Hui Ling Ling v. Sky Field Development Ltd

CACV 122/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 122 OF 2012

(ON APPEAL FROM HCA NO. 35 OF 2007)

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BETWEEN

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J U D G M E N T

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Hon Stock VP:

1.I agree with the judgment of Kwan JA.

Hon Kwan JA:

2.This is the plaintiff’s appeal against the judgment of Recorder Yuen, SC given on 8 May 2012 after an eight-day trial.  The plaintiff, Madam Hui Ling Ling, is the registered owner of a residential flat on the 6^th Floor of a building in the Whampoa Garden housing estate (“the plaintiff’s flat”).  The defendant, Sky Field Development Limited, is the registered owner of the flat on the 7^th floor directly above it (“the defendant’s flat”).  The claim in the action was for damages for water leakage to the plaintiff’s flat.  The recorder found the plaintiff had failed to establish that the leakage had originated from the defendant’s flat and dismissed her claim.  The dispute turned on the expert evidence adduced by the parties.

3.Mr Chua Guan Hock, SC, who appeared for the plaintiff in this appeal with trial counsel Mr George Chu, challenged the findings of fact made by the recorder in rejecting the evidence of the plaintiff’s expert Stewart Wong Shun Tai of Proficient Surveyors & Co (“Mr Wong”) on the source of the leakage.  The question for this court is whether there is any basis for interfering with the factual findings of the recorder.  Mr Chua sought to persuade us there is, in that the factual conclusions of the recorder were inconsistent with contemporaneous documents, the inherent probabilities and incontrovertible evidence, and were based on misapprehension of the facts or some faulty process of reasoning.  He also contended that the recorder had erred in law and in principle in taking issue with the expertise of Mr Wong and urged this court to scrutinise the judgment with special care owing to the delay of 19 months of the recorder in giving judgment.

4.Before examining the evidence and counsel’s submissions, I would summarise the relevant background facts, which are not controversial and are taken largely from the recorder’s judgment.

The background

5.The building in question was completed in 1988.  The defendant was and is in the business of investing in properties and purchased its flat from the developer in 1989.  It owned a number of flats in Whampoa Garden, which it leased out for rental income from time to time.  The lettings of the defendant’s flat were during the following periods: 22 May 1991 to 21 May 1993, 1 September 1993 to 31 August 1995, 1 September 1995 to 31 August 1996, 1 September 1996 to 31 August 1997, 25 March 2003 to 31 May 2003 and from 13 July 2004 to 12 July 2006.  In respect of the last letting, the tenant surrendered the tenancy in September 2004 and vacated the premises in December 2004.  Thus, for over five years from September 1997 to March 2003, and since December 2004 the defendant’s flat was unoccupied.

6.The plaintiff purchased her flat in 1993 and resided there with her family after taking possession.

7.In September 1995, the plaintiff first discovered water leakage in her flat.  She made complaints to the management company of the housing estate in 1997 and 1998.  She instructed solicitors to write to the defendant in January 1998 with a claim for damages, and the management company took up her complaint with the defendant in February 1998.  The leakage caused short circuit of electricity in her flat and in 1998 and 1999, the plaintiff engaged a contractor to re-wire the electric wires of the bathroom.  With the consent of the defendant, fresh water supply to its flat was suspended in September 1999, as its flat was unoccupied at the time.  Notwithstanding this, seepage to the plaintiff’s flat was still reported in December 1999.

8.During October 2000 to January 2001, the plaintiff and her family moved out of her flat for extensive renovation and remedial works.  Her son, Mr Yeung, who was living with her, got married around this time.  For the first six months after they all moved back, there was no leakage.  The problem re-appeared after that and water dripped from the ceiling of the guest bathroom and master bathroom.  The affected area extended to the corridor, the master bedroom and the living room.

9.Mr Yeung complained to the management company in January 2002.  Between 19 and 24 April 2002, the management company removed the surface of the external wall outside the bathroom of the plaintiff’s flat for inspection.  The external wall was then made good with a new waterproofing layer.

10.The leakage problem continued notwithstanding the work to the external wall.  In September 2002, Mr Yeung made another complaint to the management company.  The plaintiff and her family moved out in December 2002 and her flat was left vacant since until they moved back in early 2007.

11.On 17 April 2003, the Food and Environmental Hygiene Department (“the FEHD”) conducted an investigation into the drainage system following a complaint to it of the leakage problem in the plaintiff’s flat.  It conducted colour dye tests at all relevant and likely drain outlets in the defendant’s flat, collected samples from the plaintiff’s flat and sent them to the Government Laboratory for analysis.  All the results were found negative, indicating no signs of defective drains in the defendant’s flat.

