Lo Wei v. Wiser (Hong Kong) Ltd and Others

CAMP 215/2024, [2025] HKCA 238

On An Intended Appeal From [2023] HKDC 1735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 215 OF 2024

(ON AN INTENDED APPEAL FROM DCCJ NO 4082 OF 2013)

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J U D G M E N T

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

INTRODUCTION

1.This is the Plaintiff’s application for leave to appeal against the judgment of Deputy District Judge Louise Chan dated 6 December 2023 (as amended on 4 September 2024) dismissing parts of the Plaintiff’s claim against the Defendants for nuisance and/or negligence in respect of alleged water leakage from the Defendants’ premises to the Plaintiff’s premises.

2.The Plaintiff is the registered owner of a property situated at 19/F, Ning On Mansion, Taikoo Shing, Hong Kong (“the Plaintiff’s Premises”). She has been residing there with her husband and their son, George Rentao Wu (“George”) since the 1980s.

3.The 1^st Defendant is a limited company and the registered owner of a property on the 20^th floor of the same building (“the Defendants’ Premises”) immediately above the Plaintiff’s Premises. The 2^nd and 3^rd Defendants are the shareholders and directors of the 1^st Defendant, and they resided in the Defendants’ Premises together with their daughter between 2004 and August 2013.

4.It is the Plaintiff’s case that there has been water seepage continuously affecting the Plaintiff’s Premises for over 10 years during 4 different periods. Whilst the water seepage had different sources, they all originated from the Defendants’ Premises. The 4 periods are:

(1)  from about 6 February 2012 to about 8 February 2012 (“1^st Seepage”);

(2)  from about 22 February 2012 to about 19 August 2013 (“2^nd Seepage”);

(3)  from about 6 June 2016 to about 10 January 2017 (“3^rd Seepage”); and

(4)  from about 13 January 2017 to the present (“4^th Seepage”).

5.The Defendants accepted liability for the 1^st Seepage, and invited the Court to determine the amount of damages for the loss and damage suffered by the Plaintiff arising from the 1^st Seepage. However, they disputed liability for the 2^nd, 3^rd and 4^th Seepages.

6.Having considered the evidence including evidence from two experts, namely, Mr Hau Tung Chow, for the Plaintiff (“Mr Hau”) and Mr Denny Yeung Tak Wah, for the Defendants (“Mr Yeung”), by a judgment dated 6 December 2023 (“Judgment”), the Judge dismissed the Plaintiff’s claim in respect of the 2^nd and 4^th Seepages and made an award in respect of the 1^st Seepage and a partial award in respect of the 3^rd Seepage against the Defendants. The total amount of damages as assessed by the Judge came to HK$12,000.00.

7.The Plaintiff now applies by summons dated 4 November 2024 (“the Plaintiff’s Summons”) for leave to appeal against the Judgment, leave to appeal having been refused by the Judge on 21 October 2024 (“Leave Decision”).

THE DECISIONS BELOW

The Judgment

8.Before considering the facts of the case, the Judge set out the legal principles applicable to water leakage cases, in particular (Judgment [6]):

(1)  There was no presumption that the source of water leakage must come from the premises immediately above the premises suffering from water leakage.

(2)  It was the Plaintiff’s duty to prove on the balance of probabilities that the source(s) of seepage was/were in the Defendants’ Premises.

(3)  The Defendants did not need to find out or identify the source of the water seepage and did not bear any burden to prove their innocence.

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

(1)  In respect of the 2^nd Seepage:

(a)  The Plaintiff’s case was that the 2^nd Seepage was caused by defective flushing water supply pipe of the water closet in the Defendants’ Premises (Judgment [9] & [16]).

(b)  The crack in the external wall of the Plaintiff’s bathroom was not repaired until May 2017. The Court could not eliminate the crack as being a possible source of seepage, and this possible cause should be considered even though the Plaintiff refused to acknowledge such possibility (Judgment [16]).

(c)  Should there be defects in the saltwater inlet system of the Defendants’ toilet, the flushing of the toilet would contribute to the seepage in the Plaintiff’s Premises. However, although there was evidence from the Plaintiff and George that the water seepage became worse the day after a flushing test conducted by the Defendants’ contractor on 29 February 2012, there was no evidence suggesting any deterioration after a flushing test conducted by the Food and Environmental Hygiene Department (“FEHD”) on 11 April 2012. The Judge had reservation on drawing any correlation between the flushing system of the Defendants’ toilet and the 2^nd Seepage (Judgment [18]-[19]).

