CHEUNG CHI YING AND ANOTHE v. KWOK WANG TANG AND ANOTHER

DCCJ 1583/2013

[2020] HKDC 520

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1583 OF 2013

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JUDGMENT

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BACKGROUND

1.  This is a case of dispute between two neighbours, the 1^st and the 2^nd plaintiffs (P1 and P2 respectively) being wife and husband on the one hand, and the 1^st and the 2^nd defendants (D1 and D2 respectively) being brother and sister on the other hand.  The case concerns waste water leakage, allegedly from the defendants’ premises to those of the plaintiffs.

2.  Since 1988, P1 has become the registered owner of Shop G on the Ground Floor (“Shop G”) with Storage G on Cockloft (“Cockloft”) of On Shun Building (“Building”), Nos 31-51 Chik Shun Street, Tai Wai, New Territories, Hong Kong.  At the back of Shop G, there is a yard (“Yard”) and a service lane (“Service Lane”).  P1 and P2 are and were at the material times carrying on a business at Shop G (with the Cockloft for storage) selling cooked chickens[1].

3.  Since 2001, the parents of D1 and D2, Kwok Chi Fuk (“Old Mr Kwok”) and Wong Tak Ying (“Mrs Kwok”), have become the registered owner of Shop E on the Ground Floor with Yard E and Storage E on Cockloft of the Building, where the Kwok family runs a decoration business under the name of Pak Kar Lee Design Dec Eng Co Limited (“Pak Kar Lee”).  D1 is a director of Pak Kar Lee.   

4.  Since November 2010, Pak Kar Lee has become the registered owner of a residential flat of the Building, namely, Flat F on the 1^st Floor of Block A of the Building (“Flat 1F”). 

5.  Since April 2011, D1 and D2 have become the registered owners of the adjoining flat of Flat 1F, that is, Flat E on the 1^st Floor of Block A of the Building (“Flat 1E”)[2]. 

6.  Flat 1E owned by D1 and D2 on the 1^st Floor is immediately above Shop G owned by P1 on the Ground Floor.

7.  Both Flat 1E and Flat 1F were at the material times used or intended to be used by the defendants’ family as residence. After acquiring Flat 1E in April 2011, the defendants’ family started carrying out renovation work in both Flat 1E and Flat 1F.

8.  This case is about a total of 8 incidents, which took place between 2 August 2011 and 6 April 2013, where the plaintiffs allege waste water leakage from Flat 1E, the premises owned by the defendants, into the Yard and the Service Lane as well as the Cockloft of Shop G (the “8 Incidents”).

9.  The 8 Incidents can be divided into 2 categories:-

(a)  The 1^st to the 4^th Incidents – showering of human waste water onto the Yard and the Service Lane behind Shop G from the drainage pipe on the external wall of Flat 1E (the 1^st, the 3^rd and the 4^th Incidents); showering of human waste water from a broken drainage pipe which went through the ceiling of the Cockloft onto the Cockloft of Shop G (the 2^nd Incident).

(b)  The 5^th to the 8^th Incidents – showering of flush water from the floor slab of Flat 1E through the ceiling of the Cockloft onto the Cockloft of Shop G (the 5^th, the 6^th and the 8^th Incidents); the spalling of a piece of concrete from the ceiling of the Cockloft in Shop G (the 7^th Incident).         

10.  The plaintiffs allege breach by the defendants of the Deed of Mutual Covenant and Management Agreement (“DMC”) for making structural alternation to Flat 1E and its exterior and affecting the rights of other owners[3].

11.  The plaintiffs also allege contravention of the Building Management Ordinance, Cap 344 (“BMO”) by the defendants for failing to maintain good and proper repair of Flat 1E[4].

12.  The plaintiffs sue the defendants for tort of negligence and nuisance for all the 8 Incidents and in addition, breach of DMC as well as BMO for the 5^th to the 8^th Incidents.  The plaintiffs claim against the defendants for an injunction to restrain the defendants from continuing the 8 Incidents, a mandatory injunction requiring the defendants to facilitate an inspection of Flat 1E and to carry out the necessary repair, and damages with interests and costs.     

13.  The defendants contest these proceedings and all the plaintiffs’ claims on the basis that the blockage of the sewage pipe in Shop G was the root problem of all the incidents, and that the plaintiffs voluntarily accepted the risk of damage by failing to replace the sewage pipe in Shop G.  The defendants deny any negligence or any obligation on their part to carry out any repair.

