LAM CHING KWONG v. MAN WING SUM AND ANOTHER

DCCJ 1888/2019

[2024] HKDC 887

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1888 OF 2019

——————————

——————————

——————————

JUDGMENT

——————————

INTRODUCTION

1.  This is the plaintiff’s claim against the defendants for injunctive relief and damages, due to water allegedly seeped from the latter’s property into the former’s property. At the trial, the plaintiff was represented by counsel Mr Matthew Ho (“Mr Ho”), and the defendants were represented by Mr Alan C.Y. Yung (“Mr Yung”) of counsel.

2.  In water seepage cases, discussions are primarily devoted on the opinions from the surveyors. However, as one can see later in this Judgment, the events leading to this action are equally important, if not also telling. As such, I shall, in the section below, set out the events that are salient to the present case. In doing so, I have adopted, with additions and necessary adaptations, the very detailed chronology of events set out in Mr Yung’s opening statement. I agree with him that these events (and facts) are undisputed or cannot be seriously disputed as they are documented.

CHRONOLOGY OF EVENTS

3.  On 1 February 1990, the plaintiff (“Mr Lam”) jointly purchased, with another person, a property situates at Unit M on 25^th Floor of Block 3 (“Flat 25M”), Tsui Lai Garden, No 9 Fung Nam Road, Sheung Shui, New Territories, Hong Kong (the “Building”). On the same day, the first named defendant (“Mr Man”) and the second named defendant (“Ms Lee”) purchased the flat immediately above Flat 25M (“Flat 26M”). Mr Lam became the sole owner of Flat 25M on 9 December 2009.

4.  Below I shall set out the seepages found at Flat 25M, namely the ceilings at the entrance (“Entrance Ceiling”), the living room (“Living Room Ceiling”), and the lavatory (“Lavatory Ceiling”). The sequence of the seepages appearing in Flat 25M is vital to the case.

Entrance Ceiling

5.  In May 2018, Mr Lam complained to the management office of the Building that there was water seepage problem at the Entrance Ceiling[1].

6.  Upon the request of the management office, Mr Man and Ms Lee instructed Ngai Fung Decoration Co (“Ngai Fung”) to perform pressure tests twice on 8 May 2018 and 10 May 2018. The tests confirmed that there was no leakage from the water supplying pipes of Flat 26M[2].

7.  In the same month, the case was referred to the Buildings Department and Food and Environmental Hygiene Department Joint Office (the “JO”).

8.  From 4 June 2018 to 31 May 2019, the JO and Water Supplies Department (“WSD”) conducted investigations and various tests at Flat 25M and Flat 26M. These tests include Moisture Content Test (“MCT”), Colour Water Test (“CWT”), Reverse Pressure Test (“RPT”), Water Meter Test (“WMT”) and Ponding Test (“PT”). They are particularised below: -

(1)  On 4 June 2018, the JO conducted investigation at Flat 25M, and confirmed that there was sign of water seepage at the Entrance Ceiling. Stage II investigation including CWT test was then conducted at the lavatory of Flat 26M. While there was still water droplet attached with moisture content (“MC”) higher than 35°, no colour was detected at the Entrance Ceiling by the JO on 8 June 2018[3].

(2)  WSD was referred to for follow up action. Investigation was then conducted on 27 June 2018 with negative result[4].

(3)  Upon the contact by the JO with Mr Lam on 28 June 2018, it was revealed that there was no water dripping for past two days[5].

(4)  On 6 July 2018, Mr Lam contacted the JO and revealed that the water dripping at the Entrance Ceiling recurred[6]. The JO then visited Flat 25M on 10 July 2018. No colour from the CWT was seen, despite the MC was higher than 35°, and there was water dripping[7]. Water dripping was also seen at the Entrance Ceiling during JO’s subsequent visit of Flat 25M on 13 July 2018[8].

(5)  WSD was referred to for follow up action again. Investigation was then conducted on 16 August 2018 with negative result[9].

Living Room Ceiling

(6)  The JO visited Flat 25M again on 14 September 2018. There was water dripping at the Entrance Ceiling with MC over 35°. On this occasion, Mr Lam revealed to the JO that water dripping was previously found at the Living Room Ceiling near the light. However, the JO saw no water dripping from the Living Room Ceiling, with MC below 35° being detected[10].

(7)  Mr Man and Ms Lee were then contacted by the management office of the Building, and they agreed to stop the water supply to Flat 26M from 10 October 2018 to 15 October 2018, in order to facilitate the JO’s investigation[11].

(8)  RPT was conducted by the JO at Flat 26M with its main water supply turned off on 10 October 2018, and remained so until 15 October 2018[12]. While water dripping had ceased at the Entrance Ceiling on 12 October 2018, the MC remained over 35°[13]. In addition, notwithstanding the resumption of water supply to Flat 26M on 15 October 2018, no water dripping was seen at the Entrance Ceiling and with MC detected to be lower than 35° on 24 October 2018[14].

(9)  During the further visit by the JO on 30 October 2018, both the Entrance Ceiling (with water dripping) and the Living Room Ceiling (with water droplets hanging on the ceiling) had MC above 35°[15]. Upon the referral from the JO and the follow up investigation by WSD (including investigation conducted at Flat 26M on 13 December 2018), WSD again came back with a negative result[16].

(10)  Joint investigation was then conducted by JO and WSD on 28 December 2018. Water dripping was seen at the Entrance Ceiling and the Living Room Ceiling with MC exceeding 35°. RPT was conducted at Flat 26M. Once again, a negative result was returned and the source of the water seepage remained unidentified[17]. In particular, it was the finding of the Chief Engineer (New Territories East) of the WSD that “Although the RPT test result was conducted with observable water dripping, NO significant change in the dripping rate upon suspension of water supply to [Flat 26M] under complaint for proving the existence of a defective fresh water insider service in [Flat 25M] is indicated in the investigation report according to the mutual agreement between WSD and JO”[18].

Lavatory Ceiling

(11)  The JO visited Flat 25M on 17 January 2019. Besides the Entrance Ceiling and Living Room Ceiling, they were informed for the first time that the MC at certain spots of the Lavatory Ceiling were also over 35°[19].

(12)  Mr Man and Ms Lee contacted the JO on 19 March 2019, and the latter informed them that Stage III PT would be arranged. The JO subsequently informed them on 15 April 2019 that the Stage III PT would be conducted on 3 May 2019, and the Stage II CWT would also be conducted at the kitchen of Flat 26M on the same day[20].

(13)  As scheduled, investigation was performed by the JO together with its consultant surveyor, Prudential Surveyor International Ltd (“Prudential”), on 3 May 2019 and 31 May 2019 at Flats 25M and 26M with the following observations[21]:

(a)  MC over 35° were detected at the Entrance Ceiling and Lavatory Ceiling[22], with dripping also observed at Entrance Ceiling on both 3 May 2019 and 31 May 2019. For the Living Room Ceiling, MC was lower than 35° on both days[23];

(b)  Both CWT and PT came back with negative results; and

(c)  Prudential concluded that that the source of the water seepage at Flat 25M was uncertain[24], with specific remarks that “Leakage of the drainage pipe [of Flat 26M] was unlikely” and “Infiltration from the floor slab including the enclosing walls of the shower area, the floor slab of the [Lavatory] and the floor slab of the kitchen [all of Flat 26M] was unlikely”[25].

9.  In-between the said examinations performed by the JO, WSD and Prudential, Mr Lam engaged Ms Lau Shan La (“Ms Lau”) to investigate on the source of seepages at Flat 25M. After inspecting Flat 25M, a report was compiled by Ms Lau on 21 January 2019 (“Lau’s 1^st Report”). In it, Ms Lau suggested that there were water seepages at the Living Room Ceiling, Entrance Ceiling, and the Lavatory Ceiling. The seepages had nothing to do with any defects at the external walls or external common pipes of the Building. Instead, she opined that the seepage came from the water systems in Flat 26M.

10.  Lau’s 1^st Report gave life to the present action, when a specially indorsed Writ of Summons was filed on 12 April 2019.

Joint expert report

11.  On 10 March 2021, Ms Lau and Mr Samson Wong (“Mr Wong”) compiled a joint expert report (“JER”), pursuant to the order of Mr Registrar Simon Lui dated 23 July 2020 (“23.7.2020 Order”). The JER was prepared based on their joint inspections on 29 September 2020 and 6 November 2020 (the “Joint Inspections”). The experts had agreed on the methods of examinations, which included visual inspection (“VI”), the use of CWT, WMT, infrared test (“IT”), microwave scan (“MS”), and electrical conductivity sensing (“ECS”). In a nutshell, the examinations revealed these results: -

(1)  Although Ms Lau reiterated that the Living Room Ceiling and Entrance Ceiling were previously affected by water seepage, she agreed with Mr Wong that no evidence of seepage was found during the Joint Inspections at these locations. The MC was below 35º, and no colour was detected after the CWT.