(d)  None of the tests conducted by the FEHD and/or the Joint Office yielded any positive results showing the Defendants’ Premises to be the source of the leakage. There was no water dripping found at the time when the Joint Office conducted the reverse pressure test at the water inlet system of the Defendants’ toilet on 10 October 2012 (“Reverse Pressure Test”), and no evidence was offered by the Plaintiff as to when the water dripping stopped before the Reverse Pressure Test was conducted (Judgment [20]-[21]).

(e)  Mr Hau’s conclusion that the source of leakage was the Defendants’ defective saltwater inlet system merely because the leaking water was saltwater was based more on speculation than scientific examination (Judgment [23]).

(f)  Whilst the Plaintiff argued at the trial that the cause of the leakage to the Plaintiff’s Premises improved after the Defendants’ Premises underwent a major renovation in August 2013 (“2013 Renovation”), this allegation was not mentioned in the Plaintiff’s pleadings or her 2 witness statements, or letters from the Plaintiff’s legal representatives. The alleged abatement of water leakage was only mentioned by (i) Mr Yeung in the joint experts’ report in 2014, where he considered that no water seepage could be detected in the Plaintiff’s Premises after inspection carried out in April and November 2014, and (ii) George in his witness statement filed on 4 December 2020, which was made 7 years after the 2013 Renovation (Judgment [26]-[27]).

(g)  The Judge took into consideration of the fact that the result of Mr Hau’s inspection in June 2013, which was done prior to the 2013 Renovation, and the data collected during the experts’ joint inspection in April 2014 (“2014 Joint Inspection”) reflected that high level of moisture content persisted and there was no reduction of the moisture readings. The chance of water being trapped between the floor slabs for 7 months (from October 2013 after the completion of the 2013 Renovation to the 2014 Joint Inspection) without the slightest dissipation would be relatively low. The Judge also bore in mind that Mr Hau said that he could not tell whether the water seepage problem improved in 2014 by looking at the figures (Judgment [28]-[29]).

(h)  The Judge rejected the Plaintiff’s case that the water seepage in 2014 at the Plaintiff’s Premises was attributable to rainwater because the crack in the external wall had been there since the onset of the 2^nd Seepage (or earlier), and it would be arbitrary to say that the rainwater did not contribute to the seepage between February 2012 and August 2013, but became a source some time after the 2013 Renovation (Judgment [30]).

(i)  The Judge found that the overall evidence did not support the Plaintiff’s contention (which was not pleaded) that the water seepage came to a halt after the 2013 Renovation. Further, since water leakage persisted even after the Defendants changed all the piping in the bathroom, the Judge found that the Plaintiff had failed to establish on a balance of probabilities that the saltwater inlet system was the cause of the 2^nd Seepage (Judgment [31]).

(2)  In respect of the 3^rd Seepage:

(a)  It is the Plaintiff’s case that the cause of the 3^rd Seepage was the defective fresh water supply system at the Defendants’ Premises.

(b)  The Judge took into account, inter alia, the following matters:

(i)  The Defendants had performed urgent renovation works on or around 7 to 12 January 2017 by completely cutting the fresh water supply to the concealed water pipes in the walls of the Defendants’ Premises and re-routed all fresh water supply through exposed brass pipes (“Pipe Work”). As a matter of logic, strong causal link between the fresh water supply system and the leakage could be drawn if the Pipe Work did put a stop to the leakage. However, after such work, the water seepage continued. The Judge took the view that the 3^rd and 4^th Seepages could not be treated as two isolated events (Judgment [40]).

(ii)  Whilst water leakage from June 2016 up to the date of trial was severe, there was a sudden deterioration of water leakage on or around New Year Eve of 2017. The action taken by the Management Company of Taikoo Shing (“MO”) on 1 January 2017 showed that water dripping was reduced significantly once the fresh water supply was turned off at the Defendants’ Premises, but worsened when it was turned on. This showed that the sudden deterioration of water leakage was more likely than not triggered by an independent cause rather than a gradual deterioration from the earlier seepage problem (Judgment [41]-[44]).

(iii)  The continuous but mild seepage suggested that the earlier seepage problem had never been resolved and could not be rectified by the Pipe Work (Judgment [44]).

