Man Kwong Kau and Another v. Wong Wai Hong

CAMP 380/2023, [2024] HKCA 505

On Appeal From [2023] HKDC 664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 380 OF 2023

(ON AN INTENDED APPEAL FROM DCCJ NO. 3552 OF 2019)

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JUDGMENT

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Hon Cheung JA (giving the Judgment of the Court) :

I.  Introduction

1.The plaintiffs are the registered owners of a flat on the ninth floor (‘Flat 9G’) of a residential building in Tung Chung, Lantau Island, New Territories, Hong Kong.

2.The defendant is the registered owner of a flat on the tenth floor of the same building (‘Flat 10G’) which is immediately above the plaintiffs’ flat.

3.The plaintiffs claimed that they had water leakage problem on the ceiling of their flat and the source of the water leakage originated from Flat 10G.  The defendant denied that the water leakage originated from Flat 10G.

4.Having considered the evidence including evidence from two experts, namely, Ms Lau and Mr Chung, on water leakage, Deputy District Judge B Mak (‘the Judge’) found for the plaintiffs and granted injunctive relief and damages to the plaintiffs.

5.The defendant now applies by summons dated 27 December 2023 (‘the summons’) for leave to appeal against the judgment.  The Judge had earlier dismissed the defendant’s application for leave to appeal before him.

II.  The decisions below

1)   The Judgment

6.Before considering the facts of the case, the Judge set out the legal principles applicable to water leakage cases (see Judgment [7]-[9]) :

(1)  There is no presumption that the source of the water leakage must be coming from the flat immediately above.

(2)  The onus of proof is on the plaintiffs to establish, on a balance of probabilities, that the source of water leakage was from Flat 10G.

(3)  The defendant does not need to identify the source of the water leakage or prove that it did not originate from his flat. 

7.The dispute turned on the heavily contested expert evidence.

8.A joint expert report dated 8 January 2021 was compiled following the joint inspections of Flats 9G and 10G: Judgment [12]-[13].

9.Both experts agreed that the external wall and external pipes were not the source of the water leakage.  The only question for determination was whether the water leakage originated from Flat 10G: Judgment [14].

10.The plaintiffs’ expert Ms Lau :

(1)  opined that the water leakage is related to the damage to the waterproof membrane in the master bathroom in Flat 10G.  Ms Lau could not rule out that the connection point between the plastic drainage pipe and the metal drainage pipe (‘the Connection Point’) underneath the washbasin cabinet was leaking (‘the Defendant’s Washbasin’): Judgment [16]; and

(2)  found that the area of water leakage in Flat 9G was directly below the Defendant’s Washbasin.  The body of the plastic drainage pipe of the Defendant’s Washbasin was leaking.  She observed that there were ‘darkness’ and water marks in the area of the Defendant’s Washbasin and around the leaking plastic drainage pipe.  Because the Connection Point was concealed under the Defendant’s Washbasin and it could not be opened up for inspection, Ms Lau could not rule out that the Connection Point was leaking: Judgment [17], [23].

11.The defendant’s expert Mr Chung :

(1)  observed that there were water marks and bulging paint seen at the wooden false ceiling in the plaintiffs’ master bathroom.  An infra‑red scan showed suspicious low temperature in the area around the plaintiffs’ master bathroom false ceiling.  Wetness which was spreading downward was observed in the wall in the plaintiffs’ master bathroom close to the corridor where a white PVC pipe was embedded (‘the PVC wall’): Judgment [18];

(2)  conducted a dye test and observed that no dye was observed in the plaintiffs’ master bathroom false ceiling and there was no expansion of the low‑temperature area.  There was also no dye observed in the PVC wall.  The electrical conductivity test showed no rise in moisture level, and the infra‑red test showed no obvious expansion of the low temperature area in the PVC wall: Judgment [19];

(3)  opined that there was no evidence to show that the water leakage in the PVC wall was caused by the defective waterproof system or the drainage system of Flat 10G: Judgment [19];

(4)  in respect of the concrete ceiling in the plaintiffs’ master bathroom, he did not see any obvious signs of water damage.  No dye was observed after the dye test.  However, the microwave scan did show that there was moisture in the concrete ceiling but there was no indication that such moisture originated from Flat 10G: Judgment [20];

(5)  upon inspecting Flat 10G, Mr Chung observed that there was water stain and peeling off of plaster in the ceiling of the master bedroom close to the master bathroom.  The paint of the false ceiling in the master bathroom was bulging with water marks, and the mercury in the mirror in that same bathroom was ‘vanishing’: Judgment [21]; and

(6)  although no obvious wetness could be seen in the upper part of the wall close to the corridor, he could see signs of water originating from the flat above Flat 10G passing through the wall of the defendant’s master bathroom, which spread downward.  He could not rule out that there was water passing through the wall of Flat 10G’s master bathroom internally and spreading downward.  Because the water was coming out from the PVC wall, it showed that a conduit of water was already established: Judgment [21].