ISSUES

14.  Both parties are in agreement that the issues for this case are:-

(a)  What were the causes of the 8 Incidents?

(b)  Who should be liable for the 8 Incidents?

(c)  What should be the amount of damages suffered by the plaintiffs?  

THE PLAINTIFFS’ CASE

15.  At the material times, P2 was the secretary of the Incorporated Owners (“IO”) of the Building and he on behalf of the IO had made various complaints against the defendants or their family for unauthorized structures erected in Flat(s) 1E and/or 1F.

16.  It is the plaintiffs’ case that the defendants, once having purchased Flat 1E, had removed the partition wall between Flat 1E and Flat 1F and then carried out certain unauthorized building work therein. As a result, the Building Department issued a letter dated 26 July 2011[5] ordering the defendants to demolish those unauthorized building work[6] and reinstate the parts of the Building as affected. 

17.  Thereafter, according to the plaintiffs, the defendants caused the erection of a drainage pipe on the external wall connecting to Flat 1E and Flat 1F.  The said drainage pipe was built on the external wall at the top of the Yard of the plaintiffs’ Shop G.  The Building Department subsequently issued two orders both dated 21 February 2012[7] against the respective owners of Flat 1E and Flat 1F both occupied by the defendants requiring them to demolish the said unauthorized building work[8] and to reinstate the part of the Building in accordance with the plans approved by the Building Authority.

18.  The crux of the plaintiffs’ case is that the said unauthorized building work was the origin of the waste water leakage problem leading to the 8 Incidents in this case.

19.  The 8 Incidents, according to the plaintiffs, can be briefly summarized as follows:-

(a)  The 1^st Incident – on 2 August 2011, human waste water suddenly poured out from the drainage pipe erected on the external wall connecting to Flat 1E (“Drainage Pipe”) and showered at the Yard at the back of Shop G.

(b)  The 2^nd Incident – on 9 August 2011, the sewer pipe from Flat 1E that went through the ceiling of the plaintiffs’ Cockloft (“Sewer Pipe”) was broken and human waste water poured out from the broken hole onto the Cockloft.  The plaintiffs allege that the defendants intentionally damaged the Sewer Pipe from Flat 1E.

(c)  The 3^rd Incident – on 21 January 2012, two days before the Chinese New Year, human waste water suddenly poured out from the Drainage Pipe again and showered at the Yard at the back of Shop G.

(d)  The 4^th Incident – on 26 February 2012, two days after the special meeting of the IO where it was resolved that the defendants should demolish all the illegal structures, human waste water suddenly poured out from the Drainage Pipe again and showered at the Yard at the back of Shop G.

(e)  The 5^th Incident – on 28 February 2012, flush water showered from the floor slab of Flat 1E to the ceiling of the Cockloft.

(f)  The 6^th Incident – on 8 August 2012, flush water again showered from the floor slab of Flat 1E to the ceiling of the Cockloft.

(g)  The 7^th Incident – on 21 November 2012, a piece of concrete of the ceiling of the Cockloft fell down due to water leakage from Flat 1E.

(h)  The 8^th Incident – on 6 April 2013, flush water again showered from the floor slab of Flat 1E to the ceiling of the Cockloft.

20.  The plaintiffs’ case is that the 8 Incidents were either caused by intentional acts by the defendants, or by negligence of the defendants who failed to properly maintain their flats and/or prevent the happening of those incidents. 

21.  The plaintiffs claim against the defendants for an injunction to restrain them from continuing the 8 Incidents and a mandatory injunction to facilitate an inspection of Flat 1E and to carry out the necessary repair works to stop the water leakage and pouring of human waste water[9].

22.  The plaintiffs also claim for damages of (a) HK$500,000 for injury of discomfort and (b) HK$160,000 for permanent rectification work (re-casting of the existing slab) of the Cockloft or HK$202,170 for temporary rectification work (construction of a steel platform at the ceiling) of the Cockloft, with interests and costs[10]. 

THE DEFENDANTS’ CASE

23.  The defendants do not dispute the happening of the 8 Incidents.  It is the defence case that the defendants are not responsible for any of them and that the blockage of the Sewer Pipe in the Cockloft of the plaintiffs’ Shop G was the root of the problem leading to the 8 Incidents.