(c)  The Judge took the view that the 3^rd Seepage came from more than one source. The defective fresh water supply system at the Defendants’ Premises should be seen as an intervening episode within the 3^rd Seepage period that triggered the severe water dripping on or around 28 December 2016 to 12 January 2017 (“Intervening Period”). The Defendants were liable for the damage caused to the Plaintiff in respect of the Intervening Period (Judgment [45]). However, the Plaintiff had failed to prove the source of leakage of the 3^rd Seepage outside the Intervening Period (Judgment [53]).

(3)  In respect of the 4^th Seepage:

(a)  It is the Plaintiff’s case that the 4^th Seepage was caused by the defective waterproofing facility of the Defendants’ bathroom.

(b)  The Judge referred to Mr Hau’s findings that high moisture contents were detected at the ceiling of the Plaintiff’s bathroom, but considered Mr Hau’s view that the high moisture readings were signs indicating that water seepage at the Plaintiff’s bathroom ceiling was due to diffusion from the Defendants’ Premises to be unreliable because:

(i)  Mr Hau did not have the chance to inspect the floor slab between the Plaintiff’s Premises and the Defendants’ Premises and it would be unsound to jump to the conclusion of defective waterproofing facility before knowing the composition of the said floor slab; and

(ii)  the microwave moisture diagrams produced by Mr Hau was inherently futile because he did not have information on the thickness of the floor slab (Judgment [46]-[47]).

(c)  The only other results left for consideration were those from the multiple coloured water tests performed by both the experts and the Joint Office, which all returned negative results (Judgment [48]-[51]).

(d)  The Plaintiff failed to prove the source of the 4^th Seepage (Judgment [53]).

10.On the basis of above findings, the Judge dismissed the Plaintiff’s claim in respect of the 2^nd and 4^th Seepages, and made an award in respect of the 1^st Seepage (the liability for which was not contested by the Defendants) and a partial award in respect of the 3^rd Seepage (Judgment [55]).

11.As regards quantum:

(1)  The Judge noted that:

(a)  The assessment of damages was difficult in this case because the Plaintiff never repaired her premises since the onset of the 1^st Seepage and the condition of her premises had been deteriorating due to continuous water seepage in the last decade (Judgment [57]).

(b)  The Plaintiff did not produce any evidence demonstrating the actual damage caused after the 1^st Seepage. As for the damage caused by the 1^st Seepage, the available evidence suggested that the only site of leakage was the Plaintiff’s bathroom which was rectified within 4 days after the Plaintiff’s complaints (Judgment [58]).

(c)  There was no consistent evidence from the Plaintiff suggesting when the 2^nd Seepage abated (Judgment [59]).

(d)  No actual damage was recorded for the 3^rd Seepage. It would be futile to rely on any evidence relating to damage suffered in the 4^th Seepage, for which the Defendants were not liable (Judgment [60]).

(e)  The Defendants should only be liable for damage occasioned by the 1^st Seepage and the 3^rd Seepage during the Intervening Period. The Plaintiff did not provide any breakdown of the costs of restoration for each seepage. The Judge bore in mind that the Plaintiff’s bathroom was in such a dire state that required immediate repair before the Intervening Period. It would be arbitrary for the court to order the Defendants to pay a sum to rectify the Plaintiff’s bathroom to a state before the Intervening Period (Judgment [61] & [64]).

(2)  The Judge ordered the Defendants to pay:

(a)  a sum of HK$5,000 as damages for the 1^st Seepage on the assumption that the Plaintiff would engage a contractor to repaint the ceiling of the bathroom after the 1^st Seepage (Judgment [63]); and

(b)  a sum of HK$7,000 to reflect the inconvenience suffered by the Plaintiff and her family caused by the 3^rd Seepage during the Intervening Period (Judgment [66]).

The Leave Decision

12.On 2 January 2024, the Plaintiff issued a summons in the court below seeking leave to appeal against the Judgment.

13.On 21 October 2024, the Judge gave the Leave Decision, refusing to grant leave to appeal on the ground that there was no merit in any of the intended grounds of appeal raised by the Plaintiff, and no reasonable prospect of success in the Plaintiff’s appeal.

