report”) on 15 January 2020. 13.On 16 June and 13 July 2021, the Defendant engaged Mr Raymond Wu Chi Cheung (“Mr Wu”) of Tru-tight & Associates Limited (“Tru-tight”), the Defendant’s expert witness in this Action, to inspect P’s Premises as well as D’s Premises. Mr Wu then compiled and issued an expert report (“Mr Wu’s Report”) on 26 August 2021. 14.On 13 April 2022, Mr Chung and Mr Wu filed a joint expert report (“Joint Expert Report”). 15.The Joint Expert Report consisted of comments from Mr Chung and Mr Wu on their findings in Mr Chung’s Report and Mr Wu’s Report. Rather peculiarly, the respective inspections by Mr Chung and Mr Wu were undergone more than a year apart, and there was no joint inspection. The two experts disagreed to a considerable extent in the Joint Expert Report, mostly due to Mr Wu’s critique of the tests conducted by Mr Chung as well as the results of those tests. In summary, Mr Chung restated his findings in Mr Chung’s Report while Mr Wu voiced his criticisms on such. 16.The Plaintiff and the Defendant have positively confirmed the expertise and qualification of both Mr Chung and Mr Wu as being unchallenged, and that they are each qualified to give expert opinions on the issues in dispute in this case. 17.It is also agreed that there had been water seepage on part of the Balcony’s ceiling up until 13 July 2021. But, in the Plaintiff’s evidence, he claimed the ceiling of the Balcony was still wet as of 15 May 2022. C. ISSUES TO BE DECIDED 18.Three broad issues fall for determination in this case:
D. THE LAW – AND A PLEADING POINT 19.The applicable legal principles are well settled. First and foremost, “it is well established there is no presumption that water leakage was necessarily caused by the flat above, and the doctrine of res ipsa loquitur does not apply.… It is not for the defendant to identify the source of leakage or to prove it did not come from the defendant’s flat. The onus is on the plaintiff to establish that the leakage originated from the defendant’s flat”: Hui Ling Ling v Sky Field Development Ltd (unrep, CACV 122/2012, 22 March 2013) (CA), §42. 20.In this regard, Mr Billy Poon, Counsel for the Plaintiff, also referred me to Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456 (CFI), where Cheung J (as he then was) held (at 460J – 461A) that that it was legitimate for an expert to reach a conclusion on the source of water seepage by deduction, without conducting water tests (in that case, dye and pressure tests), provided that there was factual basis from which the conclusion was reached. Leung Yung Chun was also followed in Yeung Yik Chun v Wong Lai Ming [2023] HKDC 1160 (30 August 2023; leave to appeal refused on 18 December 2023), §26(d). 21.Second, it is equally trite that “在「滋擾」來說，知情是要知道滲漏根源。在法律上，如果某人意圖騷擾鄰居，而確實令到鄰居受到騷擾，那就成為法律上造成「滋擾」，那就是犯了侵權，而他應承擔侵權的法律責任。在滲漏方面看來，如他不知道滲漏的根源出於他自己使用的物業，他便無意圖騷擾鄰居，所以侵權申訴不能成立”: 張秀玲及吳炳漢 對 鄭禮莊 (unrep, CACV 268/1998, 9 April 1999) (CFI), per Liu JA (with whom Leong JA and Woo J, as they then were, agreed) at §7. I also bear in mind the respective concurring judgments of the late Leong JA and Woo J, to which Mr Poon and Ms Michelle Liu, Counsel for the Defendant, have respective referred. 22.Thirdly, and related to the second point, “an occupier of land ‘continues’ a nuisance if, with knowledge or presumed knowledge of its existence (e.g. a defective grating giving rise to flood damage in that case), he fails to take reasonable means to bring it to an end when he has reasonable time to do so”: Chiu Yi Tung v Lo Yue Fung Franky [2023] HKDC 1117, §137, citing Sedleigh-Denfield v O’Callagan [1940] AC 880 (HL). 23.I apply these principles as appropriate in the ensuing Parts of this Judgment. Before doing so, however, I need to deal with a preliminary pleading point raised by Ms Liu: “[the Plaintiff]’s pleaded case is that the Seepage was and is caused by the leakage of the drainage pipe and/or flushing system inside Room A of D’s Premises”: see §8 of the Amended Statement of Claim (“ASOC”). It follows, Ms Liu said, the Plaintiff was bound by such causes such that if he failed to make out either, his claim had necessarily to fail. 24.I reject this pleading point. What §8 actually pleaded was: “The inspections and tests referred to in paragraphs 7 and 7A above reveal that the water seepage from the [D]’s Premises into the [P]’s Premises was and is caused by leakage of the drainage pipe and/or flushing system being part of the Additional Works.” Fairly read, this paragraph merely summarised the effect of the inspections and tests pleaded by the Plaintiff, instead of confining the Plaintiff’s case of water seepage in the way Ms Liu has suggested. 25.In any event:
E. FIRST ISSUE: D’S PREMISES WERE THE SOURCE OF SEEPAGE 26.At the outset, three matters should be noted. 27.First and foremost, the parties only have leave to adduce, as expert evidence, (a) Mr Chung’s Report, (b) Mr Wu’s Report, and (c) the Joint Expert Report, and their (respective) expert evidence is limited accordingly: see the Order of Registrar Lui dated 22 November 2021. 28.Nonetheless, as a matter of fact, there had been previous reports in respect of the conditions of P’s Premises and/or D’s Premises (or, more generally, the Building): see e.g. (a) the Water Seepage Investigation Report of David S.K. Au & Associates Ltd dated 27 June 2017, (b) the Condition Survey Report of Savills Project Consultancy Ltd dated December 2018, and (c) the Prescribed Inspection Report prepared by KC Surveyors dated 27 December 2019. As I have indicated to both parties’ Counsel during the oral opening, whilst the parties (and their respective factual and expert witnesses) were free to refer to purely factual matters contained in these Reports, neither party had the Court’s leave to adduce any expert evidence or opinion contained in any of them, and thus, a fortiori, neither party had the Court’s leave to adduce any opinion or commentary by either of their respective experts on any such expert evidence or opinion, and time should not be spent during the trial on any expert matter in or arising from any of those Reports. Both Counsel agreed. 29.The second matter is, when Mr Chung carried out his inspection on 5 November 2019 (on the basis of which he prepared Mr Chung’s Report), he could not, and did not, enter D’s Premises to conduct any inspection or examination. In this regard, the Plaintiff’s solicitors had, by way of their letter to the Defendant dated 12 November 2019, informed her that “[the Plaintiff had] instructed Hong Kong Building Inspection & Structural Diagnostic Limited (‘the Surveyor’) to carry out an inspection for compiling a report on the source of water leakage into [P’s Premises]”, that “[t]he Surveyor ha[d] recently carried out tests inside [P’s Premises]”, and that “[t]he Surveyor would like to inspect and carry out tests inside [D’s Premises] if [she was] prepared to co-operate”, but that if the Plaintiff’s solicitors did not receive her “constructive response in writing within the next 7 days, the Surveyor [would] proceed to prepare and issue the report without conducting inspection and tests inside [D’s Premises].” 30.By her faxed response dated 19 November 2019 (faxed on 20 November 2019), the Defendant refused this request in strong terms: see §11 above (particularly the bolded part emphasised by me). 31.It is apparent that: (a) the Defendant, by her response, had unequivocally refused the Plaintiff’s solicitors’ request for his expert to inspect D’s Premises; (b) there was no need, and in any event would have been no use, for the Plaintiff to re-attempt the request; and (c) the Plaintiff’s solicitors’ original request was an effective, and not a cosmetic, one. I reject the Defendant’s challenges to the contrary. 32.In the circumstances, I will not hold any criticism of Mr Chung’s findings based on or arising from his inability to enter / examine / inspect D’s Premises against him. If anything, the Defendant only has herself to blame. 33.Third, by the end of the trial, both parties (and their respective experts) had agreed (see e.g. §6.00 of Mr Wu’s Report, and his oral evidence) that the only possible alternative source of water seepage (i.e. other than D’s Premises) was cracks and other defects on external walls and the canopy of 2/F (this is the shorthand for the Defendant’s contentions as set out in §§55 – 56 below); as Ms Liu put it in §31 of her Opening Submissions, the Defendant’s case in this regard was that, “on a balance of probabilities, the Seepage was caused by rainwater which seeped through the defective external wall and/or sides of the windows of the Balcony.” I, therefore, need to examine Mr Chung’s and Mr Wu’s respective bases and evidence for opining that the cause of water seepage was (i) D’s Premises or (ii) (possibly) cracks and other defects on external walls and the canopy of 2/F, whilst bearing in mind that “[e]xpert evidence on identifying the source of water seepage… merely… [assists] the court and such evidence is not binding upon the court. The court can and should make its own judgment by considering all the materials available”: Yeung Yik Chun, §26(c), citing Grand Wayfair Investment Co Ltd v Chan Yung Kan (unrep, CACV 238/2013, 26 September 2014) (CA), §§37 – 44. 34.With the foregoing in mind, I turn to the expert evidence properly before me. 35.Mr Chung’s various academic and professional qualifications have been set out in p.5 of Mr Chung’s Report. There is no challenge to those or to his relevant expertise to give expert evidence in this case. Likewise for Mr Wu. 36.As Mr Poon has summarised in §15 of his Opening Submissions, “[a] number of test[s] have been conducted by [Mr Chung], including (a) visual inspection, (b) electrical conductivity sensing, (c) rapid infra thermographic scan, (d) microwave leakage detection, and (e) water sample test.” 37.As far as Mr Chung’s visual inspection was concerned, Mr Chung observed fundamental, and essentially uncontroversial, features of P’s Premises:
38.There can be no serious challenge on any of these observations: cf. e.g. the photos in Section (C) “2/F (Balcony Area)” in Appendix 3C to Mr Wu’s Report. In any event, in the Joint Expert Report, Mr Wu’s disagreement in this respect was only that “[t]he damaged area at 2/F was only confined to part of the balcony but not the whole area had been damaged as shown on HKBI’s M.C. readings as stated [in Mr Chung’s Report]”: see his Opinion at §6.1-2(A). This does not affect Mr Chung’s observations above. 39.As to electrical conductivity sensing, 40 MC check points were assigned by HKBI during Mr Chung’s inspection of the Balcony on 5 November 2019. Out of those 40 check points, 13 check points’ MC readings were greater than 35 R/R; the highest was as much as 64.8 R/R (which Mr Wu has also observed: see the rest of this paragraph). The 40 MC check points’ readings ranged from 7.9 to 64.8 R/R: see §7.1.2 of Mr Chung’s Report. Mr Wu’s main criticism here was that Mr Chung had given “[n]o reason… why there were large areas (18 check points out of 40 check points in an area of about 2.9M² (i.e. 31 sq. ft.) having been affected by water damage since 2016 still had an extremely low M.C. readings”; also, Mr Wu criticised that “[t]here is no explanation given by [Mr Chung] why high M.C. readings were found at the window but not other areas of this tiny balcony”, and “Why a low M.C. as low as 7.9 could be existed in such a small area with high M.C. up to 64.8 R/R?”: see e.g. Mr Wu’s opinion under §6.1-1(E) and (F), and under §6.2-1(e), of the Joint Expert Report. 40.I reject these criticisms. As Mr Chung explained in cross-examination, the differences in the MC readings were because the density of the Balcony’s concrete was different at different check points, such that, at some check points, the water trapped there could not penetrate the concrete so readily but would flow to adjacent check points, thereby resulting in the uneven MC readings. He also supplemented that some moisture might have evaporated. In any event, Mr Chung also explained in the Joint Expert Report (and I agree) that most of the locations detected with high humidity by electrical conductivity sensing were also located in the affected area of the Balcony’s ceiling; as water diffused within the concrete layer, it was not strange that the values vary: see §(2) of Mr Chung’s response to Mr Wu’s opinion at §6.2-1. In the circumstances, I accept Mr Chung’s electrical conductivity sensing results. 41.Additionally, Mr Wu’s criticisms here (largely echoed by Ms Liu in Part C2(c) of her Closing Submissions) revolve around the severity and extent of water seepage, i.e. if the relevant water facilities were being used daily, the Balcony’s ceiling should have been extensively damaged or adversely affected as opposed to what happened at the Balcony. This could and did not effectively refute Mr Chung’s opinion and observations that there had been water seepage on part of the Balcony’s ceiling, consistent with the source of seepage having been D’s Premises, which was supported by Mr Chung’s MC readings. 42.Mr Wu also referred to his observations of the Balcony’s ceiling and the photos adduced by the Plaintiff. I do not think this line of criticisms, premised on the appearance of the ceiling, is of significant relevance. 43.Turning to rapid infra thermographic scan, I accept the Defendant’s criticisms that Mr Chung’s Report did not set out any relevant infra thermographic scan-related professional qualification or provide any sufficient detail on the equipment used, the methodology adopted, or the interpretation / analysis of the infra thermographic photograph, etc. In any event, the results of the infra thermographic scan presented in §7.1.3 of Mr Chung’s Report are stated not to show any suspicious temperature difference. Whilst I, therefore, do not take those results into account in assessing Mr Chung’s expert evidence, equally the Defendant cannot rely on those results to attack Mr Chung. 