Choi Mei Ling v. Gan Fang

DCCJ 5445/2020

[2026] HKDC 1832

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5445 OF 2020

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DECISION

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I.  INTRODUCTION

1.There are before me two summonses:

(1)  The Defendant’s (“D’s”) Summons dated 18 June 2026 to vary the costs nisi made in my Judgment dated 5 June 2026 (“the Costs Summons”);

(2)  The Plaintiff’s (“P’s”) Summons dated 30 June 2026 in which P applies: (i) for leave from me to appeal to the Court of Appeal against my Judgment dated 5 June 2026 (“the Leave Summons”); and (ii) if such leave is granted for execution of the Judgment be stayed pending the determination of the Appeal.

2.On the matters of the procedure to be applied to D’s Application to vary the Costs Order Nisi, on the 17 July 2026, it was directed that: (i) the Application be determined on paper; (ii) for D to lodge and serve D’s Submissions (limited to 10 pages) with Authorities, if any on or before 6 August 2026; (iii) for P to serve its Submissions in reply 21 days thereafter; and for the written decision to be handed down within 3 months after the round of submission.

3.As directed, D’s Submissions was received 6 August 2026 about 3:11 pm.

4.P, on the other hand, filed an application for legal aid, and by a Memorandum of Legal Aid filed on 31 July 2026 by the Legal Aid Counsel for Director of Legal Aid, stay of the proceedings in DCCJ  5445/2020 until 11 September 2026 was directed.

5.Therefore, in view of P’s application for legal aid, the deadline for P to lodge its skeleton submissions was revised to the first working day after 12 September 2026, a Saturday.

6.On the matter of P’s Leave Summons dated 30 June 2026, on the 17 July 2026, it was directed that for D to serve its Submissions in reply 21 days of P’s Submissions, which P had served on 24 July. In view of P’s legal aid application, D’s solicitors, by a letter dated 5 August 2026, sought clarification from the Court whether pursuant to section 15 of the Legal Aid Ordinance a new deadline would be directed. I likewise directed revision of the deadline for D’s Submissions to the first working day after 12 September 2026.

7.No further document was filed to inform the Court of the progress of P’s legal aid application, whether it was declined or successful.

II.  BACKGROUND

8.The Plaintiff (“P”) is the registered legal title owner of 17^th Floor, Fortune Views, No 22 Pau Chung Street, Kowloon (“P’s Property”). The Defendant (“D”) is the registered legal title owner of 18^th Floor, Fortune Views, No 22 Pau Chung Street, Kowloon (“D’s Property”).

9.P pleaded that in or around mid-2017, by water seepage and/or leakage, D started to create and cause (or allow) interference with, disturbance of or annoyance to P in the exercise or enjoyment of her ownership and occupation of P’s Property.

10.P further pleaded that: “a registered surveyor was engaged to conduct, inter alia, inspection and examination on 12 June 2020, and  it was shown: (i) water seepage and/or leakage suffered by P’s Property (specifically in the living room, toilet, rooms, and other parts) originated from D’s Property; (ii) one of the specific causes is the lack of sufficient waterproof facilities and/or materials in D’s Property resulting in inter alia water seeping / leaking into concrete layers in P’s Property; (iii) as a result of the seepage and/or leakage from D’s Property, steel corrosion was found in the concrete of the ceiling in P’s Property which carries the risk of concrete cracking and spalling.” It transpired that the pleaded survey was carried out only to P’s 17/F Property and the alleged leakage was concluded without viewing the 18/F property, D’s Property.

11.P alleged and pleaded that D:- (i) deliberately / recklessly used and uses D’s Property in a way which she knows will cause harm to P; and such harm is unreasonable infringement of the P’s interest in P’s Property; and D is liable for foreseeable consequences of unreasonable user of D’s Property; (ii) knew or ought to have known that in consequence of her conduct and/or omission (of causing and creating or allowing water seepage and/or leakage) harm to P is reasonably foreseeable; hence, D is under a duty of care to prevent such consequences as are reasonably foreseeable; and (iii) D refused and failed to prevent the said consequences.

12.P claimed for loss and damage: (i) discomfort, inconvenience and disturbance instances which include but not limited to attending to the problems caused by the seepage and/or leakage from time to time over the past 3 years as well as deterioration of living conditions; (ii) damage to the ceiling, walls, fixtures, furniture, and other works inside P’s Property; and (iii) alternative accommodation in a hotel from 14 June 2020 to 11 September 2020 at the total cost of HK$106,200. Specifically, the reliefs P pleaded in the prayer were for:

(i)  costs of maintenance and repairing as pleaded in paragraph 5(e) in the sum of HK$119,352.40 above;

(ii)  costs in engaging surveyors as pleaded in paragraph 5 above at HK$16,000;

(iii)  alternative accommodation at HK$106,200;

(iv)  damages for loss and damage to the ceiling, walls, fixtures, furniture, and other works inside P’s Property as pleaded in paragraph 7(b) of the Statement of Claim;

(v)  damages for general damage as pleaded for discomfort, inconvenience and disturbance instances;

(vi)  further or alternatively, damages for breach of DMC;

(vii)  mandatory injunction that the Defendant by herself, her tenants, licensees, servants, agents or otherwise do forthwith carry out repair and/or maintenance work in D’s Property to stop the water seepage and/or leakage;

(viii)  injunction to restrain the Defendant by herself, her tenants, licensees, servants, agents or otherwise from allowing the continuance of water seepage and/or leakage from D’s Property to P’s Property thereby causing nuisance or damage of any kind;

(ix)  interest;

(x)  costs; and (xi) further or other reliefs.

