CHAN NGAN BING v. FUNG YEUK HUNG

HCA130/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 130 OF 2009

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BETWEEN

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JUDGMENT

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1.  The plaintiff (“Chan”), jointly with her husband, is the owner of a flat known as Flat 1905, Kar Ming House, 1 Po Shun Road, Tseung Kwan O, New Territories (“Flat 1905”). The defendant (“Fung”) is the owner of the flat immediately above Flat 1905 (“Flat 2005”). For many years, the two ladies have been at loggerheads by reason of Chan’s complaints over water dripping and noise from Flat 2005.

2.  These proceedings started off as a claim lodged by Chan against Fung at the Small Claims Tribunal in November 2002.  It was later transferred to the District Court in August 2005 because of the nature and amount of the counterclaim made by Fung against Chan[1]. By reason of Fung’s insistence in pursuing a counterclaim at over HK$1.6 m, which exceeded the jurisdiction of the District Court, this case was further transferred to the High Court in December 2008 on the first day of trial.

3.  Both Chan and Fung are unrepresented.  It is not always easy for the court to identify and properly formulate the issues in dispute in the absence of professional assistance.  This is particularly so when Chan and Fung are bitter opponents and have had their stance hardened by the years of dispute.  There is little trace of objectivity or proportionality in their complaints and counter-complaints.

4.  Doing the best I can with the materials before me, Chan’s claims are based on the tort of nuisance and can be identified as follows:

(a)     water dripping from an air-conditioner at Flat 2005 (“Issue A”);

(b)     water dripping from a flower bed at Flat 2005 (“Issue B”);

(c)      water seepage from Flat 2005 which affected the ceiling of the utility area of Flat 1905[2] (“Issue C”);

(d)     noise (including that made by dog(s)) emanating from Flat 2005 (“Issue D”);

(e)      the loss and damage flowing from the above wrongs (“Issue E”).

5.  Apart from Issue A, which has been resolved some time ago (see below), each of the issues is disputed.  Further, a counterclaim has been filed by Fung against Chan for defamation and malicious falsehood in respect of her repetitive complaints made over the years against Fung to a host of recipients (“Issues F and G”).  There is of course also the question of loss and damage as a result of the alleged defamation and malicious falsehood (“Issue H”).

6.  Before going further, I should say that the materials before me may contain other complaints, e.g., that food remains were deliberately dropped from Flat 2005.  However, I do not find these other complaints to be properly particularized or supported by evidence.

7.  Both Chan and Fung gave evidence in the course of the trial.  Their witness statements, which were adopted as their evidence, are scanty in details.  There are, however, two bundles of documents consisting of materials produced by the parties and they were put into bundles with the assistance of the court staff.  There is no dispute as to authenticity in respect of these documentary evidence.

8.  In addition to her own evidence, Fung had called one witness, Mr Wong Chi Ping (“Wong”).

9.  I regret to say that I do not feel able to rely, without any documentary support, on the evidence of either Chan or Fung.  It is plain that they harbour such a sense of animosity towards each other that they are incapable of giving evidence about the disputed events fairly.  On a number of occasions, this court had to warn them not to abuse the court’s process by engaging in arguments and scolding with the use of unpleasant language.  This is not the behaviour for any grown up person in a civilised society.  It is singularly unfortunate that these neighbours are unable to find a way to resolve their differences and live peacefully in the same building.  It is unlikely that the conclusion of this trial will bring any truce to the hostility but I do hope that Chan and Fung will at least try to turn their attention to the more enjoyable things in life.

10.  Chan is an elderly lady who is not enjoying the best of health.  However, it is plain that she has a clear and intelligent mind.  It appears to me that at times Chan sought to hide behind her age and pretended that she was helpless or ignorant when she was not.  The fact that Chan had caused the building management and various government agencies to expend vast resources to deal with her complaints over the year tends to suggest that Chan was anything but helpless or ignorant.

11.  Fung is a middle-aged lady.  She also impressed me as an intelligent person and was well prepared for the trial, having equipped herself with some knowledge of the law and civil procedure.

12.  Before I deal with the issues, I should point out that the materials contained in the Bundles are extremely dense and completely disorganised.  A lot of the documents are handwritten and it is not at all easy to discern the purpose of the documents without reading them carefully.  In the premises, I have made clear to the parties that the obligation rests with them to identify to this court the relevant documents which they rely upon.

