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

HCMP 1827/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1827 OF 2007

(ON AN INTENDED APPEAL FROM DCCJ NO. 444 OF 2006)

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Before : Hon Cheung JA and Lam J in Court

Date of Hearing : 18 July 2008

Date of Decision : 18 July 2008

Date of Reasons for Decision : 24 July 2008

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REASONS FOR DECISION

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Hon Cheung JA :

Leave to appeal

1.The plaintiff claimed against the defendant in the District Court for damages caused to his goods as a result of the flooding of his premises.  His claim was dismissed by Deputy District Judge Lo.  Leave to appeal was refused by Judge Lo and a single Judge of this Court.  The plaintiff renewed his application before us.

The plaintiff’s claim

2.The plaintiff’s premises are located in an industrial building (‘the building’).  The defendant managed the building.  Renovation work was carried out at the building.  The area outside the plaintiff’s premises was not wholly enclosed by the external wall.  On 1^st July 2005 after a heavy rainstorm the plaintiff discovered that his premises were flooded.  He claimed that the flooding was caused by construction material or debris (‘the debris’) placed outside his premises which blocked the drainage of water.  He claimed that the defendant had allowed the debris to be placed there and the defendant was in breach of the duty imposed by the terms of the Deed of Mutual Covenant of the building and was also negligent.

The finding

3.Judge Lo found that the debris did not block the drainage and she found that the plaintiff had not ‘minimized’ his loss by not clearing the water inside his premises until the middle of July 2005 after the flooding was discovered on 1 July 2005.

Proposed grounds of appeal

4.Five proposed grounds of appeal are relied upon and I will deal with them in turn.

5.The first ground is that the finding that the debris did not block the drainage was wrong in view of the new evidence which the plaintiff proposed to adduce.  The new evidence is that after the judgment the plaintiff discovered that the occupier of another premises on the same floor of the building also had his premises flooded by the blockage of the drainage by building material or debris.  After the complaint by the occupier to the defendant, the situation was remedied by the defendant by having those obstruction removed.  The occupier, however, refused to give evidence in Court or provide a witness statement.  The plaintiff relied on a taped conversation between him and the occupier. 

6.This new evidence clearly fails to satisfy the first requirement of Ladd v. Marshall.  The alleged flooding of the other premises had occurred around the same time of the plaintiff’s premises.  Such evidence was then available and had the plaintiff made reasonable diligent inquiries with his neighbours, he could easily have obtained such evidence.  Further such evidence also fails to satisfy the ‘apparent credibility’ test.  How is the Court to test the truthfulness of the occupier’s story when he is not even prepared to commit his case in a written form.

7.The second ground is that Judge Lo had wrongly dealt with the issue concerning a water stoppage bar constructed at the corridor on the floor.  It is apparent from the judgment (and this was accepted by Ms Kung, counsel for the plaintiff) that Judge Lo did not rely on this bar in her finding against the plaintiff.

8.The third ground is that Judge Lo was wrong to find that the defendant had adequately responded to the plaintiff’s complaint.  Judge Lo found that the defendant had offered to remove the debris outside the plaintiff’s premises but this was refused by the plaintiff who insisted to ‘preserve the evidence’.  The plaintiff submitted that this finding was contradicted by the pleaded defence of the defendant that it had ‘demanded’ the plaintiff to remove the ‘dike-like’ structure outside his premises which was only removed in mid-July 2005. The ‘dike-like’ structure was a reference to the debris outside the plaintiff’s premises.

9.I do not see how this could constitute a proper ground of appeal against a finding of fact.  Judge Lo having heard the parties must be in a position to assess what was actually said by the witness for the defendant.  Further, Ms Kung accepted that the plaintiff’s former counsel at the trial did not raise this issue with the witness or address this matter in her submission.  This being the case I fail to see how this issue could affect the finding.

10.The fourth ground is that Judge Lo was wrong to accept the evidence of the defendant’s witness.  The challenge is again based on the new evidence which I have addressed.

11.The fifth ground is that Judge Lo had wrongly assessed and refused to accept the evidence of the plaintiff.  Again the challenge is based on the new evidence which I have dealt with.

Conclusion

12.The decision of Judge Lo was based on a finding of fact.  The grounds advanced by the plaintiff failed to show that he has a reasonable prospect of success of the appeal.  Accordingly this Court refused leave and made no order as to costs of the application.

Hon Lam J :

13.I agree.

Ms Athena C. Y. Kung, instructed by Messrs Tong Chan & Co for the Plaintiff