12.A meter flow test was carried out by the Water Authority on 25 April 2003 on the referral to it by the FEHD of the complaint of water seepage in the plaintiff’s flat.  This was done to verify if there was leakage in the inside service of the defendant’s flat.  The test was carried out by observing the water meter for 30 minutes with all taps turned off.  As no registering of flow through the meter was observed, the Water Authority concluded that no leakage was detected in the inside service of the defendant’s flat and terminated its investigation.

13.Letters were exchanged between the plaintiff’s solicitors and the defendant between August 2003 and February 2004.  On 18 February 2004, the plaintiff brought this action against the defendant in the District Court, which was later transferred to the High Court.

14.In early February 2004, fresh water supply to the defendant’s flat was suspended at the request of the plaintiff.

15.Following the commencement of this action, Mr Wong was engaged as the plaintiff’s expert to investigate into the cause of leakage and to survey the damage to her flat.  He conducted surveys of the plaintiff’s flat on 4 and 23 April 2004 and 10 August 2004.

16.On 14 September 2004, Mr Wong carried out various tests at the two flats in the presence of the defendant’s expert Mr Kenneth Chan Jor Kin of KC Surveyors Limited (“Mr Chan”): colour dye tests (to test the water seepage of the bathtubs in the guest and master bathrooms of the defendant’s flat); flooding test (to test the permeability of the floor  of the bathrooms of the defendant’s flat and seepage through the floor slab); testing with moisture meter (to record dampness levels in the ceiling slab of the bathrooms of the defendant’s flat); meter flow test (same as that done by the Water Authority, to check if there was leakage in the plumbing system in the defendant’s flat); and forensic test (to take samples from the concrete and plaster of the plaintiff’s flat for analysis of the chloride content in a laboratory).

17.On 11 October 2004, another joint inspection was held with both experts present, for a pressurized water test to be carried out to the plumbing system of the defendant’s flat by a technician (to check if there was leakage in the plumbing system in the defendant’s flat).

18.In 2006, the plaintiff carried out substantial renovation to her flat and moved back with her family in early 2007.  Mr Yeung accepted that the leakage problem had effectively stopped after that.

The judgment of the recorder

19.The key issue at the trial was whether the plaintiff had succeeded in discharging her burden of proving, on the balance of probabilities, that the source of leakage was the defendant’s flat.  The resolution of this dispute turned on the expert evidence.

20.Mr Wong was of the view that the defendant’s flat was the origin of the leakage and the leakage was the result of multiple causes including the following: (1) escape of salty flush water due to defective flush water supply pipe fittings and drainage facilities; (2) escape of fresh water due to defective fresh water pipes and fittings; (3) escape of fresh water through worn drainage pipe fittings; and (4) the long term escape of salty flush water from the facilities of the defendant’s flat.

21.The defendant’s expert Mr Chan held a contrary view.  He was of the opinion that the defendant’s flat was not the source of the leakage problem.

22.The recorder considered the possible sources of water that might have caused the leakage problem and they were: (1) fresh water; (2) salty flush water; (3) water from operation of air-conditioners; and (4) rain water.

23.He held that fresh water could not have been the source of the leakage problem and gave four reasons: (1) the defendant’s flat was left vacant for two considerable periods of time, the letter issued by the Water Supplies Department in October 2005 showed that the quantity of fresh water used was so negligible during January 1997 to September 2004 that water charges were levied only for May 2003; (2) the meter flow test conducted by the Water Authority on 25 April 2003 showed there was no leakage in the inside service of the defendant’s flat; (3) the investigation of the FEHD on 17 April 2003 did not reveal any visible defect of the drainage system; and (4) fresh water supply to the defendant’s flat was suspended in early February 2004 at the plaintiff’s request.

24.As for salty flush water, this was also ruled out by the recorder. Taking the plaintiff’s case at its highest and as could be seen from the photographs produced, there were no major or significant defects of the flush water drainage facilities at the defendant’s flat.  At most, there was very limited quantity of salty water seeping through some of the pipes.  The evidence did not reveal flush water leakage problem of such an extent as would have caused the problems suffered by the plaintiff.

25.Water caused by operation of air-conditioners was likewise excluded, for reasons similar to the above – the vacant state of the defendant’s flat for long periods and the limited quantity of water produced during the operation of air-conditioners.

26.Whilst not strictly necessary for the court to find the real source of the leakage problem, the recorder was of the view that on the available evidence, the most likely cause was rain water, since there appeared a co-relation between the leakage and the rainy seasons.