THE PLAINTIFF’S RENEWED APPLICATION FOR LEAVE TO APPEAL

14.By the Plaintiff’s Summons taken out on 4 November 2024 in the Court of Appeal, the Plaintiff renews her application for leave to appeal against the Judgment. The Plaintiff’s draft notice of appeal (“Draft NoA”) contains 14 grounds, and seeks to launch a comprehensive challenge on numerous findings of fact made by the Judge. They will be dealt with below when we consider the merits of the intended appeal.

15.On 26 November 2024, the Plaintiff filed a revised statement in support of the application for leave to appeal pursuant to the directions given by the Registrar of Civil Appeals on 11 November 2024.

16.In opposition, the Defendants lodged their written statement on 9 December 2024.

DISCUSSION

17.The applicable principles for (i) leave to appeal from a judgment of the District Court, and (ii) appeals against findings of fact made by a trial judge, are well-settled, and will not be repeated here.

18.As earlier mentioned, the Draft NoA contains 14 grounds. There are some overlaps between those grounds, and they will be dealt with in groups in the following discussion. For reasons which will appear below, we do not consider any of the intended grounds of appeal to have a reasonable prospect of success.

The 2^nd Seepage

19.In respect of the 2^nd Seepage, the Plaintiff complains that:

(1)  The Judge erred in (a) rejecting that the saltwater inlet system of the Defendants’ toilet was the cause of the 2^nd Seepage, and (b) finding that the Plaintiff could not eliminate the crack in the external wall as being a possible source of seepage, by failing to consider the following matters:

(a)  there is no dispute that there was leakage of saltwater in the 2^nd Seepage, which could not have originated from the external wall;

(b)  the findings by Mr Hau in his expert report dated 7 September 2013 including, inter alia, (i) the possibility of seepage from the external wall was excluded based on an infra-red scanning test carried out by Mr Hau, and (ii) the possibility of leakage from the drainage system was excluded based on the small amount of ammonia found in the concrete sample, showed that the salt water in the concrete sample would have come from the flushing saltwater supply to the toilet of the Defendants’ Premises;

(c)  Mr Hau had eliminated all other possible sources such that the saltwater inlet system was the only possible source of the 2^nd Seepage; and

(d)  Mr Yeung did not challenge Mr Hau’s findings and analysis (Draft NoA [1]-[3], “Ground 1”).

(2)  The Judge erred in ruling that the 2^nd Seepage did not stop after the 2013 Renovation, as the evidence showed that (a) the Plaintiff’s Premises were affected by saltwater seepage prior to the 2013 Renovation but the saltwater seepage had stopped after the 2013 Renovation, and (b) the Plaintiff did not make any complaint to the MO or the Defendants until the start of the 3^rd Seepage in 2016 (Draft NoA [2], “Ground 2”).

(3)  The Judge failed to draw an adverse inference against the Defendants for refusing Mr Hau to inspect the Defendants’ Premises prior to the 2013 Renovation, and failed to take into account of the fact that the Defendants only allowed Mr Hau to have access to the Defendants’ Premises for inspection and tests after the renovation works had been completed (Draft NoA [4]-[5], “Ground 3”).

20.In respect of Ground 1:

(1)  The Judge was fully aware of the findings made by Mr Hau (Judgment [14]), and it was only after consideration of all relevant evidence, including, inter alia, (a) the fact that the crack on the external wall was not repaired until May 2017; (b) the lack of evidence suggesting any deterioration after the flushing tests conducted by the FEHD on 29 February 2012 and 11 April 2012; and (c) the deficiencies in Mr Hau’s opinion, that the Judge came to the conclusion that the Plaintiff had failed to establish on a balance of probabilities that the saltwater inlet system was the source of the 2^nd Seepage (Judgment [16]-[23] & [30]-[31]). Assessment of the evidence and the weight to be attached to the evidence are matters for the Judge. Based on the evidence before her, the Judge was entitled to reach the above conclusion. We see no basis to intervene in the Judge’s assessment of evidence and findings of fact.

(2)  As regards the Plaintiff’s complaint that the Judge failed to take into account the absence of disagreement by Mr Yeung with Mr Hau’s findings and analysis, a judge is not bound to accept the evidence of an expert witness. Whilst the expert’s role is to assist the court in its task, the court must form its own independent assessment of the expert’s evidence and come to its own conclusions based on the facts and evidence before it: Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, [17]-[20]. The Judge was not bound to accept Mr Hau’s opinion even if Mr Yeung had not expressed his disagreement with Mr Hau’s opinion. In any event, the Judge had clearly considered Mr Hau’s evidence and came to a conclusion which we consider was open to the Judge.