44.As regards microwave leakage detection, as Mr Chung recalled in the Joint Expert Report, “the data from test results of Microwave scan were in a high range, which was quite close to the state of the balcony ceiling surface affected”; more specifically, “within the areas affected by the leakage to the ceiling of 2/F balcony, the concrete layers at different depths [namely, 30 mm, 70 mm and 110 mm (with 110 mm being the closest to the floor of D’s Premises, and 30 mm closest to the Balcony’s ceiling, but still inside its concrete layer)] were detected with relatively high humidity”: see for details §7.1.4 of Mr Chung’s Report; see also §(2) of Mr Chung’s opinion in response to Mr Wu’s disagreed item (A) of §6.2-l, Mr Chung’s opinion at §6.2-7, and §6.3.1(B), of the Joint Expert Report. 45.Mr Chung opined that according to the result of the microwave detection, relatively high humidity is detected at 70mm close to the floor of 3/F and 30mm close to the ceiling of 2/F, indicating water molecule penetration from 3/F direction to the balcony of 2/F. This shows that the water proofing of the water facility including the neighbouring floor area and walls is defective, causing water to diffuse and disperse into the Balcony of the 2/F: see for details §8.3.1 of Mr Chung’s Report. 46.Mr Wu and Ms Liu have launched various criticisms against Mr Chung’s microwave leakage detection. Before addressing those criticisms, it should be pointed out at once that Mr Wu himself did not conduct any microwave leakage detection; indeed, he himself agreed that “[f]or micro-wave scanning [conducted by Mr Chung], there was high moisture at level 30mm, 70mm and 110 mm”: see his opinion at §6.2-1(g) of the Joint Expert Report. 47.Instead, Mr Wu’s principal criticism was that “[Mr Chung] should explain the constraints in using microwave scanning, such as the constraints for scanning on any substrates containing metal parts is not allowed, such as the re-bars as contained in ceiling slab structure in this case”: see Mr Wu’s further opinion under §(2) of Mr Chung’s response to Mr Wu’s disagreed item (A) of §6.2-1, Joint Expert Report. Likewise, Ms Liu in cross-examining Mr Chung referred mainly to the “Limitations of [the microwave leakage detection] method” set out on page 32 of The Hong Kong Institute of Surveyors’ Professional Guide to Water Seepage: Investigation, Diagnosis, Testing & Reporting in Residential Buildings (“Guide”), in particular, that “[a]ttention should be paid to the interpretation of the readings when applied to elements that contain metal or ceramics” (such as the rebar(s) in the Balcony’s ceiling’s structure), and that “[s]urface of the test object should be kept dry and flat” (whereas the Balcony’s ceiling was found to have been uneven in that it had plaster peeling off and popping). Similarly, Ms Liu also challenged Mr Chung that he did not know the precise thickness of the floor slab on D’s Premises, and could not be certain as to the appropriateness of the test. 48.I have duly considered and borne in mind these criticisms and limitations of the microwave leakage detection method. I agree with Mr Chung’s explanation that, whilst the microwave leakage detection’s results might not be 100% accurate (as no test would be), they nevertheless served as valuable references within the profession in determining the source of water seepage, particularly when they were considered in conjunction with the results of other tests; the bottom line was that the above limitations could not render the results entirely inaccurate or useless. I reject Mr Wu’s and Ms Liu’s criticism to the contrary; in particular, I find that, even though steel reinforcements existed in the Balcony’s ceiling and its surface could not considered as very smooth, microwave scanning could be carried out and its results would be valuable. Indeed, not even Mr Wu has gone so far as to suggest that microwave scanning should not have been carried out in the first place. 49.There was a second criticism that Mr Chung’s Report did not mention how the microwave leakage detection test was conducted – and a suggestion that the strictly prescribed test procedure had not been adhered to. I dismiss this criticism: even Mr Wu himself had not raised such criticism in the Joint Expert Report, and in any event the suggestion that the procedure had not been adhered to is entirely speculative. 