12.The Judge found there was ‘no doubt’ that the water was emanating from the PVC wall, as the plaintiffs had placed a funnel at the spot where the water was coming out to divert the water to the drainage: Judgment [22].

13.The Judge then went on to consider the expert and factual evidence and, among other matters, found :

(1)  the validity of Mr Chung’s findings depended on whether the dyed water of the ponding test had reached the entire floor of the defendant’s master bathroom.  The validity of the test was in question, because the dyed water when poured on the floor of the defendant’s master bathroom, could not have reached the area under the Defendant’s Washbasin cabinet.  This had a significant bearing on the validity of the dye test, infra‑red scanning and the electrical conductivity sensing which were done before and after the ponding because the coloured water did not reach the area which was directly and immediately above the PVC wall.  This is particularly so because the base of the Defendant’s Washbasin cabinet had signs of water damage.  It is more likely than not that the space thereunder was also affected by water.  The fact that no dyed water was ponded in that area compromised the validity of the findings of Mr Chung: Judgment [25]-[28];

(2)  the fact that the defendant’s master bathroom was itself affected by water leakage was not proof that such water leakage was also the cause of the water leakage in Flat 9G.  Common sense dictated that if Mr Chung’s theory was correct, the degree of water damage in the defendant’s master bathroom must be more serious than that suffered by the plaintiffs’ master bathroom.  But this was not the case: Judgment [30]; and

(3)  it was proven on a balance of probabilities that the water leakage came from Flat 10G.  The Judge did not accept that the flat or flats above Flat 10G were the source of the water leakage, and all other possible sources of water leakage had been eliminated by the common opinion of the two experts.  Therefore, the only probable cause of the water leakage must be from the Flat 10G: Judgment [32].  

14.The Judge ordered that the defendant do within 42 days at his own costs and expenses carry out all necessary repair works to the Flat 10G for the purpose of stopping water leakage into Flat 9G and entered judgment for damages in the sum of $124,565.30 against the defendant: Judgment [58]-[59].

III.     Intended grounds of appeal

15.Together with the summons, the defendant submitted his draft notice of appeal setting out nine intended grounds of appeal.  They are as follows :

1)   Ground 1: The Judge erred in his conclusion, Judgment [32], that the plaintiffs had proved on a balance or probabilities that the water leakage originated from Flat 10G.

2)   Ground 2: The Judge’s analysis of Ms Lau’s evidence, at Judgment [16]-[17] and [23]-[27], was deficient and one‑sided and the Judge erred in failing to give sufficient consideration to objective and/or indisputable evidence that that contradicts Ms Lau’s evidence.

3)   Ground 3: The Judge’s analysis at Judgment [25] that Mr Chung’s findings depend on whether the dyed water had reached the entirety of the defendant’s master bathroom floor was erroneous ‘as a matter of logic’.

4)   Ground 4: The Judge’s reliance on signs of water damage in the Defendant’s Washbasin, in Judgment [23], was inconsistent with the undisputed evidence and does not on its own support the conclusion that the water leakage originates from Flat 10G.

5)   Ground 5: The Judge failed to give any or any sufficient consideration to the tests conducted by independent third parties.

6)   Ground 6: The Judge erroneously applied the law on the burden of proof in respect of water leakage in Judgment [28]-[32].

7)   Ground 7: The Judge erred at Judgment [30] in rejecting Mr Chung’s expert evidence without evidential basis.

8)   Ground 8: The Judge erred at Judgment [58] in failing to give any or sufficient regard to the scope of the injunction.

9)   Ground 9: The Judge erred in failing to give any or sufficient regard to the ‘reasonable conduct’ of the defendant.

16.Grounds 1, 2 and 4 overlap, as do Grounds 3 and 7, as noted by the Judge in his decision on leave to appeal.

IV.     Legal principles

1)   Principles for leave to appeal

17.Section 63A of the District Court Ordinance (Cap. 336) provides that leave to appeal shall not be granted unless the Court is satisfied that :

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

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

2)   Principles on appealing findings of fact

18.Findings of fact which are based on expert evidence are to be treated on appeal as findings of fact.  When dealing with an expert witness, a trial judge has a significant advantage over an appeal court in assessing the value, reliability and the impressiveness of the evidence given by the expert, although the advantage of the trial judge is not so great as in the case where the witness is a witness of fact: Hui Ling Ling v Sky Field Development Limited, CACV 122/2012 (unrep., 22 March 2013), [43].

19.The applicable principles concerning appeals against findings of fact made by a primary judge are well settled: Yu Pak Kan v Busy Firm Investment Ltd [2023] HKCA 105, [19] :

(1)  The Court of Appeal can only intervene in a finding of fact by a primary judge where the finding is plainly wrong.