21.In respect of Ground 2:

(1)  Apart from the fact that the alleged abatement of the 2^nd Seepage was not mentioned in the Plaintiff’s pleadings and witness statements, the Judge also considered the objective evidence, such as the moisture contents detected in the Plaintiff’s bathroom before and after the 2013 Renovation, and the tests conducted by the experts in April 2014, which “reflected high level of moisture content persisted” (Judgment [28]). In light of such evidence, the Judge was entitled to find that the 2^nd Seepage did not stop after the 2013 Renovation. We do not see her view of the matter to be plainly wrong.

(2)  We do not accept the Plaintiff’s submission in her written statement, at [4], that the Plaintiff was not in any position to plead the abatement of the saltwater leakage because “this fact was not known to the Plaintiff and could only be inferred upon reading the expert reports”. As submitted by the Defendants, it was never the Plaintiff’s case at the trial that the abatement of saltwater leakage was a fact unknown to the Plaintiff and could only be inferred upon reading the expert reports. We do not consider that the Plaintiff is entitled to raise this new point in the present leave application.

22.As for Ground 3:

(1)  The Plaintiff’s trial counsel never invited the Judge to draw an adverse inference against the Defendants for refusing to allow Mr Hau to inspect the Defendants’ Premises prior to the completion of the 2013 Renovation.

(2)  In the Plaintiff’s written statement, at [8], it is argued that, whilst her trial counsel did not use the term “adverse inference”, adverse inference should still be drawn because the 2^nd Defendant was cross-examined on the issue of the Defendants’ refusal to allow inspection. We do not accept this argument -

(a)  The drawing of an adverse inference is not an automatic exercise but one that calls for a nuanced approach based on all the relevant circumstances of the case. Before drawing any adverse inference, the court must be satisfied that it is appropriate to do so. If the Plaintiff had wished the Judge to draw an adverse inference against the Defendants in the present case, she ought to have made it clear to the Judge at the trial.

(b)  As pointed out by the Judge in the Leave Decision, at [14] -

“… at no point during the trial was the Court invited to draw adverse inference against Ds, and none of the factual witnesses ever suggested that the Renovation 2013 was done with an intention to ‘destroy available evidence’. Mr Cheng, counsel for Ds correctly pointed out that had the invitation to draw an adverse inference been made at the trial, it would open the floodgates of questions as to the why/when/how of both the Renovation 2013 and P’s request of site inspection. In other words, it would cause prejudicial effect upon Ds should the Court allow P to run this new point on appeal since Ds were not afforded an opportunity to explain why adverse inference should not be drawn against them by way of cross-examination.”

We agree with the Judge’s view above.

(c)  Without the assistance of an adverse inference being drawn against the Defendants, it seems to us speculative to suggest that, had Mr Hau been permitted to carry out an inspection of, and perform relevant tests in, the Defendants’ Premises, he would have been able to come up with evidence to support the Plaintiff’s case concerning the source of the 2^nd Seepage.

The 3^rd Seepage

23.In respect of the 3^rd Seepage, the Plaintiff argues that the Judge erred in holding that the seepage prior to the Intervening Period was not caused by the defective fresh water supply system to the Defendants’ Premises (Draft NoA [6], “Ground 4”).

24.The Judge had carefully considered the evidence set out in the Judgment, at [39]-[44], including (a) the sudden deterioration of the water seepage on New Year Eve of 2017 and the significant improvement after the Pipe Work carried out in early January 2017; and (b) the fact that continuous but mild seepage persisted after the Pipe Work, before reaching her conclusion in the Judgment, at [45], that the 3^rd Seepage comprised more than one source. We do not see the Judge’s view of the matter to be plainly wrong.

25.The Plaintiff now raises a new argument in her written statement at [10] that the freshwater pipes at the Defendants’ Premises “may deteriorate over time” and that “[i]n the absence of any evidence of incidents such as accidental pipe damage, the most common cause would be wear and tear of the pipe which must be gradual”. As this point was never run in the court below, the Plaintiff should not be permitted to rely on it in the present application (Flywin).