13.In respect of this case, by an Agreed Joint Statement of Issues in Dispute filed on 14 September 2023 (“the Agreed Joint Statement of Issues” at TB1/A/Item 1/pp 1-2/§§1-3), P and D agreed that in relation to liability, the main issue[s] were: (i) whether D has committed nuisance and/or breach of DMC by way of water seepage and/or leakage?; and (ii) If so, did D cause the loss and damage to P?

14.On Liability the four sub-issues were:

(a)  Whether result of rapid infrared thermographic scans and/or protimeter test show the water leakage / seepage originated from D’s Property to P’s Property? If so, from which part(s) of D’s Property, and what is the length / duration?;

(b)  Whether the water flushing and/or water ponding test support the conclusion that the water leakage / seepage originated from D’s property, and what is the length / duration?

(c)  Whether any other tests and/or methods adopted by experts support P’s claim? If so, to what extent?

(d)  Whether the waterproof membrane and/or waterproof system in D’s Property (or any parts) are responsible for the water seepage / leakage?

15.There were two sub-issues in relation to quantum:

(a)  What are the reasonable damages and/or reliefs arising from such water leakage / seepage?

(b)  Whether D had carried out remedial work in relation to the alleged water leakage / seepage; if so, to what extent should D be held liable for P’s loss and damage.

16.Having read the parties’ submissions (including the closing submissions), read the statements of the parties’ fact witnesses, expert reports and Joint Report of the Experts, and heard the evidence of P’s witness Choi Mei Lin, D’s witnesses Gan Fang and Tam Nok Ting, and the oral evidence of P and D’s experts in Court, I found that the material allegations P pleaded had not been made out and none of the four agreed sub-issues (a) to (d) on liability were proved.

17.As pointed out in the case of Larbons Limited v Kuo You Weaving Factory Ltd, DCCJ 934/2006 (“Larbons”), Judgment of Her Honour Judge Mimmie Chan at paragraph 20 and 78:

“20. As there is no presumption that water leaking into G/F necessarily comes from 1/F above, the burden is on the Plaintiff to show that the water seepage originated from the Defendant’s flat (Cheung Sau Ling & Ng Ping Hon v Cheng Lai Chong CACV 268/98) (unreported, 9^th April 1999) and Leung Yung Chun & Anor v Chan Wing Sang & Ors [2000] 1 HKLRD 456). It is not for the Defendant to find out the source of the water leakage nor to prove that the seepage did not come from 1/F (Hui Ling Chun v Shiu Mak Ying & Anr DCCJ 10294 OF 2001 (unreported, 3 March 2004)). …

“78. … Since the onus is on the Plaintiff to prove that water seepage originated from the Defendant’s flat, the Defendant can wait for the Plaintiff to produce the necessary evidence as to the cause of the water seepage. The Defendant is not bound to carry out investigations to prove that the water seepage did not originate from its premises …” (my emphasis)

18.In the Judgment, it was concluded:

(1)  The reliefs P claimed at the prayer (i) to (xi) of the Statement of Claim were dismissed;

(2)  Following the above, I found that costs should follow the event with P being liable to D for costs, on party to party basis, to be taxed if not agreed.

III.  D’s Summons

19.D’s Summons is an application for the costs order nisi in the Judgment dated 5^th June 2026 to be varied and an order in its place for:

(a)  P to pay D’s costs (i) incurred on and before 24 May 2021 to be taxed on a party to party basis; and (ii) for D’s costs incurred after 24 May 2021 to be taxed on indemnity basis, with certificate for counsel; and

(b)  P to pay D interest on D’s costs incurred after 24 May 2021 at 10% above judgment rate.

20.D’s Summons is supported by the Affirmation of Huen Yuk Wan, Assistant solicitor of Huen & Partners dated 18 June 2026 (the “Huen Affirmation”).

21.In the “Huen Affirmation”, it was disclosed (for the first time) that on 26 April 2021, D had made a sanctioned payment into court in the sum of HK$40,000.00 to settle the whole of P’s claims (the “Sanctioned Payment”). The last day P could have accepted the Sanctioned Payment without leave was 24 May 2021. The Sanctioned Payment was not accepted by P. P failed to do better than the Sanctioned Payment.

IV.  Legal Principles on Costs

22.The consequences where a plaintiff fails to do better the sanctioned payment is provided in the RDC, Order 22 rule 23 (3), (4) and (5):

“23. Costs consequences where plaintiff fails to do better than sanctioned offer or sanctioned payment (O. 22, r. 23)

(1) “This rule applies where a plaintiff—

(a) fails to obtain a judgment better than the sanctioned payment; or

(b) fails to obtain a judgment that is more advantageous than a defendant’s sanctioned offer.

(2) The Court may by order disallow all or part of any interest otherwise payable under section 49 of the Ordinance on the whole or part of any sum of money awarded to the plaintiff for some or all of the period after the latest date on which the payment or offer could have been accepted without requiring the leave of the Court.

(3) The Court may order the plaintiff to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without requiring the leave of the Court.

(4) The Court may also order that the defendant is entitled to—

(a) his costs on the indemnity basis after the latest date on which the plaintiff could have accepted the payment or offer without requiring the leave of the Court; and

(b) interest on the costs referred to in paragraph (3) or subparagraph (a) at a rate not exceeding 10% above judgment rate.