27.Leaving aside the expert evidence, the recorder was of the view it was inherently improbable that the defendant’s flat was the origin of leakage.  He had regard to the following matters in considering the inherent probabilities:

(1) Following the remedial works done to the plaintiff’s flat during October 2000 to January 2001 the leakage problem stopped for about six months, similarly after the substantial renovation to the plaintiff’s flat in 2006, the leakage effectively stopped. In contrast, no renovation or repair was done to the defendant’s flat in 2001 (it was left vacant from September 1997 to March 2003) or in 2006 and 2007.  This would suggest that the leakage problem had nothing to do with the defendant’s flat, and might have something to do with the plaintiff’s flat.

(2) Mr Yeung agreed that the water leakage was more serious in rainy seasons, which was inconsistent with the source of leakage in the defendant’s flat.

(3) The tests carried out by independent bodies, namely, the FEHD and the Water Authority, did not link the leakage problem with the defendant’s flat.  There was no evidence to suggest the tests were not properly done.

(4) The leakage problem as suggested by the plaintiff was serious but there were no signs of serious or obvious defects in the drainage system of the defendant’s flat as would have caused the serious problem described by the plaintiff.

28.The recorder then considered the key tests relied on by Mr Wong to identify the source of leakage and came to the following conclusion:

(1) Colour dye test

The results showed minor seepage through the cracks around the bath tub.  The recorder agreed with Mr Chan’s observations and did not find the tests demonstrated leakage to the plaintiff’s flat.  The recorder noted the test results were similar to the test of the FEHD in April 2003.

(2) Flooding test

The recorder considered the evidence of Mr Wong, who testified that he returned to the plaintiff’s flat two days later and found more water dripping from the ceiling light point at the corridor of the plaintiff’s flat and also took the view the damp proof course in the floor slab of the guest bathroom of the defendant’s flat was worn and subject to leakage.  The recorder rejected that evidence and accepted the evidence of Mr Chan, who pointed out it was not a common practice at the time to have damp proof course installed in the bathroom and testified that the flooding test had not resulted in any leakage to the plaintiff’s flat.

(3) Pressurised water test

The recorder found Mr Wong to be ignorant of the requirement that this test was required to be done by a licensed plumber.  Further, his suggestion that any drop in pressure, however minor, showed leakage was an exaggeration.  These matters cast doubt on his expertise or reliability.  The recorder did not accept that the pressurised water tests showed leakage as suggested by Mr Wong.  He accepted the evidence of Mr Chan that the first three tests were not properly conducted and the last test, with the minor drop in pressure, was within the acceptable range.

(4) Chloride samples

Mr Wong testified that the chloride content in one of the three samples taken of the concrete and plaster in the plaintiff’s flat was seven times higher than normal in the concrete of building construction, and relied on this to support his contention that salty flush water of the defendant’s flat had leaked to the plaintiff’s flat.  The recorder agreed with the criticism of the defendant’s trial counsel regarding the way the samples were taken and of Mr Wong’s reasoning.  More importantly, the recorder held on the basis of the photographs and Mr Chan’s evidence that they did not reveal obvious defects of the flush water system in the defendant’s flat which would have caused the extensive problem in the plaintiff’s flat.

29.The judge held that the expert evidence of Mr Wong did not support the plaintiff’s case or was not sufficient to prove that the defendant’s flat was the source of the leakage problem.  He accepted Mr Chan’s opinion that the various tests conducted by Mr Wong did not show that the leakage problem had originated from the defendant’s flat.  As the plaintiff had failed to discharge the burden of proving her case on the balance of probabilities, her claim was dismissed.

The evidence of the plaintiff’s expert

30.When the recorder began to discuss Mr Wong’s evidence in his judgment, he quoted from a decision given by Her Honour Judge Ng in Hui Ling Chun v Shiu Mak Ying & Anr, DCCJ 10294/2001, 3 March 2004, in which Mr Wong gave evidence as an expert witness for the plaintiff.  Although there was no dispute about his capacity to testify as an expert, Judge Ng referred to his qualifications and experience in some detail in assessing the weight to be given to his evidence.  She expressed reservations on his ability to speak reliably on expert investigation into the causes of water leakage, stating at para 34 that “such concern is reflected in some contradictory and speculative aspects of his evidence seen below”.

31.The case of Hui Ling Chun was listed in Mr Wong’s expert report in the present case as one of the many cases in which he was accepted by the court as an expert.  Other than that, it was not specifically referred to at the trial by any one.  Having quoted from the comments of Judge Ng, the recorder said he agreed with the judge’s comments and found her observations remain valid notwithstanding that case was six years ago as it would appear from the answers Mr Wong gave in cross-examination about his qualifications that they had not improved materially since 2004.  He did not rule Mr Wong’s evidence inadmissible on the ground he was not qualified to be an expert for the purpose of this case, as it could not be gainsaid that Mr Wong had handled numerous water leakage cases and was very diligent in attending various courses relating to construction or engineering, but he has “serious reservations about the reliability of his evidence”, noting that “exaggerations aside, many of the observations made by Wong were no more than bare assertions without detailed or solid reasons or analysis.”

