Ting Wai Kwong v. The Incorporated Owners of Wah Fat Industrial Building

DCCJ444/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 444 OF 2006

BETWEEN

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Coram: Deputy District Judge K Lo in Court

Dates of hearing:  4, 5, 26 and 27 June 2007

Date of Delivery of Judgment: 23 July 2007

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J U D G M E N T

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1.The plaintiff claims against the defendant for loss and damages resulting from two incidents of water flooding to his property known as Workshop Unit 2 on 27th floor of Wah Fat Industrial Building, Nos. 10-14 Kung Yip Street, Kwai Chung, New Territories (hereinafter called “the Premises”) in early May 2005 and early July 2005 resulting from the alleged negligence and/or breach of duty of the defendant as manager of the said Wah Fat Industrial Building (hereinafter called “the Building”) under the Deed of Mutual Covenant of the Building (hereinafter called “the DMC”) and/or the Code of Practice issued under section 44 of the Building Management Ordinance, Cap. 344 (hereinafter called “the Ordinance”).

Plaintiff’s case

2.The plaintiff says he has carried on business under the name of Chit Shing Metal Manufactory (“Chit Shing”) and he also takes part in Chinese opera business.

3.The plaintiff says that in early May 2005 when he returned to the Premises, he noticed a pile of building construction debris in the corridor adjoining the rear entrance to the Premises, blocking the drainage and causing water flood into the Premises.  He lodged a complaint to the defendant and the debris was cleared and the flooding problem solved.

4.The plaintiff said on 1 July 2005 when he returned to the Premises, he again found flooding inside the Premises.  He said the same was because there was again building material debris in the same corridor, which formed something like a concrete dyke blocking the water flowing to the drainage, causing the water to overflow into the Premises.

5.He said a few days prior to 1 July 2005, there were yellow and red thunderstorm warnings.  He said as it was a public holiday that day, the management office was closed and he therefore did not inform the management of this event.  Instead, he took photos and video of the Premises.

6.On 2 July 2005, the plaintiff said he informed Mr Wong of the defendant of the flooding, who then contacted Mr Lau of Yuen Hing Engineering Company (“Yuen Hing”), the contractor at the time doing renovation works in the common area of the Building of the same.  They went up to the Premises and took photos.  The plaintiff said no one admitted liability for the said incident.

7.The plaintiff said, as a result of flooding in the Premises, a lot of Chinese opera performance related items stored by him at the Premises were damaged.

8.In his first witness statement, the plaintiff said neither the defendant nor Yuen Hing removed the cement dyke even after a few days despite his request.  He said, therefore, with the consent of Mr Wong of the defendant, the plaintiff himself removed the same.

9.In the statement of claim, the plaintiff said the loss suffered by him resulting from the incident were as follows:

11.In a second witness statement dated 6 June 2007, the plaintiff said of the 11 opera caskets, 9 were damaged together with its contents as a result of the flooding.  He said that the theatrical costumes were all damaged as the water soaked from the bottom of the wooden casket upwards and also left watermarks on the silk attires.  He said these clothes cannot be used further.  As for the other hair or head accessories, flags, picturesque, etc., they were also soaked and damaged and had to be written off.

12.He said that the claim amount in the statement of claim had already taken into account depreciation of these items and he therefore claimed on average $1,000 per piece for clothing and $300 per casket.

13.The plaintiff said he did ask Mr Lee Ying-hon（李英漢 ）of 龍飛鳳戲服專門店as to the value of these drama or theatrical costumes and accessories and was given a quotation of the same.  He produced to this court a handwritten note consisting of 48 quotes (pages 156 to 159 of the trial bundle).  The plaintiff also produced to the court a card of 劇服專門店 with a mobile telephone number.  No personal name appeared on this card.  The said Mr Lee did not testify in court nor did he make any witness statement.   The said note bears no letterhead and was not signed.

14.In his second witness statement, the plaintiff produced 61 photos showing 29 pieces of male theatrical costumes, 35 pieces of female theatrical costumes, 9 soldiers’ attires and four flags.  He also re-assessed the value of the male theatrical and female theatrical costumes himself and said that they should worth $95,100 (supplemental witness statement bundle P.70).