(5) Where this rule applies, the Court shall make the orders referred to in paragraphs (2), (3) and (4) unless it considers it unjust to do so.” (my emphasis)

23.While Order 22 rule 23 provided that the Court may order indemnity costs and enhanced interests on costs, Order 22 rule 24(5) provides the Court shall take into account all the circumstances of the case including the following:

“(5) In considering whether it would be unjust to make the orders referred to in paragraphs (2) and (3), the Court shall take into account all the circumstances of the case including—

(a) the terms of any sanctioned payment or sanctioned offer;

(b) the stage in the proceedings at which any sanctioned payment or sanctioned offer was made;

(c) the information available to the parties at the time when the sanctioned payment or sanctioned offer was made; and

(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the payment or offer to be made or evaluated.”

24.D’s Grounds for its Application in the Huen Affirmation include:

“12. As to the terms of the sanctioned payment, given the fact that the Plaintiff’s claims are dismissed in the end, the terms of the sanctioned payment is only fair. As pointed out in paragraph 22 of the Judgement (on line F and line K of page 12), the Plaintiff engaged a workman to repaint her flat at the price of HK$14,000 in November 2020 and then moved back to her flat. From the perspective of the Plaintiff at the time, the Defendant’s sanctioned payment in the sum of HK$40,000.00 is in all respect genuine and fair.

13. Regarding the stage of proceedings when the sanctioned payment was made, the Defendant made the sanctioned payment at a rather early stage, within about six months after the Writ of Summons was filed on 9 October 2020. It was even before the Plaintiff filed its first Timetabling Questionnaire on 9 July 2021. Had the Plaintiff accepted the Defendant’s sanctioned payment, a vast majority of the costs incurred by the parties and the time and resources expended by the Court could have been avoided.

14. As to the information available to the parties at the time when the sanctioned payment was made, while the Plaintiff relied on the report prepared by Mr Fung Yik Chun dated 11 July 2020, she must be aware that the said report was prepared without Mr Fung entering the Defendant’s premises, and as such it was not possible for Mr Fung to identify conclusively as to the source of the leakage. The Plaintiff therefore relied on the said report to commence the present action at her own risks.

15. As pointed out in paragraph 22 of the Judgement (on line K of page 12), the alleged seepage inside the Plaintiff’s flat must have ceased by the time the Plaintiff moved back to her premises end of 2020. Yet the Plaintiff unreasonably pressed on with the case.

16. Further, as disclosed by the Plaintiff in her witness statement filed on 19 August 2022, by 24 November 2020 (i.e. before Defendant’s sanctioned payment was made), the Plaintiff has been informed by BD/FEHD Kowloon Regional Joint Office that P2H Design Associates Ltd (潘氏建築工程有限公司) had conducted investigations and tests in the Defendant’s premises but was unable to ascertain the source of water seepage. By late November 2020 (i.e. one month after the Writ of Summons was issued) the Plaintiff should have evaluated whether the present action should have been continued. By the time the sanctioned payment was made, the Plaintiff was in a position to make an informed decision on acceptance of the payment.

17. Regarding the conduct of the parties, the Plaintiff had consistently failed to respond to the Defendant’s attempts to resolve the matter in a sincere and constructive manner. The Plaintiff was uncooperative towards the Defendant’s bona fide attempts to resolve the disputes.”

25.D further amplified in it’s Submissions three aspects:

First, Costs on indemnity basis after 24 May 2021

26.D submits:

(i)  it would not be unjust, as the sanctioned payment was made at an early stage and its acceptance would have avoided most of the subsequent expert, interlocutory and trial costs. Further, it was also a genuine attempt at compromise, as P had repainted the Property for HK$14,000 and moved back by the end of 2020, whereas D had offered HK$40,000 to dispose of the entire claim;

(ii)  additionally, P did not lack the information required to properly evaluate the Sanctioned Payment. By 24 May 2021, she knew that the official investigation by FEHD had not ascertained any source of alleged leakage to have originated from D’s unit at 18/F and P had resumed occupation of her unit at 17/F end of 2020. P therefore had sufficient information to assess the Sanctioned Payment and D should be awarded post-24 May 2021 costs on the indemnity basis.

Second, Interest on the Defendant’s costs in this action incurred after 24 May 2021 at 10% above judgment rate

27.On second question, D submits while the case of OMV Petrom v Glencore International AG [2017] 1 WLR 3465 establishes that 10% is the permissible maximum, not the presumptive award, and that the result must be proportionate, it also establishes that, when interest is sought on costs, the Court may examine how and why those costs were incurred.

28.D submits while this case lacks the dishonesty present in OMV Petrom, the Court is not precluded from awarding the maximum rate. As the Sanctioned Payment was made sufficiently early, almost all subsequent costs could have been avoided. Yet, P maintained her case resting upon two serious propositions: first, that the leakage originated from the Defendant’s property; and secondly, that the Defendant had acted deliberately or recklessly in a manner which she knew would cause harm to her neighbours. Neither of them was supported by any evidence.

29.D submits it had taken reasonable steps to investigate the possible origins of the leakage and, notwithstanding that no source had been identified within D’s property, D undertook remedial measures on a good-neighbour basis.

30.It is D’s submission that substantial post-Sanctioned payment costs were therefore incurred in answering serious allegations which were and are unproven.

