Fu Sau Tai, Raymond v. Woo Kwong Po and Another

DCCJ 5546/2020

[2025] HKDC 1844

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5546 OF 2020

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BETWEEN

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DECISION

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Introduction

1.On 29 May 2025 I gave judgment (“the Judgment”) in this case dismissing the 1^st Plaintiff’s claims for injunctive relief and damages for loss resulting from five incidents (“Incidents 1 to 5”) of water seepage from the Defendants’ property (“Flat 410”) to his property (“Flat 310”).

2.On 25 June 2025, the 1^st Plaintiff took out a Summons applying for leave to appeal against the Judgment, setting out a number of intended grounds of appeal which I shall refer to in detail below.

3.The relevant background and facts pertaining to the case have already been set out in the Judgment and I shall not repeat the same here, save where it is necessary below.

4.To recapitulate, the dispute arose out of the five incidents referred to in paragraph 2 of the Judgment:

(a) Incident 1: It is the 1^st Plaintiff’s case that on 9 August 2016, there was water seepage on the ceiling in the bedroom and corridor of Flat 310 which was from the flush water pipe of Flat 410. The Defendants accept liability for this but assert that this part of the claim has already been settled;

(b) Incident 2: The 1^st Plaintiff’s case is that on 25 October 2016, there was water seepage from the fresh water pipe of Flat 410 into the living room, the kitchen and the corridor of Flat 310. The Defendants also say that this part of the claim has been settled;

(c) Incident 3: The 1^st Plaintiff claims that on 27 October 2016 water seepage was found originating from the kitchen water trap or drain pipe of Flat 410, whereas the Defendants’ case is that the seepage was from the common pipe of the building instead;

(d) Incident 4: The 1^st Plaintiff’s case is that since around mid-October 2017, there was water seepage found on the ceiling of the bedroom, corridor and kitchen of Flat 310, which was caused by the defective bathroom waterproofing facility of Flat 410. This is denied by the Defendants; and

(e) Incident 5: the 1^st Plaintiff’s case is that from around 3 January 2020 to around November 2021, there was water seepage from the bathroom of Flat 410 affecting the ceilings of the bathroom, bedroom and corridor of Flat 310. The Defendants’ case on the other hand is that it was from the external wall instead of their flat.

5.After considering the evidence adduced at the trial, including the testimony of the 1^st Plaintiff’s wife, namely Ms Wu Xue Ping, the 1^st and 2^nd Defendants, as well as the evidence of the parties’ expert surveyors, namely Mr Chiu Chi Pun (“Mr Chiu”) on behalf of the 1^st Plaintiff, and Dr Lam Siu Shu, Eddie (“Dr Lam”) on behalf of the Defendants, I accepted the Defendants’ case and dismissed 1^st Plaintiff’s claim.

Applicable principles on applications for leave to appeal

6.There is no dispute that leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that either (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interests of justice why the appeal should be heard: section 63A(2) of the District Court Ordinance (Cap.336).

7.It is also well established that a “reasonable prospect of success” means there is an arguable case such that the chance of success is more than fanciful but not necessarily probable (see Wing Tat Haberdashery Company Limited v Elegance Development & Industrial Co Limited [2011] 5 HKC 474 at para.6). It is insufficient to show that the appeal was ‘merely arguable and’ not ‘fanciful’ for the court to be satisfied that it has a reasonable prospect of success (see Hong Kong Civil Procedure 2025 (Vol 1, Part A), para.59/2A/4).

8.In respect of appeals against findings of fact, the Court of Appeal in Bright Gold Ltd v Mega Well Development Ltd [2020] 4 HKLRD 26 at paras.46–48 stated that:

“46. It is well-established that this Court must have regard to the advantage enjoyed by a trial judge who received evidence on the disputed issues of fact at first hand, and would not disturb the findings of fact by the trial judge unless such findings are plainly wrong. In the absence of palpable errors in the Judge’s consideration of evidence, this Court would not interfere with the assessment of evidence and the weight attached by the trial judge to a particular piece of evidence…

47. In China Gold Finance Ltd v CIL Holdings Ltd[1], the Court referred to the judgment of Lord Neuberger in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911, [53], to identify the palpable errors which warrant an appellate court to interfere with a finding of primary fact:

…where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached…

48. Misunderstanding of evidence includes a failure to appreciate the significance of a piece of material evidence in the context of a crucial factual dispute. An example of this kind of error can be found in Yap Sui Kong v Yip Fong Tim [2018] 4 HKLRD 791, [65] – [71]. There the trial judge failed to have regard to the inherent probative value of some evidence which actually were main planks of a plaintiff’s case on lineage and thus misapprehend their significance and did not address the same in the judgment. The Court said at [68]:

Whilst a judge is not obliged to address every point raised and discuss all the evidence in minutiae, the judgment must inform the appellate court and the parties how important issues raised in a trial have been resolved, see Welltus Ltd v Fornton Knitting Co Ltd [2013] 5 HKC 106. In contrast, the omission to discuss minor issues or those obviously without merit in light of the determination of a judge on other issues are unlikely to form a valid basis for disturbing a judgment: see Yui Chung Yin v Ng Kit Sum CACV 25/2013, 27 November 2015; Hoptai Sharkfins Co Ltd v Productos Pesqueros Gallegos SL CACV 240/2014, 7 December 2015.” [underline added]

9.The Defendants have also referred to Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at para.42 where the Court of Final Appeal stated:

“42…The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to its correctness.”

10.In China Gold Finance Ltd as referred to in Bright Gold Ltd above, the court also said at paras.14-16 that the appellate process is not designed to give a litigant a platform for “regurgitating” his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view, and focus should be on the question whether the primary judge has fallen in palpable errors which could give rise to grounds for intervention by the appellate court. 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.

The intended grounds of appeal

Ground 1 (Incidents 1-2)

11.As set out in paras.59 to 74 of the Judgment, it is the Defendants’ case, which I accepted, that the 1^st Plaintiff’s claim was included in the settlement negotiated and conducted by the loss adjuster engaged by the 1^st Plaintiff’s insurer. Under this proposed ground of appeal, the 1^st Plaintiff however says that I have misinterpreted the context, contents and scope of the settlement which related only to the 1^st Plaintiff’s insured loss.

12.In terms of the law, there has never been any dispute that “an insurer is only subrogated to rights which diminish the loss which he has paid” (i.e. insured loss), and that even if an insured has been paid out under the policy, he may continue proceedings to gain compensation for his uninsured loss (see MacGillivray on Insurance Law (15th Edition) at paras. 22-038 & 22-042).

13.In support of his contentions, the 1^st Plaintiff firstly pointed out that according to an email dated 6 July 2018 from United Adjusters (HK) Ltd (“UA”), the loss adjuster of the 1^st Plaintiff’s insurer, Bank of China Group Insurance Company Limited; (“BOC”) to the Defendants’ insurer, AIA Company Limited (“AIA”), UA was instructed by BOC to accept the Defendants’ settlement offer of HK$18,100, and requested a cheque to be issued to BOC be sent to UA by 20 July 2018.

14.As set out in para.63 of the Judgment, by a letter dated 22 July 2020 from UA to the 1^st Plaintiff, it was reiterated by UA that they were pursuing a claim against the Defendants for Incidents 1 and 2, and that they accepted the Defendants’ offer to settle for HK$18,100. On 6 August 2024, UA informed the Defendants’ solicitors that their principal already reimbursed the loss to the Plaintiff, and they have obtained the consent from the Plaintiff to pursue a recovery for the insured loss.

15.As set out by the 1^st Plaintiff in his submissions, UA subsequently informed the Defendants’ solicitors by a letter dated 6 August 2024 that “[w]e advise that our claim amount of HK$18,100 includes the insured loss of HK$16,290 and the uninsured loss of HKS1,810. Our Principal have reimbursed the loss in the amount of HK$16,290 to the Insured, Mr Fu Sau Tai Raymond, in this case and they have obtained the consent from Mr Fu to pursue a recovery for the insured loss. We attached a copy of Mr Fu’s signed Form of Acceptance and Letter of Subrogation/Authorisation for [y]our consideration”.