(2)  Experts found that there was seepage at the lavatory of Flat 26M (the “26M Lavatory”), in particular, at the floor slab, walls and waste water pipe located therein (the “Non-showering Area”)[26]. Tests performed on the showering area, i.e., the floor slab of the standing shower tub, and its surrounding walls and waste water pipe (the “Showering Area”)[27], came back with negative results. It should be noted that different solutions were used for the Non-showering Area and the Showering Area, namely Eosin Yellowish and Fluorescein Sodium respectively[28]. Only the former was found at the Lavatory Ceiling.

(3)  There was no evidence to show that there was any seepage of water coming from the external walls or the common pipes of the Building. Neither was there any sign that the seepage came from the fresh water pipes of Flat 26M.

(4)  The seepage found at the Lavatory Ceiling had nothing to do with the toilet and its system inside 26M Lavatory.

Remedial works at 26M Lavatory

12.  Based on the results of the JER, Mr Man and Ms Lee instructed Ngai Fung to perform remedial works at the Non-showering Area of 26M Lavatory, which was completed on 28 July 2021 (the “2021 Repair”)[29]. Per the invoice issued by Ngai Fung, the 2021 Repair involved the use of Blue Swipe to clean the surface of the floor slab and the surrounding walls, followed by two applications of a waterproofing coating, namely Normet (TamSil290WB), on the said areas.

Recurring water seepage

13.  Mr Lam complained that the 2021 Repair did not cure the seepage problem. By a letter from his then solicitors, Messrs Fu and Cheng (“F&C”) dated 21 October 2021, it was alleged therein there was “recently recurring water leakage” at Flat 25M, and held Mr Man and Ms Lee accountable for the damages suffered due to the same (“Recurred Water Seepage”). F&C also suggested that another round of tests should be conducted to identify the source of the Recurred Water Seepage (“F&C’s 21.10.2021 Letter”)[30]. F&C, in their letter dated 9 November 2021 (“F&C’s 9.11.2021 Letter”), specified that the Recurred Water Seepage started in October 2021[31].

14.  Prior to the F&C’s 21.10.2021 Letter, the solicitors for Mr Man and Ms Lee, Messrs Haldanes (“Haldanes”) issued to F&C a letter dated 12 October 2021, admitting liability on behalf Mr Man and Ms Lee regarding the water seepage from the Non-showering Area of the 26M Lavatory to the Lavatory Ceiling. It was said that the 2021 Repair had been arranged at the defective area, and proposed to have Ms Lau conduct another examination at the Non-showering Area to confirm whether the seepage still exist. Mr Man and Ms Lee were willing to bear the costs of such further report from Ms Lau (“Haldanes’ 12.10.2021 Letter”).

15.  At this juncture, there were some confusions and arguments between the parties’ solicitors concerning the Recurred Water Seepage. On the one hand, Haldanes reiterated their clients’ position that liability arising out of the seepage from the Non-showering Area to the Lavatory Ceiling as identified by the JER was admitted (the “Admission”), thus another exercise finding the source of the Recurred Water Seepage was unnecessary. Haldanes had, in their letter dated 29 October 2021, emphasised that the seepage should have ceased by that time (“Haldanes’ 29.10.2021 Letter”). On the other hand, F&C suggested that the Admission would include the Recurred Water Seepage.

16.  One could observe from §§13-15 above that F&C’s 21.10.2021 Letter provided no information as to the exact location or locations where the Recurred Water Seepage was found in Flat 25M. I see from Haldanes’ 12.10.2021 Letter that reference was made to another letter from F&C dated 7 October 2021 (“F&C’s 7.10.2021 Letter”)[32], where F&C asserted that there was recurring water seepage at the Lavatory Ceiling.

17.  Pausing here, in Mr Lam’s supplemental and 2^nd witness statements, dated 15 July 2021 (before the 2021 Repair) and 4 July 2023 (slightly less than 2 years after the 2021 Repair) respectively, his assertions were that the seepage at the Lavatory Ceiling, Living Rooms Ceiling, and the Entrance Ceiling had never ceased[33], notwithstanding the findings in the JER (i.e., there was no water seepage at the Living Room Ceiling and the Entrance Ceiling at the times of the Joint Inspections). Mr Lam’s narratives contradicted with F&C’s representations that the seepage had “recently recurred” and since October 2021.

18.  Amid the said confusions in Mr Lam’s case, the Admission made by Haldanes was clearly limited to the water seepage from the Non-showering Area of the 26M Lavatory to the Lavatory Ceiling, as reported in the JER. I thus do not see how one could say the Admission would cover the Showering Area of 26M Lavatory to the Lavatory Ceiling, or it would extend to the Living Room Ceiling and the Entrance Ceiling, before and after the 2021 Repair. I could also understand why Haldanes were seemingly indifferent to the alleged Recurred Water Seepage: the JER had already found there was no seepage at the Living Room Ceiling and the Entrance Ceiling despite the tests performed during the Joint Inspections. F&C’s seeking to do another round of tests at all 3 locations was an attempt to take a second bite of the cherry, which was rejected by Haldanes in the above letters. I will come back to this point later in this Judgment.

Ms Lau’s supplemental report

19.  Come what may, the parties finally agreed to instruct Ms Lau to inspect and prepare a report limited to the question of whether the seepage from the Non-showering Area of the 26M Lavatory to the Lavatory Ceiling still exist, with costs for the same to be borne by Mr Man and Ms Lee. Such agreement was ordered in terms by Master Maurice Lam on 19 January 2022 (“19.1.2022 Order”)[34]. Pursuant to the 19.1.2022 Order, Ms Lau conducted examinations on 28 December 2021 and 21 January 2022, and prepared a report dated 28 February 2022 (“Lau’s 2^nd Report”). VI, CWT, IT and ECS were performed during the examinations, on both the Showering Area and Non-showering Area of 26M Lavatory. For the CWT, Eosin Yellowish was used at the Non-showering Area. Although it was not covered in the 19.1.2022 Order, CWT was also conducted at the Showering Area using Pyranine.

20.  Ms Lau said that, before the CWT, IT showed that there were some low temperature areas, which indicated that the Lavatory Ceiling was already affected by water seepage. The low temperature areas expanded after the CWT was performed.

21.  ECS was performed at 20 measure points at the Lavatory Ceiling before and after the CWT. Out of these 20 points, 15 of them had MC higher than 35º both before and after the CWT[35]. It is interesting to note that the MC in 11 measure points decreased after the CWT[36].

22.  As for the CWT itself, neither fluorescent dye used was seen at the Lavatory Ceiling.

23.  Based on the results from IT and ECS, Ms Lau concluded that there were seepage from both the Showering Area and Non-showering Area of the 26M Lavatory to the Lavatory Ceiling. She opined that the negative result from the CWT would not have changed her conclusion, as the fluorescent could be absorbed or filtered by the cement between the floor slab of the 26M Lavatory and the Lavatory Ceiling.

24.  Pausing here, I shall first introduce other reports filed by the parties, for the reason that I will provide in the section that follows.

Experts’ reports and their sanctioning orders

25.  Apart from the JER and Lau’s 2^nd Report, 4 more expert reports were filed in this case, although one of them were expunged at the start of the trial upon Mr Ho’s application. I will come back to that later, but for now, I will list out these reports: -

(1)  A report compiled by Mr K.S. Wong for Mr Man and Ms Lee dated 28 April 2022 (“K.S. Wong’s Report”).

(2)  Third report prepared by Ms Lau dated 10 June 2023 (“Lau’s 3^rd Report”).

(3)  A report prepared by Ms Lau on the assessment of quantum dated 19 June 2023 (“Lau’s 4^th Report”).

(4)  Report compiled by Mr Wong dated 7 August 2023 (“Wong’s 1^st Report”).

26.  The above enumerated reports were sanctioned by the court. Their corresponding court orders are as follows: -

(1)  Order of Master Maurice Lam dated 8 April 2022 (“8.4.2022 Order”) granting leave for Mr Wong to prepare a report in reply to the opinion rendered by Ms Lau in §§5 and 6 of Lau’s 2^nd Report. K.S. Wong’s Report was subsequently filed.

(2)  After the case was set down for trial, the parties applied by consent further expert evidence from Ms Lau on the question whether the Recurred Water Seepage from Flat 26M to Flat 25M exist at the locations referred to in pp 11 to 15 of the JER, i.e., the Living Room Ceiling, Lavatory Ceiling, and the Entrance Ceiling. Ms Lau was also to assess on the estimated costs of renovation work to reinstate Flat 25M. An order in terms of the joint application was granted by DDJ SP Yip (as he then was) on 24 March 2023 (“24.3.2023 Order”). Lau’s 3^rd and 4^th Reports were filed to address on the said issues respectively.

(3)  The parties made another joint application to DDJ SP Yip, asking for permission to file Wong’s 1^st Report in response to Lau’s 3^rd and 4^th Reports. An order granting such leave was made on 1 August 2023 (“1.8.2023 Order”).