31.Further, D submits that it’s proposal for the appointment of a joint specialist to investigate the source was rejected by P. The resulting in materially increased costs by P’s decision to continue the action. The BD/FEHD investigations had not established any leakage to have originated from D’s property, while P’s expert had not inspected D’s unit before issuance of his 1^st Report.

Third, on P’s Conduct

32.D submits that ultimately, the central issue of the source of leakage had not been identified, even after the separate Expert Reports, the investigations, and the Joint Report of P’s and D’s expert.

33.D submits that the original internal seepage at the alleged locations had ceased by the end of 2020 and the later dripping at the air-conditioner location was a separate leakage from another source not proved to have originated from D’s unit. P, nevertheless, continued to pursue the pleaded permanent injunctive reliefs, and P continued in her closing submissions that injunctive relief was “appropriate and necessary to, at least, compel the Defendant to effectuate proper repairs inside [the Defendant’s] premises,” “given the long history of the seepage and the irresponsible attitude displayed by the Defendant over the years.”

34.D submits this was not simply a case which failed at trial. It was a case which continued for years after a genuine early sanctioned payment was rejected. Although the essential factual allegations by P remained unable to be proved, D was meanwhile was forced to fund expert, interlocutory and trial work, which acceptance of the Sanctioned Payment would have avoided.

35.D submits that viewed cumulatively — the timing and adequacy of the payment, the unresolved causation problem, the refusal of a joint investigation, the continued pursuit of injunctive relief, the duration of the proceedings and the manner in which costs post- Sanctioned Payment came to be incurred — the maximum interest rate uplift is both proportionate and justified.

36.D submits that all these matters are relevant the exercise of the Court’s discretion under O.62 r.5 because they bear upon the reasonableness and the manner which P pursued the proceedings.

37.D asks that the costs order nisi be varied in terms of D’s Summons. D draws reference to Fung Wing Yee v Chen Jung Chien HCPI 657/2007, 30 April 2010, at §§42–45, in which Suffiad J (as he then was) indicated that, had the application in that case been confined to the sanctioned-payment consequences, he would have had “little hesitation” in extending the enhanced costs, including the indemnity basis, to the costs of the application.

P’s Submissions on Costs

38.P filed its Skeleton Submissions dated 14 September 2026 in opposition to D’s Summons to vary the order nisi on the ground it would be unjust to make the order sought for reasons including:

(1)  P has filed an application for leave to appeal and a stay of execution pending appeal, which are pending determination;

(2)  The sanctioned payment was made at a very early stage of the proceedings, i.e., on 26 April 2021, which was only about 6 months after the Writ of Summons was filed on 9 October 2020. P submits that the information available to P at that time was limited and incomplete;

(3)  It was not unreasonable for P to refuse the Sanctioned Payment at that early stage, because the true cause and source of the water seepage had not yet been definitively established, as P had obtained her own expert report “P’s 1st Report” on 11 July 2020;

(4)  P further argues that D did not provide sufficient information and wrongly placed the burden on P to identify the source of water leakage;

(5)  P argues that the Sanctioned Payment was not generous and did not adequately reflect P’s losses and “the on-going nuisance”.

Discussion and Findings

39.D made a Sanctioned Payment of HK$40,000 into Court on 26 April 2021, which was not accepted.

40.It was my findings that P knew early on that leakage from 18/F was not found pursuant to the first of two BD/FEHD investigations:

(i)  By 23 September 2020 (para 14 of the Judgment), P knew that the 1^st BD/FEHD Investigation could not ascertain the source of the alleged leakage;

(ii)  Likewise, leakage was not found pursuant to the result dated 24 November 2020 of the 2^nd BD/FEHD (P2H Design Investigation) (paras 15-16 of the Judgment).

41.The present proceedings began about 9 October 2020.

42.I found that any leakage must have ceased by the end of 2020, the time P moved back into the 17/F premises after re-painting end of 2020 (para 22 at page 12 J-L of the Judgment).

43.At para 18 of the Judgment, the case DCCJ 934/2006 (“Larbons”) was cited (see para 17 above). The above is a correct statement of the law and if P, before commencement of the present proceedings, had properly investigated, parties’ costs and court’s costs and time would not have been incurred. Regrettably, she did not do so and she has to bear the consequence of refusing to accept the sanctioned payment made. Further, she had unreasonably continued on with the proceedings knowing the results of the BD/FEHD investigations.

44.Upon the fact that leakage from 18/F was not found, P’s nuisance claim and breach of DMC claim as pleaded both failed. As said, it was my Judgment that P unnecessarily continued on the basis of pleaded allegations knowing the allegations could not be proved. P’s claims in DCCJ 5445/2020 were, after the March 2026 trial, dismissed.

45.In the circumstances, it is not unjust to order indemnity costs with enhanced interest against P in the terms of D’s Summons.

Disposition of the Costs Summons

46.Accordingly, I exercise my discretion that the costs order nisi in my Judgment dated 5 June 2026 be varied and the terms of D’s Summons be ordered.

47.Since D succeeds in its Costs Summons, following the usual practice of “costs to follow the event”, P shall bear D’s Costs of D’s Summons, with certificate for counsel, to be taxed, if not agreed, on indemnity basis.

