Lee Woon Ping v. Smart Dragon Asia Pacific Ltd

DCCJ 844/2020

[2026] HKDC 1764

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 844 OF 2020

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BETWEEN

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DECISION

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Introduction

1.By a Judgment handed down on 28 April 2026 ([2026] HKDC 754), I found in favour of the plaintiff, acceding to his request for injunctive relief and awarding him $336,578.60 in damages plus interest. I also granted a costs order nisi that the defendant shall pay the plaintiff’s costs (including all costs reserved, if any), with certificate for 1 counsel.

2.By way of a Summons dated 11 May 2026 (“the Costs Summons”), the defendant applied to vary the costs order nisi, such that it should only be required to pay 60% of the plaintiff’s costs (including all costs reserved, if any), with certificate for 1 counsel. This application was supported by the 2^nd Affirmation of Leung On Yu Annie dated 8 May 2026.

3.By way of a further Summons dated 13 May 2026 (“the Leave Summons”), the defendant applied for leave to appeal against the Judgment, on the basis of the draft grounds of appeal attached thereto.

4.The plaintiff opposes to both applications.

5.Directions have been given for the parties to file written submissions. Having considered the parties’ respective submissions, these are my decisions on the defendant’s 2 Summonses.

Varying the costs order nisi

6.Ms Prisca Cheung, counsel for the defendant, submits that the plaintiff should not be awarded full costs because this court did not accept the entirety of the case the plaintiff sought to run at trial. It is submitted that this court should refrain from awarding full costs when the plaintiff relied on the expert evidence expressed in Lau’s 2^nd Report to say that water seepage seen in Flat 4E originated from the freshwater supply and drainage system of Flat 5E, which was rejected for reasons I stated in the Judgment. It is further submitted that the expert evidence ultimately rejected by this court did take up materially significant time at trial.

7.Ms Cheung submits that the plaintiff should only recover 60% of his costs, to reflect the extent to which this court rejected the expert evidence relied on by him.

8.Mr Ernest Ng and Mr Fergus Tam, counsel for the plaintiff, submit that the Costs Summons should be dismissed. They submit that the defendant failed to identify an issue so distinct and separate in itself, which this court found against the plaintiff, that would permit this court to apportion the costs spent on such issue which the plaintiff failed. Further, they submit that this court rejected the defendant’s criticisms towards Lau’s 1^st Report.

9.It is trite, and there is no dispute, that this court has a complete and unfettered discretion on costs. On a more mature reflection on the course of the trial, I agree with the defendant that it would not have needed to spend as much time preparing for its case, and the trial might have proceeded more economically, if the plaintiff did not rely on Lau’s 2^nd Report to prove his case.

10.I am not attracted to the plaintiff’s submissions that there must have been a distinct and separable issue that he lost before this court could attempt an apportionment of costs. In any event, I accept the defendant’s submissions that Lau’s 2^nd Report added a new and distinct dimension to the plaintiff’s case as to the source of water seepage. As such, apportionment of costs is possible.

11.In my decision, the plaintiff should be deprived 15% of his costs. I find the defendant’s suggestion of a 40% deduction excessive, when time was also taken up at trial dealing with the plaintiff’s case on quantum, and with the defendant’s expert evidence which this court found unhelpful.

12.Having succeeded in its application, I also award the defendant the costs of the Costs Summons, together with certificate for 1 counsel.

13.The defendant has filed a Statement of Costs covering the 2 Summonses, asking for a total sum of $199,388.00.

14.I find it appropriate to notionally apportion and then summarily assess the costs attributable to the Costs Summons. As a matter of cross-checking, I have also considered the plaintiff’s Statement of Costs on the Costs Summons asking for $37,878.00 (inclusive of counsel’s fees), and asked myself what would have been the costs allowable on that statement if I were to award costs to the plaintiff. On a broad brush approach, I assess the defendant’s costs at $37,000.00 (for which $30,000.00 is for counsel’s fees).

