CAPITAL PROSPEROUS LIMITED and Another v. SHEEN CHO KWONG PATRICK

HCA5214/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. A5214 OF 1997

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J U D G M E N T

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1. The Plaintiffs originally claimed against the Defendant for an injunction to restrain nuisance in the form of noise and the escape of water; a mandatory order for the Defendant to carry out necessary works and repairs to stop the escape of water; damages to be assessed, interest and costs.

2. I am advised that the water nuisance has now been abated, and that the parties have agreed damages between them. I am further advised that the Plaintiffs no longer seek damages in respect of the alleged noise nuisance. What remains is the claim for an injunction against the noise nuisance, and for costs. The noise complained of is the noise of a water pump. The 2nd Plaintiff pleads that its operation after 10 p.m. and before 8 a.m. affects his normal life and seriously interrupts his sleeping habit. In fact Mr Wong, Counsel for the Plaintiffs, says that they now seek an injunction against the operation of the pump between 11 p.m. and 7 a.m.

3. The facts are quite simple, and there is little dispute about them. The 1st Plaintiff is the owner, and its managing director the 2nd Plaintiff, Mr Tam, the tenant of Flat No.4, 23rd Floor, Block C, Dragon Court, 6 Dragon Terrace, Hong Kong. He and his family moved in in September 1995. The Defendant, Mr Sheen, is the owner of Flat No.4, 24th Floor, Block C, Dragon Court, which is the flat immediately above that of the Plaintiffs. He and his family moved in in October 1995. The layout of the two flats is the same. Both the properties are subject to the Deed of Covenant dated 10th March 1980, registered in the Land Registry by Memorial No.1858837 which includes a covenant in respect of nuisance at Clause 10(c) in the following terms:

"Not to use his part of the said building for any illegal or immoral purposes nor do or permit anything therein or thereupon which may create unnecessary noise or may be a nuisance or annoyance to or may cause damage or inconvenience to the other occupiers of the said building."

4. Before he moved in, Mr Sheen had some work done to his flat, which included re-routing the water supply pipes so that they ran outside the building wall, and installing a water pump to increase the pressure of the fresh water supply.

5. In November 1995, Mr Tam complained to Mr Sheen about damage caused by water coming in through his ceiling from Mr Sheen's flat. As I have indicated, this matter was ultimately rectified, and settlement reached between the parties in respect of it. Then in March 1996 Mr Tam complained to Mr Sheen about noise caused by Mr Sheen's water pump, and offered to pay for the cost of replacing the pump. Mr Sheen did not agree to this. According to him, Mr Tam threatened him and he reported this to the police. Mr Sheen at this time consulted the contractor who had put the original pump in, and on the contractor's recommendation, fitted a pump of lower pressure.

6. After that, nothing much happened between the parties about the pump noise for some time, though Mr Tam says that he kept on complaining to the management office about it. Then on 13th March 1997 Mr Tam again complained directly, this time to Mrs Sheen, about the pump noise. There was an altercation and the matter was reported to the police.

7. The writ was issued in May 1997. Surveys were carried out in January 1998 by the Plaintiffs' expert witness, Dr Ng. Following receipt of his report, which recommended that the pump be isolated by putting a rubber isolator underneath it, and flexible joints in the pipes, Mr Sheen arranged for a rubber isolator to be installed under the pump, but he did not arrange for flexible joints to be put into the pipes.

8. The issue for decision here is whether the annoyance to Mr Tam arising from the operation of Mr Sheen's pump is an actionable nuisance, rather than one of those annoyances which a normal Hong Kong person, living in a high-rise building, can expect to have to live with.

The Evidence of the Parties

9. The evidence of Mr Tam as it appears from his statement, which he adopted as his evidence in chief, is that since November 1995 he was disturbed by noise from the bathroom in the floor above. It appeared to come from a water pump installed there. The noise was quite regular in that it started sometimes around 9 p.m. and ended as late as 11.45 p.m. every night. He and his family had the habit of going to bed at about 9 p.m. so the noise was very disturbing. At first he thought it came from the MTR ventilation stack, but later made inquiries and so believed it was the pump. He and his wife went and spoke to Mr and Mrs Sheen who confirmed that they had installed a pump. Mrs Tam suggested that a quieter pump be installed.