IV P’s Summons

48.P’s Summons comprise of three matters, the first is for:

(1)  Leave be granted to the Plaintiff to appeal to the Court of Appeal against the Judgment dated 5 June 2026 upon the proposed grounds set forth hereinunder:

(i)  The Trial Judge appears to have erroneously inferred from the negative test results obtained at a few isolated locations that there was no leakage at all from the 18th Floor as a whole, while failing to sufficiently consider the possibility of intermittent leakage, or the possibility that subsequent remedial works may have concealed the traces of earlier leakage; and

(ii)  In paragraph 32 of the Judgment, the Trial Judge emphasized that the Plaintiff’s 2^nd report did not identify the specific location on the 18^th Floor from which the leakage originated for repair purposes. However, while identifying the exact leakage point is helpful to the evidence, it is not a legal prerequisite. As long as the totality of the evidence allows an inference, on a balance of probabilities, that the leakage originated from the 18^th Floor, the Plaintiff’s claim could still succeed.

(2)  The second, for costs of P’s application be in the cause of the appeal to the Court of Appeal; and

(3)  The third, if such leave be granted, execution of the Judgment be stayed pending the determination of the Appeal.

49.P’s first (“the Leave Summons”) is supported by the Affirmation of Choi Mei Ling of 30 June 2026 (“1^st Affirmation of Choi”), in which P merely repeated its grounds in P’s Summons for leave.

50.P’s third (“the Stay Summons”) was for execution to be stayed or interim stayed pending substantive hearing and determination of “this application and/or the proposed appeal or such other Order may be made as this Honorable Court may think fit.”

51.P’s Stay Summons is supported by the 2^nd Affirmation of Choi Mei Ling of 30 June 2026 (2^nd Affirmation of Choi) in which she says that:

“(1) [she] verily believes that the costs ordered against [her] are likely to be substantial, given the length and complexity of the proceedings, the involvement of expert evidence, and the several-day hearings that took place.

(2) [she] verily believes that [she has] reasonable grounds of appeal against the Judgment, which are more particularly set out in her ground of appeal as referred to in my 1^st Affirmation simultaneously filed with this 2^nd Affirmation. The grounds include, but are not limited to, the following:

(a) The Trial Judge appears to have erroneously inferred from the negative test results obtained at a few isolated locations that there was no leakage at all from the 18^th Floor as a whole, while failing to sufficiently consider the possibility of intermittent leakage, or the possibility that subsequent remedial works may have concealed the traces of earlier leakage; and

(b) In paragraph 32 of the Judgment, the Trial Judge emphasized that the Plaintiff’s 2^nd report did not identify the specific location on the 18th Floor from which the leakage originated for repair purposes. However, while identifying the exact leakage point is helpful to the evidence, it is not a legal prerequisite. As long as the totality of the evidence allows an inference, on a balance of probabilities, that the leakage originated.

(3) [she] verily believes that these grounds of appeal are not fanciful and have a reasonable prospect of success before the Appeal Court. These issues raised involve both errors of law and errors in the evaluation of evidence by the Trial Judge.

(4) [she] also verily believes that, pursuant to Order 58 rule 3 of the District Court Rules and the inherent jurisdiction of this Court, [she] must demonstrate “good reason” for a stay of execution pending appeal. [she] respectfully submits that the following constitutes good reason in the present case.

(5) Firstly, [her] appeal has a reasonable prospect of success that for the purpose of a stay of execution, the threshold is not as high as for obtaining leave to appeal, but [she] as the applicant herein must show either (i) a strong appeal; or (ii) if the appeal is just arguable, additional reasons why a stay is justified. [She] submits that [her] appeal has more than a fanciful prospect of success for the reasons set out herein. The Trial Judge’s findings on the source of leakage were based on inferences drawn from negative test results, without giving sufficient weight to the possibility of intermittent leakage or subsequent concealment. These are substantial issues that merit appellate review.

(6) Secondly, if execution of the costs order is enforced before [her] appeal is heard and determined, [her] appeal will be rendered nugatory. [She is] a lay person of limited means. [She] do[es] not have substantial assets or savings. If [she is] compelled to pay the Defendant’s costs forthwith, [she] will suffer significant financial hardship.

(7) Thirdly, the balance of convenience favours the granting of a stay. [she] verily believe[s] that the Court will weigh the convenience and inconveniences to the parties of granting or not granting the stay. In the present case:

(a) The Defendant has already obtained a judgment in her favour and an order for costs against me. A short delay in the enforcement of the costs order pending the determination of my appeal will not cause the Defendant any irreparable prejudice. The Defendant is the owner of a property at 18^th Floor, Fortune Views, and is a person of means who can wait for the costs to be paid if my appeal fails;

(b) On the other hand, if a stay is not granted and [she will be] compelled to pay the costs immediately, [she] will suffer substantial financial hardship and [her] appeal rights will be rendered meaningless.”

52.P had also filed her Submissions of 24 July 2026 (P’s Submissions) in support of P’s two Summonses for leave to appeal and for stay, in which P cited the following Legal Principles:

(1)  Under section 63A(2) of the DCO, Cap 336 that leave to appeal shall be granted only if the appeal has a reasonable prospect of success or there is some other reason in the interest of justice;

(2)  Reasonable prospect means prospect that are more than fanciful, though they do not need to be probable, citing para 6 of Wu Kin Ho v Wong Kong Hop Kenneth [2018] HKDC 1216;

(3)  The appellate court will not interfere with the findings of fact unless the trial judge misunderstood the evidence, failed to appreciate its effects, or overlooked evidence which should have compelled a different conclusion: Wu Kin Ho supra para 6.