24.  The defence contends that, according to paragraph 12(b) of the DMC and Schedule 1 of the BMO, a drainage pipe is a common part of the building.  If the portion of the Sewer Pipe was blocked within Shop G or the Cockloft and caused backflow of human waste water, that would fall within the definition of the “interior” of the unit and it would therefore be the duty of the owner of Shop G, ie the plaintiffs, to repair the blockage.  On the other hand, if the blocked portion of the Sewer Pipe in Shop G belonged to the common area, then the IO should be responsible for the repair.

25.  In particular, the defendants allege that the plaintiffs refused to allow the defendants to enter Shop G to unclog the blocked Sewer Pipe inside Shop G, which caused the backflow of human waste water into Flat 1E.  Failure to take immediate action would mean that the waste water from the Sewer Pipe of Shop G might spill out to the corridor on the first floor and affect other residents in the Building.  Instead, it was the lesser evil for the defendants to redirect the backflow of the waste water into the Service Lane, as opposed to affecting many other residents.

WITNESSES AND MATERIALS PRODUCED AT THE TRIAL

26.  For the plaintiffs, P1 (PW1), P2 (PW2) and Mr Hui Tak Wai (PW3 who was acting chairman of the IO after DW5 resigned) gave evidence.

27.  For the defendants, D1 (DW1), D2 (DW3), Old Mr Kwok (DW6), Mrs Kwok (DW2), Mr Wong Man Pan (DW4 who was chairman of IO) and Mr Wong Man Kai (DW5 who was former chairman of IO) gave evidence.

28.  Two experts jointly appointed by the parties, namely, Mr Lee Kwok Chuen (KC) and Mr Simon Cheung Wai Sum (SC), gave evidence in addition to their two joint experts’ reports dated 9 December 2016 and 10 June 2017 respectively prepared for these proceedings.

29.  Copies of various documents, photographs and videos were also produced and included in the trial bundle for the purpose of this trial.

RELEVANT LEGAL PRINCIPLES

30.  The plaintiffs contend that the defendants as the upper floor neighbours of the plaintiffs, owe the plaintiffs a duty of care to keep and maintain their Flat 1E and Flat 1F units in proper repair and condition and prevent harm to people and damage to property on other premises. The plaintiffs also contend that, it is a nuisance if the defendants unduly interfered with the plaintiffs as their neighbours in the comfortable and convenient enjoyment of their land.  The defendants do not contend the otherwise.

31.  In particular, as far as nuisance is concerned, the plaintiffs rely on Hu Wei Hsin v Ma Hung Wing & ors, DCCJ 273/2011 (unreported, 3 June 2011), where HHJ Lok (as he then was) summarized the relevant principles at paragraph 14 of the judgment as follows:-

“(i) there is no precise or universal formula for determining whether there is an actionable nuisance, and it is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance;

(ii) everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours;

(iii) the court has to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his property;

(iv) a nuisance, to be actionable, must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man, and an interference which alone causes harm to something of abnormal sensitiveness does not of itself constitute a nuisance; and

(v) once the nuisance is established, the court can take into account the delicate and sensitive characteristics of the plaintiff in determining the issue of remedy.”

32.  For nuisance caused by water leakage, the plaintiffs rely on the principle in the Court of Appeal’s decision in 張秀玲及吳炳漢訴鄭禮莊, CACV 268/1998 (unreported, 9 April 1999), that the defendant must be shown to have actual or constructive knowledge that the seepage of water originated from the defendant’s premises in order to be liable, and that “constructive knowledge” means what the defendant should have known with normal and reasonable diligence in the circumstances.

33.  It then follows, as the plaintiffs contend and rely on what DDJ Harold Leong (as he then was) said in Yan Wing Fai Rick and Chan Wai Man v Century One Limited, DCCJ 2773/2009 (unreported, 2 February 2011) at paragraph 85 of the judgment:-

“Once that the Defendant was made aware that there was a water leakage, the source of which could reasonably be identified to be from its property, it has the duty to investigate, locate and repair such water leakage in a prompt and reasonable manner.”