10. Matters did not improve, so three days later Mr Tam contacted Mr Sheen and again urged him to replace the pump, this time offering to pay for it. Mr Tam later heard that the pump had been replaced, but he kept on complaining to the management office about the continuing noise.

11. Then on 13th March 1997 at about 11.30 p.m. Mr Tam again heard the excessive noise and went with a member of the building management staff to complain. Mrs Sheen impolitely refused to stop using the pump. Both sides reported the matter to the police.

12. Mr Tam denies Mr Sheen's allegations that he threatened him in March 1996.

13. Cross-examined, Mr Tam said that the noise of the pump originally sounded as if someone was doing piling work, or like a crane opening ground, though later the pump was changed and the noise was reduced. He accepted that he could not confirm that there had been vibration although this was complained of in the pleadings; he simply said that the noise was enough to stop him sleeping. He accepted that most flats above the 22nd floor have a water pump; it is necessary to get good pressure. There is a water supply without the pump but the water flows slowly. He himself has a water pump in his flat and a neighbour had complained about the noise it made.

14. Re-examined and in answer to questions by the Court, Mr Tam confirmed that he himself had a water pump, but that another occupier had complained against his use of it, and so he had agreed not to use it after 8 or 9 p.m.

15. Mr Sheen's evidence was that he and his family moved into the 24th floor flat on 20th October 1995. He had some work done which involved disconnecting the existing water pipes and re-routing the supply outside the external wall, and installing a water pump in the master bedroom.

16. On 20th March 1996 Mr and Mrs Tam came up and complained about pump noise and asked Mr Sheen to change his water pump at their expense. He spoke to a staff member in the management office the next day about these matters but no concrete solution was reached. A further complaint of noise came from Mr Tam on 26th March 1996. This time, Mr Tam threatened Mr Sheen. The latter told the management office about this, and reported it to the police the next day.

17. Mr Sheen says that following this incident, he had a new pump installed which operated at a maximum pressure of 45 lbs. to replace the existing one which operated at a maximum of 55 lbs. The new pump did not sound much different from the old, but after it was installed he heard nothing from the management office of any complaints about the pump until March 1997. He also had various works done to seal off the floors of his bathrooms so that no water could leak into the bathrooms below, and he had a rubber isolator installed under the pump.

18. As to his use of the pump, Mr Sheen says that he usually takes a shower at 7 or 8 p.m. His wife takes one between 9 and 10 p.m.; his 13-year-old son and his 17-year-old daughter take showers between 11 and 11.30 p.m. This applies during the week; the times are not so late at the weekends.

19. Mr Sheen says that he feels that he has done what he can to meet Mr Tam's demands. He put in the rubber pad under the pump when he had renovation works done, and he put acoustic foam in the cupboard.

The Expert Evidence

20. Dr Ng, who gave evidence for the Plaintiffs, investigated the noise levels in Mr Tam's bedroom on 5th and 24th January 1998. According to his report the pump was producing noise in Mr Tam's bedroom of 38.4 to 40.7 db(A). This was in excess of the background noise level of 32.9 db(A). It also had a tonal component with a distinct tone of 25 Hz. He said in his oral evidence that this tone was 20 decibels above the adjacent tonal bands and that this would cause extra annoyance. He took the view that the noise level of the pump should not be above background noise level, as recommended by the Hong Kong Planning Standards and Guidelines issued by the Environmental Protection Department. It was also in excess of the level of 30 db(A) which, according to the recommendations of the WHO criteria document on Community Noise dated 28th June 1993, could cause sleep disturbance.

21. The Defendant's expert, Dr Lam, who had not himself carried out any survey, wrote a review of Dr Ng's report. This was followed by a supplementary report by Dr Ng, in response to the criticisms made by Dr Lam, and a supplementary report by Dr Lam in response. Briefly, Dr Lam's position is that Dr Ng's assessment is flawed in various ways.