16.It is further pointed out by the 1^st Plaintiff that the letter from UA to the Defendants’ solicitors dated 6 August 2024 also stated:

“We understand that Mr Fu is suing your Client for the water damage in Mr Fu’s premises. We are advised by Mr Fu’s solicitors that Mr Fu will not sign the Discharge Form which you provided in your letter dated 4 October 2021 at this stage. In order to conclude the claim from our Principal and to save unnecessary time and costs, we are asking your side to settle the claim of the insured loss (HK$16,290) to our Principal first. Please revise your Discharge Form in the sum of HK$16,290 for our Principal, Bank of China Group Insurance Company Limited, to sign to conclude the matter.”

17.The 1^st Plaintiff further pointed out that according to the Discharge Form signed by BOC on 20 September 2024, the terms of settlement were varied to the effect that upon the 1^st Plaintiff signing the said Form of Acceptance and the Letter of Subrogation/Authorisation, and receiving from BOC HK$16,290 in full and final satisfaction and discharge of all claims under Policy Number HCD/15-01451416R005 held with BOC in respect of loss or damage (i.e. the insured loss), and upon BOC receiving from the Defendants HK$16,290, BOC accepted the sum in full and final settlement of all claims against the Defendants and their insurers for loss and damages, and they agreed that the parties concerned shall be absolutely and finally exonerated and discharged from all claims whatsoever by them arising from Incidents 1 and 2.

18.The 1^st Plaintiff submits that from the proper construction of the above documents, the settlement reached only concerned his insured loss (i.e. HK$16,290) between BOC and the Defendants. By the said Form of Acceptance and Letter of Subrogation/Authorisation, there was only subrogation of the 1^st Plaintiff’s right for the insured loss to BOC. The settlement did not concern his uninsured loss. In other words, there was only a Discharge Form of insured loss signed by BOC.

19.Relying on the above evidence, the 1^st Plaintiff says that in accepting the Defendants’ case that his claim was settled, I have failed to apply the said legal principles and failed to properly consider and interpret the said factual evidence in the context which shows that only the 1^st Plaintiff’s insured loss was settled.

20.However, the matter did not end at the signing of the Form of Acceptance and Letter of Subrogation/Authorisation mentioned above whereby a settlement was reached between the parties on the insured loss of HK$16,290. In fact, in their letter dated 6 August 2024, UA did refer to the amount of HK$1,810 being the amount of uninsured loss. Obviously this was amongst the correspondence I have considered before making my ruling. As pointed out by the Defendants in their submissions, there are no contemporaneous documents to show that the 1^st Plaintiff has disagreed HK$1,810 to be the amount of uninsured loss, which the Defendants have already pointed out they were willing to pay. Further, contrary to what the 1^st Plaintiff has sought to argue, in my view, the fact that when the 1^st Plaintiff commenced proceedings in the Small Claims Tribunal, he also only claimed the amount of HK$1,810 being the policy excess, which goes to support the contention by the Defendants that there was no suggestion that the uninsured loss was anything other than HK$1,810.

21.As further pointed out in the Defendants’ submissions, the 1^st Plaintiff has accepted the assessment by UA that the total loss arising from Incidents 1 and 2 was HK$33,100. It was understood at that stage that the insurer on behalf of the building would pay the 1^st Plaintiff HK$15,000 whilst his insurer would pay him HK$18,100 including the policy excess of HK$1,810 which the 1^st Plaintiff needed to contribute to himself. This also shows that the uninsured loss of HK$1,810 was calculated after the 1^st Plaintiff had agreed that the total loss arising from the two incidents was HK$33,100. Therefore, the uninsured loss would only have been HK$1,810, which the Defendants have indicated their agreement to pay.

22.On the basis of the above, I do not accept that there is any reasonable prospect of success in the intended Ground 1.

Ground 2 (Incident 3)

23.By the intended Ground 2, the 1^st Plaintiff contends that I have erred in law in failing to consider or give any or any proper weight to the objective, material and probative evidence of the investigation and findings of the management office (“MO”) of the subject building, which was properly relied on by Mr Chiu, the 1^st Plaintiff’s expert.