34.  Nevertheless, the plaintiffs fairly and correctly accept the well-established principles as Recorder Yuen SC in Hui Ling Ling v Sky Field Development Ltd, HCA 35/2007 (unreported, 8 May 2012) reiterated at paragraph 23 of the judgment:-

“It is well established that there is no presumption that water leakage was necessarily caused by the flat above. The plaintiff in a water leakage case bears the burden of proof to establish, on the balance of probabilities, that the source of water was the defendant’s flat. Hence, it is not for the defendant to find out or identity the correct source of water leakage or to prove that its origin did not come from his property”

35.  The same or similar principles are also heavily relied upon by the defendants, which was summarized by DDJ Lawrence Ng (as he then was) in Lam Kit Yee v Lam Shuk Lam & Chiang Chi DCCJ 3115/2011 (unreported, 10 March 2017) at paragraph 11 of the judgment:-

“The following principles apply to water seepage cases. Firstly, causation is a question of fact: Three Rivers DC v Bank of England [2003] 2 AC 1, at 194B-C per Lord Steyn. Secondly, in water seepage cases, there is no presumption that the source of the water must come from the flat above. The plaintiff has to establish, on a balance of probability, that the source of water was the defendant’s flat. Thirdly, the defendant has no obligation to find out or identify the source of the water seepage or to prove that its origin did not come from his property. See: Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456, at 461 I-J per Cheung J (as he then was); Hui Ling Chun v Shiu Mak Ying & Anor, DCCJ 10294/2001 (unreported, 3/3/2004), at §2 per HH Judge Marlene Ng; Wong Ping Chun v Giant King Corporation Limited, DCCJ 4020/2012 (unreported, 16/3/2016), at §14 per DDJ Phillis Loh.”

36.  I also seek guidance from the comprehensive and more recent judgment in Loke Yuen Jean Tak Alice v Wong Kit Ying and Anor [2019] HKCFI 1895; HCA 495/2012 (unreported, 1 August 2019) by Marlene Ng J, at paragraphs 52 to 55:-

“ 52. Nuisance: duty and proof: There is no presumption that the source of water leakage necessarily comes from the flat above the affected property. Rather, the burden is on the claimant to prove on the balance of probabilities the source is from the defendant’s flat above. It is not for the defendant to find out the real source of the water leakage or to prove it did not come from his property. Where there are prima facie various possible sources of water which may have caused the water leakages suffered by the claimant, the doctrine of res ipsa loquitur cannot apply, and the key question is whether the claimant has succeeded in discharging his/her burden of proof. The claimant will not be able to do so if the source of water leakage cannot be determined or there are other likely water sources.

53. If the nuisance is created by the defendant, his liability depends on the nature of his conduct:

(a) if he deliberately/recklessly uses his land in a way which he knows will cause harm to his neighbour, and such harm is considered by a judge to be unreasonable infringement of his neighbour’s interest in the neighbour’s property, he is liable for foreseeable consequences of his unreasonable user of his property;

(b) if he knew or ought to have known that in consequence of his conduct harm to his neighbour is reasonably foreseeable, he is under a duty of care to prevent such consequences as are reasonably foreseeable.

54. But where liability is sought against a defendant for continuing a nuisance, proof of negligence at least is essential. It has been said that such defendant is not liable for nuisance if he does not know the source of nuisance originates from his property or a dangerous state of affairs exists on his land…

55. In Sedleigh-Denfield v O'Callagan & ors, the House of Lords held that an occupier of land “continues” a nuisance if, with knowledge or presumed knowledge of its existence (eg a defective grating giving rise to flood damage in that case), he fails to take reasonable means to bring it to an end when he has reasonable time to do so. Megaw LJ in Leakey & ors v National Trust for Places of Historic Interest or Natural Beauty referred to Lord Wright’s speech at pages 904-905 in Sedleigh- Denfield as follows:

“…… The liability for a nuisance is not, at least in modern law, a strict or absolute liability. …… But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser, or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it. This rule seems to be in accordance with good common sense and convenience.” ”

37.  For expert evidence, the court is not bound by the views and comments in the reports and the testimonies given by the experts, but can and should make its own judgment by considering all the materials available: see Lam Chin Pang and anor v Wan Sui Ying DCCJ 3391/2015 (unreported, 24 September 2018), by MK Liu DJ, at paragraph 25 of the judgment, citing Grand Wayfair Investment Company Limited v Chan Yung Kan CACV 238/2013 (unreported, 26 September 2014).

38.  Apparently, there is no dispute between the parties over the law relevant in this case.  The disputes are on facts.

MY ANALYSIS AND DECISION

39.  At the outset, I set out some of my general observations of and comments on various matters relevant in this case.

Layout of the premises and pipes in question

40.  I start off by describing or repeating the layout of the premises in question for clarity’s sake. 

41.  The plaintiffs occupied Shop G and the Cockloft for their business.  Immediately above Shop G and the Cockloft was Flat 1E owned by the defendants whose family also owned the adjoining Flat 1F.