Leave to appeal

15.The defendant shall be granted leave to appeal against the Judgment if its intended appeal is reasonably arguable; or there are some reasons to grant leave to appeal in the interest of justice. Reasonable prospect in an intended appeal means the merits are more than fanciful, but there is no need to show that it will probably succeed: SMSE v KL [2009]4 HKLRD 125.

16.Ms Cheung states that whilst an appellate court will be slow to overturn factual findings on appeal unless the first instance judge is plainly wrong, the defendant’s attack focusses on the inferential reasoning set out in the Judgment. I do accept that the appellate court may be more willing to intervene, as compared to a case involving finding a witness credible or otherwise, if the alleged error in the Judgment lies in the inference or logical deduction based on the primary evidence. I shall be mindful about the distinction between an error in coming to findings of fact, and an error in the inferential reasoning when I consider the merits of the defendant’s application for leave to appeal.

17.The defendant has put forward 4 draft grounds of appeal. I shall deal with them in turn below.

18.Ground 1 suggests that the Judgment erred in finding that water seepage seen in Flat 4E was caused by the flushwater drainage pipes of Flat 5E, which were not replaced despite renovation.

19.Ms Cheung submits that the evidence referred to in §§59-61 of the Judgment could at most point to a general inference that water seepage was associated with the flushwater system of Flat 5E, but not specifically the flushwater drainage pipes. Also, it is suggested that this court overlooked the supplemental quotation prepared by Mr Wong Sai Pui, who effected renovation in Flat 5E in December 2021, which showed that the drainage pipe(s) on the external wall outside the master bathroom was repaired.

20.First, I disagree with the submissions that no evidence could support the inference that water seepage was caused or contributed to by the flushwater drainage pipes of Flat 5E. I agree with the plaintiff that the temporary suspension of flushwater supply on 29 and 30 May 2019 necessarily led to the abatement of flushwater drainage. If the defendant would like to suggest that the suspension of flushwater supply did not entail the absence of drainage down the flushwater drainage pipes, there ought to be evidence adduced to that effect at trial; or at least the plaintiff’s witnesses ought to be cross examined on this point. Neither was done by the defendant at trial. In my decision, in the absence of specific evidence supporting the defendant’s current contention, this court was entitled to draw the inference on a balance of probabilities.

21.Secondly, this court arrived at the conclusion that water seepage was caused or contributed to by leakage from the flushwater drainage pipes of Flat 5E after considering the entirety of the evidence, which included (i) Mr Wong’s renovation in December 2021 replaced the flushwater supply pipes and reinforced the waterproofing of the bathrooms in Flat 5E, but the flushwater drainage pipes were not replaced; and (ii) Madam Kam, the plaintiff’s wife, gave evidence that water seepage could continue to be seen at Flat 4E even up to trial. It was my decision in the Judgment that the cumulative effect of the evidence pointed to leakage from Flat 5E not resolved by the renovation. I cannot see why this could not be a reasonable conclusion reached by a trial judge when considering the evidence on a balance of probabilities.

22.Thirdly, I disagree with the defendant that I overlooked Mr Wong’s supplemental quotation. Quite apart from the fact that, as submitted by the plaintiff, the parties specifically referred to this document as part of their respective closing submissions, I do not think the supplemental quotation aided the defence. As a matter of common sense, there must be flushwater drainage pipes within Flat 5E, in addition to the one(s) on the external wall. The fact that the pipe(s) on the external wall were repaired did not eliminate the possibility of any leakage from the rest of the drainage pipes. As highlighted by Mr Ng, there was no re-examination of Mr Wong as to the extent of the repair of the flushwater drainage pipe. In my decision, the Judgment was right in not giving weight to the supplemental quotation to negate Flat 5E as the source of the leakage.

23.In summary, I find ground 1 not reasonably arguable.

24.Ground 2 suggests that the Judgment erred in §§72 and 76 in finding that it was the leakage from Flat 5E that continued to cause water seepage in Flat 4E after the renovation in December 2021.