50.Thirdly, Ms Liu when cross-examining Mr Chung, and Mr Wu (see his opinion at §(A)(g) under §6.2-1 of the Joint Expert Report), sought to cast doubt on the microwave leakage detection’s results by saying that they and the electrical conductivity sensing’s results (the MC readings) did not “match” (or corroborate with) each other. Here, I accept Mr Chung’s explanation that the two tests measured different things – the microwave measured the humidity of the concrete layer at different depths, whilst the MC readings only reflected the humidity of the superficial part of the concrete (at a depth of about 10 mm), which would be subject to surrounding wind, temperature, humidity and also human activities such as air conditioning. As the two tests measured different things, and water trapped in the concrete was not static, the results of the two tests did not necessarily strictly correspond. In any event, there is nothing in the expert evidence properly adduced before me to the effect that the diagrams or results of the microwave scanning have to be “consistent” with the MC readings (in the way Ms Liu suggests at §70 of her Closing Submissions) for such results to be valid – the single sentence in the Guide that “Results should be checked for consistency” does not prescribe or explain why or how / to what extent microwave scanning results would have to be “consistent” with MC readings. 51.Fourth, that no information was given in respect of the equipment used and the procedures VC took to carry out the microwave scanning was, again, a criticism not even substantiated by Mr Wu’s own evidence. I reject the criticism. 52.Fifthly, even though, in 99% of residential buildings in Hong Kong, the floor slab would be between 150 mm and 200 mm thick, that does not mean that the microwave test results could not show that water leaked from 3/F to 2/F. As Mr Chung has explained (which I accept), relatively high humidity was detected by the microwave test at 70 mm close to the floor of 3/F and 30 mm close to the Balcony’s ceiling, indicating water molecule penetration from 3/F into the Balcony. This demonstrated that the water proofing of water facilities at D’s Premises were defective, causing water molecules to penetrate into the Balcony; as to the differences in the patterns at 30mm, 70mm and 100mm thick respectively, those were attributable to the possible water usage time intervals. I accept these. I reject Ms Liu’s criticism (at §79 of her Closing Submissions) that Mr Chung’s explanation on the possible water usage time intervals was mere speculation without any evidential basis, especially when his microwave scanning was carried out in the afternoon instead of in early morning. First, as I have already concluded, the Defendant only has herself to blame in forbidding in strong terms the Plaintiff and anyone acting on his behalf, including Mr Chung, to inspect the actual condition of – and thus also water usage at – D’s Premises. Second, what Mr Chung has said only accords with common sense. 53.Likewise, I also reject Ms Liu’s criticism that Mr Chung did not properly interpret the microwave scanning data / diagrams, and that he therefore had no basis to opine that water molecules infiltrated through D’s Premises’ balcony’s concrete floor into the Balcony’s ceiling. This is not even supported by Mr Wu, who, of course, did not himself conduct any microwave test. 54.Finally, Mr Chung’s water sample test revealed that the seeped water was fresh water. The result is however not indicative as the source of fresh water could have been either D’s Premises or rainwater. I give no weight to the findings from the water sample test. 55.I now turn to the other possibility that the water seepage might be caused by the water dripping at the external wall of P’s Premises. In this respect, as Ms Liu helpfully summarised in §32 of her Opening Submissions, the Defendant relied (principally) on:
56.In her Closing Submissions, Ms Liu summarised (at §116) the factors relied on by Mr Wu in support of the possibility of rainwater seepage:
57.For this alternative possibility of rainwater seepage to work and to negative the conclusion that the source / origin of the water seepage was D’s Premises, in my view, as a matter of common sense at least the following would need to be shown:
58.Even assuming (without deciding) that (i) the cracks and other defects, and (ii) the splashing of the water from the window frame and the dripping down of the water from the external wall, relied on by the Defendant were as per what she has alleged,[2] there is simply no (or, at any rate, no sufficient) evidence or explanation before me to demonstrate adequately, among other things, (a) (as Mr Poon has rightly pointed out) what (if any) was or would have been the actual (or even likely) seepage path for such rainwater, or (b) how so much rainwater as to have sufficed to cause the water seepage, flowing through any such seepage path, was or would have been retained in between the floor of D’s Premises and the Balcony’s ceiling (or, to put it more