Limitations set by the court under the expert directions

27.  The purpose for listing out these orders is that, at trial, counsel had disagreements as to what could and could not be asked when cross-examining the experts. In particular, Mr Yung had tried to cross-examine Ms Lau on her findings on the Showering Area being added as a source of the seepage in Lau’s 2^nd Report, which was objected to by Mr Ho. Mr Ho argued that the liability for seepage at the Lavatory Ceiling, before and after the 2021 Repair, have been admitted under the Admission. I disagree for the reasons I have set out in §§13 to 18 above.

28.  Aside from my finding on the scope of Admission, Ms Lau was clearly not directed to find the source of Recurred Water Seepage in Lau’s 2^nd Report, as the 19.1.2022 Order limited her investigation to the question of whether the seepage from the Non-showering Area of 26M Lavatory to the Lavatory Ceiling still exist. Therefore, she should not have expanded on this and added an opinion that there was water seepage also from the Showering Area of the 26M Lavatory[37]. Peculiarly, the 8.4.2022 Order allowed Mr Wong to give his opinions on Ms Lau’s findings in §§5 and 6 of Lau’s 2^nd Report, which included the said additional opinion. Hence, the question of source had seemingly been reopened by the 8.4.2022 Order. I thus allowed Mr Yung to cross-examine Ms Lau on this topic. Nevertheless, Mr Yung had decided not to do so after the above matter was argued and ruled on.

29.  That being so, this Court had the opportunity to also consider whether Ms Lau were allowed to repeat the said additional opinion in Lau’s 3^rd Report. The answer is no. Again, the 24.3.2023 Order only directed Ms Lau to investigate on whether the Recurred Water Seepage from Flat 26M to Flat 25M exist at the locations referred to in pp 11 to 15 of the JER, i.e., the Living Room Ceiling, Lavatory Ceiling, and the Entrance Ceiling. Even if the answer to such question was in the affirmative, there was no follow up direction to the effect that an investigation on the source of the Recurred Water Seepage should be made. This was not included despite DDJ SP Yip having sight of the letters from the parties on their respective stance, hence an understanding of their disputes concerning the Recurred Water Seepage.

30.  On this point, Mr Ho referred me to the case of Ip Pui Lam Arthur & Anor v Alan Chung Wah Tang & Anor [38] and argued that there should be strict reading of a court’s order which has no ambiguity. He has fairly adopted such principle albeit unfavourable to Mr Lam’s case. Mr Yung had no quarrel with such principle; neither do I.

31.  For the said reasons, I did not allow Mr Yung to cross-examine on Ms Lau’s finding on the source of Recurred Water Seepage contained in Lau’s 3^rd Report. It follows that this Court should also not consider it in this Judgment. Nevertheless, whether there was, and is, continued water seepage from the Showering Area (per Lau’s 2^nd Report) and Non-showering Area of the 26M Lavatory to the Lavatory Ceiling remain as live issues in this case.

The expunge application

32.  By the descriptions in §25 above, one could sense that something was amiss. Since the 23.7.2019 Order, the expert appointed for Mr Man and Ms Lee should be Mr Wong, not Mr K.S. Wong. It is thus improper for K.S. Wong’s Report to be filed. This was the subject of Mr Lam’s application filed on 9 October 2023, seeking for an order from this Court that K.S. Wong’s Report should be expunged (the “Expunge Application”).

33.  The Expunge Application came before me on the first day of trial. Mr Wong filed an affirmation in answer of the same, without leave of the Court. In it, he has seemingly acknowledged that he was aware of 8.4.2022 Order, and that he should be the one to prepare the expert report. Nevertheless, he had adopted in Wong’s 1^st Report what was written in K.S. Wong’s Report; he also vowed for Mr K.S. Wong’s qualification and expertise in rendering his opinions in the K.S. Wong’s Report.

34.  Considering Mr Wong’s affirmation, there were valid reasons for granting the Expunge Application. First, Mr K.S. Wong was clearly not an expert appointed by the Court under the 23.7.2020 Order. Mr Man and Ms Lee had never applied to the court for a change of their expert. Clearly, by the 8.4.2022 Order, Master Maurice Lam directed that the supplemental expert evidence should be given by Mr Wong. Second, where Mr K.S. Wong was not appointed as an expert by the Court, K.S. Wong’s Report should never have been filed. Mr Wong’s adoption of it in Wong’s 1^st Report should not be allowed to rectify such a blatant disregard of a court order. Moreover, Wong’s 1^st Report was commissioned only to respond to Lau’s 3^rd and 4^th Reports. It should not be taken as an opportunity for Mr Wong to right the ship, unless expressly allowed by the Court. Third, Mr K.S. Wong’s qualification, experiences, and expertise, should have been presented by himself by way of a curriculum vitae attached to K.S. Wong’s Report. This was not done.

35.  With Mr Yung’s concession, the Expunge Application was granted, and K.S. Wong’s Report was expunged. Mr Yung argued that there should be no order as to costs of the Expunge Application, as it was a late application. Mr Ho fairly conceded that the timing of it was undesirable, and suggested that Mr Lam should only get 70% of the costs incurred for the Expunge Application to reflect on this. I agree and I so ordered.

36.  Initially, Mr Yung indicated that Mr Man and Ms Lee might apply for leave to have Mr Wong prepare a supplemental expert report in reply to the specific sections of Lau’s 2^nd Report. This was abandoned.

37.  For the above reasons, the opinions given by Ms Lau in Lau’s 2^nd Report are uncontested by any expert evidence from Mr Man and Ms Lee’s side.

Lau’s 3^rd Report

38.  One could see that the tests and examinations conducted by Ms Lau exceeded the limit set out in the 24.3.2023 Order. By these tests and examinations, she was seeking for the source of the Recurred Water Seepage, which was not what she was directed to do. However, for completeness sake, and for the analysis on Mr Lam’s case regarding water seepages at the Living Room Ceiling and the Entrance Ceiling, I shall still set them out below.

39.  For Lau’s 3^rd Report, examinations were conducted at Flat 25M and Flat 26M on 24 April 2023 and 17 May 2023. Tests by way of VI, IT, ECS, MS, WMT and CWT were all performed. In addition, water sample analysis (“WSA”) was also conducted.

VI, WMT and WSA on 24 April 2023

40.  I will start with the inspections and examinations done on 24 April 2023. VI revealed that the paint at the Lavatory Ceiling remained peeled off, with the iron rods concealed inside it exposed. Watermarks were seen at the centre of the Living Room Ceiling, with water droplets and stalactite observed around the ceiling light. The same observations were made concerning the Entrance Ceiling. VI at the external walls of the lavatory of Flat 25M (“25M Lavatory”) and 26M Lavatory, including the pipes installed thereat, did not reveal any apparent damage.

41.  WMT at Flat 26M came back with negative result. WSA on the water sample obtained from the water used in the toilet of 26M Lavatory, and the water sample collected from the Entrance Ceiling, showed that they were fresh water. Ms Lau remarked that there was no urine detected from the water sample collected from the Entrance Ceiling.

IT on 24 April 2023

42.  IT conducted at the Lavatory Ceiling, the Living Room Ceiling near the light, and the Entrance Ceiling near the light, all showed there were low temperature areas, which indicated there were water seepages at these areas.

43.  Ms Lau added that she was unable to conduct IT on the external walls 25M Lavatory and 26M Lavatory, and the pipes located thereat, due to physical limitations.

CWT and ECS on 24 April 2023

44.  CWT was performed at the Showering Area and Non-showering Area of the 26M Lavatory. Pyranine was used at the former, and Sulforhodamine B was used at the latter.

45.  Adopting the same 20 points for measurement at the Lavatory Ceiling, ECS showed that there were 14 points where the MC exceeded 35º before the CWT. It was increased to 15 measure points after the CWT. However, in 13 out of the 20 points tested[39], the MC had decreased, although the MC in 10 of them remained over 35º[40]. There were 5 points where the MC increased, including 1 point where it had increased from 24.1º to 44.1º (i.e., point 17). In 2 of these 5 points where the MC increased, they had nevertheless remained below 35º (i.e., points 8 and 16). I shall add that there was no change to the MC at point 7.

46.  ECS was also performed on 15 measure points at the Living Room Ceiling. Before the CWT, none of these 15 points had the MC exceeding 35º. They remained the same after the CWT. However, it could be seen that after the CWT, there were 7 points where the MC decreased, with the remaining 8 points had their MC increased.

47.  As to the Entrance Ceiling, 15 measure points were tested with ECS. Only point 8 was noted to have MC greater than 35°, before application of the CWT. After CWT was performed, point 8 remained the sole location where the MC exceeded 35°. 6 out of the 15 points had their MC decreased, with the remaining 9 points (including point 8) seeing the MC increased, after the CWT.

48.  I note in Ms Lau’s assessment, she regarded MC between 20° and 34.9° as minor seepage, and MC from 35° to 99.9° as apparent seepage. She had taken minor seepage as seepage nonetheless, without much differentiation.

MS on 24 April 2023

49.  MS was conducted at the Lavatory Ceiling, at the depths of 110 mm, 70 mm and 30 mm. The result at 110 mm reviewed that there was seepage coming from the centre of the Lavatory Ceiling, which translates to the central area of the 26M Lavatory’s floor slab. And from that point, scanning at the 70 mm depth showed that the wetness spread outward from the centre, and primarily towards the external wall side. The wetness continued to spread at the 30 mm depth, with the spot at the external wall side seemingly wettest.