15.Plaintiff said he would not amend the statement of claim which says these were worth $61,000.  He said he also would not amend the numbers of wooden caskets damaged, i.e. from 11 to 9, as the sums involved were not substantial.  He said apart from using the theatrical costumes for himself, he also hired the same out at $400 per piece per time.

16.The plaintiff said before the flooding, he intended to organise a drama company to perform in the villages.  He said the backdrops previously placed in the Premises were damaged and he said that his claim for damaged musical instruments was based on the prices of those instruments at 凱聲琴行.  He said he already revised the claim amount downwards to take into account depreciation.  He produced the name card of the said凱聲琴行.  No witness statement was produced nor did anyone from凱聲琴行testify in court.

17.As for his claim for damaged metal parts and other metal accessories, the plaintiff said he had counted the number of bags of metal parts damaged, the number of metal parts in each bag, the unit price for each metal part.  He said that the bags were piled in a stack of seven to eight.  He said the bottom layer of these bags was wet and part of the bags in the second layer was also wet.  He said he had taken into account depreciation when addressing and assessing the value of his claim.

18.He said the metal parts were manufactured by him and were stored there for a long time.  He said he was previously asked by a company client to properly store the same as this client might in future purchase these goods.  He produced some invoices for metal parts ranging from year 1992 to 1997, mostly issued by Chit Shing (pages 162-71 of trial bundle).

19.The plaintiff said, as for the other claims items, they were clearly damaged by the flooding as illustrated in photos produced to court (page 291 to page 311 of trial bundle).  He said he assessed the value of these items having regard to depreciation.

20.In court, the plaintiff in cross-examination agreed that in fact the defendant did issue and did publish notices in the ground floor lift lobby for 24-hour emergency telephone numbers.  He admitted he did not try to contact the defendant on 1 July 2005.

21.He also admitted that there were caretakers employed by the defendant on the day in question in the car park but he did not inform them of the incident or ask them for assistance.

22.The plaintiff in court said he did not expressly and directly request the defendant to remove this cement dyke but, as he realised, they still failed to do so up to the morning of 7 July, he talked to them and sought their consent to remove the same himself.

23.He produced several posters which indicated that he had acted as musical director in these Chinese opera performances.

24.In cross-examination, the plaintiff admitted that as a musical director, he need not provide costumes or backdrops for the performances.

25.In cross-examination, the plaintiff said for performances shortly prior to and subsequent to the July flooding incident, the musical instruments used by him were not fetched from the Premises but were taken from his home as he has more than one set of musical instruments.

26.He admitted in cross-examination that the latest business registration certificate of Chit Shing taken out by him were for the year 2001 to 2002 and that he had not renewed the same since then.

27.The plaintiff said prior to the removal of the cement dyke, he did not try to clear the water in the Premises.  He said with the dyke still there, it would not be possible for him to clear the water from the Premises to the drainage.  He said the water would simply flow back to the Premises.

28.In support of his claim for the damaged metal parts, he had produced invoices of Chit Shing between years 1994 and 1997 and two purchase orders addressed to Chit Shing issued in year 1992 and year 1997.

29.He also produced his name card of Chit Shing and another as a musical director of a Chinese opera group.

30.The plaintiff in his evidence did not produce anything to support his purchase of any of the claim items or, in fact, any receipts for the replacement of any alleged damaged items.

31.He admitted that when he bought the theatrical costumes, some were bought brand new and others were bought from people and he did not know whether they were new or second-hand items.

Defendant’s case

32.Mr Wong of defendant (hereinafter called “Wong”) said they had prior to the incident signed a renovation contract with Yuen Hing for repair/renovation to certain common parts of the Building.  They had also signed a consultation agreement with the Universal Housing Engineering Consultants Limited (“Universal Housing”) as the authorised person to organise and supervise the repair work by Yuen Hing.

33.Wong said these repairs works commenced on or about 23 February 2005.

34.He also said in early May 2005, he received the first complaint from the plaintiff saying that some building material debris was piled up in the corridor outside the rear entrance of the Premises.  Wong said he had once asked Lau, foreman of Yuen Hing, to remove the same on urgent basis.  Soon Lau reported the same was done and he did not receive further complaints from the plaintiff.