42.  According to the approved plans for the Building, there was a flat roof outside Flat 1E around the exterior walls of Flat 1E[11]. Pursuant to the DMC, the flat roof was common parts of the Building[12].  Abutting one side of Flat 1E was Flat 1F, and there was also the connecting flat roof outside the external walls of Flat 1F[13]. Part of the flat roof was directly above the ceiling of the Cockloft[14]. 

43.  After the purchase of Flat 1E by the defendants, the original external walls of Flat 1E (or certain parts thereof) were demolished so that the flat roof outside was enclosed and became part of Flat 1E[15].  Similarly, part of the external walls of Flat 1F was also demolished and part of the flat roof area originally outside Flat 1F was also enclosed to become part of Flat 1E[16].  As a result of the alterations, Flat 1E became much bigger and Flat 1F became slightly smaller than before.  After the alternations, part of the interior of Flats 1E and 1F was directly above the ceiling of the Cockloft.  These alterations were carried out without prior approval from the Buildings Department therefore they were unauthorized structures.  The defendants claimed that these alterations were done before they acquired Flat 1E[17]. The defendants also claimed that, as part of the Sewer Pipe on the 1/F was leaking rusty iron pipe, they had replaced it when carrying out renovation at Flats 1E and 1F[18].

44.  The pipe involved in these proceedings was the Sewer Pipe which served flats E and F of all floors of the Building and it was a common part of the Building[19]. Before the alterations, the Sewer Pipe ran outside the external walls of the 1^st to the 5^th Floors, connected into the flat roof outside Flat 1E, through the ceiling of the Cockloft and turned into the toilet for the disabled located in shop F, and finally, vertically into the manhole and the underground drainage.  After the alterations, the Sewer Pipe ran outside the external wall between the 2^nd and the 5^th Floors (referred to by the experts as Pipe B), passed through the interior of Flat 1F.  A raised floor was created inside Flat 1F where it was originally the flat roof area to house some pipes to carry discharge from Flats 1F and 1E (referred to as Pipe A which carried discharge from Flat 1E and Pipe C which carried discharge from Flat 1F[20]). Pipes A, B, and C went through the ceiling of the Cockloft (referred to as Pipes D, E and F in the photographs[21]) and finally into the toilet for the disabled and the manhole.

45.  It was alleged by the plaintiffs that because of the unauthorized alterations in pipework done by the defendants, Pipes D, E and F and the ceiling of the Cockloft were affected, therefore causing the 8 Incidents.

46.  I pause here to emphasize that, whilst I would bear in mind and consider all the evidence, I would not find against the defence or decide on any of the defence evidence unfavourably for any relevant issues in this case simply because of the fact that there existed unauthorized structures in Flats 1E and/or 1F.  It remains on the plaintiffs to prove on the balance of probabilities that the defendants caused either intentionally or negligently or was in any way responsible for the 8 Incidents.

CONDITIONS AND NATURE OF THE PIPES

47.  There are placed before the court photographs of Pipes D, E and F located inside the Cockloft as well as those of the Sewer Pipe inside the toilet for the disabled.  It is plain that Pipes D, E and F at the Cockloft were old, rusty and some of the white paint thereon peeled off[22].  Even worse conditions can be seen for the section of the Sewer Pipe located inside the toilet for the disabled, and there had been some serious leaking as there were obvious marks of rust-coloured liquid on the wall near that part of the Sewer Pipe[23].  On the face of it, the poor condition of those parts of the Sewer Pipe is consistent with the old age of the Building which was erected in 1988.

48.  P2 agreed that Old Mr Kwok once suggested to him changing Pipes D, E and F in the Cockloft to plastic ones in about April or May 2011, as some other owners did long ago.  Although P2 said he did not sign an acknowledge note (to acknowledge taking the risk and responsibility for not changing the pipes), as some other owners did in 2006[24], he never challenged the defendants’ case that Pipes D, E and F in the Cockloft were made of iron and not plastic and had never been changed.  In fact, the plaintiffs never claimed that those pipes had ever been changed or repaired since P1 purchased Shop G with the Cockloft as early as in 1988.  It follows that those part of the iron pipes, i.e. Pipes D, E and F inside the Cockloft, had been used continuously for at least 23 years when the 1^st Incident took place in 2011.  This is no doubt an important feature for a water leakage case like the present one.