24.The 1^st Plaintiff refers to the letter from the MO to the 1^st Plaintiff dated 2 December 2016 which stated:

“On 27 October 2016, we arranged a follow up visit at flat 310, and found water dripping inside the kitchen cabinet. Having made an open up at the said kitchen cabinet, we found that a branch pipe, which was exclusively used by flat 410, had leakage problem. After that, we placed a visit at flat 410, and found backflow of water from the floor drain of the kitchen. The owner of flat 410 was then reported and requested to follow the issue.”

25.The 1^st Plaintiff says the above was further supported by a letter from the MO to him dated 19 March 2022. The above was subsequently relied upon by Mr Chiu in the Joint Expert Report dated 23 August 2022 (“the JER”).

26.Further, the 1^st Plaintiff points out that in the letter from UA to him dated 22 July 2020, UA considered that Incident 3 was caused a by defective common drainage pipe without providing any basis for their view.

27.Contrary to that, the 1^st Plaintiff says that according to the letter dated 19 March 2022 from the MO to the 1^st Plaintiff, the MO had in fact denied that the water leakage was due to a defective common drainage pipe of the building, as the MO had cut the water supply to Flat 410 on 25 October 2016 and then found that there had been an improvement of the situation at Flat 310. This, according to the MO, showed that the water leakage problem had originated from the drainage problem at Flat 410.

28.The 1^st Plaintiff further refers to a letter from the MO to the 1^st Plaintiff dated 29 March 2019, in which it was stated that the MO had on 2 December 2016 replaced the common drainage pipe inside the kitchen of Flat 410. Despite that, the seepage had continued. According to a letter from the Joint Office of the Buildings Department and the Food and Environmental Hygiene Department (“JO”) to the 1^st Plaintiff dated 5 May 2021, the JO officer had inspected the 1^st Plaintiff’s premises on 13 December 2016 and “confirmed water seepage at the ceiling of kitchen”.

29.The 1^st Plaintiff submits that contrary to my findings at para.77 of the Judgment, the MO had indeed expressly identified the pipe of Flat 410, and ruled out the common pipe as the source of the water seepage. As such, it is said that I have failed to correctly consider and accept the said factual context, including the objective, contemporaneous and probative evidence of the investigation and findings of the MO that the water seepage was caused by the pipe of Flat 410, and not any common pipe.

30.The 1^st Plaintiff therefore says I have “ignored the MO’s investigations and findings but instead accepted UA’s unsupported assertion that the seepage came from a common pipe”. As such, I have wrongly excluded the Defendants’ liability for Incident 3.

31.I do not think it is a fair and valid assertion by the 1^st Plaintiff to simply say that I have “ignored the MO’s investigation and findings”. The findings of the MO and my assessment of the same, have in fact been set out in full in paras.75 to 78 of the Judgment. I do not see anything wrong with the court preferring the evidence or findings of UA, who would have no reason, as put by the Defendants in their submissions, “to mischaracterise” the cause of Incident 3. More importantly, whilst it is the 1^st Plaintiff’s case that the source of water leakage was the U-shape water trap, this was not identified by the MO at the time. As it is stated in para.77 of the Judgment:

“77. The Plaintiff says that in any event, the view of United Adjusters that Incident 3 on 27 October 2016 did not originate from Flat 410 is of limited evidential value, as no reason was given by Unit Adjusters for its view. I do not agree. Contrary to the Plaintiff’s allegation that there was leakage in the U-shaped trap, the MO at the material time considered that the leakage originated from a pipe, and subsequently United Adjusters determined that it was the common pipe that was defective. In any event, it is the MO’s duty to replace the U-shaped pipe. The fact remains that this was the finding of the Plaintiff’s loss adjustor.”

32.There is nothing wrong for the court to prefer, after considering evidence, the findings of UA over the unspecific finding of the MO, in particular in light of the lack of identification of the exact pipe that had the leakage problem.

33.I therefore do not think that there is any reasonable prospect of success of the intended Ground 2.

Ground 3 (Incident 4)

34.By this intended ground of appeal, the 1^st Plaintiff argues that I have erred in law in rejecting, without any proper or sufficient reasoning, the evidence and findings of the JO and its contractor, Modern Testing Consultants Limited (“MT”) and the positive results in an Inspection Report by MT dated 8 February 2019 (“the MT 2019 Report”) in favour of the 1^st Plaintiff’s claim.