Issue A

13.  According to the document at Bundle 1, p.91 (1/91), Chan began to complain (to the building management) about water dripping from Flat 2005 at the beginning of February 2002.  This is consistent with Chan’s evidence.  In early March 2002, the management was able to confirm that there was water dripping from the flower bed at Flat 2005.  A letter sent to Fung by the management and notices posted up at the ground floor lobby by the same advising the exercise of care by the occupiers in watering their plants did not alleviate the problem.  Indeed, Fung adopted an uncooperative attitude in not allowing the management to enter her property for investigation.

14.  Further investigations carried out by the management (without any cooperation by Fung) in early May 2002 confirmed that an air-conditioner at Flat 2005, in the vicinity of the flower bed, was also dripping water.  Another letter was sent to Fung by the management concerning that problem.  There was also a meeting between the management staff and Fung in respect of the same.  All those efforts were to no avail and the matter was then referred by the management to the Food and Environmental Hygiene Department (“FEHD”).

15.  I have no doubt that the dripping from the flower bed and the air-conditioner at Flat 2005 affected the flower bed at Flat 1905 as well as the window area above the flower bed by, at the very least, making them wet.  If such dripping occurred regularly, and I accept that it did, it plainly constituted a nuisance by unduly interfering with Chan’s enjoyment of Flat 1905 (see Clerk & Lindsell on Torts, 20^th ed., paras. 20-09 to 20-11).  I have no difficulty in accepting that Chan was troubled by the unwelcomed source of water in her flower bed and that she had to shut the window above her flower bed to prevent unwanted water from entering her premises.

16.  I have no hesitation in rejecting Fung’s denial that she was uncooperative.  The delay in remedial action is proof of her obstructive behaviour.  Further, there is ample documentary evidence of the same (see the record of the management at 1/95 to 102).  Fung referred to the document at 2/369 (para. B) in support of her contention.  That part of the document suggests that complaints had been made by Chan against Fung since 1993 and a total of about 18 entries were made to Flat 2005 by the management and/or government agencies to investigate the same.  It might well have been the case that Fung was more cooperative when Chan began her complaints in the 1990s (apparently those complaints concerned Issue C) and her attitude changed when the incessant complaints began to annoy her.  I believe that at a later stage (after the events referred to in paras. 13 and 14 above) Fung was probably forced to cooperate with the investigation.  The Deed of Mutual Covenant governing her ownership of Flat 2005 empowered the management to gain entry to her flat for investigations (see 1/216, para. 5(e)).

17.  The development of the events can be found in another document emanating from FEHD at 1/85.  Again, the lack of cooperation by Fung caused delay to FEHD’s investigation despite having received Chan’s complaint in March 2002.  Eventually, on 14 August 2002, FEHD confirmed by its investigation that the air-conditioner at Flat 2005 was dripping. A formal notice (妨擾事故通知書) was issued by FEHD to Fung on 22 August 2002 to have the problem remedied.  Remedial action was taken by Fung on 29 August 2002 and further investigation by FEHD on 1 September 2002 confirmed that the problem had been eradicated.  Chan agreed that the air-conditioner problem had ceased since then.

18.  For completeness, I reject Fung’s evidence that the air-conditioner problem only occurred in August 2002 and that she had taken action to remedy the same within a reasonable time.  Such evidence plainly flies in the face of the documents emanating from disinterested third parties.

19.  Although the air-conditioner problem had been eradicated, in view of the delay in carrying out the remedial action this court is of the view that Chan is entitled to be compensated for the nuisance which she had suffered due to the dripping from the air-conditioner for about 3½ months (early May to end August 2002).

Issue B

20.  As stated above, the dripping from the flower bed was confirmed in early March 2002.  There is no dispute that the source of water came from a drainage pipe at the bottom of the flower bed in question.  The end of that pipe can be clearly seen in the top right photographs in exhibits “P(1)” and “P(2)”.  Plainly, such a pipe is a necessary feature for draining excess water from the flower bed.  There is no dispute that it was part of the original design of the building. Unfortunately, that design is clearly flawed in that the drainage is not connected to a recipient pipe so that the water coming out of the flower bed via this drainage simply dissipates by way of dripping.

21.  There is no controversy that water had indeed been dripping from the flower bed in Flat 2005 via the drainage pipe. Such state of affairs has continued to date.  One can see from the left and top right photographs of “P(2)” that Fung’s flower bed was the home to a lot of plants.  The evidence is that Fung keeps her plants in pots inside the flower bed.  Fung admitted in evidence that she normally waters her plants late at night, which is consistent with Chan’s case concerning the timing of dripping.

