SI, WING ON ANDREW AND ANOTHER v. CHENG SAU WAI

DCCJ 1097/2022

[2023] HKDC 309

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1097 OF 2022

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BETWEEN

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DECISION

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A. INTRODUCTION

1.  This is an application for summary judgment under Order 14 rule 1 of the Rules of the District Court (Cap 336H). The plaintiffs’ case is about water leakage from the upper floor. The plaintiffs complain that there is water seepage on the ceiling of the living room adjacent to the bathroom and the ceiling of the bathroom.

2.  The plaintiffs are husband and wife. They are the registered owners and occupiers of Flat D, 7^th Floor, Tower 7, Tai Po Centre, 8 On Pong Road, Tai Po, New Territories (“7D”). The defendant is the registered owner and occupier of the unit immediately above, namely Flat D on the 8^th Floor of the same building (“8D”), and she lives there with her husband.

3.  According to the approved Building Plans (as mentioned in one of the surveyor’s reports), the building at Tower 7 of Tai Po Center is a 22-storey residential building (4/F to 25/F) standing on a commercial arcade. It is constructed of the reinforced concrete structure completed in or around 1985. Each typical floor between 4/F and 25/F comprises of 8 flat units. Each Flat D comprises of a living and dining area, two bedrooms, a kitchen, and a bathroom. The layouts of both 7D and 8D are identical.

4.  The layout of Flat D is as follows. When one walks into the apartment from the main door, first there is the dining area with a kitchen on the left. Next will be the living room and to the left is the bathroom, with the door opening facing the living room. Between the kitchen and bathroom, there is a small boundary wall (against the external wall) with a window for the installation of the air-conditioner. The remaining part at the farther end is the two bedrooms, both facing outwards with a door opening assessable directly from the living room.

5.  There are no common walls shared with other adjacent units, except a small portion of structural wall near the main entrance of the flat sharing with Flat C and one of the kitchen walls sharing with Flat F. Apart from the common corridor at the lift lobby on that level, the boundary of the flat (Flat D) is basically set with only windows and external walls on all three sides of the flat (including one side being the building re-entry area for the ventilation of the bathroom and the kitchen and the installation of drainage pipes). Therefore, it is not disputed by the parties that there is no suggestion of any water seepage from the adjacent units (whether on the level of 7/F or 8/F).

B. THE APPLICABLE PRINCIPLES

6.  The relevant principles for O 14 are well established. The defendant must show that there are triable issues. He has to satisfy the court that he has a “real or bona fide defence” (Hong Kong Civil Procedure 2023, para 14/4/9).

7.  The test for an O 14 application is not whether the assertions are to be believed, but whether those assertions are believable in the light of the evidence placed before the court (Mass International Ltd v Hills Industries Ltd & Another [1996]1 HKC 434).

8.  On the other hand, the court must not embark on a mini-trial on affidavits (Hong Kong Civil Procedure 2023, para 14/4/9 & 9A).

9.  As to the legal principles relevant to water leakage cases, it is well established there is no presumption that water leakage was necessarily caused by the flat above, and the doctrine of res ipsa loquitur does not apply. It is not for the defendant to identify the source of leakage or to prove it did not come from the defendant’s flat. The onus is on the plaintiff to establish that the leakage originated from the defendant’s flat (Hui Ling Ling v Sky Field Development Limited, unreported, CACV 122/2012, 22 March 2013, per Kwan JA (as she then was), at para 42).

C. THE PLAINTIFF’S CASE

10.  The plaintiffs first observed a sign of water seepage at the ceiling of the living room and the ceiling of the bathroom on 8 February 2020. Although it is pleaded in the Amended Statement of Claim that the area of the water seepage included the ceiling of the kitchen, there is no mention of any water seepage in the kitchen on any material or evidence before the court. I would treat the plaintiffs’ complaint as concerned with the ceilings of the living room and the bathroom only.