broadly, inside the structure of the Building), or (c) in which particular part(s) of the Building’s structure such rainwater was or would have been retained. In the absence of such evidence or explanation, the rainwater seepage possibility is nothing more than speculative (as Mr Poon essentially submits). I also do not view favourably Mr Wu’s glaring omission to include pertinent weather data in Mr Wu’s Report, as Mr Poon rightly points out at §15 of his Closing Submissions, which omission he has not (and could hardly be) satisfactorily explained. The foregoing part of this paragraph is not enough to prevent the Plaintiff from establishing, on a balance of probabilities, that the source / origin of the water seepage was D’s Premises. 59.As to the distribution of the MC readings on the Balcony’s ceiling and the supposed concentration of the MC checkpoints, see §40 above. 60.Moreover, §8.2 of Mr Chung’s Report concluded that the seepage into the 2/F was not due to rainwater on the grounds that: (a) no rainfall had been recorded by the Hong Kong Observatory on 5 November 2019 and the preceding 7 days; (b) although there were small cracks above the 2/F windows, the junction between the edge of the windows and the concrete had no obvious wear and tear; and (c) the MC readings were high, above 35. 61.Specifically, §6.2-4 of the Joint Expert Report recorded that the Hong Kong Observatory’s rainfall record showed no rainfall on the day of his inspection (on 5 November 2019) and 7 days prior thereto, whereas in the Victoria Peak Region, there was only 0.5 mm of rainfall over the same period. Ms Liu contended the proximity of the locations where the rainfall records were taken in §§121 – 123 of her Closing Submissions. Again, Mr Wu did not produce any contrary record depicting the weather conditions in Sai Ying Pun area for the purpose of rebutting Mr Chung’s opinion or supporting his own view. Understandably, the weather records accessible to the public are not tailored for the present case, and in any event, 0.5 mm rainfall in the Victoria Peak Region would not have had any significant impact on Mr Chung’s analysis here, which I accept. I am also convinced that the rainfall during the week prior to Mr Chung’s inspection was negligible and insufficient to cause water seepage. 62.Overall, I find that the Plaintiff has, on a balance of probabilities, established that the source / origin of the water seepage was D’s Premises, in particular considering all the results of the tests conducted by Mr Chung as a whole. 63.As a side note, and even though I do not need to rely on this point to make my findings above, I have wholeheartedly to share Deputy District Judge M Lam’s observation in Yeung Yik Chun (at §58) that “[Mr] Wu’s expert evidence… is long-winded, repetitive, unfocused and not readily comprehensible.” As an expert witness, Mr Wu’s overriding duty is to assist this Court independently. However, Mr Wu in his written expert opinions tended to be antagonistic and argumentative. I understand that Mr Wu as the Defendant’s expert witness has no need (let alone obligation) to (dis)prove any precise cause(s) of water seepage. However, it was unsatisfactory and unhelpful for Mr Wu to have deployed unjustified attacks, and at some point he had effectively became an advocate for the Defendant. In this regard, I entirely agree with Deputy District Judge Kay Seto’s remarks in Chiu Yi Tung, §51 (adopting the same to Mr Wu mutatis mutandis) that Mr Wu “might have placed his duty to the [Defendant] above his overriding duty to the court, which in turn cast doubt on the reliability of his expert evidence. As Lam J (as Lam PJ then was) explained in Chinachem Charitable Foundation Limited v Chan Chun Chuen, HCAP 8 of 2007 (2 February 2010), §§483 and 485, one of the important criteria that the court can adopt in testing the reliability of the evidence of an expert is his impartiality and due observance of his overriding duty to the court. 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 position. Given the court’s lack of expertise on the subject which an expert gives his evidence, the strict adherence by expert to the duty of independence is important for the proper administration of justice.” F. SECOND ISSUE: THE DEFENDANT IS LIABLE IN NUISANCE FOR THE WATER SEEPAGE 64.Since D’s Premises were the source / origin of the water seepage, I now proceed to rule on whether the Defendant is liable for the same. 65.In her valiant attempt to resist the Plaintiff’s claim in nuisance, Ms Liu submitted that, even if the source of the water seepage was D’s Premises, the Defendant should not be held liable as she had no knowledge of the same. However, on the Defendant’s own case, she actually knew, and in any event should clearly have known, the source of the water seepage by the time she had received Mr Chung’s Report. I so find. 66.Further, I find that, even with such knowledge or presumed knowledge, the Defendant has failed to take any reasonable means to bring the water seepage to an end when she had reasonable (indeed, ample) time to do so. Indeed, it is indisputable that the Defendant has not taken any action at all. 67.I therefore conclude that the Defendant is liable in nuisance for the water seepage from D’s Premises to P’s Premises. 