The 4^th Seepage

26.In respect of the 4^th Seepage, the Plaintiff complains that:

(1)  The Judge erred in following Choy Shok Chun v Yu Hon Keung [2022] HKDC 671, and finding that Mr Hau’s microwave moisture diagrams were inherently futile due to the lack of information on the thickness of the floor slab when microwave scan results have been accepted by Hong Kong courts and Mr Yeung failed to identify any deficiency in Mr Hau’s test results (Draft NoA [7], “Ground 5”).

(2)  The Judge should have accepted Mr Hau’s findings because Mr Yeung agreed with all the test results obtained by Mr Hau and offered no explanation for his disagreement with Mr Hau’s conclusion (Draft NoA [8], “Ground 6”).

(3)  The Judge erred in holding that the Plaintiff bore an evidential burden to refute the findings of Mr Yeung that he could not identify the source of the 4^th Seepage (Draft NoA [9], “Ground 7”).

(4)  At the interlocutory stage when the Plaintiff took out an application for leave to adduce supplemental expert report for the experts to comment on what further tests, if any, could be performed to identify the source(s) of the water seepage(s), the Defendants contested the application on the ground that the issue could not sensibly be commented on by the experts. However, the Defendants failed to reveal that they had been informed by their own expert that further tests could have been done. In such circumstances, the Judge should have drawn an adverse inference against the Defendants that, if such further tests were done, it could have shown that the water seepage during the 4^th Seepage was from the Defendants’ Premises (Draft NoA [10], “Ground 8”).

27.Ground 5 is unmeritorious for the following reasons.

(1)  The fact that microwave scan results have been accepted by Hong Kong courts in other cases does not mean that the Judge was obliged to accept Mr Hau’s microwave scan results in the present case. Each case is to be decided upon its own facts. The Judge explained in the Judgment, at [47], as to why she did not accept Mr Hau’s findings and we see no basis to interfere with her assessment of the evidence.

(2)  In particular, the Judge took into account (a) the coloured water tests performed by both experts, and (b) the Plaintiff’s evidence that the leakage was so serious that a thin stream of water would seep out from the crack of her bathroom’s ceiling every time when she heard sounds emitted from the shower / sprinkler of the Defendants’ bathroom (Judgment [48]-[51]). In the Judge’s view (and as accepted by Mr Hau in his evidence), if the water seepage were as serious as alleged by the Plaintiff, one would reasonably expect that some coloured water droplets would reach the ceiling of the Plaintiff’s Premises in one or more of the tests performed. However, all the coloured water tests returned a negative result. We do not see why it was incorrect of the Judge to follow the reasoning in Choy Shok Chun referred to at §50 of the Judgment.

(3)  The Plaintiff criticises the Judge for having misapprehended her evidence in that she did not say that the situation persisted when the Joint Office and the experts conducted the coloured water tests. Instead, her evidence was only that she found a thin stream of water seeping out during the few days after 13 January 2017[1]. We reject this criticism:

(a)  In the ASOC, at [17H], the Plaintiff pleaded that “[o]n 13^th January 2017, the Plaintiff noticed that the 1^st Defendant’s Premises was occupied again. Since then, whenever the washroom/bathroom of the 1^st Defendant’s Premises was in use, a thin stream of water would fall out from the crack at the ceiling of the Bathroom where concrete fell and the Plaintiff could listen clearly the sounds emitted from the shower/sprinkler of the washroom/bathroom of 1^st Defendant’s Premises” (emphasis added).

(b)  See also George’s witness statement, at [49]-[50], where George gave evidence that since 13 January 2017, there was continuous water falling out from the ceiling (“自2017年1月13日起 ，原告人單位的浴室不再有嚴重的滴水，但天花位置持續有水滲出，而且每當被告人單位用水時，滲漏會加劇”) (emphasis added).

(c)  It is clear from the above that the Plaintiff’s case was that there had continuously been water coming out from the ceiling since 13 January 2017, and not just “during the few days after 13 January 2017”.

(d)  In short, we do not accept that the Judge misapprehended the Plaintiff’s evidence.

(4)  Mr Yeung did point out in the Joint Report dated 26 July 2019 (“2019 Joint Report”) that, notwithstanding Mr Hau’s microwave scan results, the source of the water seepage could not be ascertained:

“6. Disagreed items between two parties

The situation of being influenced by water seepage to the Plaintiff’s premises Bathroom was due to the water seepage occurring at the Defendants’ premises.