11.  Upon the plaintiffs’ complaint, the management office of Tai Po Centre (“the Management Office”) conducted an inspection at 8D on 13 February 2020. It was found that the water leakage might be caused by water ponding under the bathtub in the bathroom of 8D. At the same time, it also found that there were cracks on the external wall outside 7D and 8D. While the Management Office would arrange a contractor to repair the said external wall, it requested, by letter dated 19 February 2020, the defendant to employ her own contractor to fix the water leakage problem in 8D.

12.  At the end of February 2020, the plaintiffs engaged a surveyor Hong Kong Survey Limited (“HKSL”) to investigate the cause of the water seepage. Inspections and tests, including fluorescent dye tests, were carried out by HKSL on 29 February 2020 in both 7D and 8D. In its report dated 24 April 2020, HKSL concluded that there was evidence that the water seepage was caused by the leakage of drainage pipes and the damaged waterproofing layer and facilities inside the bathroom of 8D.

13.  On 23 March 2020, the Management Office referred the water seepage problem to the Food and Environmental Hygiene Department (“FEHD”), and the matter was taken up by the Joint Office for Investigation of Water Seepage (“the Joint Office”).

14.  As the water seepage had deteriorated as complained by the plaintiffs, the Management Office sent reminder letters to the defendant on 23 March 2020 and 4 May 2020 urging the defendant to employ a competent contractor to carry out the necessary inspection and repair works. The Management Office also confirmed to the plaintiffs that the Management Office had completed their repair works on the external wall on 2 April 2020.

15.  On 9 September 2020, the Joint Office engaged Prudential Surveyors International Limited (“Prudential”) to have conducted an inspection and tests at 7D. In its report dated 16 October 2020, Prudential concluded that the water seepage at 7D was caused by water infiltration from the floor slab of the bathroom of 8D.

16.  On 9 December 2020, the Joint Office informed the parties that, according to the test results provided by Prudential, the water seepage was caused by the defective waterproofing facilities inside the bathroom of 8D. A Nuisance Notice was subsequently issued by the Joint Office to the defendant on 15 January 2021 to abate the nuisance of the water seepage by the stipulated deadline.

17.  To follow up on the event, the Joint Office engaged another surveyor, namely Easy Living Consultant Limited (“Easy Living”), to have conducted another round of inspections and tests on the ceiling and external wall of 7D on 7 May 2021 and 18 August 2021. In its report dated 23 August 2021, Easy Living stated that the possibility of drainage leakage (8D), and leakage from water supply pipes (8D) were ruled out. It also ruled out the possibility of any rainwater seepage from the building envelope (external wall) because there was no significant change in MC reading during prolonged non-rainy days after two rainy days. It confirmed that, by using Microwave Tomography, there was water leakage shown on the ceiling of the bathroom of 7D, but the water seepage on the ceiling of the living room had ceased during the course of the investigation.

18.  On 27 August 2021, information was laid (by way of Summons) against the defendant at the Shatin Magistrates’ Courts under the Public Health and Municipal Services Ordinance (Cap 132) as the defendant had failed to comply with the said Nuisance Notice dated 15 January 2021. The defendant was subsequently convicted (after pleading guilty) and fined $3,000 on 29 September 2021. A Nuisance Order and an Abatement Order were imposed on the defendant to repair satisfactorily the floor slab of the bathroom and by taking necessary measures to prevent water seepage to 7D within 42 days.

19.  On 21 December 2021, the Joint Office instructed Easy Living to conduct further inspection and tests at 7D on that day to see whether the defendant had complied with the Nuisance Order. The 2^nd Report of Easy Living (dated 11 January 2022) confirmed that the water seepage was still subsisting and the source of the seepage was from the bathroom of 8D through floor infiltration. Again, it also excluded the possibility of any rainwater seepage from the external wall (based on the MC reading).