35.Wong said on 2 July 2005, the plaintiff made another similar complaint.  He said that rainwater flooded into the Premises.  Wong said he at once called Lau of Yuen Hing and together with his colleague, Yau and himself, he went to the Premises to investigate.  Photos were taken.  He said the plaintiff requested Yuen Hing to compensate for the damaged goods, saying the flooding resulted from the blockage of the drainage by the building material debris left over by Yuen Hing.  Wong said Lau denied such allegation.

36.Wong said in order to settle the problem and out of goodwill and without admitting liability for the same, he had offered to remove the building debris but was refused by the plaintiff.

37.Wong said in court that the reason the plaintiff said as to why he refused Wong to remove the same was to preserve the evidence.  Wong said he did not remove the same later as he was afraid that the plaintiff might allege that he had tampered with the evidence.

38.Wong said on 8 July 2005, the plaintiff again requested Lau and himself to the Premises to take photos of the damaged goods.  He said he did as a result take further photos.

39.Wong said in mid-July 2005, he was informed by the plaintiff that he had removed the building debris.  He said the plaintiff did not seek consent from him before that, as he now alleged.

40.Wong said he compiled an incident report on 26 July 2005 (page 202 of trial bundle).  In the said report, the defendant said that the plaintiff informed the defendant that he had removed the cement dyke in mid-July.  The report also stated that the defendant received two letters from the plaintiff’s solicitors of 16 July 2005 and 19 July 2005 claiming $200,000 and that they had via their solicitors replied on 26 July 2007.

41.The defendant said apart from the May 2005 and July 2005 flooding incidents, they had not received any flooding complaint from the plaintiff.

42.Wong said the defendant had taken reasonable steps in instructing Universal Housing in ensuring that work by Yuen Hing is properly done and that they had complied with the Ordinance in the appointment of caretakers and consultants in relation to the whole renovation project.

43.Wong also said that in the letter of 16 July 2005 from the plaintiff’s solicitors, the plaintiff asked the defendant to remove the cement dyke.  Wong said therefore the plaintiff was not telling the truth when he said that he had removed the same as early as 7 July 2005.  He said he remembered that the plaintiff did come to his office one day in about mid-July 2005 and said that he had just removed the cement dyke.

44.He said prior to this date, the plaintiff did not request the defendant to remove the same nor did he seek consent from the defendant to remove the same.

45.According to Wong, on 2 July 2005, the plaintiff only opened four wooden caskets and asked him to look.  He said he did touch the top layer of the clothing in the box.  They were all dry.  They were, however, yellowish and very dirty with black spots on them.  The floors in the room at the time were wet, but they were not really flooded.  He said that only the bottom corners of the boxes were wet.

46.Wong said that the plaintiff did not invite Wong to inspect all the alleged damaged items nor had the plaintiff at the time checked them out.  He said goods shown on pages 244 to 245 of the trial bundle were then not wet at all.

47.Wong said his colleague, Yau, did take photos of the costumes depicted in Exhibits TWK-2(1)-(61) and had visited a Miss Wong of A1 Company on 16 June 2007 and was told that these costumes were outdated and old and damaged due to long time storage and that they were only worth very, very little, maybe only a few dollars per piece.  Wong said he had himself also rung up the said Miss Wong to confirm the same from her.  According to Wong, A1 is a company that specialises in manufacture and production of Chinese opera costumes and he said they were told that Miss Wong had been in the trade for over 10 years.

48.Again Miss Wong did not testify in court nor did she make any witness statement.

Issues

49.The parties here do not dispute that the defendant owes a duty to the plaintiff whether under the BMO or under the DMC.

50.Counsel for the plaintiff has submitted that the defendant is under a duty to maintain the common parts in a state of good and serviceable repair and clean condition and to do all things reasonable for the enforcement of obligations contained in the DMC.  She also submitted that such duty is non-delegable.

51.She admitted that the plaintiff is required to prove on the balance of probabilities that the defendant was in breach of the said duties and, therefore, if he was found to be in breach, he would be liable for the loss resulting from such breach.