25.Ms Cheung submits that, even assuming that Flat 5E was indeed the source of water seepage since 2019, there was no evidence to support this court’s conclusion that Flat 5E continued to be the source after renovation to Flat 5E took place in December 2021. She further submits that, since this court rejected the opinion expressed in Lau’s 2^nd Report, there was no expert evidence on which this court could rely on to conclude that Flat 5E remained to be the source after December 2021.

26.With respect, I do not find this ground adding anything to the defendant’s complaint as expressed under ground 1. Given the specific evidence that the flushwater drainage pipes were not replaced in the December 2021 renovation, and there is insufficient evidence as to whether all of the drainage pipes within Flat 5E were repaired, it was open to this court to conclude that the source of water seepage within Flat 5E was not eliminated by the December 2021 renovation, and it continued to be present afterwards. In my decision, it was not necessary for there to be specific expert evidence independently identifying the source after December 2021.

27.It is my conclusion that ground 2 is not reasonably arguable.

28.Ground 3 suggests that this court erred in finding that the defendant failed to take reasonable steps to abate the water seepage.

29.Ms Cheung submits that this court failed to compare what the defendant did with what a reasonable owner would have done. She again points to the December 2021 renovation, and submits that this court erred in finding the defendant unreasonable on the simple basis that the water seepage seen in Flat 4E continued despite such renovation.

30.Mr Ng submits that it is wrong for the defendant to invite the appellate court to undertake a de novo evaluation of the facts in the present case, when there is no question on the credibility of witnesses. He relies on Biogen Inc v Medeva plc [1977] RPC 1 at 45 and says that an appellate court would be very cautious in differing from the trial judge’s evaluation of negligence, if the alleged error only concerns the degree of standard expected of the losing party.

31.In my view, there is much force in Mr Ng’s submissions that the defendant erroneously assumed that the December 2021 renovation was sufficient to remove any source of leakage from Flat 5E. The Judgment apparently did not accept that: see the specific finding at §72. Together with the reasons set out in relation to grounds 1 and 2, I do not think the finding in the Judgment is wrong.

32.The Judgment considered the defendant’s action in light of what it was informed back in early June 2019, when it was told of the effect of temporary suspension of the flushwater supply to Flat 5E. I do not agree that the Judgment erred in finding the defendant unreasonable, when it failed to inspect and/or repair both the supply and drainage parts of the flushwater system. In my view, the defendant’s emphasis that it did replace the freshwater pipes in Flat 5E is a red herring.

33.I find ground 3 not reasonably arguable.

34.Ground 4 complains that the injunctive relief the Judgment granted the plaintiff in §93 was uncertain and unsupported by factual findings.

35.Ms Cheung relies on Tech Focus v Austria Property Management Ltd [2004] 1 HKC 343 and Lau Oi Kiu v Man Chun Shing & Anr [2015] 4 HKC 73, and submits that an injunction must be framed in precise terms to allow a defendant to know what steps must be taken as a matter of fact. She further cites Chan Ho Yan v Wong Shung Yan [2025] HKDC 2079 (Deputy Judge Samuel Wong; 24 December 2025); and Leung Chun Wah Nicholas v Chin Shin Dian, Mok Kim Wan and Mok Sau Wan [2026] HKDC 597 (Deputy Judge Lincoln Cheung; 2 April 2026) to say that the injunction this court granted in the Judgment, viz (i) the defendant shall refrain from causing and/or allowing the water seepage from Flat 5E to Flat 4E; and (ii) the defendant shall forthwith carry out all necessary rectification to stop the water seepage from Flat 5E to Flat 4E was too uncertain to be enforceable. Hence, the Judgment fell into error.