20.  At about the same time, the plaintiffs also engaged another surveyor Trusty Surveyors (HK) Limited (“Trusty”) to confirm the water leakage. In the Trusty Report dated 25 January 2022 (based on an inspection at 7D on 16 December 2021), Trusty concluded that the water leakage and the seepage problem were still subsisting. Blistering of paint was found on the ceiling near the bathroom (ie the ceiling of the living room). There was a bucket placed below the water leakage area (although it was noted that the bucket was dry).

21.  The plaintiffs also instructed Trusty to perform electrical circuits test at 7D. In the Trusty Electrical Survey Report dated the same on 25 January 2022, Trusty confirmed that the water seepage had not caused any damage to the electrical circuits of 7D. (The defendant challenges that such a report is wholly unnecessary).

22.  On 21 March 2022, Summons was issued against the defendant at the Shatin Magistrates’ Courts that the defendant failed to comply with the Nuisance Order (as of 15 November 2021 during the FEHD’s investigation).  The defendant pleaded guilty and was convicted on 20 April 2022. She was fined $3,000 for the second time.

23.  In this action, the Writ endorsed with Statement of Claim was issued on 19 April 2022 and amended on 29 June 2022. The plaintiffs claim for an injunction that the defendant do rectify the water seepage problem within 30 days, special damages, and general damages for interference to be assessed.

24.  Having considered the plaintiffs’ case and the evidence in support, I am satisfied that the plaintiffs have made out a prima facie case for their claims. The next step will be for the court to find any believable defence on the part of the defendant.

D. THE DEFENDANT’S CASE

25.  Counsel for the defendant, Ms Fong, submits that there is a triable issue as to the source of the water seepage.

26.  In the Defence, the defendant basically pleaded only “non-admission” to each and every allegation made by the plaintiffs. Counsel for the defendant confirms that the defendant simply puts the plaintiffs to strict proof. In fact, there is one positive averment made by the defendant (in the second last paragraph of the Defence) that is of significance to the present application. I shall come back to it in the latter part of this Decision.

27.  Counsel for the defendant puts forward two arguments in opposing summary judgment:-

(1) The Nuisance Notice issued by the FEHD and the subsequent convictions of the defendant at the Magistrates’ Court were not conclusive evidence as to the source of the water seepage; and

(2) The surveyor’s reports provided by the plaintiffs showed that the surveyors were not correct in concluding the source of the water seepage, and there were inconsistencies amongst the various reports.

E. DISCUSSION

E1. Criminal convictions

28.  Counsel for the defendant submits that the convictions were not conclusive evidence because they were entered based on the surveyor’s reports (which the defendant’s counsel would challenge) and, as the defendant had pleaded guilty, such convictions were made without recourse to trial or cross-examination of the factual and expert witnesses.

29.  Mr So, counsel for the plaintiffs, submits that, as to the defendant’s convictions, the Hunter’s Rule should apply and it will be an abuse of process on the part of the defendant to ask this court to decide a subsisting conviction was wrong. He refers to the House of Lords’ decision in Arthur JS Hall & Co (a firm) v Simons [2002] 1 AC 615, per Lord Hoffmann, at 706D:-

“It follows that in my opinion it would ordinarily be an abuse of process for a civil court to be asked to decide that a subsisting conviction was wrong. This applies to a conviction on a plea of guilty as well as after a trial.”

30.  Ms Fong did not make any submission on the Hunter’s Rule, but fairly accepted that the criminal convictions are admissible evidence in civil proceedings. Perhaps I should add that the conviction is admissible evidence for proving that the defendant had committed the offence (see 702E, supra), and that s 62 of the Evidence Ordinance (Cap 8) is particularly relevant.