Plaintiff’s expert’s opinion:

…

c. According to Microwave Scan, high moisture content was recorded in the depth of 30mm, 70mm and 110mm. The situation of high moisture content reading were the signs indicating the occurrence was due to the diffusion from the Defendants’ Premises downward to the Plaintiff’s Premises. (Appx. 45 clause 4.1.4)

Defendants’ expert’s opinion:

…

c. The source of water is still in question and cannot be confirmed even there is high moisture content detected by the microwave scan.” (emphasis added)

Mr Yeung also explained why he considered the source of the water seepage could not be ascertained (see §28 below).

28.As for Ground 6:

(1)  It is incorrect for the Plaintiff to say that Mr Yeung did not explain why he disagreed with Mr Hau’s conclusion. Mr Yeung said the following in the 2019 Joint Report, at [7.2.2]-[7.2.3]:

“7.2. DY’s Opinion

…

7.2.2 It is not the liability for the Defendant to determine the actual source of seepage or the reasons of the defects. The dampness can occur through many mechanisms, however, various tests, including moisture measurement, infrared thermography and microwave tomography, only provide the evidence of moisture at the affected element, but no direct hints on the source of water seepage.

7.2.3 The application of water tests, such as flooding test and colour dye tests, at the suspected source are the solid evidence proving the source of the affected seepage. However, there was no obvious increase in moisture content at the seepage after the water test comparing to the measurement before the water test, according to the result of the joint inspection on 2^nd March, 2019. In addition, there was no penetration of colour dye observed on 2^nd March, 2019 and 21^st March, 2019. Therefore, it is a solid evidence to prove that the source is not originated from the Defendant’s premises.”

(2)  We also accept the Defendants’ submission that the Judge was entitled to take into account the matters mentioned in the Judgment, at [48]-[51], including, inter alia, (a) the unreliability of Mr Hau’s microwave scan results; (b) multiple negative results from coloured water test carried out by both experts and the Joint Office; and (c) the Plaintiff’s own evidence, to come to the conclusion that Mr Hau’s opinion should be rejected.

29.As for Ground 7, the Plaintiff’s argument involves a misreading and/or misunderstanding of the Judgment. The Judge did not hold that the Plaintiff bore any evidential burden to refute Mr Yeung’s view that he could not identify the source of the 4^th Seepage. The burden was all along on the Plaintiff to prove her case and the Judge held that she had failed to do so (Judgment [53]).

30.As for Ground 8, the communication between the Defendants and their expert was protected by privilege. It was open to the Defendants to contest the Plaintiff’s application for leave to adduce further expert evidence on such grounds as might be open to them on the evidence before the court. If the Plaintiff was not satisfied with the court’s decision on whether to permit further expert evidence to be adduced, the Plaintiff could have lodged an appeal against such decision. Insofar as the position of Mr Yeung is concerned, there is no suggestion that he failed in his duty to the court as an expert. The contention that the Judge should have drawn an adverse inference against the Defendants that if such further tests were done, it “could”[2] (but not “would”) have shown that the 4^th Seepage was from the Defendants’ Premises is neither here nor there. Ultimately, the burden remains on the Plaintiff to prove the source of the 4^th Seepage. The Judge held, on the evidence, that the Plaintiff had failed to do so. We do not see any good or sufficient basis for us to intervene in this finding of fact made by the Judge.

The 2^nd to 4^th Seepages

31.In respect of the 2^nd, 3^rd and 4^th Seepages, the Plaintiff argues that the Judge erred in giving weight to the fact that none of the tests conducted by the FEHD / Joint Office could determine the sources of the seepage (Draft NoA [11], “Ground 9”).

32.This ground has no validity:

(1)  The Judge took into account the coloured water tests conducted by the Joint Office as one of a series of negative coloured water tests results in respect of the 4^th Seepage. As pointed out by the Judge in the Judgment, at [48] and [50], coloured water test is a widely accepted methodology to detect leakage caused by drainage problem and defective waterproofing membrane. While a single negative result may not be sufficient to show that there is no seepage, if there are a series of coloured water tests performed by different professionals at different times and they all return negative results, the cumulative effect of all the results may, in appropriate circumstances, be given weight (Choy Shok Chun v Yu Hon Keung [2022] HKDC 671).

(2)  The Plaintiff draws the Court’s attention to Yeung Yik Chun v Wong Lai Ming [2024] HKCA 662 in support of her argument that weight should not be placed on the tests conducted by the Joint Office, because the Joint Office never ruled out the possibility that the Defendants’ Premises were the source of the leakage. We do not consider that the Plaintiff can derive any assistance from Yeung Yik Chun as the facts there are distinguishable from the present case.

