徐永德及另一人 對 德民大厦業主立案法團

HCSA 29/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 29 OF 2016

(ON APPEAL FROM SCTC No 44278 OF 2015)

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D E C I S I O N

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INTRODUCTION

1. On 2 September 2016, Ms S Wong, Adjudicator of the Small Claims Tribunal, gave a decision upholding the claimants’ claim herein against the defendant and ordering the defendant to pay the sum of HK$50,000, with interest thereon, to the claimants.

2. On 7 November 2016, this court granted leave to the defendant to appeal against the decision of the Adjudicator pursuant to section 28 of the Small Claims Tribunal Ordinance, Cap 228 (“the Ordinance”) on the following question of law, namely:-

“whether there was any or any sufficient evidence before the Adjudicator which could properly support a finding that the source of the water leakage at the ceiling of the Unit was in the Pump Room?”

3. The defendant’s appeal came before me on 26 April 2017.  This is my decision on the appeal.

BASIC FACTS

4. The claimants are the owner of Flat F, 15/F, Tak Man Building, 29 Tak Man Street, Hung Hom, Kowloon (“the Unit”), and the defendant is the incorporated owners of Tak Man Building (“the Building”).

5. According to the claimants, the Unit was previously let to a tenant.  In around June 2015, the claimants were informed by the tenant that he had decided not to renew the tenancy.  Upon inspection of the Unit, the claimants found that there was serious water damage in the ceiling of the Unit.  The investigation by their contractor revealed that the source of the water leakage was in the pump room (“the Pump Room”) situated on the 16/F of the Building, which it is not in dispute is a common part of the Building under the control of the defendant. The claimants made a complaint of the water leakage to the management company of the Building.

6. However, the management company’s own inspection of the ceiling of the Unit did not reveal any abnormality or water damage.  It agreed, nevertheless, to report the matter to a consultant (who was at that time responsible for overseeing a major general renovation of the Building) and to the defendant for follow-up action.

7. The claimants’ complaint was not resolved.  They therefore instructed their own contractor to carry out repair works to the ceiling of the Unit.

8. On 19 November 2015, they commenced the present action in the Small Claims Tribunal against the defendant seeking to recover the costs of the repair works.

9. At the hearing before the Adjudicator, apart from the claimants and the defendant’s representative (Mr Chan Chit Lun), the defendant called two other witnesses to give oral evidence, namely, (i) Mr Luk Wing To (from the management company of the Building), and (ii) Mr Tam Wo Kang (a water and electricity technician responsible for the inspection, repair and maintenance works at the Building). No expert evidence was called by either party to prove the source of the water leakage.

10. After a contested hearing, the Adjudicator found that there was water leakage at the ceiling of the Unit, and further found that the water leakage was directly connected with the Pump Room; in other wards the water leakage originated from the Pump Room.

DISCUSSION

11. The following principles are relevant for the purpose of resolving the present appeal.

12. First, “[t]he power of the Court of First Instance to hear appeals from the Small Claims Tribunal is limited. Under section 28 of the Small Claims Tribunal Ordinance, the Court of First Instance can only hear an appeal on a point of law. Under section 29(1), on an appeal, the Court of First Instance may allow the appeal, dismiss the appeal or remit the matter to the Small Claims Tribunal for a new hearing. Under section 29(2), the Court of First Instance may draw any inference of fact but may not reverse or vary any determination made by the Adjudicator on questions of fact or receive further evidence. The Court of First Instance can only deal with an appeal on a point of law on the basis of the evidence adduced at trial and the Adjudicator’s reasons for decision.”  See Potential Optical Media Ltd v Upplan Holdings Ltd [2008] 2 HKCLRT 184, at paragraph 8 per Deputy Judge To.

13. Second, although “the appellant can only appeal against the Tribunal’s decision on a point of law… it does not follow that the Adjudicator’s findings of fact are immune from challenge. In the House of Lords case of Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430 at 462, paragraph 99, Lord Millett endorsed the legal principle laid down by the House of Lords in Edwards (Inspector of Taxes) v Bairstow [1956] AC 36 that, notwithstanding an appeal being one on a point of law, under special circumstances the appellate court still has the power to interfere with decisions of fact made by the fact-finding tribunal. These special circumstances are:

(1)  The decision was based on a finding of fact or inference from the facts which was perverse or irrational;

(2)  The decision was not supported by any evidence; or

(3)  The decision was made because the tribunal had considered irrelevant factors or failed to consider relevant factors.”

See Potential Optical Media Ltd, at paragraph 9.

14. Third, in water leakage cases, there is no presumption that the source of a water leakage must be in the flat above.  The burden of proof is on the plaintiff to show that the water leakage originates from the defendant’s premises.  See 張秀玲及吳炳漢 v 鄭禮莊, CACV 268/1998 (9 April 1999), at paragraph 21 per Leong JA; Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456, at 461I-J per Cheung J; and 梁志文 v 梁少蓮, HCSA 69/2015 (8 August 2016), at paragraph 11 per Au-Yeung J.