32.Mr Chua submitted that the way in which the judge approached the expert evidence of Mr Wong was flawed and unfair to the witness.  It is unrealistic to expect an expert witness, who had testified in numerous cases, to have a 100% track record.  The fact that Mr Wong’s expert evidence was rejected or severely criticised in one instance does not mean the court should have reservations about the reliability of his expertise.  Mr Chua cited to us 13 other cases between 2001 and 2012, in which Mr Wong’s expert evidence was accepted by the court without adverse comment.  It was unfair to Mr Wong as the recorder did not give him or the plaintiff’s legal advisers an opportunity to deal with any concern the recorder might have arising out of the adverse comments of the judge in Hui Ling Chun.  The recorder was relying on materials that the parties were ignorant of.  The requirement for a fair trial was not met.  In allowing himself to be influenced by the adverse observations against Mr Wong in another case, Mr Chua submitted that the recorder was “taking a short cut” in assessing Mr Wong’s evidence after he had delayed for a long time in giving judgment.

33.It should be noted that Mr Wong’s qualifications, expertise and experience were the subject of considerable cross-examination at the trial.  So these were matters clearly put in issue.  Although the defendant’s counsel did not challenge the admissibility of Mr Wong’s evidence as expert evidence, he made it quite clear he would in his final submissions ask the court to have regard to Mr Wong’s qualifications in considering what weight was to be given to his evidence.  So I do not think the plaintiff’s legal advisers were taken by surprise that Mr Wong’s qualifications would be considered by the recorder when he came to assess Mr Wong’s evidence.  Having said that, I think the recorder should have given the parties an opportunity to comment on the case of Hui Ling Chun before he made quite extensive use of it in his judgment.  Had he done so, the plaintiff’s legal advisers might well have made submissions along the lines of Mr Chua’s as mentioned above.

34.The failure of the recorder to give the parties an opportunity to address him on Hui Ling Chun must be looked at in context.  On a fair reading of paragraphs 38 to 43 of the judgment, I agree with the defendant’s counsel Mr Jat, SC (who appeared with Mr Jin Pao in this appeal, and neither had appeared at the trial) that the recorder had evaluated Mr Wong’s evidence from various angles: his qualifications (that he was not a registered or chartered engineer, nor was he a registered or chartered surveyor in building survey); the manner in which he conducted various tests; the exaggerations in his evidence; that many observations he made were without detailed or solid reasons or analysis; that on occasions he tried hard to put forward answers to support his case when plainly the answers could not withstand scrutiny.  Mr Wong’s qualifications were but one of the factors weighed up by the recorder in considering his reliability as an expert witness.

35.Nor do I agree with Mr Chua that the recorder had taken a short cut by referring to Judge Ng’s comments of Mr Wong in Hui Ling Chun.  Plainly the recorder had not.  On a proper reading of his judgment, what he sought to do, in quoting from that case, was merely to express agreement with the observations of Judge Ng on Mr Wong’s qualifications, which remained substantially the same at the time of the trial in 2010 as in 2004.  As I have mentioned earlier, the recorder had considered Mr Wong’s evidence from various angles in forming the view that he would have serious reservations about the reliability of his evidence.

36.I do not think there is substance in this ground of appeal.

The delay in delivering judgment

37.The recorder had delayed for 19 months in giving judgment.  We agree with Mr Chua that this was an inordinate delay.

38.Owing to this significant delay, Mr Chua urged us to look at the reasons and findings of fact challenged on appeal with special care and greater scrutiny, as the mere fact of a long delay itself between the hearing of evidence and the delivery of judgment weakens the trial judge’s advantage and the delay must be taken into account when reviewing the judge’s findings (Expectation Pty Ltd v PRD Realty (2004) 209 ALR 568 at paras [69], [70]; Goose v Wilson Sandford & Co (1998) 142 SJLB 92 at [113]).  He submitted that the errors of the recorder are attributable at least in part to the inordinate delay which necessarily affected his recollection of the evidence, and his ability to make proper use of his advantage.  Further, it would be unsafe for this court to assume that he had taken into account the whole of the evidence.

39.Where excessive delay in giving judgment is relied on as a ground of appeal, the proper approach of the appeal court is as stated by Mortimer NPJ in Mak Kang Hoi v Ho Yuk Wah (2007) 10 HKCFAR 552 at paras 57 to 60:

“57. First, it is necessary to note that even delay of this length cannot alone succeed as a ground of appeal in the absence of it being shown that there are omissions, errors, misunderstandings, inconsistencies and the like which invalidate the Recorder’s findings, render the judgment unsafe, and have led to injustice to the Appellant.