35.The relevant paragraphs in the Judgment concerning this part of the 1^st Plaintiff’s complaint are paras.79 to 94.

36.The 1^st Plaintiff seeks to point out in his submissions that according to the MT 2019 Report:

(a) On 20 December 2018, fluorescent ponding and spraying test was conducted on the floor slab and the enclosing walls of the bathroom shower area at Flat 410. On 20 December 2018 and 18 January 2019, fluorescent effect was noted at the bathroom ceiling at Flat 310. The MT 2019 Report therefore concluded that there had been seepage caused by infiltration from the floor slab including the enclosing walls of the shower area of the bathroom; and

(b) As there was no significant moisture content difference between prolonged sunny days on 7 November 2018, 20 December 2018, and 18 January 2019 and a prolonged rainy day on 20 July 2018, rain water leakage from external wall was unlikely.

37.The 1^st Plaintiff further points out that consequently, according to a letter from the JO to the 1^st Plaintiff dated 25 February 2019, the test results showed that there was water leakage from the upper flat that resulted from defective waterproofing facilities. According to a Nuisance Notice dated 5 March 2019 issued by the JO to the 1^st Defendant:

“[T]he Director of Food and Environmental Hygiene, being satisfied of the existence at [Flat 410] of a nuisance, being water seepage from the bathroom [thereof] to the premises below at [Flat 310] and such seepage has rendered the aforesaid premises below in such a state as to be a nuisance, do hereby require you, within 28 days from the service of this notice, to abate the nuisance, and for that purpose to repair satisfactorily the floor slab and the enclosing walls of the shower area of the bathroom of [Flat 410] to prevent water seepage to the premises below at [Flat 310].”

38.The 1^st Plaintiff also points out that according to the JER, Mr Chiu opined that based on the test conducted by the JO and its finding, the source of the water seepage was said to be Flat 410, whereas Dr Lam merely opined “quite irrelevantly” that there was no evidence to support the alleged emergency repair by the 1^st Plaintiff in November 2018 and from July to August 2019. The 1^st Plaintiff also refers to a letter from the JO to the 1^st Defendant dated 8 August 2019, where it was said that on 25 July 2019, upon inspection the JO found that the bathroom facilities at Flat 410 had been completely removed. According to a further letter from the JO to the 1^st Defendant dated 3 September 2019, on 22 August 2019, the JO found that the water seepage at Flat 310 had stopped when there were signs of repairment of the shower floor slab inside the bathroom at Flat 410.

39.Based on the above evidence, the 1^st Plaintiff submits that my reasoning as set out in paras.92 to 94 of the Judgment for rejecting his case that the water seepage was caused by bathroom waterproofing facilities at Flat 410 was contradicted by such evidence, and was not even supported by Dr Lam’s expert evidence which only related to sufficiency of the repairs done. It is said my reasoning was contradicted by:

(a) Mr Chiu’s expert evidence, which was based on the objective findings by MT and the JO and not disputed by Dr Lam. There is thus no basis for the Court not to accept Mr Chiu’s expert evidence;

(b) The said objective findings by MT and the JO as set out in the MT 2019 Report and the said Nuisance Notice, where it was said they were “certain” about Flat 410 and it being “unlikely” about the external wall being the source of water seepage. The view is further supported by the fact that there was causative improvement of the water seepage after the repair of Flat 410’s bathroom in July to August 2019.

40.It is also submitted by the 1^st Plaintiff that the said reasoning was tainted by irrelevant considerations concerning the subsequent investigation and test results in relation to Incident 5.

41.Considering the above submissions of the 1^st Plaintiff, I do not think this intended ground is valid either. It is only a matter of common sense that the ponding tests did not reflect actual or normal usage of the bathroom and it is open to this court to allude to this reasoning. I also do not consider that this is inconsistent, as suggested by the 1^st Plaintiff, with my observations made about the ponding tests in para.100 of the Judgment, which, like here, was dealing with the overall assessment of the evidence. It should be noted that in that paragraph I have also repeated my observation that the ponding tests did not reflect actual or normal usage. Whilst ponding tests may be recognised by the experts, it is for the court to eventually make findings of fact with reference to such evidence.