31.  In my judgment, I cannot accept Mr So’s submission. In Hunter, it was about whether the court could strike out as an abuse of process the second action in which the plaintiff bombers sought to re-litigate issues decided against them in earlier criminal proceedings. With respect, I do not consider that the Hunter’s Rule is directly applicable here. In our present case, the defendant is not trying to use a civil action to initiate a collateral attack on the decision made by the Magistrates’ Court. The defendant is merely trying to assert that the convictions might not be conclusive evidence that the defendant did commit the offence. There is no abuse of the process of the court here.

32.  It is pertinent to note that our s 62 of the Evidence Ordinance is equivalent to s 11 of the Evidence Act 1968 in England. I consider that s 62 is indeed applicable. I shall refer to the speech of Lord Diplock in Hunter regarding s 11 of the Evidence Act 1968 at 544D-H:-

“Section 11 makes the conviction prima facie evidence that the person convicted did commit the offence of which he was found guilty; but does not make it conclusive evidence; the defendant is permitted by the statute to prove the contrary if he can. The section covers a wide variety of circumstances; the relevant conviction may be of someone who has not been made a defendant to the civil action and the actual defendant may have had no opportunity of determining what evidence should be called on the occasion of the criminal trial; the conviction, particularly of a traffic offence, may have been entered upon a plea of guilty accompanied by a written explanation in mitigation; fresh evidence, not called on the occasion of his conviction, may have been obtained by the defendant's insurers who were not responsible for the conduct of his defence in the criminal trial, or may only have become available to the defendant himself since the criminal trial. This wide variety of circumstances in which section 11 may be applicable includes some in which justice would require that no fetters should be imposed upon the means by which a defendant may rebut the statutory presumption that a person committed the offence of which he has been convicted by a court of competent jurisdiction. In particular I respectfully find myself unable to agree with Lord Denning M.R. that the only way in which a defendant can do so is by showing that the conviction was obtained by fraud or collusion, or by adducing fresh evidence (which he could not have obtained by reasonable diligence before) which is conclusive of his innocence. The burden of proof of ‘the contrary’ that lies upon a defendant under section 11 is the ordinary burden in a civil action: proof on a balance of probabilities; although in the face of a conviction after a full hearing this is likely to be an uphill task.”

33.  Accordingly, it is my view that the defendant’s convictions are only prima facie evidence showing that the defendant had committed the offence, but they are not conclusive evidence. The defendant is permitted by statute to prove the contrary, albeit an uphill task for her.

34.  Now, we shall come back to the legal principle for O 14. It is for the court to decide whether the defendant’s defence is believable.

(a) The 1^st conviction on 29 September 2021

35.  Ms Fong submits that, according to the defendant’s affidavit evidence, the defendant’s premises (8D) had undergone renovation works from May to August 2020 to repair the water seepage problem. (I note that there are a quotation for the renovation of the whole premises at a total of $368,075, bank slips for payment records, and renovation notice issued by the Management Office, all being exhibited in the defendant’s Affirmation.) Since then, the defendant received no complaint from the plaintiffs until September 2021. Ms Fong submits that there was a total of 14 months (ie from mid-July 2020 to late September 2021) that the plaintiffs had kept silent, which is a strong indication that the water seepage problem had been rectified after the repair works carried out from May to August 2020. It is also the defendant’s explanation that she pleaded guilty to the prosecution summons without having sought any independent legal advice to save time and legal costs.

36.  Mr So submits that there is no evidence showing that the contractor engaged by the defendant was “competent” in carrying out the repair works, and on the contrary, there are surveyor’s reports showing that the water seepage was still subsisting. It is further submitted that, according to the information laid in the Summons and the Summary of Facts admitted by the defendant, the source of the water seepage is the bathroom of 8D.

37.  After consideration, I find that the defendant’s assertions in that regard are not believable. First, I do not agree with Ms Fong that the defendant received no complaint from the plaintiff for 14 months. At the very least, there was continuous communication between the Joint Office and the defendant, and there was Nuisance Notice issued by the FEHD against the defendant on 15 January 2021. The defendant was put on notice that there was still water seepage subsisting.