49.  Not only the age of the pipes in question that matters, but also the nature and usage of the pipes should be taken into consideration.  P2 insisted throughout his evidence that Pipes D, E and F in the Cockloft were not part of the Sewer Pipe at all but carried rainwater[25].  P2 also said that he did not sign the acknowledgement note in 2006 because Pipes D, E and F in the Cockloft were rainwater pipes, which I find such reasoning difficult to understand.  It appears to me, that the purpose of the acknowledgement note was the shift of responsibility and risk over a common part of the Building (be it sewer pipe or rainwater pipe) from the IO to the signatory owners who chose not to change their relevant sections of the pipe.  Whether the particular pipe concerned carried rainwater or waste water mattered little.

50.  Surprisingly, despite his insistence that Pipes D, E and F were rainwater pipes, P2 frankly admitted in cross-examination that he did not know how the pipes (not just the Sewer Pipe) were connected in the Building.  Most importantly, P2’s evidence that Pipes D, E and F carried rainwater was plainly contrary to the experts’ evidence[26].  I accept the experts’ evidence that Pipes D, E and F were part of the Sewer Pipe.

51.  Both experts agreed that Pipe A which carried waste water from Flat 1E connected to Pipe D in the Cockloft; Pipe B carried waste water from Flats E and F of the 2^nd to the 5^th Floors of the Building connected to Pipe E in the Cockloft; and Pipe C carried waste water from Flat 1F connected to Pipe F in the Cockloft[27].  I accept their evidence in this respect.

52.  For the above reasons, the plaintiffs’ initial allegation that the 1^st to the 4^th Incidents were a result of the defendants’ negligent act of wrongly connecting the Sewer Pipe with Pipes D, E and F in the Cockloft (which P2 claimed to be rainwater pipes) just did not hold water and should be rejected in view of the expert evidence.

RELATIONSHIP OF THE PARTIES

53.  Since the parties by and large agreed, or at least did not dispute, that the 8 Incidents did take place, the determination of this case, apart from the consideration of the expert evidence, also turns on the credibility of the witnesses.

54.  The parties’ relationship, good or bad, is a matter of importance when the court has to assess the credibility of their evidence.

55.  The defendants became upper-floor neighbours of the plaintiffs since November 2010 when Pak Kar Lee purchased Flat 1F.  As early as in February 2011, complaints were made of installation of pipes and the lengthy period of renovation against certain owners of the 1^st Floor in Block A (presumably against Flats 1E and 1F) by the IO and it was resolved that the IO should report the matter to various government departments, including the Buildings Department and the police[28].

56.  In fact, the IO’s complaints made to governmental departments were attributed to P2 because he was secretary for the IO and P2 gave evidence to that effect[29]. It is also noted that, since March 2011, the plaintiffs had made various reports to the police against the defendants or their family about various matters[30].

57.  In particular, on 26 July 2011, an order was issued by the Building Authority against the owner of Flat 1E which was registered in the Land Registry[31].

58.  To say the least, the relationship between the parties was far from harmonious since that early stage back in 2011 even before the occurrence of the 1^st Incident.  After the 1^st Incident happened in August 2011, P2 called upon some reporters and caused the 1^st Incident to be published as a story[32].  P2 also reported to a local magazine which sent its reporter to come to an IO meeting and subsequently published an article[33].  P2 frankly said that the relationship between the parties was bad, although, according to him, it only became so after the 1^st Incident[34].  No doubt the parties’ relationship went from bad to worse since the happening of the 1^st Incident.  I am mindful that the sense of grievance, if not hostility, between the parties may taint their evidence or cause them to exaggerate in their evidence.

THE IO MINUTES

59.  Bearing in mind the parties’ relationship as aforesaid, I remind myself to be cautious when considering the minutes for the IO meetings produced as contemporaneous documents where their contents in some aspects seem to support the plaintiffs’ case[35].

60.  It is not in dispute that P2 has been the secretary for the IO for over 20 years while chairmen of the IO came and went. Not only that P2 was the person solely responsible for drafting and producing all the minutes of the IO meetings, but he also exerted strict control over the affairs of the IO.  There was evidence that P2, who was in possession of the IO’s cheque book, on one occasion even refused to sign cheques in relation to certain IO matters.  It is obvious, as suggested by the defence, that P2 enjoyed a dominant position within the IO.