42.I also do not think there is anything problematic, as the 1^st Plaintiff has sought to put it, about the court’s reliance on evidence of the results of investigations carried out between January and May 2020, which was also relevant to Incident 5. There is no strict requirement that the evidence, which is in a flow following a natural timeline, should be cut out and put into separate straight-jackets and considered irrelevant as between each one as is apparently suggested by the 1^st Plaintiff in his submissions. For the sake of clarity, it is important to note what has been set out in paras.92-94 of the Judgment:

“92. Having considered the evidence and the arguments, I am with the Defendants. Despite the ponding test apparently done by MT, the test report itself is not informative, as it contains no details as to how it was conducted. Neither did MT nor the Joint Office conclude that there was actual water seepage coming from Flat 310, but rather a theoretical possibility. This possibility is put in doubt when one also considers the ponding test conducted by MT from 31 December 2021 to 21 January 2022 as set out below.

93. Also, the Defendants’ evidence is that in response to the Nuisance Notice, they had suspended the water supply after the tenant had moved out, and had demolished and reconstructed the bathroom. As set out above, the Joint Office found in late June 2019 that the alleged water leakage had stopped. Further inspection by the Joint Office on 22 August 2019 also showed that there was no sign of water leakage. According to the report compiled by Prudential Surveyors International Limited, investigations were carried out between January and May 2020, and Flat 410 was not identified as the source of leakage. The Joint Office also said in their letter dated 10 July 2020 that they did not identify Flat 410 as the source. Despite all this, subsequently in December 2020 and also in January 2021, the Plaintiff still complains of water seepage. It would appear highly questionable whether the problem did in fact originate from Flat 410.

94. Having considered the evidence overall, I am of the view that the Plaintiff has not sufficiently proved that Incident 4 was caused by the Defendants or had originated from Flat 410, or that the Defendants should be liable for nuisance in this regard. This is also supported by the analysis below concerning the possibility of seepage originating from the external walls of the building, which is set out in the discussion concerning Incident 5 and further incidents below in detail.”

43.As the Defendants have submitted, the 1^st Plaintiff has failed to address the points raised in para.93 of the Judgment concerning the fact that despite the renovations carried out by the Defendants to the satisfaction of the JO, the 1^st Plaintiff had still complained of water leakage in December 2020 and January 2021. This, as I have put it, shows it was highly questionable whether the problem did in fact originate from Flat 410. There is nothing unreasonable for the court to consider this as a matter of common sense in an overall assessment of the evidence.

44.I therefore do not find anything in this intended ground of appeal that should entitle the 1^st Plaintiff to leave to appeal.

Ground 4 (Incident 4)

45.By this further or alternative proposed ground, the 1^st Plaintiff seeks to contend that even if I am correct in considering subsequent investigation and test results in relation to Incident 5 as aforesaid, I have nevertheless failed to note that Flat 410 was not inhabited during the period from 16 April 2019 to 20 July 2020. The 1^st Plaintiff says I have erred in failing to consider the Defendants’ own evidence that their tenant had vacated Flat 410 during the said period and the flat was not inhabited. In the premises, this in fact indicated that while Flat 410 was not inhabited, the seepage had stopped, and this in fact goes to support the 1^st Plaintiff’s case instead.

46.Firstly, it is obvious that the court has noted in para.93 of the Judgment that the Defendants had demolished and reconstructed the bathroom after the tenant had moved out. Further, with respect, the 1^st Plaintiff has missed the point here, which is that the various subsequent tests and investigations mentioned in para.93 of the Judgment showed that despite the renovation and repairs carried out by the Defendants to the satisfaction of the JO, and despite there had been stoppage of the seepage for some time afterwards, the 1^st Plaintiff still complained of water seepage subsequently in December 2020 and also in January 2021. As I have mentioned, this raised the question whether the problem had indeed originated from Flat 410. I do not see anything obviously wrong or palpable in such assessment of the evidence.

47.I therefore do not find that there is any reasonable prospect of success of this proposed ground of appeal either.