58. Delay of this nature therefore increases the burden on an appellate court. Necessarily it must be vigilant to ensure that the decision and reasoning have not been harmed in any significant or fatal way by the passage of time. Counsel’s submissions and the evidence require detailed examination.

59. On the other hand, much as an appellate court may deplore delay of the length here shown, to overturn an otherwise sound judgment simply on delay would amount to a greater injustice than the delay itself.

60. The point is eloquently made by Lord Scott in Cobham v Frett [2001] 1WLR 1775 (PC) at pp.1783H to 1784A:

“In their Lordships’ opinion, if excessive delay, and they agree that 12 months would normally justify that description, is to be relied on in attacking a judgment, a fair case must be shown for believing that the judgment contains errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant.” ”

40.With this approach in mind, I turn to examine the attacks on the factual findings of the judge, to see whether a fair case could be made out that the judgment contains errors which are probably or possibly attributable to the excessive delay.  Both sides have taken us at some length to the expert reports and various parts of the transcript of evidence to assist us in reviewing the findings of the recorder.

The approach to the factual findings of the recorder

41.Before I go to the recorder’s findings in specific areas, it is pertinent to bear in mind a few things.

42.Firstly, as the recorder has mentioned in paras 23 and 24 of his judgment, it is well established there is no presumption that water leakage was necessarily caused by the flat above, and the doctrine of res ipsa loquitur does not apply in the present case.  It is not for the defendant to identify the source of leakage or to prove it did not come from the defendant’s flat.  The onus is on the plaintiff to establish that the leakage originated from the defendant’s flat.

43.Secondly, findings which are based on expert evidence are to be treated on appeal as findings of fact.  To overturn such findings, it has to be shown that the trial judge went seriously wrong, for example, by overlooking critical evidence, misunderstanding the evidence, or making a finding that was wholly unsupported by any evidence (Au Yeung Miu Sim v Tsang Kwong Wai & Anr [2004] 2 HKLRD 187 at para 16).  The high threshold to succeed on challenges to findings of fact as stated by the Court of Final Appeal in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 applies to this situation (Ansar Mohammad v Global Legend Transportation Ltd [2011] 2 HKLRD 985 at para 22(1)).  When dealing with an expert witness, a trial judge still has a significant advantage over an appeal court in assessing the value, the reliability and the impressiveness of the evidence given by the expert, although the advantage of the trial judge is not so great as in the case where the witness is a witness of fact (Joyce v Yeomans [1981] 1 WLR 549 at 556E to H).

44.Thirdly, I do not agree with Mr Chua that the findings of the recorder are inferences drawn from facts not in controversy so that this court is in an equally good position to draw inferences from the evidence.  There was conflicting testimony in the evidence of Mr Wong and Mr Chan as to their observations and findings in the two joint inspections.  The recorder resolved this in favour of Mr Chan, having considered his evidence against other available materials and finding him a credible and reliable expert witness.

45.Mr Chua mounted his attack on the factual findings in these areas: (1) rain water as the cause; (2) fresh water as a cause; (3) salty flush water as a cause; (4) the cumulative effect and combination of causes of leakage; (5) other matters going to the weight of the evidence.  I will examine the relevant evidence and findings in the above order.

Rain water as the cause

46.The recorder stated in para 49 of the judgment that “whilst it is strictly not necessary for [him] to find the real source of the water leakage problem, it does appear that on the evidence available the most likely cause of the problem was rain water.”

47.Mr Chua took issue with this finding.  The recorder had found in para 11 of the judgment that water stains and leakage affected every part of the plaintiff’s flat, including the master bedroom, corridor, master bathroom and the living room.  He referred us to that part of the transcript[1] in which the recorder questioned Mr Chan whether rain water, going through the cracks on the external wall, would cause water damage to such a substantial extent as seen from the photographs of the plaintiff’s flat.  Mr Chan replied in the negative.  Mr Chua submitted that the recorder would appear to have overlooked this part of Mr Chan’s evidence, which contradicted the finding that rain water was the most likely cause, and the recorder’s reasoning was glaringly improbable as there was nothing to show that rain water could have travelled so far from the cracks on the external wall to affect every part of the plaintiff’s flat.  And once rain water was discounted as a source of leakage, it was as a matter of common sense more likely than not that the leakage must have originated from the defendant’s flat.

48.Water penetration through external walls was considered as a possible source of leakage in para 4.2 of Mr Chan’s first report.  He stated there as follows:

“During inspection at the Plaintiff’s Premises, some alteration works were identified on the ceiling of the guest bathroom and the corridor; the partition wall of the corridor. Patch repaired holes were found on the structural beam on the external wall for the installation of electrical conduits. These defective areas were very likely to be the source of water penetrating through external walls. Water is likely to have found its way from the external wall to the internal through the electrical conduits. Water would migrate and find an opening point of the electrical conduits and then manifested through the lamp and switch.”