68.As I have found the Defendant liable for nuisance, it would not be necessary to rule on the other causes of action pleaded in the ASOC. In any case, Mr Poon did not really press ahead with (or substantively address) the other pleaded causes of action in his Closing Submissions, and has confirmed that the Plaintiff will not rely on his pleaded claim based on the rule in Rylands v Fletcher. G. THIRD ISSUE: MANDATORY INJUNCTION AND DAMAGES 69.Proceeding, then, to the relief to be granted to the Plaintiff, the first remedy to be considered is injunctive relief. Here, I agree with Ms Liu’s submission that “[t]he obvious remedy, in the absence of any special circumstances, [is] simply a mandatory injunction to effect due repairs, no more”: Chiu Hung Shun, Paul v So Ka Tai (unrep, CACV136/2005, 5 December 2005), per Ma CJHC (as he then was, with whom Suffiad J and Barma J (as he then was) agreed) at §16(2). 70.Having regard to (a) the fact (as I have found) that the Defendant has failed to take any reasonable means to bring the water seepage to an end, (b) the fact (as I now find) that the water seepage is continuing (as the Plaintiff has testified), and (c) the terms of Mr Poon’s revised proposed injunctive relief in §40 of his Closing Submissions, I grant the following mandatory injunction against the Defendant (cf. Chiu Yi Tung, §196):
71.In agreement with Ms Liu, applying Chiu Hung Shun, Paul, no other or further injunctive relief appears to me to be necessary or appropriate, and none is granted. 72.Proceeding to the second remedy, namely damages for nuisance, I award the following, accepting the opinion and particulars expressed in §9.1 of Mr Chung’s Report:
73.On the other hand, I agree with Ms Liu that neither (a) spalled concrete and/or rusting and damage of re-bars, nor (b) any damage to electrical devices, has been pleaded in the ASOC, it being well settled that particulars of special damages must be pleaded: Hong Kong Civil Procedure 2024, Vol 1, §§18/12/11 and 18/12/44. Consequently, I do not make any award for either or for (c) demolition works in connection with repairing the re-bars. 74.Therefore, the Defendant has to pay the Plaintiff damages totalling HK$13,600. 75.For completeness, I also agree with Ms Liu that (a) HKBI’s survey fees should not be classified as damages, but should instead form part of the Plaintiff’s costs of this Action, and (b) the declaration prayed for in the ASOC serves no useful purpose and should be refused. H. CONCLUSION 76.For these reasons, I enter judgment in the Plaintiff’s favour against the Defendant for:
I. POSTSCRIPT 77.As I said at the beginning of this Judgment, given in particular the very modest (and, in large part, reasonable) amount of damages claimed, and the fact that the water seepage herein started in 2016 (more than 7 years ago by the time this Judgment is handed down), I would urge parties finding themselves in a water seepage dispute similar to the present, and especially their respective legal representatives, to engage seriously, proactively, and as early as practicable, in amicable alternative dispute resolution procedures including mediation and (to some extent) case settlement conference. 78.To this end, such parties should abandon any stubbornness (which, experience shows, represents a major obstacle to reaching a settlement), and instead maintain an open mind and a realistic attitude, remembering that litigation is expensive, protracted and unpredictable, and should be the last resort. Many a time, the money and time incurred as a result of litigation could and should have been much better spent on fixing the actual water seepage problem itself (and paying a sensible out of Court settlement). The wise counsel of the late Leong JA in 張秀玲及吳炳漢, §21, is as apposite as ever:
79.Last but not least, I thank both Counsel for their assistance.
Mr Billy Poon, instructed by Raymond Chan, Kenneth Yuen & Co, for the Plaintiff Ms Michelle Liu, instructed by Sidney Lee & Co, for the Defendant | ||||||||||||||||||||||||||||||||||||||
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