38.  Secondly, I have noticed on the Summary of Facts (paragraph 3) that it was stated that the Prosecution Witness No 5 (“PW5”) (a FEHD officer) had conducted a follow-up investigation at 7D on 18 March 2021 and it found the moisture reading on the ceiling of the bathroom was higher than 35%, and hence he confirmed there was water seepage. It also stated that PW5 conducted an investigation at 8D on the same day and had a meeting with a person (later known as the defendant’s husband Mr Kum). It stated that Mr Kum told the officer that the floor slab of the bathroom of 8D had not yet been repaired. Such admission (by agreeing to the Summary of Facts) made by the defendant when pleading guilty is totally contradictory to the facts stated in the Affirmation of the defendant and the Affirmation of Mr Kum.

39.  Therefore, I find against the defendant’s assertion that she had effectively fixed the water seepage problem in August 2020.

(b) The 2^nd conviction on 20 April 2022

40.  The defendant has pleaded one positive averment in her Defence. It is averred that “the defendant has used all reasonable endeavours to investigate and carry out repairs promptly upon being notified of the alleged water seepage problem.”

41.  According to the defendant’s Affirmations, the defendant first received the plaintiffs’ complaint through the Management Office on 13 February 2020. She let the Management Office have an inspection at 8D. She was informed that there was water leakage in the water tube of the water heater in her bathroom. She immediately retained the LP Gas agent Hing Fat Hong Gas Distribution Limited to replace the water tube on 15 February 2020. A receipt was exhibited in the Affirmation.

42.  The second repair work (as discussed earlier) was carried out once she had noticed that the water seepage deteriorated in March 2020. As mentioned above, the defendant immediately employed a renovation contracting company Royal Interior Design (“Royal Interior”) to have carried a complete renovation of 8D from May to August 2020. Although I had found against the defendant’s assertion above, it should be fair to note that the quotation/invoice given by Royal Interior showing the renovation works was quite extensive. The quotation clearly showed that it included a complete renovation of the bathroom, together with laying new waterproofing material on the floor slab. However, for the reason stated above, I would not give weight to this repair work in so far as the present application is concerned. I refrain from entering into a mini-trial of finding the reason for the discrepancy of evidence here.

43.  The third repair work was carried out after the defendant was convicted in the Magistrates’ Court. She immediately asked Royal Interior to conduct water seepage tests in early October 2021. But they could not detect any seepage happening.

44.  The defendant and her husband decided to ask Royal Interior to take apart step by step all the bathroom facilities, wall tiles, floor tiles, and floor slab in order to identify the source of the water leakage. They asked for an extension of the Abatement Order from the Magistrates’ Court but it was declined.

45.  The repair works of the bathroom were carried out by Royal Interior from November 2021 to January 2022. The defendant and her husband even moved out from 8D from 1 November 2021 to 23 January 2022 to allow the renovation works to be carried out.

46.  The defendant complained that there were some miscommunication with the Joint Office and disagreement with the plaintiffs on whether the next surveyor’s inspection should be appointed by a joint expert or a single expert to conduct further tests. The matter has been dragging on until today.

47.  The plaintiffs, on the other hand, say that the defendant was employing a delaying tactic. The plaintiffs will rely on all the surveyor reports (HKSL, Prudential, 1^st Easy Living, 2^nd Easy Living, and Trusty) and the 2^nd conviction of the defendant.

48.  It is my conclusion that the plaintiff cannot rely on the 2^nd conviction of the defendant, nor any of the surveyor’s reports, to support their allegation that the water seeping is still subsisting. I will explain further.

(c) The injunctive relief

49.  The plaintiffs ask for an injunction, as it alleged that the water seepage is still subsisting. It is submitted by counsel that, as prayed by the plaintiffs in their Affirmations, an injunction is necessary.

50.  In my judgment, I do not consider that the plaintiffs are entitled to an injunction at this stage. These are my reasons.