49.Mr Chan was not instructed by the defendant to investigate the cause of the water leakage[2].  He was engaged to observe and comment on the tests carried out by Mr Wong in the joint inspections and to comment on Mr Wong’s reports.  Whilst Mr Chan had stated in his first report it was very unlikely water had penetrated through the floor slab or bathtub seals of the defendant’s flat to the plaintiff’s flat[3], that there was no evidence of leakage in the concealed services of the defendant’s flat[4], and that there were no signs of defect of the drainage system in the defendant’s flat[5], he mentioned that further investigation to the unknown concealed common services other than those of the defendant’s flat was required to identify the causes of the defects found in the plaintiff’s flat, as water seepage might also originate from the adjacent flat units on the upper floors of the plaintiff’s flat which would penetrate into the plaintiff’s flat through weak points in the floor slab and the damages would be magnified through decoration works on the beams and ceiling along the corridor of the plaintiff’s flat[6].

50.Mr Chan was cross-examined about the passage in para 4.2 quoted earlier.  His answer to the recorder’s questioning that he did not think water, whether rain water or otherwise, going through the cracks on the external wall would have caused damage to such a substantial extent found in the plaintiff’s flat must be understood in the light of his opinion in his report as I have summarised above.  In other words, further investigation was required to identify the “causes” of the water damage in the plaintiff’s flat.  Rain water going through the cracks on the external wall and finding its way to the interior through the electrical conduits was just one of the causes mentioned by Mr Chan.  In stating that this did not cause damage to such a substantial extent in the plaintiff’s flat, Mr Chan was not saying that rain water was not a cause of the damage[7].  Nor was there any inconsistency or contradiction in Mr Chan’s evidence.

51.The only quibble I have with the recorder’s finding in para 49 of his judgment is that he should have stated that rain water was a most likely cause instead of “the most likely cause”.  Such a finding would be supported by the evidence of Mr Chan, which the recorder accepted.  In any event, this finding was not strictly necessary to the real issue, which was whether the leakage problem had originated from the defendant’s flat.  So I do not think Mr Chua’s arguments on rain water should undermine the soundness of the recorder’s findings regarding other possible sources of the leakage.

Fresh water as a cause

52.The recorder held in para 46 of the judgment that fresh water from the defendant’s flat could not be the source of the leakage problem.

53.Mr Chua attacked this finding on various grounds:

(1) Although the recorder had considered various contemporaneous correspondence and the incident reports of the management company in para 30 of the judgment, he failed to give weight to these documents.  A report in February 1998 stated that the internal fresh water pipe at the guest bathroom of the defendant’s flat was leaking and the drain pipe of the bathtub of the master bathroom was also found to have leakage problem.

(2) In one of his surveys on 10 August 2004, Mr Wong observed the water meter of the defendant’s flat for 20 minutes and found there was movement in the meter reading by two units.  This indicated that water leakage did and could occur from the defendant’s flat regardless of whether the flat was occupied.

(3) As the recorder had found in para 62 of the judgment, the results of the colour dye tests in the joint inspection showed at least “minor seepage through the cracks around the bathtub” at the guest bathroom of the defendant’s flat.

(4) The recorder failed to assess that part of Mr Wong’s evidence where he testified that because of the old age of the building and the worn out condition of the pipes, even though the defendant’s flat was vacant for long periods, and even if the water supply was shut off, there would still be a considerable quantity of water stored at the pipe serving the defendant’s flat that would seep through[8].  This evidence was not canvassed in the judgment.  The recorder failed to consider the effect of the build up of water over time in an old building that could cause leakage.

54.Mr Jat reminded us of the objective facts which were not challenged, and which the recorder took into account in excluding fresh water as a source of leakage.  The defendant’s flat was left vacant for over five years from September 1997 and since December 2004 it was again unoccupied.  The letter of the Water Authority dated 19 October 2005 gave the reading of the water meter of the defendant’s flat from January 1997 to September 2004.  The reading remained static during January 1998 to January 2003 and from September 2003 to May 2004.  Further, the leakage to the plaintiff’s flat had stopped for two significant periods, each time after extensive renovation was done to the plaintiff’s flat, when there was no evidence of significant renovation to the defendant’s flat in those periods.

55.There were also the tests done by Mr Wong in the first joint inspection and by the technician in the second joint inspection, and the recorder accepted Mr Chan’s evidence[9] these tests showed that the reported signs of leakage in the defendant’s flat were so minimal they could not have caused the leakage in the plaintiff’s flat.  This is a finding the recorder was entitled to make on the evidence.  Mr Wong mentioned there were gaps left between the faucet and wall of the guest bathroom of the defendant’s flat and asserted that water would seep through the faucet fitting to the bathtub underneath when someone was taking a bath[10].  However, the fact remains that the bath would not be used for most of the time as long as the defendant’s flat was not occupied.