22. In the first place Dr Lam says that Dr Ng is using the wrong criteria. He should not be using the Hong Kong Planning Standards and Guidelines issued by the Environmental Protection Department because this is intended for use in respect of future developments, and he should not be using the WHO criteria because they are in draft form and not finalized, and are in any event not appropriate for Hong Kong conditions. What he should be using is the Technical Memorandum for the Assessment of Noise from Places other than Domestic Premises, Public Places or Construction Sites ("Technical Memorandum"). Although this is not intended for assessing noise from domestic premises, according to Dr Lam, it is the most important document for assessing noise complaints in Hong Kong; and noise is noise whether it comes from a non-domestic source or a domestic source. According to the Technical Memorandum, Dr Lam says, the acceptable noise level in Mr Tam's bedroom is 45 decibels between 11 p.m. and 7 a.m.

23. Dr Lam also calls into question Dr Ng's measurements, in particular as to the length of the measurements taken to establish background noise.

24. Dr Ng in his supplementary report and in evidence disagreed with Dr Lam and said that in any event corrections for tonality and intermittency of the noise would, if the Technical Memorandum were used, bring the corrected noise level of the pump to over 45 decibels. Dr Lam's reply to this, as I understand it, is that the noise is not intermittent in that it is not regularly altered; turning the tap on and off for having a shower is insufficiently regular to amount to intermittency; and in any event it is not appropriate to apply corrections for tonality and intermittency; you can have one or other but not both.

The Site Visit

25. On the evening of 5th November 1998 the Court held a view of the two flats in the presence of Counsel and the expert witnesses called by both parties. It was noted that in both flats there is an en-suite bathroom off the master bedroom and separated from the bedroom by a little room about 5 feet square. There is a doorway from the bedroom to this little room but no door is fitted there, in either flat.

26. Mr Sheen has made a kind of office in his little room, with a built-in desktop and beside it, against the wall between the little room and the bathroom, a tall fitted cupboard. The water pump is installed in the lower part of this cupboard. It was observed that the pump stands on a piece of solid rubber. Some acoustic insulating material has been used to line the floor of the cupboard around and below the pump, as well as the sides of the cupboard.

27. As I have indicated, both parties agree that a water pump is necessary on the floor levels of their flats to increase the pressure of the fresh water supply. Mr Tam's pump is situated in a cupboard below the hand-basin in his master bathroom.

28. Mr Sheen's pump was operated by my clerk, on instructions given by mobile telephone, while counsel, the experts and I listened in Mr Tam's bedroom. The sound of the pump was clearly audible, strongly in the little room, and less strongly in the bedroom, beside the bed. It appeared to be coming from the ceiling of the little room in the area above which the pump was situated. The dominant part of it was a high-pitched whine, but there were lower tones also. I found it an unpleasant and annoying sound. The sound was almost completely drowned, however, when the airconditioner on the wall opposite the doorway to the small room was switched on and its compressor was operating.

29. Mr Tam also demonstrated the operation of his own pump and I noted that it sounded much the same, from close quarters, as did Mr Sheen's.

Further Expert Evidence

30. Following the view, both Dr Ng and Dr Lam gave further evidence. It appears from the evidence of the former that the pump installation as now seen is not as it was when he tested the noise level, because some insulation has been done. Dr Ng says that by comparison with what he remembers, the pitch is higher, i.e. some of the lower frequencies are no longer there; and there has been some diminution in the volume of the sound. However he maintains the view that the pump still needs flexible pipes, to isolate the pump so that the noise is not transmitted through the pipes into the wall. Dr Lam accepts that this might improve matters, but does not accept that it necessarily would, because the noise could be caused by the water flow in the pipes rather than by the pump itself.

Evaluation

31. While I cannot, obviously, decide this case entirely on what I saw and heard at the view, I am in some difficulty with the expert evidence because, as Dr Ng admitted, his technical findings could only relate to the noise as it was in January 1998. The noise has changed, but no technical data are available for the noise as it is now. We simply do not know how many decibels the pump is producing now. So I am largely thrown back on what was observed at the view as well as the non-technical evidence of Mr Tam and Mr Sheen.

32. Mr Sheen's evidence of when he and his family members take their showers is straightforward enough and seems credible. The showers, on this evidence, are all taken within the period during which Mr Tam says the noise occurs.