Ground 5 (Incident 5)

48.By this proposed ground, the 1^st Plaintiff complains that I have erred in law in accepting the illogical and speculative evidence of Dr Lam relating to his explanation vitiating the positive results of an objective ponding test conducted by MT from the end of December 2021 to January 2022 as contained in a Test Report by MT dated 22 January 2022 (“the MT 2022 Report”), which were in favour of the 1^st Plaintiff.

49.The relevant paragraphs of the Judgment concerned with this complaint are at paras.95 to 110.

50.The 1^st Plaintiff points out that according to the JER, in respect of the ponding test, Mr Chiu and Dr Lam agreed that on 31 December 2021, Sulforhodamine B (“SRB”) was observed at the ceiling of the bathroom of Flat 310, and on 21 January 2022, the dyed area increased. Dr Lam and Mr Chiu had given different opinions as set out in the 1^st Plaintiff’s submissions as follows:

(a) Firstly, Dr Lam opined that the seepage was not from the ponding area because:

(i) The dyed area was observed about 5 minutes after commencement of the test (referring to a photograph “Plate 3(a)” with no timestamp, which was allegedly taken at 1245 hours;

(ii) There was no substantial increase in the dyed area, which suggested that the dyed water seeped to the dyed area, and the seepage ceased or reduced in rate substantially, immediately after the test; and

(iii) As the seepage was at a fast rate being observed 5 minutes after commencement of the test, there should have been but was no substantial increase in the dived area after 2 hours of flooding.

(b) Secondly, Dr Lam opined that in the test, the bathroom floor area of Flat 410 was fenced improperly, and the dyed water escaped through the non-waterproof corridor to the sunken slab and then the shower area ceiling of Flat 310;

(c) In reply, Mr Chiu opined that if the dyed water did escape, the corridor in Flat 310 should have been seriously affected, but this was not shown by the microwave and moisture content readings; and the dyed area was right below the shower area of Flat 410, not near the door or at the corridor;

(d) Dr Lam also opined that as there was no water source from the bathroom floor of Flat 410, ponding it did not reflect actual usage, and seepage from there could not prove seepage from Flat 410; and

(e) Lastly, Dr Lam relied on the previous failure of the JO to identify Flat 410 as the source of water seepage. In reply, Mr Chiu opined that the implication of such failure is “neutral”.

51.Based on the above evidence, the 1^st Plaintiff says that the basis of the court for accepting Dr Lam’s evidence is that while Dr Lam might not have got the timing exact or correct, he did state in the JER that the dyed area was observed about 5 minutes after commencement of the test, which was supported by a photograph taken at 1245 hours (see para.103 of the Judgment.

52.It is then pointed out that I have erred in finding for the bare assertions of Dr Lam as to timing when there is no corroborative objective evidence. It is also said that Dr Lam's evidence of alleged route of escaping of the dyed water is even more inherently incredible and absurd.

53.As such, the 1^st Plaintiff argues that I have wrongly rejected the positive results of the ponding test carried out by MT, an impartial third party who carried out the works in the presence of and under supervision of both experts, but instead I have wrongly “accepted the zigzag waterflow hypothesis raised by [Dr] Lam without any evidential basis”.

54.With respect, I do not think that this proposed ground should take off the ground, as it challenges my acceptance of the credibility of the evidence of Dr Lam at large. This ground is concerned with my findings of fact which have not been shown to have been utterly unreasonable or constitute palpable errors. The basis of my acceptance of the evidence of Dr Lam (instead of that of Mr Chiu) has been set out fully in paras.100 to 110 of the Judgment and I shall not repeat the same here, save to say that the 1^st Plaintiff’s renewed attempt to attack the credibility of the evidence of Dr Lam does not assist him positively in this application for leave to appeal.

55.For example, the challenge of Dr Lam’s assertion about the timing of the appearance of the dyed spot as shown in spot “A” as shown in a photograph said to be taken at 12:45 pm after the ponding test is an attempt to re-argue the point about his credibility, which has already been fully dealt with at the trial.

56.Further, as for the route of escape of the dyed water as relied upon by Dr Lam, this again is a factual finding based on his evidence. On the contrary, the 1^st Plaintiff’s attempt to challenge this finding by arguing that the dyed water on the corridor of Flat 410 should have seeped directly and vertically into Flat 310 instead of ending up in the ceiling of the bathroom of Flat 310 is in itself absurd, as the Defendants have submitted. On the contrary, the path of the water that had escaped as suggested by Dr Lam was supported by the microwave test as described in para.104 of the Judgment.