53.Ground 1 she argued that “the Learned Judge erroneously inferred from negative test results at isolated locations that there was no leakage from 18/F as a whole” and she further elaborated at paras 8 and 9 of P’s Submissions:

“8. The learned Judge placed decisive weight on the negative coloured water test results at certain locations within the Defendant’s flat (18/F). The Judge reasoned that because tests at specific drainage points and bathroom areas were negative, there was no leakage from 18/F at all.

9. This reasoning is flawed for the following reasons: (a) Intermittent leakage: Water seepage can be intermittent. A single or limited testing occasion may not capture leakage that occurs from time to time. The learned Judge failed to consider this possibility. (b) Concealment by remedial works: The Defendant applied waterproofing to the bathroom areas after the complaint. The Plaintiff’s expert noted this. Such works may have concealed or temporarily stopped the leakage, affecting the test results. The Judge failed to adequately consider this. (c) Limited scope of testing: The coloured water tests covered only specific drainage points and bathroom fixtures, not all possible sources (e.g., concealed pipes, floor slab, external wall). Negative results at tested locations do not prove absence of leakage from untested locations or from the flat as a whole.”

54.She also elaborated further at para 11 that:

“11. The learned Judge erred by treating the negative test results as determinative and failing to consider the cumulative evidence, including: (a) infrared thermographic scans showing water accumulation across large areas of the Plaintiff’s ceiling; (b) protimeter tests showing high moisture readings at multiple points; (c) ammonia test detecting ammonia in samples from the Plaintiff’s ceiling.”

55.She concluded at para 12 that:

“12. On a balance of probabilities, the totality of the evidence points to the Defendant’s flat as the source. The learned Judge’s failure to properly weigh the evidence and his erroneous inference constitute errors of fact and law warranting appellate intervention.”

56.Ground 2, P argued that “The learned Judge erred in treating the absence of specifically identified leakage point as determinative”.

57.P submits at paras 13 and 14:

“13. In paragraph 32 of the Judgment, the learned Judge emphasized that the Plaintiff’s second expert report did not identify the specific location on 18/F from which the leakage originated. The Judge treated this as a significant, if not determinative, factor against the Plaintiff.

14. This approach is legally erroneous. While identifying the exact leakage point is helpful, it is not a legal prerequisite for establishing liability in a nuisance claim based on water seepage.”

58.P argues at para 15 that the correct legal position is:

“15. The correct legal position is: (a) The Plaintiff’s burden is to prove, on a balance of probabilities, that the water seepage originated from the Defendant’s flat. This does not require identification of the precise pipe, fixture, or location within the Defendant’s flat. (b) The Court may draw inferences from the totality of the evidence. Where the evidence shows water was present in the Plaintiff’s ceiling and the only reasonable source was the flat above, the Court is entitled to find liability even without a specifically identified leakage point. (c) Requiring the Plaintiff to identify the exact leakage point places an evidential burden on the Plaintiff that goes beyond what the law requires. The Defendant, who has control over and access to her own flat, is in a better position to investigate the source within her premises.”

59.P submits at para 17 that “the learned Judge’s emphasis on the absence of a specifically identified leakage point [in fact absence of any leakage point] effectively raised the evidential bar beyond what the law requires. …”

60.P argues at para 18 (a) to (f) that:

“18. The evidence as a whole satisfies the balance of probabilities test: (a) The Plaintiff’s flat is directly below the Defendant’s flat. (b) Water seepage was observed on the ceiling of the Plaintiff’s flat, the surface immediately below the Defendant’s flat. (c) Infrared thermographic scans and protimeter tests showed widespread moisture in the Plaintiff’s ceiling. (d) The ammonia test was consistent with water originating from a domestic source above. (e) The Defendant’s own expert did not identify any alternative source. (f) The Defendant applied waterproofing to her bathroom areas after the complaint, consistent with acknowledgment of a risk of leakage from her flat.”

61.P’s arguments for stay of execution is upon the requirements as enumerated in Fung Shing Chung v Choi King Hung [20234] HKCA 1021: (i) a strong appeal: or (ii) if the appeal is just arguable, additional reasons why a stay is justified.

D’s Reply Submissions

62.D has filed its Skeleton Submissions dated 14 September 2026 to reply to P’s Summons for Leave to Appeal and Stay.

63.On the Leave application, D inter-alia submits:

(1)  P had mis-characterized the Court’s reasoning in the Judgment. D says Court’s conclusion was reached only after considering the experts’ evidence as a whole;

(2)  The remark at §32 of the Judgment, read in context, was in relation to Mr Fung’s unexplained and uninvited calculation of repair costs at HK$46,717.20. The absence of an identified source of leakage was an evidential deficiency in the Plaintiff’s case.

(3)  One of the agreed sub-issues was whether the infrared scans and/or protimeter tests showed that the seepage originated from 18/F and, if so, “from which part(s) of [18/F], and what [was] the length / duration.”. Hence, identification of a source within 18/F formed part of the parties’ agreed factual inquiry;

(4)  D submits even if precise identification of the leakage point was unnecessary, the Plaintiff still had to prove by reliable evidence that, on balance of probability, the seepage originated from 18/F;

(5)  The proposed grounds do not displace the Court’s findings that the first report was unreliable, that the second report yielded no conclusive identification of leakage from any of the locations tested in 18/F; and

(6)  D submits P’s further argument that because the negative tests did not exclude every conceivable leakage, the Court ought to have inferred that the seepage probably originated from 18/F reverses the burden of proof.