51.  First, this is the impediment the plaintiffs have here. While the plaintiffs are saying that the water seepage is still subsisting and they need to apply for an injunction, they adduce no new evidence in support of their claim. The relevant dates of the defendant’s convictions and all the surveyor’s reports predate the defendant’s final renovation of the premises in January 2022.

52.  Although the defendant was convicted on 20 April 2022 for the 2^nd conviction, the information laid against her was for an offence committed on 15 November 2021. According to the Nuisance Order and the Abatement Order dated 29 September 2021, the defendant had 42 days (ie until 10 November 2021) to comply with the Orders. Since the defendant’s application for an extension of time was declined by the Magistrates’ Court, the defendant would invariably expect to be convicted for failing to comply with the Orders as of 15 November 2021. But such a conviction record has no bearing as to whether the water seeping was subsisting or not.

53.  The same situation applies to the surveyor’s reports. Although some of the reports were issued in January 2022 (the 2^nd Easy Living Report and the Trusty Report), their inspections and tests were all conducted in mid-December 2021 before the defendant’s renovation was completed. In such circumstances, there is no surveyor’s report before the court to support the plaintiffs’ claim that the water seepage was still subsisting.

54.  By reason of their lack of evidence in support of the plaintiffs’ case at this stage, there will be a triable issue of whether the water seepage is subsisting or has ceased after the defendant’s renovation of the premises in January 2022. If there is indeed water seepage upon further testing after the renovation, then the source of that seepage has to be identified again.

55.  I have also considered that both parties mentioned in their Chronology that an FEHD officer had conducted some tests on 17 February 2022 and 8 April 2022. The defendant stated (also by way of affidavit) that the results as informed by FEHD were no seepage, while the plaintiffs stated in their Chronology that the moisture exceeded 35%. The plaintiffs did not make any response in their Affirmation in reply, nor was there any further evidence provided to the court for consideration. In any event, I find there is no conclusive evidence as to any seepage.

56.  Secondly, it is my view that the defendant’s assertion that they have done the remedial works for the water seepage in January 2022 is believable. I refer to the Affirmation of the defendant and the Affirmation of Mr Kum. I am satisfied that the defendant has acted promptly and diligently in rectifying the water seepage problem. It remains for the parties to agree on whether to appoint a joint expert or individual experts to verify the condition of the water seepage post-renovation.

(d) Damages

57.  As to the special damages and general damages, both continue to be incurred. There is no plea for any interim judgment. In order not to arrive any inconsistent finding at trial, I will not grant judgment on these two categories either.

E2. Surveyor’s Reports

58.  Counsel have made lengthy submissions in contending whether the external wall was one of the sources of the water seepage. In view of my ruling above, it is not necessary for me to address the discrepancies or inconsistencies (if any) as raised by the defendant’s counsel.

59.  As a matter of completeness, I agree with the plaintiffs’ counsel that the defendant cannot escape liabilities even if there is water seepage from both the bathroom and the external wall.

60.  The difficulty encountered by the plaintiffs here is just all the inspections and tests predated the final repair works done by the defendant.

F. CONCLUSION

61.  For the above reasons, I find that there are triable issues in the present case. I refuse to give summary judgment for the plaintiffs. I give the defendant unconditional leave to defend. Costs be in the cause with certificate for counsel.

62.  I give Directions as follows:-

(1) The parties shall file and serve timetabling questionnaire on or before 20 March 2023;

(2) The parties shall, by consent, reach agreement on case management directions within 10 days after receiving the defendant’s timetabling questionnaire; and

(3) If the parties are unable to reach agreement on case management directions, the plaintiffs shall take out a Case Management Summons within 14 days after receiving the defendant’s timetabling questionnaire or within 14 days after the expiry of time for the defendant to file the timetabling questionnaire, whichever is earlier.

63.  Lastly, it remains for me to thank counsel for their able assistance.