22.  I accept Chan’s case that some of the water coming out of the drainage would run along the exterior wall and onto her air-conditioner, which is situated underneath the flower bed, albeit not directly below the drainage (see photographs at 1/272).  The top right photograph in “P(1)” supports that contention and it also accords with commonsense (see also 2/666, second paragraph).

23.  Fung’s case is that her use of the flower bed was perfectly legitimate and the drainage for the same was part of the original design.  However, she accepted that the exercise of care in watering her plants would have minimised any dripping from the flower bed.  She maintained that the dripping was minimal—1 drop of water every 10 minutes—relying upon 2/754.  Hence, the issue becomes the extent of the dripping.

24.  There are documents in the Bundles which suggest that investigations carried out by, e.g., FEHD did not discover any dripping from the flower bed (see, e.g., 2/429).  There is also Wong’s evidence that during the observation exercise carried out by FEHD during night time on 14, 17 and 19 May 2004 only one incident of plant watering was seen at Flat 2005.  He was unable to see if any water had escaped from the flower bed as a consequence of the watering.

25.  On the other hand, there is ample evidence to support Chan’s case that the dripping was a serious problem (see 1/89, 90, 95-102, 134, 164-5 and 240).  It is highly unlikely that Chan would have kept up with her complaints over the years if the water dripping was, as suggested by Fung, only a minor matter.  There is merit in Chan’s contention that some of the investigations were futile because they were carried out during working hours whilst the dripping occurred in the middle of the night.

26.  On balance, I find that the plant watering at Flat 2005 had resulted in significant dripping which adversely affected Chan’s enjoyment of her property, thereby constituting a nuisance.  This court is of the view that Fung’s case that she was entitled to use her flower bed and the dripping was due to the design of the building is no answer to the nuisance claim when the dripping could have been avoided or reduced to an insignificant level with the exercise of care.

27.  The nuisance started in early March 2002 and continued to date.  However, it is common ground that modification work is being carried out at the building to remedy the defective design concerning the drainage of the flower bed.  It is highly unfortunate that such remedial work was not carried out when the problem was discovered years ago.

28.  For completeness, I do not accept Chan’s complaint that the water coming from Flat 2005 was “dirty water”.  The basis for so saying is that the plants kept by Chan had wilted from the dripping. That could have been caused by excessive water.  I have no reason to believe that the water was anything other than that used for watering plants (see also 2/647, second paragraph).

Issue C

29.  This issue can be dealt with quickly.  There is no evidence adduced by Chan that whatever water seepage problem there was affecting the utility area at Flat 1905 the source of water came from Flat 2005.  In the absence of such evidence, this claim must fail (see Leung Yung Chun & Anr v Chan Wing Sang & Ors [2000] 1 HKLRD 456).

30.  It is convenient to note here that the complaint by Chan over water seepage at the utility area started in about 1996 if not earlier (see 2/410 and 411).  She made complaints to numerous parties concerning the matter, including the building management, Water Authority, FEHD and the Housing Authority.

31.  As a result of the complaints, investigations were carried out by at least the Water Authority (2/410), FEHD (2/380, 411, 647 and 649) and the Housing Authority (2/509), none of which substantiated the complaints.  Regrettably, despite those investigations and knowing their results, Chan continued in her relentless complaints against Fung over the matter until at least 2004 (see 2/440 and 447).

32.  Indeed, Chan admitted in evidence that she had over the years made countless complaints against Fung in connection with her claims to a host of parties.  In addition to the parties mentioned about, Chan had made complaints to District Councillors and repeatedly to the police.  It is only right to observe that the amount of public resources expended in dealing with Chan’s complaints, which could not on any view be regarded as very serious, is breathtaking.  With respect, it reflects poorly on Chan.  If her complaints did not alleviate the problems, she ought to have pursued the matters under the due process of the law instead of selfishly wasting the public resources.  By the same token, it is lamentable that the authorities did not have the judgment or confidence to deal with such complaints in a manner which avoided wasting the public resources.

Issue D

33.  Again, this claim can be dealt with quickly. The gravamen of this claim is that “further processing work” was being carried out in Flat 2005 which created noise disturbance to Chan.  In addition, barking from dog(s) could be heard by Chan coming from Flat 2005, which also disturbed her.

34.  There are little particulars on the noise complaint.  More importantly, the evidence from Chan on this issue is sketchy and there is no documentary support for her claim (see 1/101, 175 and 2/373[3]).  In order to make good this claim, it is essential for Chan to prove that the noise generated from Flat 2005 was excessive. Plainly, there would be noise coming from her neighbours living in close proximity.  This is a feature of life in Hong Kong.  This court is not satisfied that there is such proof and this claim cannot be established.