Discussion and Reasoning

64.Burden is upon P to show that water seepage originated from D’s flat: Larbons Ltd v Kuo You Weaving Factory Ltd [2007] HKDC 229 at para 17 above.

65.Two FEHD/BD investigations: (i) FEHD investigation on 9 July 2020 and (ii) the Investigation on 16 October 2020 by the consultant appointed by FEHD both did not come back with findings that leakage had originated from D’s flat (paras 14-16 of the Judgment).

66.There also were the separate investigations by P’s and D’s Experts (Mr Fung Yik Chun for P; and Mr Yeung Tak Wah for D) which resulted in separate reports as well as a Joint Expert Report. The separate Reports and the Joint Report and the separate findings were not made at “isolated locations” as alleged in Ground 1. Both experts appeared in Court and were cross-examined. In fact, it was by a Consent Summons that leave was given by the expert direction dated 19 November 2021 for the parties to produce expert evidence on liability, limited to one surveyor for each party on the issue (1) whether water leakage in P’s premises originated from D’s premises, and (2) if so, how.

67.No evidence of leakage was identified at the locations as P pleaded. P’s pleaded material facts did not come up to proof. It was not by way of the Court’s inference. P’s pleaded facts are at para 10 above:

(1)  water seepage and/or leakage suffered by P’s Property (specifically in the living room, toilet, rooms, and other parts) originated from D’s Property;

(2)  one of the specific causes is the lack of sufficient waterproof facilities and/or materials in D’s Property resulting in inter alia water seeping / leaking into concrete layers in P’s Property;

(3)  as a result of the seepage and/or leakage from D’s Property, steel corrosion was found in the concrete of the ceiling in P’s Property which carries the risk of concrete cracking and spalling.

(4)  D deliberately / recklessly used and uses D’s Property in a way which she knows will cause harm to P;

(5)  D knew or ought to have known that in consequence of her conduct and/or omission (of causing and creating or allowing water seepage and/or leakage) harm to P is reasonably foreseeable;

(6)  D refused and failed to prevent the said consequences.

68.None of the four sub-issues of the Agreed Issues on liability were proved upon the agreed tests at para 19.1 (a) to (d) of the Judgment.

69.In the judgment at para 22, I found P not to be a credible witness, and her evidence was not believed.

70.At para 31 of the Judgment, P’s 1^st Report (Report of Mr Fung) and his evidence in Court were discussed. After having read P’s 1^st and 2^nd Report by Mr Fung, expert, and heard his evidence in Court, I found, at the last sentence of para 31 of my Judgment, that the conclusions of P’s 1^st Report was found to be unreliable and I questioned Mr Fung’s impartiality. P’s 1^st Report was prepared without visit and the benefit of an investigation of the 18/F. Its conclusions are therefore unreliable, as the investigation was superficial and incomplete.

71.As to P’s 2^nd Report, I noted at para 32 of my Judgment that P’s 2^nd Report “did not identify any location as the source of leakage for remedial work.” It is noted that unusually P’s 2^nd Report ended with a quotation of HK$46,717.20 for remedial work, which was outside of the Expert Direction. The experts at para 3.4A of the Joint Report recorded what the experts disagreed. It was there that Mr Fung maintained his suspicion/inference of leakage from the 18/F without identification or evidence of any particular source of leakage.

72.At para 37 of my Judgment, after considering all the evidence before me, I preferred the evidence of D’s Expert with regard to its findings upon the results of the tests that were conducted. The findings of D’s Expert’s at para 35 of my Judgment reads:

“5. CONCLUSION

5.1 This is a very comprehensive and details water tests for the captioned flat units at 17/F & 18/F Fortune Views, 22 Pau Chung Street, Kowloon.

(Hereinafter referred to as called “17/F” and “18/F” respectively.)

5.2 Water ponding test with colour/fluorescent dye at the shower tray at 18/F; no sign of water leakage was observed from 18/F to 17/F unit

5.3 Water spraying test at the internal wall of shower tray at 18/F; no sign of water leakage was observed from 18/F to 17/F unit

5.4 Water colour/fluorescent flushing test to the drainage points of

a) Kitchen basin

b) Bathroom basin

c) Bathroom floor drain

d) Water closet (WC Pan)

with different colour water.

No sign of water leakage was observed from 18/F to 17/F unit.

5.5 Both the infrared thermograph scans and protimeter test showed that no sign of water leakage was observed from 18/F to 17/F unit

6. These test methods fulfil the standard of Joint Office (FEHD & BD) in respect of water leakage investigation.

7. From the above test results, we believe the tested waterproof membrane & waterproof system at shower tray and tested drain points & drain pipes are in good condition and no water leakage occurred.”

73.At para 38 of my Judgment, on nuisance claim, the case of Larbons ante, at paragraph 76 was cited:

“76. Applying the test set out in the judgment of Woo, JA in the case Cheung Sau Ling and Ng Bing Hon v Cheng Lai Chong CACV 268/98 (unreported, 9^th April 1999), for seepage of water to constitute nuisance at common law, the defendant must be shown to have actual or constructive knowledge that the leakage of water originated from the Defendant’s property. Under this test, “knowledge” can be what the Defendant actually knew, or what the Defendant should have known with normal and reasonable diligence. If the Defendant can be shown to have actual or constructive knowledge that the water seepage originated from the Defendant’s premises, the Defendant will be liable unless remedial action is taken without unreasonable delay.” (my emphasis)

74.There is no presumption at law that for leakage to have originated from the floor above to the floor below (See Larbons ante at para 20). I found at para 39 of my Judgment that nuisance based on common law was not proved, as even after the Expert Reports upon investigations, no source of leakage was found to have originated from 18/F. I did not find that D to have had actual or constructive knowledge as to any of the alleged sources of leakage.