VI on 17 May 2023

50.  The conditions at the Lavatory Ceiling, Living Room Ceiling, and the Entrance Ceiling, remained the same as previously seen. With the aid of ultra violet light, no fluorescent dye could be seen at these areas notwithstanding the CWT. The other tests conducted on 24 April 2023 were not repeated on this occasion.

Ms Lau’s conclusion

51.  Based on the above, she opined that there was seepage from Flat 26M to Flat 25M. The seepage had no connection with the fresh water supply pipe in Flat 26M; nor did they have anything to do with the waste water pipe connected to the toilet in the 26M Lavatory.

52.  Echoing on what she said in Lau’s 2^nd Report, she found the source of seepage came from the Showering Area and Non-showering Area of the 26M Lavatory. And from the ceiling conduit where the electricity cables were concealed, substantial amount of water (based on the water droplets and stalactite seen at the Living Room Ceiling and the Entrance Ceiling) ran along it from the Lavatory Ceiling to the Living Room Ceiling, and finally to the Entrance Ceiling.

53.  Ms Lau supplemented that after application of the CWT, VI showed that fluorescent dye (Sulforhodamine B) could be seen coming out from external portion of the waste water pipe in the Non-showering Area.

54.  Finally, Ms Lau reiterated that the absence of fluorescent dye used in the CWT being found at the affected areas inside Flat 25M could be due to the cement filtering or absorbing the substance.

Wong’s 1^st Report

55.  I will skip Lau’s 4^th Report as it relates to the issue of quantum, which will be reserved for discussions later in this Judgment, if necessary. For the time being, the focus would be on the issue of liability. Hence, I shall also only cover the liability-related parts of Wong’s 1^st Report under this section.

CWT, WMY and VI

56.  There was not much for Mr Wong to say under these topics save reciting the findings of Ms Lau in Lau’s 3^rd Report concerning VI, WMT, CWT and MS.

ECS

57.  Mr Wong seems to agree with Ms Lau that, for ECS, MC readings between 20° and 34.9° were considered as wet condition, and perhaps meeting Ms Lau’s assessment that there being minor seepages. As to the ECS results before and after CWT was performed, Mr Wong remarked that it revealed no significant changes of MC readings, save for point 17 at the Lavatory Ceiling, which is located near the external wall of 25M Lavatory. And for the MC at the Entrance Ceiling, he observed that the points with MC in the minor seepage range, and the sole point with MC exceeding 35°, were close to the public corridor.

Mr Wong’s conclusion

58.  He agreed that the Lavatory Ceiling, the Living Room Ceiling, and the Entrance Ceiling, were all affected by MC of varying degrees. However, due to the insignificant changes in the MC after CWT, Mr Wong considered that the source of the seepage could not be identified. He accepted that there was significant increase of MC at measure point 17 of the Lavatory Ceiling, but he warned that this was only 1 out of 50 points tested. Moreover, the CWT performed on 28 December 2021 revealed that there was no significant change in MC at point 17.

59.  Mr Wong further rebutted Ms Lau’s conclusion, relying on the following reasons: -

(1)  There was no fluorescent dye found at the affected areas after CWT was performed on 28 December 2021 and 24 April 2023, which controverted the suggestion that the seepage came from the 26M Lavatory. Repeated negative results, though not conclusive, should carry much weight.

(2)  There was a lack of bases for Ms Lau to suggest that the wetness found at the Living Room Ceiling and the Entrance Ceiling was brought by water running along the cable conduit from the Lavatory Ceiling. Her opinion was also inconsistent with the results of the Joint Inspections, when the water seepage at the Lavatory Ceiling did not bring about the same conditions at the Living Room Ceiling and the Entrance Ceiling. Mr Wong criticised that a clear path of water movement should be identified to support Ms Lau’s suggestion, but no effort had been made to locate the source of water penetration, and how it was related to the cable conduit.

(3)  Finally, with abundance of negative results coming from various tests being conducted, simply relying on the MS to conclude that the water came from Flat 26M would be most unsafe. Come what may, the depth of measurement under the MS only reached 110 mm from the base of the Lavatory Ceiling.

MR LAM’S CASE

60.  In accordance to his Amended Statement of Claim (“ASOC”), Mr Lam’s case is simply that there has been continuous seepage of water into the Lavatory Ceiling, Living Room Ceiling, and the Entrance Ceiling, since May 2018. Relying on Lau’s 1^st Report, and subsequently the JER, Lau’s 2^nd and 3^rd Reports, the water came from the 26M Lavatory, in particular, the Showering Area and Non-showering Area. There was no halt to it, notwithstanding the 2021 Repair.

61.  By allowing these conditions to happen and to continue, Mr Lam says that Mr Man and Ms Lee are in breach of the Deed of Mutual Covenant of the Building (the “DMC”), in particular, clauses C1.5, C1.22, C1.27, and items 3 and 5 of the Fourth Schedule. In addition, for the same reasons, they are negligent and have caused nuisance to him. In particular, Mr Lam has, in his Amended Reply, reprimanded Mr Man and Ms Lee for delaying the CWT to be conducted at the kitchen of Flat 26M (for over 11 months from 4 June 2018 to 3 May 2019), and their refusal to turn off the fresh water supply had caused the performance of the RPT to be pushed back for 4 to 6 months.

62.  His evidence tallied with the events chronicled at the beginning of this Judgment. He prefers the findings in Lau’s 1^st Report than those made by the JO and Prudential, commenting the tests that they conducted were not as complete as those performed by Ms Lau.

63.  Mr Lam said that since April 2023, the seepage conditions had become more serious, with water dripping persistently from the Living Room Ceiling. He also observed that there was water dropping from the pipe at the external wall of the 26M Lavatory.

64.  Mr Lam then enumerated on the disturbance and inconvenience caused to his family due to the seepage problems. First, since there were water drippings at the Living Room Ceiling near the light since May 2018, his family had not been using the living room light since then. For more than 3 years, his family had been using the living room in the dark, and his daughter was unable to do her homework there.

65.  On this point, Ms Lee had in her witness statement revealed that there were lights coming out from the living room of Flat 25M at night, with photographs to support such revelation[41]. In response, Mr Lam said that, due to the complaints from his daughter, he had since 2019 tried to find alternative ways to illuminate the living room but without much success. He could only place a movable LED spot light at the shoe cabinet inside living room as a temporary measure.

66.  Second, the water drippings had also led to his family having to spend much time and efforts in wiping the floor dry, and to keep placing and replacing buckets underneath the affected areas to catch the falling water. Third, the dire condition had ended any social activities to be held at Flat 25M, and even to a degree where they could not even have regular meals at home. They often had to dine out, incurring more costs for food not as healthy as home cooking.

67.  Mr Lam estimated that the affected areas occupied about 1/3 of Flat 25M. Adopting the market rent of HK$12,000 for Flat 25M, he claims 1/3 of the same for 5 years (up to July 2023), at the total sum of HK$240,000. He also claims HK$35,000 as the costs for Lau’s 1^st Report. Furthermore, based on the assessment of Ms Lau in Lau’s 4^th Report, the costs of repair amounted to HK$21,923.90.

68.  Under cross-examination, Mr Lam had these to say: -

(1)  He agreed that the Building was aging, and the Incorporated Owners (“IO”) had engaged in discussions regarding repair and maintenance of it since January 2020. In particular, in the minutes of IO meeting dated 26 August 2022 the chairperson had reported on the repair required on the external walls of the Building[42], and there would be invitation for tender for the repair of, and waterproofing work on, the external walls[43].

(2)  Looking at the floor plan of Flat 25M[44], there was a light well situated at the external walls of the dining room and the entrance corridor. Mr Lam said that there was a window at the common corridor which could open to the light well (the “Light Well”). However, he was unable to say whether the Light Well was an opened area, or whether sunlight and rain could enter the Light Well. Neither could he say whether the illumination seen in the photograph[45] was due to natural sunlight or lightings installed thereat.

(3)  Answering the confusions as identified in §§13 to 18 of this Judgment, Mr Lam agreed that he gave instruction to F&C in drafting the F&C’s 7.10.2021 Letter. He clarified that the Recurred Water Seepage only happened at the Lavatory Ceiling. However, when Mr Yung followed up on this and asked whether that meant the Recurred Water Seepage did not happen at the Living Room Ceiling and the Entrance Ceiling, it was met with Mr Lam’s rejection. He said that there were persistent water seepages at those spots as well, although this information was omitted from his instructions to F&C.

(4)  Mr Lam complained that his lawyers had wrongly used the word “recurring” in describing the water seepages in Flat 25M. The water seepages had never been halted; hence, they were continuous, not recurred.

(5)  He was brought to the JER and Lau’s 3^rd Report, where no water dripping was seen. He disagreed with the findings of the experts, including Ms Lau’s. Mr Lam later changed his stance, and agreed with Ms Lau’s observations.