57.Based on the applicable principles, this proposed ground of appeal, which is largely and in substance a re-run of the arguments on credibility, is not a permissible ground.

Ground 6 (Incident 5)

58.The 1^st Plaintiff seeks to argue under this ground that I have erred in law in failing to consider the test results in the MT 2019 Report and an Inspection Report by another contractor of the JO, Prudential Surveyors International Limited (“PS”) dated 4 October 2021, and the persistence of water seepage despite repeated repairs of the external wall in 2020 and 2021. The 1^st Plaintiff submits that all such evidence rules out the external wall as the source of water seepage.

59.The criticism is directed against my discussion and assessment of the evidence in paras.95 to 109 of the Judgment.

60.Firstly, the 1^st Plaintiff seeks to point out that according to the MT 2019 Report, MT opined that rain water leakage from the externa wall was unlikely, as there was no significant moisture content difference during prolonged sunny days and prolonged rainy days from July 2018 to January 2019.

61.The 1^st Plaintiff then went on to point out that despite repairs of the external wall outside Flat 310 were carried out in August 2020 by the MO, there had been consistent water leakage problem inside Flat 310 nevertheless.

62.The 1^st Plaintiff also referred to the Inspection Report by PS dated 4 October 2021, where PS opined that rain water leakage or infiltration from the external wall was unlikely, as there was no significant moisture content difference found between June to August 2021 between prolonged sunny days and prolonged rainy days.

63.The 1^st Plaintiff then proceeded to argue that despite the further repair of the external wall outside the guest bedroom of Flat 310 which was completed in September 2021, there had been persistence of water seepage at Flat 310 in 2021.

64.Based on the above, the 1^st Plaintiff submits that my consideration of the “distant events and context in 2023 about the repair of the external wall and the absence of water seepage complaint, without considering the much more pertinent context and events immediately before and after the time of Incident 5” was improper. In other words, it is said that had I properly considered the above factual events relating to Incident 5, I would have come to an opposite conclusion.

65.However, as the Defendants have pointed out, the 1^st Plaintiff has ignored the fact that in the previous investigations, no spraying test had been conducted on the external walls, whereas in the SJER, it was shown that water spraying tests had been done on the external walls, the results of which showed that there was ingress of water from the external walls. This takes away the force of the 1^st Defendant’s argument as there is nothing in the previous tests that had positively identified the external walls as the source of water seepage, and as the Defendants have submitted, there was no evidence of the quality and effectiveness of the repairs that were previously carried out. One simply cannot rule out the possibility that the previous repairs had not been totally effective.

66.Lastly, I also agree with the Defendants that they are not obliged to prove that the external walls were the actual source of the water leakage, whereas the burden has always been on the 1^st Plaintiff to prove, on the balance of probabilities, that the seepage had originated from Flat 410. Nevertheless, for the reasons stated above, I do not think there is anything palpably wrong about my assessment of the evidence as set out in paras.95 to 109 of the Judgment.

67.I am therefore of the view that this proposed ground of appeal has no reasonable prospect of success.

Conclusion

68.For the above reasons, I do not find that the 1^st Plaintiff has put forward any proposed ground of appeal with a reasonable prospect of success, nor do I find any other reason in the interest of justice why leave to appeal should be granted. I therefore dismiss the 1^st Plaintiff’s Summons dated 25 June 2025, with costs to the Defendants, with Certificate for Counsel, to be summarily assessed.

69.For the summary assessment of the costs of this application, I direct that:

(a) the Defendants shall lodge and serve their Statement of Costs within 14 days from the date hereof;

(b) the 1^st Plaintiff shall within 14 days thereafter lodge and serve his objections;

(c) the Defendants shall within 7 days thereafter lodge and serve their reply, if any.

Mr Erik Shum and Mr Stephen Keung, instructed by King & Co, for the 1^st Plaintiff

Mr Patrick Siu, instructed by Boase, Cohen & Collins, for the 1^st & 2^nd Defendants