52.She also submitted that the defendant was under the tort of negligence, required to prove the defendant was under a duty of care to exercise reasonable care in managing the common area, to take effective steps and to act expeditiously when the flooding was made known to them.  She, however, said that an unusual downpour is irrelevant to this case.

53.The defendant conceded that they were under a common duty of care to the plaintiff whether under the contractual duty imposed under the DMC or the statutory duty imposed under the BMO.  He said that they had discharged such duty and that there was no breach.

54.The defendant said that when entrusting the renovation to Yuen Hing and Universal Housing, there was no reason to doubt their competence.  The defendant further said that they had properly and reasonably included certain terms and conditions into the relevant contract requesting Yuen Hing and Universal Housing to ensure that no drainage openings shall be blocked by any debris of building waste and, if they were so blocked, they should be removed immediately (clause 13 of the bidding contract).

55.The defendant further said that there was also the posting of the 24-hour emergency contacts in various places so that it would be possible for anyone to contact its representatives and that they had also caused Yuen Hing and Universal Housing posting similar notices in the Premises.

56.In addition, the defendant said that they responded swiftly every time on receiving a complaint and he said that they responded quickly to the complaint regarding the May and the July 2005 flooding lodged by the plaintiff.

57.The defendant said that they had either removed, or caused to be removed, the cement dyke and this debris or, alternatively, as in the July incident case, they had offered to remove the debris but were refused.

Conclusion

58.This court has the benefit of seeing and hearing the witnesses in court.

59.In this case, the only evidence of the plaintiff, apart from all these videos and photos, came from the plaintiff himself.  It is noted by this court the plaintiff has, however, been far from full and frank when giving evidence.

60.Throughout the proceedings, he said he operated his Chit Shing business.  Yet in cross-examination, he admitted that there was no renewal of the business registration certificate of Chit Shing after year 2001/2002.  The documents he produced regarding this business all dated back many years ago.  Clearly he had not been operating the Chit Shing business for a long time and, whatever he said, the metal parts stored in the Premises were clearly goods left over from the trade.

61.Further, in examination in-chief, the plaintiff said that the depth of the water in the Premises was much more than what the court saw on the video and also on the photos produced by both the plaintiff and the defendant.  Clearly, the plaintiff was exaggerating in his evidence.

62.Although there was flooding in the area near the rear entrance of the Premises, the depth of the water was much less than what the plaintiff said.  The photos also showed that only part of the bottom packet of the pile of metal parts was wet.

63.Although the plaintiff maintained that he had already cleared the cement dyke on 7 July 2005, nevertheless, his lawyers’ letter dated 16 July 2005 demanded the defendant to remove the same.  This clearly contradicted his evidence.  The plaintiff explained that he had forgotten to tell the lawyer that he had cleared the cement dyke earlier but this explanation is not accepted by this court.

64.It was the plaintiff’s case that the dyke was the cause of the flooding in question as it prevented the water from flowing down the drain.  But after watching the video and the photos (nos. 219 to 222 of the trial bundle), the so-called dyke was merely a small pile of building material half-encircling the drainage hole.  Therefore, water could still flow to the drainage through the gap although, of course, the flow would be to a certain extent made slow as a result of this pile of building material.  This court is not persuaded that the same had caused the flooding, at least not a significant cause.

65.There is also no evidence before the court as to when the dyke existed and who caused the same to exist.  On the plaintiff’s evidence, he did only notice the same on 1 July 2005.  He did only complain to the defendant of the same on 2 July 2005.  Although there was water outside the Premises from the video and the photos taken on 1 July 2005, one could not know since when that the water had accumulated there.

66.The standard of care of the defendant in this case is one of reasonable standard of care.

67.I accept the submission by counsel for the defendant that, having done what they did, as they submitted, which I accept as a fact, in the premises, the defendant had discharged their duty properly and acted reasonably.

68.There was nothing before this court which showed the flooding had subsisted for a long time and yet unnoticed by the defendant.

69.In the premises, I find that the plaintiff has failed to prove that the defendant did breach this duty of care.  The claim of the plaintiff is dismissed.