56.Mr Wong’s evidence[11] that there could be seepage of water due to the age of the building and the pipes were worn out even though the defendant’s flat was unoccupied for long periods and even if the water supply was shut off is just an assumption or theory not backed up by objective evidence.  There was no evidence that the pipe fitting was worn out.  That this was not discussed by the recorder in his judgment is irrelevant.

57.The incident reports were considered by the recorder who decided he should not give much (if any) weight to them for the reasons given in para 30 of the judgment.  The reasons do not appear to me to be unsound.  What weight should be given to a piece of evidence is a matter for the trial judge.

58.As for the observation of Mr Wong there was a small movement in the water meter on 10 August 2004 over a 20 minute period, this happened to be within a period when the defendant’s flat was let.  The letter of the Water Authority dated 19 October 2005 showed there was consumption of 8 m³ of water between May and September 2004.  The movement in the meter reading on this day does not support the theory there could be leakage even though the defendant’s flat was unoccupied.

59.Mr Chua is unable to show how and on what grounds the recorder had gone wrong in finding that fresh water was not a source of leakage.

Salty flush water as a cause

60.The recorder found in para 47 of the judgment that at most there was a very limited quantity of salty flush water seeping through some of the pipes as there were no major or significant defects of the flush water drainage facilities at the defendant’s flat.  He found that the evidence, especially the relevant photographs, did not reveal flush water leakage problem of such an extent as would have caused the problems suffered by the plaintiff.

61.Mr Chua challenged this finding on these grounds:

(1) The recorder had found “there was very limited quantity of salty water seeping through some of the pipes”.  He failed to appreciate the significance and accumulation of such salty water seeping through over time.

(2) This finding was contrary to what Mr Wong had found in the first joint inspection as stated in section (5) of his first report.  He observed in the guest bathroom of the plaintiff’s flat there was a section of ceiling concrete spall exposing reinforcement and found that the rebars had been eroded by salty flush water mixed with fresh water.  He also found chloride crystal in the spall concrete and ceiling slab.  He stated this proved seepage of salty flush water mixed with fresh water which came from the defendant’s flat[12].

(3) Mr Wong collected three samples from the ceiling slab of the guest bathroom of the plaintiff’s flat.  The analysis in a laboratory found one of the samples to have chloride content seven times higher than normal in the concrete of building construction[13].

(4) Mr Wong gave evidence that at the first joint inspection, the water seepage from the pipe joints or fittings was “easily visible” to the naked eye, and to the touch on the salty flush water pipes.[14]  Even on Mr Chan’s evidence, the pipes were “moist” and “a little wet”, though there was no dripping of water[15].  The recorder failed to appreciate the significance of the salty flush water pipes being moist and wet on a continuous basis.

62.The recorder did not accept Mr Wong’s evidence there was seepage of salty flush water mixed with fresh water through the floor slab of the guest bathroom in the defendant’s flat to the plaintiff’s flat.  Mr Wong was taking his observation that there was a section of ceiling concrete spall in the guest bathroom in the plaintiff’s flat as proving seepage of salty flush water mixed with fresh water through the floor slab in the defendant’s flat.  The recorder was justified in treating this as an instance of making an observation which was “no more than [a] bare [assertion] without detailed or solid reasons or analysis”.

63.As for the samples taken from the ceiling slab of the guest bathroom of the plaintiff’s flat, the recorder agreed with the challenges of the defendant’s counsel to the way the samples were taken and Mr Wong’s reasoning regarding his observations.  Mr Wong did not take concrete cores from the ceiling or cores from other areas of the same ceiling as control samples[16].  Sample A, which was found by the laboratory to have the highest chloride content, was not exemplary according to Mr Chan[17].  There is no basis to attack the recorder’s rejection of Mr Wong’s evidence on the forensic test.

64.Mr Chua was driven to argue that the recorder failed to take into account that the seepage of salty flush water, however minor, must have a cumulative effect over time.  This brings me to the next point taken by him.

The cumulative effect and combination of causes of leakage

65.Mr Chua submitted that Mr Wong had given credible evidence of the various causes of leakage[18], and they were: leakage from the fresh water pipe of the defendant’s flat; seepage through the rim of the bathtub in the defendant’s flat; seepage through the pipe fitting of the bathtub in the defendant’s flat; leakage from the drainage pipe joint of the bathtub; leakage from the salty flush water supply; leakage from the drainage pipe of the basin in the defendant’s flat; seepage through the floor slab of the bathroom in the defendant’s flat due to the wearing and ageing effect of the damp proof membrane in the floor; the spreading of water on the floor slab of the guest bathroom in the defendant’s flat to the corridor and seepage through the floor slab of the corridor, which had no waterproof system, to the ceiling of the corridor of the plaintiff’s flat.  Mr Chua submitted that the recorder had failed to consider the causes of water leakage in combination.