61.  All the minutes of the IO produced in this trial were prepared or even hand-written by P2, being its secretary.  There was once a minute which was solely signed by P2 and, for unknown reason, there recorded that the then chairman Mr Wong Man Kai (DW5) refused to sign on it[36].  I observe that the language used in these minutes was personal and emotional, many exclamations as well as accusations against the defendants peppered the minutes.  This is significant, in my view, when assessing the reliability of the contents of these minutes.  I therefore do not consider these minutes as independent documents or materials which support the plaintiffs’ version of events.

62.  In the IO’s minutes dated 15 March 2012, it was recorded that at the meeting held on 24 February 2012 the attending owners voted (160 vs 17) in favour of looking into the feasibility of instructing a surveyor to ascertain the cause of the blockage[37]. 

63.  Strangely enough, in the next minutes dated 17 March 2012, which was just two days after the previous minutes, it was recorded that enquiries had been made, that a surveyor would merely serve as a middleman and a civil engineer was needed but it would be very expensive to do so; engaging a surveyor was unnecessary because the defendants “had personally promised to take all responsibilities” (「郭氏家族已經在業主大會親口承認，並承諾會負全責，亦有屋宇署人員在場證實，大家又何須聘用公正行，已可清楚知道發生了什麼事情」)[38]. It begged the question if the defendants had admitted their liability at the meeting on 24 February 2012, why did the attending owners vote in favour of such a motion of engaging a surveyor to look into the matter?  Why was there such a sudden change of stance just two days later?

64.  According to Mr Hui (PW3), P2 made all the enquiries in relation to engaging a surveyor and it was P2 who prepared all those minutes.  Mr Hui also said that no surveyor was ever instructed to deal with the sewage problem since P2 issued the minutes dated 17 March 2012.  It further reinforces my impression that P2 had the final say in the IO, despite the previous vote in the IO meeting.  This further throws doubt on the reliability of the contents of the IO minutes.

65.  In the said IO minutes dated 17 March 2012, it was also recorded that Mrs Kwok offered to donate HK$10,000 to the IO for changing the Sewer Pipe but that offer was described by P2 as a “trap” that would lead to “many bad consequences” for the IO[39].  Mr Hui (PW3) agreed that those paragraphs in the minutes dated 17 March 2012 concerned matters discussed only between P2 and Old Mr Kwok but not discussed by the committee and that it was improper to include those matters in the minutes[40].

66.  Having considered all the above, I decline to place any weight on these IO minutes where the contents appear to support the plaintiffs’ case because of P2’s dominant position in the IO and his obvious lack of objectivity in recording the matters accurately, both adversely affected the reliability of the contents.  In particular, I reject the assertion that the defendants had admitted their liability at the IO meeting on 24 February 2012 as recorded in the minute.

67.  On the other hand, because of the personal animosity between P2 and the defendants, I tend to believe the contents of the IO minutes which were consistent with the defendants’ version, which are more likely to be reliable.  Thus I accept, as a matter of fact, that Mrs Kwok did make an offer of donating HK$10,000 to the IO in March 2012 to replace part of the Sewer Pipe from Shop G to the toilet for the disabled with a view to resolving the sewage problem but that was turned down by P2.

68.  I accept the defendants’ evidence that they tried to solve the sewage problem but to no avail, P2’s intransigence vis-à-vis the said proposal from the defendants to resolve the sewage problem was unreasonable, and P2’s attitude most likely affected by his personal animosity towards the defendants.

THE 1^st–4^th INCIDENTS: MY FINDINGS

69.  I now deal with and decide on the 1^st to the 4^th Incidents, one after another. 

70.  Before going into the details of each of these incidents, it must be remembered that the 1^st, the 3^rd and the 4^th Incidents all concerned waste water showering onto the Yard or the Service Lane at the back of Shop G of the plaintiffs.  I pause to make an observation here that the Yard or the Service Lane is not owned by the plaintiffs, it is in fact not a common area[41].  The Yard or the Service Lane is not even a part of the Building but a piece of public land.

71.  In any event, it seems reasonably clear to me that the basis on which the plaintiffs claimed against the defendants in the 1^st, the 3^rd and the 4^th Incidents was the defendants’ failure  “to keep or maintain Flat E in good repair and condition so as to avoid any loss, damage, nuisance or annoyance”[42] (my emphasis)to the plaintiffs in Shop G; further or alternatively, the defendants owing a duty of care to the plaintiffs “not to disturb their enjoyment comfort over Shop G”[43] (my emphasis).  It is P2’s evidence that he used to collect raw chickens into Shop G through the back door on the Service Lane but because of the 1^st, the 3^rd and the 4^th Incidents he could not do so at the material times.  It is also a matter of common sense that, in view of the close proximity in area, whatever happened at the Yard or the Service Lane, in particular if it was a nuisance or annoyance, the enjoyment or comfort by the plaintiffs over Shop G must have been affected.