(6)  There was no water dripping down from the Lavatory Ceiling at all material times. Mr Lam agreed that the 25M Lavatory could be used, and have been in use by his family throughout the years when Flat 25M was affected by water seepages.

(7)  Mr Lam had never rented out Flat 25M. Nor had he obtained any valuation on the market rent of his property. He agreed that the HK$12,000 adopted in calculation of loss was based on his own speculation. He also accepted that the 1/3 used in his calculation represented only the living room being affected by the water seepage.

(8)  A video recorded on 7 August 2023 was shown to Mr Lam (the “Video”). In it, the external walls of 26M Lavatory and the floors above were captured. One could see that there were 2 horizontal pipes running from the top middle part of the screen to the right bottom part of the screen. And above the 2 horizontal pipes was a smaller pipe. It could be seen that some water were dripping out from the smaller pipe, at a sequence of about 5 seconds per drop. After viewing the Video, Mr Lam said he could no longer be sure that the water had dripped down from the pipe located at the external wall of the 26M Lavatory as originally alleged.

(9)  Initially, Mr Lam denied that the water seepages were intermittent rather than continuous. To fortify his case, he said that the water seepages became worse whenever the occupants of Flat 26M showered or washed their dishes. When I asked how he knew someone was carrying out those activities at the times when the seepages worsened, Mr Lam replied that he was only speculating. Ultimately, he agreed with Mr Yung that the seepages were intermittent.

MR MAN AND MS LEE’S CASE

69.  At the outset of the trial, Mr Yung had made it clear that, on the issue of liability, Mr Man and Ms Lee only adhere to the Admission, i.e., that there was water seepage from the Non-showering Area of 26M Lavatory to the Lavatory Ceiling, from the time of the Joint Inspections (i.e., 29 September 2020) up to the 2021 Repair (i.e., 28 July 2021), and no more. The seepage was rectified by the 2021 Repair.

70.  Ms Lee gave evidence that largely repeated the events chronicled. Citing what the experts had said in the JER and Lau’s 2^nd Report, she accused Mr Lam for exaggerating his loss and damage. Relying on his inaction from January 2020 to June 2020 (i.e., after mediation), Ms Lee relied on it as proof that the water seepage had stopped, or was not as serious as Mr Lam tried to portray. She denied that she had caused any delay in the investigations performed by the JO, WSD and Prudential. On the contrary, she had all along cooperated with the authorities. There was no reason for her to rectify any problem when none was identified, until the JER. Ms Lee emphasised that Ms Lau’s 1^st Report was based on examinations conducted solely at Flat 25M.

71.  The Video was taken by Ms Lee on 7 August 2023, after learning Mr Lam’s allegation that there was water dripping from the pipe at the external wall of 26M Lavatory. She explained that the small pipe above the 2 horizontal pipes, where the water came from, actually belonged to Flat 28M.

72.  As to the light that came out from the living room of Flat 25M, Ms Lee expounded that she had observed Flat 25M from the ground level outside the Building every night between 6 and 18 July 2023, and she could see bright light coming out from the window of the same, which was not dimmer than the lights that came from other units of the Building. She thus took photographs of the same in order to refute Mr Lam’s assertion that his family had been living in the dark for 3 or more years after May 2018.

73.  Under cross-examination, Ms Lee gave the following answers: -

(1)  Only RPT were conducted by Ngai Fung in May 2018, which centred on the fresh water supply to Flat 26M. This was so because at that time, Mr Lam’s complaint was limited to the Entrance Ceiling. There was thus no test performed at other areas of Flat 26M, including the 26M Lavatory, at that time.

(2)  Although at the time when the Defence was filed, the report from Prudential was not issued yet, Ms Lee decided to deny liability. Her decision was retrospectively justified by the Prudential’s report, which was issued 9 days after the Defence was filed. She saw no reason to admit liability just because Lau’s 1^st Report was favourable to Mr Lam, especially when Ms Lau’s examinations did not include Flat 26M. Ms Lee added that Ms Lau only requested to inspect Flat 26M on the day of inspection, i.e., on 21 January 2019[46]. There was no prior appointment made with Mr Man and Ms Lee for the inspection.

(3)  The 2021 Repair did not involve the waste water pipe at the Non-showering Area. Ms Lee recounted that the worker told her the waterproof coating applied would penetrate to the pipe, and repairing it. Ms Lee added that it was the suggestion of Ngai Fung to repair the Non-showering Area by applying waterproof coating to the floor slab of 26M Lavatory. It had nothing to do with the costs involved. Representative from Ngai Fung told her that adoption of such method would be sufficient.

74.  Although Mr Man had filed his witness statement, and gave evidence at trial, his input to this case was very limited, as he worked outside Hong Kong most of the times.

MS LAU’S EVIDENCE

75.  Ms Lau adopted her reports (save Lau’s 1^st Report) as her evidence-in-chief. Her expertise is not disputed.

76.  Mr Ho first invited Ms Lau to render explanation on the formation of stalactites observed at the Living Room Ceiling and the Entrance Ceiling. She said that they were created gradually, when the cement inside the ceiling was brought downward as the water seeped through it.

77.  As to the inspection on 21 January 2019, which led to Lau’s 1^st Report, Ms Lau clarified that it was Mr Lam who should arrange with Mr Man and Ms Lee for inspection of Flat 26M. She was simply told by Mr Lam on the day of inspection that it could not be arranged.

78.  Ms Lau was then referred to 2 photographs showing a pipe inside the false ceiling at the Lavatory Ceiling. When asked, she replied that the pipe was the cable conduit she had referred to in Lau’s 3^rd Report (see §52 of this Judgment).

79.  Mr Ho invited Ms Lau to comment on the 2021 Repair by reference to the invoice issued by Ngai Fung, and the description of works included therein. She remarked that the waterproof coating applied on the floor slab and the walls would not last long. The better method of repair, in her opinion, is the conventional way of replacing or repairing the waterproof membrane beneath the floor slab. Ms Lau added that the waterproof coating could not cure a defective drainage pipe embedded in the floor slab.

80.  Before being cross-examined by Mr Yung, Ms Lau clarified that her observation of colour water dripping from the external wall of the 26M Lavatory has no connection with her finding of water seepage at the Lavatory Ceiling.

81.  Under cross-examination, Ms Lau had these to say: -

(1)  The IT would only reveal the difference of temperature between dry and wet areas. If the entire area was wet, IT could not show a difference of temperature.

(2)  MS served the purpose for finding the water path. The scan would start at 110 mm, which is the furthest point it could reach from the surface of the ceiling. The circled part would represent where the water came from. 70 mm would reveal how the water spread inside the ceiling, and 30 mm is the closest to the ceiling. Read together, the results could show where the source was from, the path of the water, and ultimately where the water came out.

(3)  Ms Lau was questioned as to how one could be certain that the reading at 110 mm would be the source of seepage found at 30 mm, when, for example, there could be water from another source entering into the path between 110 mm and 70 mm, and likewise between 70 mm and 30 mm. Her answer was simply that MS could only look at these 3 depths.

(4)  She confessed that, before conducting the MS, she had not ascertained the thickness of the concrete between the floor slab of 26M Lavatory and the Lavatory Ceiling.

(5)  Ms Lau conceded there was no evidence to show that the cable conduit seen at the Lavatory Ceiling was connected to the cable conduits serving the lights at the Living Room Ceiling and the Entrance Ceiling, thus bringing the water from the Lavatory Ceiling to the latter 2 spots as she had suggested. To ascertain this proposition would require breaking open the concrete ceilings all the way from 25M Lavatory, to the living room, and finally to the entrance corridor, which was infeasible and not worthwhile. Other than such proposition, she agreed that there was no other route identified for water from the Lavatory Ceiling to reach the Living Room Ceiling and the Entrance Ceiling.

(6)  Ms Lau commented that negative results from CWT should not be seen as the conclusive evidence that there was no water seepage; results from other tests could also be telling. For example, the increase of MC by ECS after CWT was performed would be evidence that there was water seepages at those spots. Be that as it may, Ms Lau admitted that there was no drastic increase in the MC after CWT. What one could conclude was that there was MC, before and after the CWT.

(7)  Regarding the decrease in the MC at certain points using ECS after CWT was performed, Ms Lau explained the phenomena could be caused by the needles being inserted at different spots of the same measure point before and after the CWT.

(8)  Ms Lau agreed that the 2021 Repair could have partly cured the water seepage found at the Non-showering Area of the 26M Lavatory. She opined that the waterproof coating could slow down water from seeping through the floor slab, but not to prevent it from doing so entirely. The 2021 Repair could also slow down the fluorescent dye from seeping into the Lavatory Ceiling.

(9)  She confessed that there was no basis for her to add in Lau’s 2^nd Report[47] that the seepage also come from the Showering Area, as she was not instructed to find out whether there were other sources of seepage per the 19.1.2022 Order (see §19 of this Judgment).