35.  It should be noted that I have considerable doubt on Fung’s denial of “further processing work” being carried out at her flat.  She was confronted with records concerning the transportation of bags of material into and out of her flat in the middle of the night (see 1/101 and 102).  Her explanation that those were clothing and bedding taken from her sister-in-law who lived in a nearby housing estate for washing lacks credibility.  I know not what was being carried out in her flat but it is clear that she is hiding the truth from the court.

36.  Equally, Fung’s denial that dog(s) was/were kept at her flat cannot be accepted as it is contradicted by the documentary evidence (see 1/101 and 134).

Issue E

37.  Firstly, this court is not satisfied that Chan’s allegations that the dripping had caused damage to her air-conditioner and the window bay area as well as the window frame (both of which are situated above her flower bed) are made out.  There is no proper proof that such “damage” was not the consequence of normal wear and tear naturally occurring over the years.  The documents do not support Chan’s case (see 2/653, 657-8 and 659).

38.  However, as stated in para. 19 above, Chan did suffer from the nuisance caused by the dripping from the air-conditioner at Flat 2005 for about 3½ months.  She is entitled to damages for inconvenience (see Leung Yung Chun, supra). Bearing in mind the relevant circumstances —minor inconvenience of a short duration—I assess the damages at HK$5,000.

39.  In respect of the nuisance caused by the dripping from the flower bed, the inconvenience, albeit minor, has continued for over 9 years.  Chan has asked for a sum of HK$80,000 under this head for all her claims (see 1/35).  I consider it as a reference, adjust it to reflect the entitlement for this particular claim only and make an award in favour of Chan in the sum of HK$55,000.

40.  Had it not been the fact that modification work is being carried out to rectify the drainage problem with the flower beds, this court would have been inclined to make an injunction order against Fung to prevent further nuisance.

Issue F

41.  Fung’s defamation claim is based on Chan’s countless complaints to various parties over the years.  To succeed in such a claim, it is essential to establish that the complaints were false.  In light of the findings above, there can be no claim in relation to Issues A and B.

42.  I have not overlooked the documents which suggest that Chan had continued to complain about the dripping from the air-conditioner after the problem was remedied at the end of August 2002.  The records show that she was making such complaints in November 2002 (2/375, 471 and 473) and June 2003 (2/385).  Chan denied that she had made such complaints after the problem was remedied. I am inclined to the view that due to the long-winded manner in which Chan would have related her complaints to the recipients it is more likely than not that they were confused with the details of the complaints and the records reflect such confusion.

43.  As regards Issue D, although this court has found that the claim is not proved, this court is not satisfied that the complaints were untruthful (here the burden of proof lies with Fung).  As indicated in paras. 35 and 36 above, it might well have been the case that certain operation was carried out in Flat 2005 which caused excessive noise. Certainly dog(s) was/were kept at Fung’s place and naturally they would have created noise from time to time.  Accordingly, this court also rejects this part of Fung’s claim.

44.  This leaves Issue C.  This court has found that there was no basis for Chan’s incessant complaints.  However, defamation is a highly technical cause of action.

45.  The first issue must be the identification of the statements made by Chan which were allegedly slanderous (there is no suggestion that there was any defamatory statement in a permanent form).  There is no evidence as to what Chan said to the recipients of her complaints.  At most, this court can infer a statement being made on each occasion that “there was water leakage from Flat 2005 affecting the balcony[4] at Flat 1905” (“the Statement”).

46.  I am alive to the requirement that a defamatory statement must be specifically identified and proved by the claimant.  However, Fung is unrepresented and these technicalities would sometimes trouble even the professionals, let alone a litigant in person.  It befalls upon this court to do what is reasonable and arrive at a decision which reflects the justice of this case, and I shall endeavour to do so.

47.  It is not at all obvious how the Statement was defamatory of Fung, the owner of Flat 2005.  Fung submitted that the complaints suggested that she had “a problem”.  This court is unable to see that the natural and ordinary meaning of the Statement conveyed a defamatory imputation in respect of Fung and this cause of action must fail.

48.  For completeness, I deal briefly with a few of the issues which may arise if it were found that Chan had published a statement defamatory of Fung.  The complaints made by Chan may fall within qualified privilege. In simple terms, it means that by reason of public policy or convenience a person may, without incurring liability for defamation, make statements of fact about another which are defamatory and in fact untrue (see Gatley on Libel and Slander, 11^th ed., para. 14.1). In a case where one makes complaints to protect his legitimate interest or rights to authorities who have a duty to receive such complaints, prima facie, those complaints would be protected by qualified privilege (see Gatley, paras. 14.6 and 14.42).