(2)  It is a misuse of the appellate process to place before the Court of Appeal submissions which, in substance, are (or should be) submissions advanced by way of closing submissions at the trial after the judge has heard all the evidence.

(3)  In an appeal, the Court of Appeal focuses on the question whether the primary judge has fallen into palpable errors which could give rise to grounds for intervention by the appellate court.  It is not germane that the Court of Appeal may reach a different conclusion from that of the judge.

(4)  It is not helpful for counsel and litigants in person to merely repeat submissions already advanced and considered by the primary judge at the trial.  The starting point should be the judgment of the primary judge and the identification of palpable errors (which must be errors of such nature which warrant intervention by the Court of Appeal) in the judgment.  The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category.

(5)  Where a trial judge has reached a conclusion on the primary facts, the kinds of mistake which could engage an appellate court’s power of intervention are: i) where there was no evidence to support the conclusion, ii) the conclusion was based on a misunderstanding of the evidence, or iii) the conclusion was one which no reasonable judge could have reached.

(6)  With the recognition of the rationale for appellate restraint, there is also a greater appreciation of the need to exercise restraint in respect of findings of secondary facts based on inference drawn from findings of primary fact.

V.  Our view

20.In short, the crux of the defendant’s complaint is that the Judge has wrongly applied the burden of proof, over‑evaluated the plaintiff’s evidence and failed to take into account relevant evidence.

21.We now consider the intended grounds of appeal.

1)       Grounds 1, 2 and 4 – misapprehension of the plaintiffs’ evidence                                       

22.Grounds 1, 2 and 4 are to be considered together.  These intended grounds allege that the Judge erred and misapprehended the plaintiffs’ evidence, in particular, the evidence of Ms Lau.

23.The defendant says with respect to Ms Lau’s evidence that :

(1)  at its highest she only states she cannot ‘rule out’ that the Connection Point was leaking and that this is insufficient evidence to demonstrate the plaintiffs’ case;

(2)  it is contradicted by the infra-red scan, electroconductivity and dye tests; and

(3)  it is inconsistent with undisputed evidence.

24.The defendant is essentially regurgitating their closing submissions on the evidence in the hope that this Court will come to a different view.  This is not the purpose of the appellate process.  The defendant must demonstrate where the Judge ‘fell into any palpable errors’ which give rise to this Court’s intervention.

25.The Judge acknowledged and was aware that Ms Lau could not rule out that the water could be leaking from the Connection Point: Judgment [16]-[17], [23].  The defendant has not demonstrated that this is reflective of any error in the Judge’s assessment of the facts.  The Judge did not determine the matter solely on Ms Lau’s opinion that she could not rule out that the Connection Point was the source of the leak – but did so on the basis that the plaintiffs had satisfied him that there were no other sources of water leakage: Judgment [32]. This was the basis upon which the Judge made his finding that Flat 10G was responsible for the water leakage.

26.The Judge considered the various tests conducted by the experts and found the dye test conducted to be inadequate because the dyed water did not reach the entire floor of the defendant’s bathroom.  That had a significant bearing on the validity on the dye test, the infra‑red scanning and electrical conductivity: Judgment [27]-[28].  It cannot be said that the Judge did not properly consider or failed to weigh the evidence related to those various tests.

27.With respect to the allegation that the Judge had failed to take into account ‘inconsistent or undisputed evidence’, the defendant refers to an inspection of Flat 10G carried out by the management office on 23 August 2018, where the Defendant’s Washbasin was found to be dry.  It is unclear how this inspection in August 2018 directly contradicts the joint inspection done by the experts in September and October 2020.  Ms Lau during the joint inspection observed that the plastic body of the plastic drainage pipe of the Defendant’s Washbasin was leaking: Judgment [23]. The defendant does not refer to any evidence to contradict that finding of fact.

28.Grounds 1, 2 and 4 have no merit.

2)       Grounds 3 and 7 – incorrectly rejecting the defendant’s evidence                                       

29.In respect of Ground 3, the defendant contends that the Judge’s finding that the dye test in the defendant’s bathroom was inadequate was erroneous.

30.The Judge found the dye test performed on the defendant’s master bathroom to be inadequate, because the dyed water did not reach the entire bathroom floor.

31.The defendant, save for criticizing the logic of the Judge, does not point to any purported error.  This ground is entirely without merit.

32.In Ground 7, the defendant alleges that the Judge’s rejection of Mr Chung’s theory, that the water may have come from the flat or flats above Flat 10G, was done without any evidential basis.  In particular, the defendant argues that Ms Lau, for the plaintiffs, should have done more to prove that the leak was not from the flats above Flat 10G.