66.Further, although Mr Chan had disagreed with Mr Wong that there was significant amount of water leaking from the drainage system of the defendant’s flat in the tests carried out, he accepted it was possible that the drainage in the bathtub might have “very minimal or negligible” leakage.  Mr Chua submitted the recorder had failed to recognise the accumulation of such leakage, over time.

67.It will be noted that of the various causes of leakage identified by Mr Wong, all except one was attributable to fresh water.  But fresh water originating from the defendant’s flat was not a source of the leakage problem, for the cogent reasons given by the recorder[19].  The combination of causes of leakage due to fresh water must be discounted.  What was left was salty flush water, and, as found by the recorder, Mr Chan’s evidence and the relevant photographs did not reveal obvious defects of the flush water system in the defendant’s flat[20].  At most, there was very limited quantity of salty water seeping through some of the pipes[21].  The suggestion that this very limited quantity of salty water could have caused the extent of damage in the plaintiff’s flat was rightly rejected by the recorder[22].

Other matters going to the weight of the evidence

68.The main complaint here concerned the evidence of the repairs to the defendant’s flat.  The defendant’s witness Miss Fok stated that there were no substantial repairs to the defendant’s flat and no records of such repairs.  Mr Chua submitted this evidence was contradicted by the incident reports of the management company that in July 1997 the tenant had replaced the defective sealant of the bathtub and repaired the leaking water closet, as well as by Mr Wong’s evidence of the first joint inspection when he observed there were signs of recent repairs in the defendant’s flat in particular to the guest bathroom and master bathroom[23].  The recorder did not deal with this in the judgment.

69.The fact that a tenant had carried out some repairs in July 1997 does not contradict Miss Fok’s evidence that no repairs were undertaken by the defendant.  As for the signs of recent repairs Mr Wong had observed in the defendant’s flat in the first joint inspection, Mr Chan did not agree with him and said he could not tell if the sealant around the toilet bowl and the patches on the drain pipes were recent repairs[24].  In any event, the repairs to the defendant’s flat are a peripheral matter.

Conclusion

70.Notwithstanding the excessive delay of the recorder in giving judgment, I am not persuaded that the judgment contains any errors that are probably or possibly attributable to the delay.  To the contrary, the recorder had made a thorough consideration and analysis of the evidence and came to the correct finding on the available evidence that the plaintiff had failed to establish her case that the leakage had originated from the defendant’s flat.  The inordinate delay in itself cannot succeed as a ground of appeal.  She has not overcome the high threshold of challenging the findings of primary fact of the recorder on appeal.  For these reasons, although we have much sympathy for the plaintiff, her appeal must be dismissed with costs, with an order nisi that she should pay the defendant’s costs of this appeal, with a certificate for two counsel.

Hon Fok JA:

71.I agree with the judgment of Kwan JA.

Hon Stock VP:

72.Accordingly, the appeal is dismissed.  There will be an order nisi that the plaintiff is to pay the defendant’s costs of this appeal, with a certificate for two counsel.

Mr Chua Guan-hock SC & Mr George Chu, instructed by Michael Pang & Co., for the Appellant/Plaintiff

Mr Jat Sew Tong SC & Mr Jin Pao, instructed by Keith Lam Lau & Chan, for the Respondent/Defendant

[1] Appeal Bundle number T495T to 496C

[2] T483R to 484D

[3] Para 4.1 of Mr Chan’s first report

[4] Para 4.3 of Mr Chan’s first report

[5] Para 4.4 of Mr Chan’s first report

[6] Paras 5.4 and 5.5 of Mr Chan’s first report

[7] See also Mr Chan’s evidence at T590M to Q

[8] T266K to Q, and T419S to U

[9] T489L to T

[10] Mr Wong’s first report, page 9

[11] See also his evidence at T413N to 414F

[12] See also Mr Wong’s evidence at T255A to G, Q to S

[13] Mr Wong’s first report page 12, and his evidence at T257M to Q

[14] T260I to R, 383S to 384A

[15] T576A to F

[16] T432S to 433T; see also Mr Chan’s evidence at T465U to 466B

[17] T476G to K

[18] T323A to K

[19] Para 46 of the judgment

[20] Para 69 of the judgment

[21] Para 47 of the judgment

[22] Paras 47 and 69 of the judgment

[23] Mr Wong’s first report, pages 8 and 9

[24] T476Q to 477A