49.  However, qualified privilege is defeated by malice on the part of the statement maker.  The burden of establishing malice is of course on the claimant (Fung).  This court is of the view that Chan had no proper basis for her complaints once she knew of the investigation results (see para. 31 above).

50.  It has been said that “malice arises only where the defendant acts from an improper motive: knowledge of or recklessness as to falsity is not a separate head of malice, it is simply a way of establishing that the defendant was acting from an improper motive and relieves the claimant from the burden of showing what that was.” (Gatley, para. 17.4.).

51.  In the premises, even if Chan could invoke the defence of qualified privilege, this court would have taken the view that there was malice on her part which would defeat any claim to such privilege.

52.  The legal complexity does not end here.  A slanderous statement is not actionable without proof of special damage (Gatley, paras. 4.1 and 5.1).  In this case, Fung contends that she had suffered physical illness as a result of the alleged defamation.  In support, she relies upon a medical report of Dr Li Sing Yuen at 2/335 which is undisputed[5].  It stated that Fung was suffering from somatic problems due to the chronic stress and emotional distress caused by Chan’s incessant complaints.  As a matter of law, physical illness consequent upon the slander is too remote to support an action (Gatley, para. 5.5).  However, medical expenses had been incurred by Fung in relation to her illness and such expenditure could constitute special damage in support of a claim in slander.

53.  According to Dr Li’s report, Fung consulted him in 2003.  Although it was recorded that she had been disturbed by Chan’s complaints since 1993 and that such complaints escalated since 2001, it is not clear to what extent Fung’s conditions were attributable to the complaints in respect of Issue C.  Damages for physical injury suffered as a result of defamation can be awarded (see Chu Siu Kuk Yuen v Apple Daily Ltd & Ors [2002] 1 HKLRD 1[6]).  If I were wrong on the rejection of this cause of action and doing the best I can on the available evidence, I would have awarded general damages in favour of Fung in the sum of HK$55,000.

54.  The evidence on the medial expenditure appears incomplete (2/394-399 and 419-426).  Again, doing the best I can and taking into account the pleaded sums on the matter (1/20O), I would have awarded special damages in the sum of HK$2,000 had this cause of action been upheld.

55.  I reject the rest of the claims for loss and damage in any event because they have not been properly particularised or proved.

56.  Finally, for the same reasons, I reject the other allegations of defamatory statements pleaded in the Counterclaim at 1/20N.

Issue G

57.  It has been said that there are similarities between malicious falsehood and defamation (Clerk & Lindsell, para. 23-03). However, a false statement under this cause of action needs not be defamatory.

58.  I am prepared to infer that in making the complaints about water seepage from Flat 2005 which affected the utility area of Flat 1905, Chan must have at least made the Statement (see para. 45 above) on each occasion.  On the evidence, the Statements were false.

59.  The Statements concerned Fung’s property.

60.  In respect of malice, the legal test is essentially the same as the malice which defeats qualified privilege in defamation (Clerk & Lindsell, paras. 23-12 to 23-15 and Tort by Winfield and Jolowicz, 17^th ed., para. 12-70).  Based on paras. 49 to 51 above, this element is made out.

61.  As regards special damage, para. 52 above applies equally here.

62.  In the premises, all the ingredients of this cause of action are made out (Clerk & Lindsell, para. 23-10).

Issue H

63.  This cause of action of malicious falsehood arose out of the same facts as those of defamation.  I have had regard to para. 23-17 of Clerk & Linsell under this head.  The same assessment of damages as stated in paras. 53 and 54 above should apply here, namely, Fung is entitled to general damages of HK$55,000 and HK$2,000 as special damages.

64.  The documents do not suggest that Chan had made any further complaint in respect of Issue C after 2004.  Therefore, it is unnecessary for this court to consider any injunctive relief.

Conclusions

65.  In light of the findings above, there is a balance of HK$3,000 in favour of Chan against Fung (HK$60,000–HK$57,000). I exercise my power under O.15, r.2(4) and give judgment in favour of Chan accordingly in that sum. Save for the interest at statutory rate which this judgment carries, I make no further order on interest.

66.  There is no dispute between the parties that costs should follow the event.  I order that the costs of the action be to Chan and the costs of the Counterclaim be to Fung, to be taxed at the District Court scale if not agreed.