(10)  For Lau’s 3^rd Report, she agreed that there were rains before the inspections on 24 April 2023 and 17 May 2023[48]. The IT conducted at Flat 25M on 24 April 2023 was before CWT being performed[49]. Ms Lau confirmed that no IT was done after performance of the CWT. There is thus no evidence to show that there was expansion of moisture area after the CWT. Nevertheless, Ms Lau said there were increase of MC at 3 measure points at the Living Room Ceiling with minor seepages (namely, points 3, 8 and 10)[50].

MR WONG’S EVIDENCE

82.  He adopted the JER and Wong’s 1^st Report as his evidence-in-chief. Mr Wong’s expertise is not disputed.

83.  Mr Wong’s evidence given under cross-examination are summarised below: -

(1)  He agreed that, before the Joint Inspections, the Living Room Ceiling and the Entrance Ceiling were affected by water. However, the results from the Joint Inspections showed that the water could not have come from the 26M Lavatory. Moreover, if the source of water seepages at these locations came from the 26M Lavatory, it was inexplicable that the seepage was first spotted at the Entrance Ceiling, followed by the Living Room Ceiling, and with the Lavatory Ceiling coming last. The sequence should be reversed.

(2)  Mr Wong accepted that there were increment of MC no less than 5º in all 15 measure points at the Entrance Ceiling after CWT during the Joint Inspections. Notwithstanding that none of the points came back with a MC reading exceeding 35º, he agreed that MC between 31.5º and 34.9º could be regarded as sign of minor water seepage.

(3)  He agreed with Ms Lau that the fluorescent dye used in CWT could be filtered or absorbed by the concrete ceiling, thus not revealing itself on the surfaces of the ceilings. Nevertheless, this would unlikely be the cause for fluorescent dye not appearing at the Living Room Ceiling and the Entrance Ceiling during the Joint Inspections. Mr Wong pointed out that, if the seepages at those locations came from the Lavatory Ceiling via the cable conduits as suggested by Ms Lau, the chance of the fluorescent dye being filtered or absorbed by the concrete would be greatly reduced.

(4)  Regarding the 2021 Repair, Mr Wong remarked that if properly applied, the waterproof coating could cure the seepage problem coming from the floor slab and walls of the Non-showering Area. The protection could last for 2 years under the ordinary use of a non-showering area inside a lavatory, for example, activities like walking, vacuuming, and mopping. However, it could not rectify any defects at the drainage pipe embedded inside the floor slab.

(5)  Mr Wong agreed that the conventional method of repairing or replacing the waterproof membrane underneath the floor slab would be the better method. The protection could also last longer, i.e., for 5 years or more.

(6)  For the stalactite found at the Living Room Ceiling and the Entrance Ceiling, he had expanded on the explanation from Ms Lau. It was the lime content in the cement that was brought down from the water, and once the moisture evaporated, the lime content would stack up and create the stalactite. It would take about 2 to 3 months for stalactite to appear, and the lengthier the stalactite, the longer that the area had been affected by water dripping. However, he was unable to say how long it had taken for the stalactites found at the Living Room Ceiling and the Entrance Ceiling to have reached the length they have grown into.

ANALYSIS

Source of water seepage: general principles

84.  Counsel have no quarrel as to the following general principles to be adopted by this Court in determination of the source of water seepage: -

(1)  There is no presumption that the source of water leakage must come from the flat immediately above the affected flat. A plaintiff bears the burden of proof to establish, on balance of probabilities, that the source of the water seepage is from the defendant’s property[51].

(2)  It is not for the defendant to find out or identify the correct source of the water seepage, or to prove that its origin did not come from his property. Neither is it necessary for the Court to find the real source of water seepage problem[52].

85.  As I have mentioned at the start of this Judgment, litigations concerning water seepage often turned into a battleground between surveyors with conflicting views. That being so, the Court has to bear in mind that experts are merely providing assistance to the Court, and their evidence is not binding on the Court. The Court can and should make its own judgment by considering all the materials available[53].

86.  In addition, expert evidence is only part of the evidence to be weighed against the preponderance of the factual evidence, inherent improbabilities such as how the opinion squares with the normal usage of the suspected source should be considered. The Court could give weight to the improbabilities of the defendant’s flat being used in such ways as to give rise to the seepage so alleged, in rejecting a plaintiff’s claim[54].

The issues in question

87.  Mr Ho has listed out the issues to be considered in this case: -

(1)  Whether the Entrance Ceiling, Living Room Ceiling, and the Lavatory Ceiling, have been suffering from water seepage since about May 2018 (“1^st Issue”).

(2)  If the answer to the above is affirmative, whether the water leakage was caused by or originated from Flat 26M (“2^nd Issue”).

(3)  If the answer to the 2^nd Issue is “yes”, whether Mr Man and Ms Lee have: (a) breached their duty to Mr Lam under the relevant provisions of the DMC; (b) been negligent, and/or (c) committed the tort of nuisance. In this regard, the Court may need to consider whether the 2021 Repair was effective in preventing water seepage from the 26M Lavatory (“3^rd Issue”).

(4)  If the 3^rd Issue is answered in the affirmative, the Court should consider whether injunction should be granted, and what damages should be awarded (“4^th Issue”).

1^st and 2^nd Issues: Living Room Ceiling and the Entrance Ceiling

88.  On the 1^st Issue, albeit that I agree that there were at times water seepages at these locations, I do not agree that they had happened at the same time, and all since May 2018. Mr Lam’s initial assertion that this was the case is contradicted not only by his own narratives and the documented events as listed in the above.

89.  In addition, the JER clearly showed that the seepages at the Living Room Ceiling and the Entrance Ceiling had stopped at the time of the JER. And since the 2021 Repair, the complaint was that the Recurred Water Seepage was found at the Lavatory Ceiling, per F&C’s 7.10.2021 Letter. There was no mentioning of the Living Room Ceiling and the Entrance Ceiling had persistent seepages or they were subjected to the Recurred Water Seepage since the JER or the 2021 Repair. Mr Lam confessed that he gave no instruction to F&C on these areas still suffering from water seepages when the F&C’s 7.10.2021 Letter was issued, without elucidation as to why he had deliberately omitted them from his instructions. I do not believe in his alleged omission. I believe that he gave no such instruction because there was simply no seepage found at the Living Room Ceiling and the Entrance Ceiling in or about October 2021.

90.  Overall, I do not accept that the seepages at the Living Room Ceiling and the Entrance Ceiling had both started in May 2018; neither do I accept that the seepages at these locations were continuous since May 2018. At best, the water seepages thereat were intermittent.

91.  The key question is whether the water seepages at these 2 locations came from Flat 26M. Based on the available evidence, I find that they were not. I see no connection between them and the water seepage from the 26M Lavatory, be it from the Showering Area or Non-showering Area, and before or after the 2021 Repair. I will give my reasons below.

92.  Firstly, as I have said at the start of this Judgement, the sequence as to seepages appearing in the 3 locations is most telling. It is curious that the seepage would appear first at the Entrance Ceiling if the water came from the 26M Lavatory. Logically, the water coming down from the 26M Lavatory should have brought instant effect to the Lavatory Ceiling situated directly below, but that was not the case. Bizarrely, the water first appeared at the Entrance Ceiling, the furthest point away from the Lavatory Ceiling within Flat 25M. Moreover, if what Ms Lau suggested is adopted, i.e., substantial amount of water had made its way to the Entrance Ceiling (and fortified by Mr Lam’s claim that there was water dripping at that area, so much so that stalactite was created), the amount of water coming from 26M Lavatory and landing first onto the Lavatory Ceiling must correspondingly be substantial. Perplexing it is then that the Lavatory Ceiling was the last to be affected. Ms Lau had not elucidated on such oddity.

93.  For the same reasons, it is also a mystery as to why the seepage next appeared at the Living Room Ceiling, instead of the Lavatory Ceiling.

94.  I note Mr Wong, in his testimony, shared my queries above. I am also aware of Mr Ho’s criticism of such testimony, suggesting that it was a recent invention, as it never appeared in Wong’s 1^st Report. However, it does not take an expert to observe the said sequence, and how it could undermine Ms Lau’s opinion and Mr Lam’s case.

95.  Secondly, during the Joint Inspections, no seepage was found at the Living Room Ceiling and the Entrance Ceiling, before and after the CWT performed at the 26M Lavatory. This is a result agreed by both experts. If there was indeed connection between them, the substantial amount of water (a point which I would return to in the section below) poured onto the floor slab of the 26M Lavatory should have procured significant increase in the MC, if not water droplets or dripping, at the Living Room Ceiling and the Entrance Ceiling during the Joint Inspections. But none of these scenarios had happened.

96.  Thirdly, in Lau’s 3^rd Report, Ms Lau relied on the cable conduits as the channel that brought the water from the Lavatory Ceiling to these 2 locations. This is, accepted by Ms Lau at the trial, merely a proposition on her part. There is no evidence that there are cable conduits connected and running from the Lavatory Ceiling, to the Living Room Ceiling, and ultimately to the Entrance Ceiling. Again, if such proposition were to be adopted, one would query why no water seepage at these locations was found during the Joint Inspections.