70.For the sake of completeness, I will now cover the other issues in this case.

71.It is noted that the plaintiff had failed to minimise his loss.  He failed to remove the items from the wet trunk and instead left them there.

72.The plaintiff also failed to try to clear the water within the Premises.  He said as the dyke was still there, the water could not be cleared away.  This clearly was not true.  There was a 1½ inch ledge at the rear entrance of the Premises.  Once the water was swept outside the Premises, they could not have re-entered the Premises unless the water level is higher than the 1½ inches.  As shown on the video and the photographs taken on 1 July 2005, the depth of the water outside the Premises clearly was far, far below 1½ inches.

73.Further, although the plaintiff discovered the flooding on 1 July, he did not inform the defendant of the same until the 2nd.  His explanation about that day being a holiday when there was the 24-hour emergency contact telephone number is not reasonable.  His failure to inform the caretaker again is not reasonable.

74.I would also accept the evidence of the defendant that, in fact, the defendant was informed in mid-July by the plaintiff that he had removed the cement dyke and that the plaintiff had previously refused the defendant’s help to remove the same.

75.Coming to the issue of quantum, save for the evidence of the plaintiff, which this court finds unreliable, the claim amount really was not substantiated.

76.The plaintiff says that the amount claimed in relation to the theatrical costumes was based on years of usage, depreciation, etc. but he did not say the age of the costumes or how these values of each of the same were arrived at.

77.He did also produce to the court this undated handwritten note with no company name or signature alleged to be from a person familiar with the trade.  The quality of this piece of evidence is, however, very poor.  The person was not called to give evidence by the plaintiff.  The plaintiff did not explain why he failed to call this person and, therefore, this court would not place any weight on the handwritten note.

78.As for the valuation of the claim items by the plaintiff, although he said he has been in this Chinese opera trade for more than 15 years, on evidence before the court, as a musical director or as an artist, the job does not include the supply and/or sale of theatrical costumes.

79.Further, although he said he did earn income by hiring these costumes at $400 per time, these occasions were rare.  I do not find, therefore, with his background, that his personal valuation or assessment of these items was reliable.

80.In addition, this court does not find that the alleged quantity of the damaged items proved.  The photos and videos clearly show that there was flooding inside the storage room of the Premises at some time prior to 1 July 2005 when photos and videos were taken.  They also showed that the flooding affected the goods placed within a few inches from the floor.

81.This court also noticed that there was no evidence adduced towards some of the claim items, for example, watchbands and accessories 32,500 pieces, whistles 10,000 pieces or 4.5 tons of metal ware or brooch bases 1,000 pieces.  Even for the items like 鑊仔、大戒指and 鐘仔, the quantity shown in the videos and photos were far less than the claimed quantity.

82.On evidence before the court, I find that the amount of goods damaged were exaggerated by the plaintiff.

83.The photos shown to this court also supported the evidence of Wong of the defendant that when he inspected the clothes, they appeared to be really old and tainted.

84.Although the metal parts are said by the plaintiff to be damaged by the flooding incident, nevertheless, as the same are leftover goods from quite a number of years in the past and they were made of iron, I accept that the cause of the rust of these metal parts is probably due to the lapse of time rather than the flooding incident (photos on page 291 to 294).

85.In addition, the value of these metal parts is totally unknown to this court.  The invoices disclosed by the plaintiff, even if they did refer to those metal parts in this case, was dated many years back and with the state and condition of these parts as they stand, the valuation of these metal parts based on these invoices ages ago was obviously not of much help to this court.

86.Coming to the other miscellaneous items claimed by the plaintiff, again the value of the same was not substantiated.  I do not find, therefore, again that the quantum as alleged by the plaintiff was proved.

87.Costs shall follow the event.  I order that the plaintiff shall pay costs of the proceedings (main action) (including any costs reserved) to the defendant, the same to be taxed, if not agreed, with certificate for counsel.

Miss Lydia Sun, instructed by Messrs Thomas Li & Yu, for the Plaintiff

Ms Linda Wong, instructed by Messrs Paul W Tse, for the Defendant