33.This, however, disregards the fact that the plaintiffs need only show on a balance of probabilities that the leak was from Flat 10G – which the Judge found that the plaintiffs had done.

34.Further, and in any event, the commonsensical approach adopted by the Judge was not without evidential support.  Ms Lau did in fact give an opinion on the wall of the defendant’s master bathroom :^[1]

「針對被告人專家鍾偉開先生(第一回)回應的第3 段,於整個聯合檢驗期間被告人物業單位(即10 樓G 室)主浴室上方牆身並沒有出現明顯滲水跡象。若果按照被告人專家鍾偉開先生所提出之「不排除有水經由『10G 室』主廁牆身內部向下擴散」此假設,原告人專家劉小姐認為被告人物業單位(即10 樓G 室)主浴室上方牆身必定會出現明顯滲水跡象,包括出現濕潤或滴水等情況。然而,原告人專家劉小姐反覆仔細查閱被告人專家鍾偉開先生所提供的報告(附錄 II.(1))後發現被告人物業單位(即10 樓G 室)主 浴室上方情況並沒有出現任何明顯滲水跡象。」

35.She too had indicated that if the leak was from the floor above Flat 10G, the water damage would have been more extensive in that flat.

36.Additionally, it must be remembered that a court is not bound to accept the evidence of an expert witness.  While the expert’s role is to assist the Court in its task, the Court must approach expert evidence with some caution (particularly the opinion part of the evidence) and must form its own independent assessment of that evidence and come to its own conclusions based on the facts and its own reasoning: Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, [17]-[20]. This the Judge did.

37.The Judge clearly considered the evidence and came to a sound conclusion on the evidence presented to him.  We do not find that the Judge erred in his rejection of Mr Chung’s theory.

38.Hence, Grounds 3 and 7 are not reasonable arguable.

3)       Ground 5 – the third‑party tests were ignored by the Judge                                          

39.The defendant submits that the Judge erred in failing to give any consideration to the tests conducted by the independent third parties.

40.The Judge in his Leave Decision notes that he did in fact take into account the various third party tests, but he did not see the need to discuss them in his Judgment: Leave Decision [25]-[26].

41.The defendant having referred to the third-party tests, does not point to why or how they demonstrate that the Judge’s finding was incorrect.  Such a bare allegation of failing to consider evidence without any demonstration of a palpable error is entirely unmeritorious.  This ground fails.

4)       Ground 6 – incorrectly applying the burden of proof

42.The defendant contends that the Judge erred in his application of the law on burden of proof in water leakage cases.  We disagree.  We have already referred to the principles applicable to water leakage cases that the Judge had identified and in our view he had correctly applied the principles to the facts of this case. The Judge was clear in his finding – since all the other sources of water leakage had been eliminated – he found that the water leakage more likely than not came from Flat 10G.

43.There are no merits in Ground 6.

5)       Ground 8 – the scope of the injunction is too wide

44.The Judge ordered that the defendant do within 42 days at his own costs and expenses carry out all necessary repair works to Flat 10G for the purpose of stopping water leakage into Flat 9G.

45.The defendant complains that the scope of the injunction is too wide, and that the injunction ought to be limited to the repair of the Connection Point only.

46.We do not believe that the injunction is ‘too wide’ in scope, it is sufficiently precise and it is clear that the defendant is obliged to conduct repairs to prevent any further leakage from Flat 10G to Flat 9G.  This ground of appeal is not reasonably arguable.

6)       Ground 9 – liability under nuisance

47.It is unclear if the defendant has withdrawn its reliance on this intended ground of appeal as the defendant provided no written submissions on Ground 9.

48.For completeness, we deal with this intended ground.  This ground concerns whether the defendant ought to have been held liable for nuisance.  This ground is a red herring.  The defendant was held liable for breach of clause 7 of the DMC, for negligence and for nuisance.  The defendant does not deny that it would be liable for breach of the DMC or negligence if the water leakage originated from his flat.  Therefore, even if the defendant was right and it could not be held liable for nuisance, the defendant does not deny it would be liable in any event for breach of the DMC and/or negligence.  We therefore see no merit in this ground.

VI.     Orders

49.For the above reasons, we dismiss the Leave Summons.  

50.We are of the view that the application is totally without merits.  We will, pursuant to Order 59, rule 2A(8) of the Rules of the High Court, further order that the defendant is not allowed to apply for an oral hearing inter partes to reconsider his application.

51.The defendant do pay the costs of the application to the plaintiffs which we summarily assess in the sum of $40,000 (including counsel fee of $20,000) bearing in mind that there was already a previous application for leave below with similar arguments.

Mr Lawrence L.K. Ngai, instructed by CL & Co. Solicitors, for the 1st and 2nd plaintiffs

Mr Brian TY Lo, instructed by K.C. Ho & Fong, for the Defendant