97.  Moreover, assuming that there were indeed cable conduits connecting the 3 locations, arguably the water could have run reversely from the Entrance Ceiling, to the Living Room Ceiling, and ultimately to the Lavatory Ceiling. The sequence of seepage appearance as identified in the above could support such proposition, and further fortified by the location of the Light Well (see §68(2) above). The available evidence showed that the Light Well is an opened area, with common pipes affixed on its walls (and the walls of the Light Well formed the external dining room and entrance corridor walls of Flat 25M), and could be affected by rains and spillage of water from the common pipes[55]. No test was performed thereat, hence there is no information as to whether the walls of the Light Well could have been a source of the water seepage found at the Entrance Ceiling.

98.  Both experts have only identified the Non-showering Area of the 26M Lavatory as the source (per the JER), and possible source after the 2021 Repair, of water seepage in the present case. For the said reasons, I am not satisfied that the Non-showering Area was and is (if the seepage is still happening at these spots) the source of the water seepage found at the Living Room Ceiling and the Entrance Ceiling.

1^st and 2^nd Issues: the Lavatory Ceiling

99.  Mr Yung, advancing Ms Lee’s case, argued that the Admission only covered the period from 29 September 2020 (first day of the Joint Inspection) up to 28 July 2021 (the 2021 Repair). Hence, there are 2 periods that require consideration by this Court, i.e. from January 2019 to 28 September 2020, and from 29 July 2021 up to the present.

100.  Focusing first on the 1^st Issue, the MC readings leave no doubt that there was and is water seepage at the Lavatory Ceiling. The key question is thus again on the source of water seepage.

101.  As aforestated, water seepage at the Lavatory Ceiling was first noticed by Mr Lam and reported to the JO in mid-January 2019. The JO and Prudential had thereafter conducted tests at the 26M Lavatory but could not identify the source (see §8 of this Judgment).

102.  In his ASOC, Mr Lam relied on Lau’s 1^st Report to point to the 26M Lavatory as the source. That being so, Lau’s 1^st Report was rightly neither adopted by Ms Lau as her evidence-in-chief, nor relied upon at trial by Mr Ho. Come what may, I do not think her conclusion in Lau’s 1^st Report would be of much probative value for Mr Lam’s case, as they were reached without conducting any tests, especially the CWT, at Flat 26M.

103.  In the circumstances, there is no expert evidence to show that the water seepage found at the Lavatory Ceiling before 29 September 2020 originated from the 26M Lavatory.

104.  I have considered whether the positive finding in the JER that the water came from the Non-showering Area, could have extended retrospectively to as early as January 2019, when seepage at the Lavatory Ceiling was allegedly first noticed by Mr Lam. I have my doubts about this. One should notice that when CWT was performed, the fluorescent dye was mixed with 10 litres of water, and the coloured water would then be poured onto the tested area[56]. The said positive finding in the JER stemmed from such test being applied at the Non-showering Area. I have great reservation that Mr Man and Ms Lee, or the other occupants of Flat 26M, would pour 10 litres of water onto the Non-showering Area in the normal daily usage of the same. Nor am I convinced that the floor slab and the surrounding walls of the Non-showering Area would be met with considerable amount of water during their normal daily use.

105.  Based on the evidence before me, I am not convinced that the seepage at the Lavatory Ceiling before 29 September 2020 was caused by water coming down from the Non-showering Area of the 26M Lavatory.

106.  As to the second period, my answer to the 2^nd Issue is also “no”, after considering Lau’s 2^nd Report, and even if I were to take into consideration Ms Lau’s views on this topic as contained in Lau’s 3^rd Report.

107.  Firstly, notwithstanding the CWTs being applied after the 2021 Repair, no fluorescent dye appeared at the Lavatory Ceiling. This is very different from what we saw after the CWT conducted during the Joint Inspections. I note Ms Lau’s explanation that negative result from a CWT would not be conclusive, because the fluorescent dye could have been absorbed or filtered by the cement. However, this could not explain why the fluorescent dye applied to the Non-showering Area during the Joint Inspections found its way to the Lavatory Ceiling.

108.  Secondly, the examinations performed by Ms Lau on 28 December 2021 (for Lau’s 2^nd Report) were completed within 2 hours (from 10 am to 12 noon). The examinations on 24 April 2023 (for Lau’s 3^rd Report) took 3 hours (from 10 am to 1 pm). If, according to Ms Lau, the water from the CWT could reach the Lavatory Ceiling within such a short span of time (hence her opinion that there were water seepages, which is questionable as I have found later on in this Judgment), it is inexplicable that only the fluorescent dye was absorbed or filtered by the cement.

109.  There is also an interesting point raised by Ms Lau at the trial, when explaining why the fluorescent dye from the CWT did not appear at the Lavatory Ceiling post-2021 Repair. She said that the waterproof coating could have blocked or slowed down the fluorescent dye from seeping through the floor slab of the 26M Lavatory. In the same vein, I wonder why only the fluorescent dye was blocked or slowed down, but not the water. I am still none the wiser after such explanation. I would pile on this with Ms Lau’s opinion that the waterproof coating applied on the floor slab of 26M Lavatory would only be good for about 2 years. By her last examination (on 24 April 2023), it was close to the second anniversary of the 2021 Repair. The waterproofing ability of the coating should be reaching its expiry. Remarkably, it could still filter the fluorescent dye.

110.  Although negative result from a CWT does not necessarily preclude establishment of the seepage path, a series of negative CWTs may well be evidence against the seepage path as alleged by a plaintiff[57]. In our case, there were 2 CWTs with negative results post-2021 Repair.

111.  Thirdly, ECS results showed that there were measure points with MC above 35º before and after the CWT were conducted on both occasions. However, as accepted by Ms Lau at the trial, none of the points (save point 17 as recorded in Lau’s 3^rd Report) had any significant increase in the MC after CWT. This is revealing, as one could see that the 10 litres of water applied separately[58] to the Showering Area and Non-showering Area of 26M Lavatory made unremarkable difference to the degree of wetness found at the Lavatory Ceiling. It is thus questionable how one could conclude that the source was the 26M Lavatory.

112.  Pausing here, albeit that both experts agreed there were minor water seepages with MC readings below 35º, the widely adopted standard of 35º or more as evidence of water seepage has not been displaced by them.

113.  Aside from the insignificant increase in MC, the results showed that more than half of the measure points had their MC decreased (see §§21 and 45 above). When I asked Ms Lau for the reasons for this, her reply was that it could be due to the needles being inserted at different spots of the same measure point before and after the CWT. If this was true, I wonder why the needles could not be inserted at the same spots to arrive at a more accurate reading. Moreover, I query whether the same reason could have caused the increase in MC.

114.  I also find the insignificant increase of MC after the CWTs remarkable, when one compares these results with that from the Joint Inspections. After application of the CWT on 29 September 2020, result of ECS showed that 18 out of the 20 measure points had their MC increased. At measure points 5 and 12, the MC had even increased by 15.4º and 16.1º. Examinations of the same 20 points on 6 November 2020 revealed that measure point 17 had its MC reached 99.9º. Per Lau’s 2^nd and 3^rd Reports, none of the measure points reached the same level of increment, save for point 17, and that happened only on 24 April 2023.

115.  Regarding the significant increment of MC at measure point 17, as aforestated, this only occurred once on 24 April 2023. The CWT conducted on 29 September 2020 and 28 December 2021 did not bring about the same result. In fact, the reading on the latter occasion showed that the MC decreased after the CWT. I accept Mr Wong’s view that 1 out of the 20 measure points tested with significant increase of MC could not safely be taken as evidence of seepage from the 26M Lavatory. I also note that measure point 17 is closest to the external wall of 25M Lavatory, and there have been discussions within the IO that the external walls of the aging Building needed repair and maintenance. I will say no more on this, as no test had been conducted on the external walls (including the external walls at the Light Well) post-2021 Repair.

116.  There remain the results from IT and MS. As accepted by Ms Lau, IT could only identify the difference of temperature between dry and wet areas. It could not tell whether the MC had increased after CWT was performed. The most it could do is to show that the wetness area had expanded after the CWT, but there is no indication as to whether the expanded area of wetness had its MC exceeded the threshold of 35°. It is, perhaps due to such limitation, that no IT was performed by Ms Lau on 24 April 2023.

117.  As to the MS, I note Mr Yung’s submissions that anything could happen between the measure points of 110 mm, 70 mm and 30 mm. Such suggestion from Mr Yung was not refuted by Ms Lau (see §81(3) above). Moreover, she conceded that she took no measure of the thickness of the concrete slab between the floor of the 26M Lavatory and the Lavatory Ceiling (see §81(4) above). On this point, I share HH Judge M.K. Liu’s view in the Choy Shok Chun case, at §102: -

“Mr Fan submits that there is no evidence showing the thickness of the concrete slab between the 6/F Property and the 5/F Property. In the absence of any evidence on this point, we do not know whether 110 mm would be how far away from the 6/F Property. Suppose that 110 mm would be still a point far away from the 6/F Property, it would be difficult to conclude that the water seepage affecting the 5/F Property would be from the 6/F Property. With respect, I do not see any valid answer to Mr Fan’s submission from Mr Ko.”