(a)  In Yeung Yik Chun, the defendants sought to rely on the negative results of the Joint Office’s tests to exclude the drainage pipes and waterproofing system in the defendants’ bathroom as the sources of water seepage. The Joint Office reported that the tests carried out by it and its contractors were unsuccessful, and concluded that they were unable to identify the source of the water seepage. The Court of Appeal held at [24] that this conclusion logically meant that they did not rule out the pipes and waterproofing system in the defendants’ bathroom as being possible sources of water seepage to the plaintiff’s premises, and rejected the defendants’ reliance on the results of the Joint Office’s tests. On the facts of that case, the Court of Appeal also considered that the negative test results did not cast any doubt on the expert evidence of the plaintiff regarding the source of the water leakage ([26]). In our view, the significance of negative test results depends on the facts and circumstances of any given case.

(b)  In the present case, when giving weight on the negative test results conducted by the Joint Office, the Judge took into account of the opinion of the Plaintiff’s own expert (Mr Hau) given under cross-examination that if the water seepage were as serious as the Plaintiff had described, it would be impossible for the coloured water tests to return a negative result (Judgment [51]). In these circumstances, we see nothing wrong for the Judge to give weight on the negative test results when considering the Plaintiff’s case in respect of the 4^th Seepage.

Quantum

33.In respect of quantum, the Plaintiff argues that:

(1)  The Judge erred in awarding only HK$5,000 in respect of the 1^st Seepage (Draft NoA [12], “Ground 10”).

(2)  The Judge erred in awarding only HK$7,000 for the seepage during the Intervening Period (Draft NoA [13], “Ground 11”).

34.The Plaintiff contends that damages should be awarded for:

(1)  nuisance, loss of enjoyment and discomfort during the 1^st Seepage; and

(2)  the costs of repair for damage caused by the 3^rd Seepage during the Intervening Period.

35.We have considered the Judge’s reasoning and findings in her assessment of damages in the present case. We do not consider that she has erred in any way.

36.In respect of Ground 10, as pointed out by the Judge in the Judgment, at [65], and the Leave Decision, at [29], the Plaintiff never offered any evidence as to how her premises were rendered unusable for the 3 days during the 1^st Seepage, or “the loss arising from the seepage to the amenity value of the P’s Premises”. The Judge was not wrong not to make any award of damages for nuisance, loss of enjoyment and discomfort.

37.In respect of Ground 11, the Plaintiff argues that repair costs “should have been awarded for the Intervening Period (at most applying discount to reflect the damage of the Second Seepage, even if assuming Ds are not liable for the Second Seepage)”[3]. The Plaintiff has, however, provided no sound basis for assessing the relevant repair costs or the discount that should be applied to assist the Judge to carry out such exercise. We do not consider that the Judge could be criticized for not making an award in respect of the “notional” repair costs which would be attributable to the damage caused by the 3^rd Seepage during the Intervening Period only.

38.Draft NoA [14] is a general ground which adds nothing of substance to the Plaintiff’s grounds. We do not accept that the Judge’s finding that, save for the 3^rd Seepage during the Intervening Period, the Plaintiff had failed to prove that the source(s) of the water seepage in respect of the 2^nd, 3^rd and 4^th Seepages was/were in the Defendants’ Premises, was unreasonable or one which no reasonable tribunal could have reached.

DISPOSITION

39.For the above reasons, we are not satisfied that the Plaintiff’s intended appeal has any reasonable prospect of success. Nor do we see any other reason in the interests of justice why the appeal should be heard. Accordingly, the Plaintiff’s Summons is dismissed.

40.There is no apparent reason why costs should not follow the event. We order the Plaintiff to pay the costs of the Defendants, which we summarily assess in the sum of HK$80,000. The above costs order (including the assessment of costs) is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.

41.As the Plaintiff’s application is totally without merit, we make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court (Cap 4A) that no party may under rule 2A(7) request the determination of this Court to be reconsidered at an oral hearing inter partes.

Mr Patrick D. Lim, instructed by Fairbairn Catley Low & Kong, for the Plaintiff

Mr Alfred C P Cheng and Mr Tang Lik Hang, instructed by Hastings & Co, for the 1^st to 3^rd Defendants