75.In fact, it was P’s evidence that she moved back to live in the 17/F premises end December 2020, after staying in a hotel for six months for repainting by a workman at the price of HK$14,000.00. It is also her evidence in Court that water seepage in her 17/F premises ceased no later than March 2023, when she rented the premises out to her tenant.

76.I conclude there is no reasonable prospect (means prospect that are more than fanciful) that P would succeed in an appeal if leave is given, as (i) I did not apply an incorrect burden of proof; (ii) I did not apply wrong legal tests; (iii) P failed to establish upon evidence that D had committed nuisance and/ or breach of DMC; (iv) P has failed to establish upon the evidence of the two experts any leakage to have originated from D’s premises at 18/F.

77.As to Ground 1 of the proposed Grounds of Appeal, I did not erroneously infer from tests results obtained at a few isolated locations that there was no leakage at all from the 18/F.

78.As to Ground 2, P argues that it is not a legal pre-requisite to identify the exact point of leakage, so long as the totality of the evidence allows on inference, on a balance of probability that the leakage originated from 18/F.

79.I have considered all the evidence whether oral or in documents before me. My judgment did not gravitate on the identification of “exact point of leakage” as P now suggests. In fact, there was no evidence of any leakage from 18/F at all and the 4 sub-issues on Liability at para 69 above all came back negative.

80.For the reasons I detailed in my Judgment, I prefer the evidence of D’s Expert. This is the Court’s finding. It is incorrect for P or P’s Expert to infer leakage, after the agreed tests failed to identify any leakage that originated from 18/F. The totality of evidence before me militates against any inference of P’s expert as to leakage from 18/F.

81.It is trite that case law directed that deference is to the original fact finder. The case of Bank of China Hong Kong Ltd v Tsang Sheung Bun [2013] 5 HKLRD 62 was cited in Ricoh Hong Kong Ltd DCCJ 2454/2013 at para 6 in support of deference.

82.It is my determination that leave to appeal is to be refused as P’s intended appeal upon the stated grounds has no reasonable prospect of success.

Discussion on the Stay Application

83.In P’s Leave Summons (at para 49 above), it was pleaded therein at “(3) If such leave be granted, execution of the Judgment be stayed pending the determination of the Appeal”.

84.As the leave application was refused, the stay as applied for above under P’s 1^st Summons also fails as well.

85.As to P’s application for Stay, at para 51 above, it was for execution to be stayed pending the substantive hearing and determination of this application and/or the proposed appeal or such other Order may be made as this Court may think fit.

86.P suggested that if execution of the costs order is enforced before an Appeal is heard and determined, P’s appeal would be rendered nugatory. I disagree.

87.No evidence has been adduced in support of P’s allegation that she will suffer significant hardship if the costs order is enforced. P is the owner of the 17/F unit that has been let out for rent. Enforcement of the costs order will not cause significant hardship nor render P’s right to appeal meaningless as P suggests.

88.In view of my refusal to give P leave to appeal, a further application for leave under Order 58 rule 2(4A) of the RDC may be made by P to the Court of Appeal, within 14 days of the date of refusal.

89.On the matter of Stay, Ma J (as he then was) set out in §§6-10 of Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 the principles upon which a stay application is to be considered as follows:

“6. Though in the court’s discretion whether or not to grant a stay, it is important to bear in mind that the starting point is RHC O 59, r 13(1):

‘Except so far as the court below or the Court of Appeal or a single judge may otherwise direct —

(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below;

(b) no intermediate act or proceeding shall be invalidated by an appeal.’

7. In other words, unless the defendant can justify a stay of execution, one will not be ordered. The practice of the court is that justification can be demonstrated only if good reasons exist.

…

9. In the context of these two factors, I would make the following observations:

(1) In determining the question whether or not an appeal would be rendered nugatory, the court must of course first have regard to the nature of the order that is the subject matter of the appeal. If the order appealed against is a money judgment, the court will require evidence as to why the levying of execution will result in the appeal being rendered nugatory … see Ketchum International plc v Group Public Relations Holdings Ltd [1997] 1 WLR 4, at 10H.

(2) That said, whatever the nature of the order or judgment appealed from, the court will still require evidence as to why an appeal will be rendered nugatory in the event of a stay not being granted. The requisite quality of the evidence will, of course, depend on the nature of the order or judgment appealed against.” [my emphasis]

90.It is noted P has produced no evidence that levy of execution will result in an appeal, if further pursued, being rendered nugatory.

91.In the circumstances, P’s application for stay should also be dismissed as D should not be deprived of the fruits of D’s successful defence.

Disposition

92.In the circumstances, P’s Summons for leave to appeal and for stay is dismissed as there is no reasonable prospect of P succeeding at an appeal.

93.The follow-on order is for “costs to follow the event” with P being liable to D for the costs incurred by D in defending against P’s Summons for Leave and Stay. D has presented its Statement of Costs for Summary Assessment by me under Order 62 rule 9A and I summarily assess the costs to be HK$80,000.00 payable forthwith by P to D.

The plaintiff acting in person

Ms Dorothy Cheung, instructed by Huen & Partners, for the defendant