118.  I need only mention in passing that the alleged water dripping from the pipe located at the external wall of 26M Lavatory provided no aid to Mr Lam’s case, after seeing from the Video that the water came from the floors above. Ms Lau has also clarified that her observation of colour water dripping from a pipe at the external wall of the 26M Lavatory has no bearing on her finding of water seepage at the Lavatory Ceiling. Nevertheless, it provides another possible source of seepage to the Lavatory Ceiling, namely via the external wall of 25M Lavatory, coinciding with the higher level of MC at measure point 17 of the Lavatory Ceiling.

119.  I have not lose sight of the argument that the 2021 Repair could not bring about repair to the drainage pipe situated at the Non-showering Area. Although I have doubts as to how the waterproof coating could penetrate the cement and repair the pipe, my findings above would make a further consideration of this topic academic.

120.  Based on the above discussions, I am not convinced that the water seepage at the Lavatory Ceiling post-2021 Repair was and is from Flat 26M.

3^rd and 4^th Issues

121.  For the reasons above, I see no reason to impose any injunction against Mr Man and Ms Lee as sought by Mr Lam. The 2021 Repair had been performed, and since then, there was and is insufficient evidence to support the Recurred Water Seepage, or continuous water seepage as alleged by Mr Lam, originated from Flat 26M, in particular the 26M Lavatory.

122.  In the same vein, damages to be awarded should be confined to the Lavatory Ceiling, and for the period covered under the Admission.

123.  Regarding the repair costs, counsel argued on the costs assessed by Ms Lau in Lau’s 4^th Report. Her assessment was given on the basis that the water seepages at the Lavatory Ceiling, Living Room Ceiling, and the Entrance Ceiling, post-2021 Repair, were all originated from the 26M Lavatory. I have already ruled against this in the above. Hence, I do not see the need to consider Lau’s 4^th Report.

124.  Instead, the focus should be on the experts’ assessments in the JER. In it, Ms Lau had, under items 1 to 3[59], estimated that it would take 5 days to plaster the Lavatory Ceiling, Living Room Ceiling, and the Entrance Ceiling. Using the daily wages of HK$1,267 for a plasterer, she suggested that a costs of HK$6,335 as the wages for the plasterer. In addition, Ms Lau suggested HK$800 would be the costs for the materials, and a 30% profit margin should be allowed to the contractor. Hence, a sum of HK$9,275.50 should be awarded for the costs under items 1 to 3. These calculations, based on my findings above, would no longer be applicable.

125.  Mr Ho suggested a broad-brush approach in calculating the repair costs for the Lavatory Ceiling, taking Ms Lau’s assessment in Lau’s 4^th Report (i.e., HK$14,823.90 for item 1) and multiply it by 3/5, on the basis that the repair would take 3 days to complete. I am unable to accept this. Firstly, Ms Lau’s assessment in Lau’s 4^th Report had included the costs of a cement worker, which did not appear in the JER. Considering that the water seepage at the Lavatory Ceiling did not originate from the 26M Lavatory post-2021 Repair, I would not allow such addition. Secondly, the costs of the materials assessed in Lau’s 4^th Report included those to be applied at the Living Room Ceiling and the Entrance Ceiling. Application of 3/5 of the same to the Lavatory Ceiling seems far from being a reasonable and realistic estimation. Thirdly, although Ms Lau suggested in the JER that only 1 plasterer would be required for plastering the Lavatory Ceiling, the Living Room Ceiling and the Entrance Ceiling, she had increased the number of plasterer to 2 in Lau’s 4^th Report. Again, I disagree that this should form a reasonable basis for adoption of the 3/5 as proposed by Mr Ho. Fourthly, I do not see why the plasterer would need 3 days to complete his job at the Lavatory Ceiling.

126.  Based on the above, I would adopt Mr Wong’s calculations in the JER[60]: (1) 1 plasterer for 2 days of work (HK$1,267 × 2) in the sum of HK$2,534; (2) materials at the costs of HK$800; and (3) 30% profit margin for the contractor. The total sum for the costs of repair should be HK$4,334.20. I note from Mr Yung’s closing submissions that he suggested HK$400 as the costs of the materials. I see no reason to deviate from Mr Wong’s assessment on this.

127.  Item 5 relates to the costs of protection, cleaning and disposal of construction materials. Ms Lau assessed them at HK$2,100, whereas Mr Wong considered that a sum of HK$1,600 should be sufficient. I prefer Mr Wong’s estimation, as the same was made solely on the Lavatory Ceiling, whereas Ms Lau’s assessment included also the costs for the Living Room Ceiling and the Entrance Ceiling. Again, I am not persuaded that an application of 3/5 to the costs assessed by Ms Lau in Lau’s 4^th Report is a reasonable and realistic approach. I thus award the costs of HK$1,600 to Mr Lam under this head.

128.  Finally, item 6 concerns the insurance premium. Ms Lau suggested that the sum should be HK$1,500, whereas Mr Wong estimated that it should be HK$800. For the same reasons provided in the above, I prefer Mr Wong’s assessment, and award a sum of HK$800 to Mr Lam under this head.

129.  To recap, I would allow a total sum of HK$6,734.20 as the costs of repair.

130.  Turning to the claim for Ms Lau’s fees in compiling Lau’s 1^st Report as damages, there is no dispute that this was prepared without direction from the Court; in fact, it was obtained by Mr Lam prior to the commencement of this action.

131.  The starting point of discussion under this topic is that Mr Lam risks having to bear his own costs in instructing Ms Lau to prepare Lau’s 1^st Report without leave from the Court[61]. What Mr Lam is seeking to do is to circumvent such restriction by claiming it as a form of damages. I am not ready to embrace it.

132.  In addition, existing authorities are against granting such expense as damages[62]. Mr Ho has not in his submissions tried to distinguish Mr Lam’s situation from the claimants in those cases. Lau’s 1^st Report was prepared just 2 months before commencement of this action[63]. I see no reason to depart from the norm and make a ruling in favour of Mr Lam in this regard.

133.  Finally, as to the damages for discomfort and inconvenience, limited to the 25M Lavatory, I agree with Mr Yung that the method of calculation adopted by Mr Lam is unconventional and so problematic that it should be ignored (see §§67 and 68(7) of this Judgment). His confession that the loss he suffered was limited to the disturbance he and his family suffered over the living room eliminated the need to consider of his claim (including the question as to whether he had exaggerated on having using the living room in the dark for 3 years).

134.  That being so, both counsel in their submissions adopted the conventional way in assessing the damages that could be granted under this head. Mr Ho suggested a sum of HK$40,000 on the strength of the case Chung Yin Ha v Tse Shui Sam [64] (nuisance for 4 years; seepage at the lavatory and living room), whereas Mr Yung countered with a sum of HK$20,000, citing the cases of Tong Chi Ying & Anor v Shum Ping Kuen Benson & Anor [65] (nuisance for 2 to 4 months; seepage at the lavatory but there was another lavatory for the occupants to use) and Hung Tung Shing & Anor v The Incorporated Owners of Kwong Sang Hong Building Block B & Anor [66] (where small portion of the lavatory was affected). Based on my findings above, the nuisance involved in our case certainly did not last as long as 4 years. Flat 25M has only one lavatory, hence the inconvenience suffered by Mr Lam and his family would be greater than those in Tong Chi Ying case. Mr Lam had stressed on the disturbance and inconvenience experienced by himself and his family over the seepage at the living room, but not much was said concerning the 25M Lavatory. Balancing all these factors, I would award HK$25,000 to Mr Lam under this head.

CONCLUSION

135.  For the above reasons, I make the following orders: -

(1)  The Expunge Application is granted, and K.S. Wong’s Report is expunged. Mr Lam is to receive 70% of the costs incurred for the Expunge Application from Mr Man and Ms Lee, to be taxed if not agreed, with certificate for counsel.

(2)  Mr Lam’s claims based on the water seepages at the Living Room Ceiling and the Entrance Ceiling be dismissed.

(3)  Mr Lam’s claims based on the water seepage at the Lavatory Ceiling is allowed only for the period covered in the Admission, i.e., from 29 September 2020 to 28 July 2021.

(4)  The injunctions sought by Mr Lam are refused.

(5)  Damages be awarded to Mr Lam for:

(a)  costs of repair to the 25M Lavatory, in the sum of HK$6,734.20; and

(b)  damages for discomfort and inconvenience in the sum of HK$25,000.

(6)  Mr Lam’s claim for survey fee paid to Ms Lau for preparation of Lau’s 1^st Report as damages is refused.

136.  Costs should follow the event. Although Mr Lam could, in principle, be said to have won the battle, but his victory is based on the Admission. Reality is that he has lost the war, when his other claims are dismissed. In the circumstances, I am of the view that he should only be entitled to 20% of his costs of the action (not including the Expunge Application), including all costs previously reserved, with certificate for counsel, to be taxed if not agreed. The costs orders nisi shall become absolute unless any party applies to vary it within 14 days of this Judgment.

137.  Finally, I must express my gratitude to counsel for their assistance.