36.On the other hand, Mr Ng submits that Tech Focus, Chan Ho Yan and Leung Chun Wan Nicholas are distinguishable, in that the court was invited to grant an injunction by default, in the absence of any notice of intention to defend. For water seepage cases involving a contested trial, the court in Lam Kit Yee v Lam Shuk Lam & Anr DCCJ 3115/2011 (Deputy Judge Lawrence Ng; 10 March 2017) granted a mandatory injunction requiring the defendants to rectify the defects in their flat, and restraining them from repeating the continuing “the said nuisance or any nuisance of a like kind” – which was a reference to water seepage down to the plaintiff’s flat. Mr Ng submits that, similarly in the present case, there is no uncertainty as to the scope of rectification required of the defendant, as this court made specific fact findings as to the source of the water seepage seen in Flat 4E.

37.I agree with Mr Ng’s submissions. In an application for judgment in default of a notice of intention to defend, the court proceeds on the basis of the pleadings alone; the court may not consider evidence going to the merits of the plaintiff’s case. Thus, in a case where the plaintiff has not pleaded the specific source of water seepage from the defendant’s premises, the court may find it difficult to police the compliance of an injunction simply requiring the defendant to abate the seepage. In a case where the plaintiff has pleaded the specific source of water seepage, the court may find an injunction simply requiring the abatement of water seepage wider than what has been pleaded at the first place, which is unfair to the defendant.

38.The mischief identified above does not feature in a judgment handed down after a contested trial. The defendant in such a case has the reasoned judgment of the court to know what was said to have constituted the nuisance and/or negligence for which it was held liable. Indeed, in §93 of the Judgment, the injunction this court granted targeted towards “the water seepage” from Flat 5E to Flat 4E, which must be understood to be the specific seepage as found in the Judgment, but not otherwise. In Lam Kit Yee, the court similarly issued an injunction targeting “the said nuisance” or other similar ones, obviously referencing what was decided in that case.

39.I also agree with Mr Ng’s submissions that Lau Oi Kiu does not assist the defendant here, because it was a case concerning the restoration of land lots to their previous condition befitting for agricultural use. The court therein was expressing difficulty as to whether the proposed injunction would be able to restore the land lots to a state suitable for agricultural use, particularly when no expert evidence was adduced in that case to comment on whether the technical requirement stated in the proposed injunction was not too wide in its effect. I agree that there is no such difficulty in the present case.

40.Further, I accept Mr Ng’s submissions that it is now too late for Ms Cheung to complain about the wording of the injunction sought by the plaintiff, when such complaint was not raised nor explored at trial.

41.I similarly find Ground 4 not reasonably arguable.

42.I cannot detect any other basis, in the interest of justice, to grant leave to the defendant to appeal against the Judgment.

43.Having failed in its application to obtain leave to appeal, the defendant should pay for the plaintiff’s costs, with certificate for 1 counsel.

44.The plaintiff has filed a Statement of Costs in relation to the Leave Summons, asking for $102,694.00 in costs (inclusive of counsel’s fees). I agree with the defendant that there should be some discount on the handling solicitor’s attendance on the client and counsel; counsel’s fees for advising on the merits of the Leave Summons also appear to me to be in duplication of the fees charged for preparing the written submissions in opposition. On a broad brush approach, I assess the costs payable by the defendant to be $73,800.00 (in which $55,000.00 is for counsel’s fees).

Conclusion

45.On the Costs Summons, I allow the defendant’s application to the extent that the costs order nisi granted in §95 of the Judgment be varied, such that the defendant is to pay 85% of the plaintiff’s costs of this action (including all costs reserved, if any), to be taxed if not agreed, with certificate for 1 counsel. The plaintiff shall pay the defendant’s costs of the Costs Summons with certificate for counsel, summarily assessed at $35,000.00.

46.I dismiss the Leave Summons. The defendant shall pay the plaintiff’s costs with certificate for 1 counsel, summarily assessed at $68,800.00.

47.I again thank counsel for their assistance.

The Plaintiff acting in person (formerly represented by Au-Yeung, Chan & Ho up to 30 July 2026)

Ms Prisca Cheung, instructed by Kok & Ha, for the defendant