33. It seems that Mr Tam is probably exaggerating when he says that the original pump made a noise like piling work or a crane opening the ground. Further it is difficult to understand why, if he has been so badly inconvenienced as he says, he should have taken no action about the noise between March 1996 and March 1997. He says he kept complaining to the management office; Mr Sheen says he heard nothing from the management; but in any event Mr Tam took no direct action; and that was at a stage when, according to Mr Tam's own expert, the noise was worse than it is now. So, although Mr Tam is no doubt annoyed by the noise, overall I am left with the impression that he is exaggerating his evidence of the inconvenience which he suffers.

34. I have not heard any specific evidence from Mr Sheen as to how long each shower takes. Mr Tam is not very specific either, although he appears to be complaining, in his statement, of fairly continuous noise between 9 and 11.45 p.m. If this is what he complains of I do not accept it. I find that what Mr Tam suffers from is the noise of three showers, taken between 9 and 11.30 p.m. Only two of these showers are taken in the period for which injunction is now sought, namely 11 p.m. to 7 a.m. Normally when a person takes a shower it lasts only for a few minutes; probably 5 minutes at the outside.

Is this an actionable nuisance?

35. The courts in deciding what is the permissible limit in inconvenience and annoyance between neighbours and in deciding whether an interference can amount to an actionable nuisance have to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the plaintiff to the undisturbed enjoyment of his property. No precise or universal formula is possible but a useful test is what is reasonable according to ordinary usages of mankind living in a particular society. See Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880.

36. Further the inconvenience must be "an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people"; per Knight Bruce V-C in Walter v. Selfe (1851) 4 De G. & Sm. 315 at 322.

37. Applying this in the Hong Kong context, the test is whether it is reasonable, according to the ordinary usages of Hong Kong people, for someone to run his pump-assisted shower, at a floor level where pump assistance is needed, for two periods of a few minutes, after 11 p.m. The fact that the Plaintiff himself likes to go to bed early will make no difference.

38. Mr Wong for the Plaintiffs asks me to have regard to the fact that the Noise Control Ordinance, Cap. 400 provides for different criteria to apply between 11 p.m. and 7 a.m. from those which apply at other times. In fact section 4 of the Ordinance makes it an offence to make or cause to be made, in domestic premises between these hours, any noise which is a source of annoyance to any person. The offence is punishable by a fine of $10,000.

39. The difficulty here is that by section 2 of the Ordinance 'annoyance' is defined as meaning annoyance that would not be tolerated by a reasonable person. So a magistrate trying a case brought on summons for such an offence would have to apply the test of what a reasonable person living in Hong Kong would tolerate. The Ordinance in effect does not assist me.

40. Mr Wong referred me to the English case of Metropolitan Properties Ltd. v. Brown, [1939] 2 All ER 202, a case which dealt primarily with liability for nuisance rather than what could be found to be a nuisance. The annoyance complained of, which the court found could be "dignified by the name of a nuisance" was the sound of a small electric motor which maintained the circulation of water in a central heating system in the flat above. The judgment shows that the noise commenced at 8 a.m. "after which hour an elderly gentleman is quite entitled to stay in bed, if he wants to" and it finished at 7 p.m.

41. It seems to me that this case is also of little assistance. The judgment does not show whether the noise was continuous or intermittent. In any event what was "reasonable according to the ordinary usages of mankind" in London in 1939 may well have been quite different from that which applies in Hong Kong today.

42. I have no anthropological or sociological evidence of the average Hong Kong person's bed-time. However, it is common knowledge that many Hong Kong people stay up late at night. I do not see that anything up to midnight can be regarded as out of the ordinary. I do not see that it is unreasonable for the average Hong Kong person, in the circumstances of Mr Sheen and his family, to take pump-assisted showers between 11 p.m. and midnight. I do not see that a reasonable person living below can object to it.

43. This is an unfortunate case, as disputes between neighbours often are. One must feel sympathy with Mr Tam who was subjected to water leakage and still is subjected to an unpleasant and irritating noise. One must feel sympathy for Mr Sheen, who has, according to his statement, had a lot of work carried out in order to fix the leakage problem and who has taken steps to reduce the noise complained of by installing a less powerful motor and later on a rubber isolator and some acoustic insulating material. He has not done enough to satisfy Mr Tam on this last score, but legally I do not see that he has to because the annoyance complained of does not, in my view, amount to a nuisance.

44. It follows that the Plaintiffs' claim must be and is dismissed, with costs (nisi) to the Defendant to be taxed if not agreed.