15. Fourth, under Section 16(3) of the Ordinance, “[t]he tribunal shall inquire into any matter which it may consider relevant to a claim, whether or not it has been raised by a party.”  This provision imposes a duty on an adjudicator, in a water leakage case, to remind the parties to adduce expert evidence on the source of the water leakage where such evidence is reasonably required.  In 梁志文 v 梁少蓮, the rationale for imposing such a duty on the adjudicator was explained by Au-Yeung J in the following passages:-

[12] 但滲漏源頭是難以用肉眼證明的。因此在查訊當中，審裁處有責任提醒與訟雙方提交獨立的專業證據以協助審裁處判決，這可包括測量師的報告，甚至是曾往懷疑滲漏現場視察的資深裝修師傅或水喉匠的證供。單是查訊訴訟人「還有甚麼資料或證據提交」，並不足以在滲漏引致滋擾的案件完成查訊的責任。

[13] 食環署或屋宇署的調查報告雖可作為證據，但當調查結果模稜兩可，或無實質指稱某單位為滲漏源頭的話，審裁處仍需作出上段的提醒。因為兩署所作的調查報告不過是證據的一種，更非決定性的。

[14] 當然，若審裁處在作出提醒後，任何一方仍不提交相關的專業證據，審裁處便可憑其他證據作出決定，而該方便需冒上敗訴的風險。

16. As can be seen from the written reasons for her decision, the Adjudicator’s finding that the source of the water leakage was in the Pump Room was based mainly on following matters:-

(1) There was a similar water leakage incident which occurred in 2011, and the situation was improved after the defendant’s contractor had carried out some water proofing works on the floor of the Pump Room (see paragraphs 11 and 12 of the reasons for decision).

(2) In view of the fact that the 16/F of the Building was a pressurized pump room, it was reasonable to draw the inference that it was the source of the water leakage at the ceiling of the Unit situated on the 15/F of the Building (see paragraph 16 of the reasons for decision).

(3) The defendant failed to adduce any evidence to refute the allegation that the source of the water leakage was in the Pump Room (see paragraph 21 of the reasons for decision).

(4) Lastly, repair works were carried out in the Pump Room on the 16/F of the Building under the supervision of a professional consultant in 2015 after the claimants’ complaint (see paragraph 22 of the reasons for decision).

17. As for (1), the fact that there was a similar water leakage incident which occurred in 2011, assuming that the source of the water leakage on that occasion was in the Pump Room, is, in my view, no evidence that the source of the water leakage in 2015 was also in the Pump Room.

18. As for (2), I am unable to see how one can draw an inference, from the mere fact that the 16/F of the Building was a pressurized pump room, that was the source of the water leakage at the ceiling of the Unit situated on the 15/F of the Building was in that pump room.  It is, it seems to me, equally possible that the water leakage originated from a defective or damaged external wall or main roof of the Building.

19. As for (3), there is no duty on the part of the defendant in a water leakage case to prove that the water leakage did not come from his or her premises.

20. As for (4), again, the fact that some repair works were carried out in the Pump Room on the 16/F in 2015 under the supervision of a consultant after the claimants’ complaint is, I believe, no evidence that the source of the water leakage was in the Pump Room.  In this regard, I note that there is no submission by Mr Li (for the claimants), and there is no finding by the Adjudicator, that the works carried out in 2015 were to fix any water leakage problem originated from the Pump Room.

21. In all, none of the matters referred to in paragraph 16 above, whether individually or collectively, could support a finding that the source of the water leakage at the ceiling of the Unit was in the Pump Room. 

22. In the present case, expert evidence might have assisted in resolving the issue of the source of the water leakage.  Mr Edward Lun (for the defendant) complained that the Adjudicator ought to have reminded the parties to adduce appropriate expert evidence, but failed to do.  It is, however, by no means clear whether, by the time of the hearing in September 2016 and having regard to the works already carried out, any expert who may be appointed would still be able to give meaningful evidence on the source of the water leakage.  The matter is not helped by the fact that the possibility of adducing expert evidence was not canvassed below.

23. Notwithstanding the general position that the Court of First Instance may not reverse or vary a finding of fact made by an adjudicator, this is, I consider, a special case where the Adjudicator’s finding of fact (namely, that the source of the water leakage was in the Pump Room) was not supported by any evidence and she made an error of law in reaching her decision.

DISPOSITION

24. For the above reasons, I allow the defendant’s appeal, set aside the Adjudicator’s award dated 2 September 2016, and remit this case to the Small Claims Tribunal for fresh determination by another adjudicator, who shall canvass with the parties the possibility of adducing expert evidence on the issue of the source of the water leakage.

25. I also order the claimants to pay the defendant’s costs of the appeal, to be taxed if not agreed, with certificate for counsel.

26. Lastly, it remains for me to thank counsel for the assistance rendered to the court.