The 1^st Incident

72.  On 2 August 2011, the defendants claimed that a blockage in the Pipes D, E and F downstairs in Cockloft were causing serious flooding inside Flat 1F.  The plaintiffs did not believe that Flat 1F was flooded and they refused to allow the defendants to conduct any plumbing work in the Cockloft.  Water mixed with human waste poured down onto the Service Lane through a hole on the external wall of Flat 1F and the waste water showered onto the Service Lane directly over the back door leading to the Yard.  Human waste, wet toilet paper and other objects were splattered across the Service Lane.  The situation persisted for 7 days until 8 August 2011.

73.  The defendants admitted drilling a hole on the wall of Flat 1F to release the waste water onto the Service Lane.  The defence account was that, on 2 August 2011 at about 5:30 pm, water mixed with human waste flowed all over from the toilet of Flat 1F into the flat.  D1, believing that the backflow was caused by blockage in Pipes D, E and F downstairs, repeatedly asked P2 to give him access to the Cockloft to deal with the blockage but P2 refused to let D1 and his plumber in.  Water flooding into the flat continuously and as a last resort to prevent it from flowing into the rest of the flat  as well as the other units on the same floor, D1 drilled a hole on the external wall of Flat 1F, let the waste water flow onto the Service Lane and gave a warning to the plaintiffs and others about that[44].

74.  Back in 2006, that is five years before the 1^st Incident, the IO had already proposed to all residential unit owners and shop owners to change the Sewer Pipe, which was made of cast iron and had become rusty, to plastic.  Residential unit owners of the 2^nd to the 5^th Floors elected for the change but the former owners of Flats 1E and 1F as well as the plaintiffs opted out changing the relevant sections of the Sewer Pipe located in their respective flats or shop.  Those owners who opted out signed an acknowledgement note to the IO to the effect that they agreed to take responsibility for future maintenance or repair of their relevant sections of the Sewer Pipe located inside their properties. 

75.  When the defendants carried out renovations in Flats 1E and 1F in about late April 2011, they changed the section of the Sewer Pipe serving their units at Flat 1E and 1F, which was rusty and leaking, to plastic.  Old Mr Kwok, father of D1 and D2, came to know that Pipes D, E and F, which were connected in the immediate lower floor at Shop G, were rusty and suggested to P2 that they should also change them to plastic.  P2 was only willing to do so if Old Mr Kwok agreed to pay for the work and the latter refused[45].

76.  In simple terms, the defendants did not deny that they caused the 1^st Incident but contended what they did was reasonable in the circumstances of the case.  The defence described the defendants’ choice of drilling a hole on the external wall of Flat 1F to direct the waste water onto the Service Lane as the “lesser evil”, when compared to allowing the waste water to overflow to other parts of their flat and the other flats on the 1^st floor.

77.  Regarding the 1st Incident, what essentially I am required to determine now is whether the defendants were acting reasonably under the circumstances.

(a)  The plaintiffs challenged as to whether there was indeed a backflow of water mixed with human waste into Flats 1E and 1F in the 1^st Incident.  According to the evidence of Mr Wong Man Pan (DW4), on that day, when D1 came to look for his brother who was the then chairman of IO, Mr Wong Man Kai (DW5), for help, D1’s eyes were all bloodshot and he looked very anxious[46]. This is consistent with the defence version that a sudden backflow of waste water in the toilet taking place and that D1 had to deal with it urgently. D1’s evidence was that water mixed with human waste came out from all three toilets in Flats 1E and 1F[47]. Apart from D1, the only other witness who saw the backflow personally on the same day was Old Mr Kwok and he recalled that the waste water came out between a wooden cabinet between the toilet in Flat 1F and one of the toilets in Flat 1E. 

(b)  While there are no photographs or videos showing the backflow on the date of the 1^st Incident, there was however a subsequent video clip dated 23 April 2013 showing water mixed with human waste overflowing from Pipe C located in a cabinet inside Flat 1F[48] which supported D1’s and Old Mr Kwok’s account.  The scene shown in the video was not challenged by the plaintiffs.  I accept that a similar backflow had happened to the defendants’ flat on the day of the 1^st Incident.  In any event, it is contrary to common sense for D1 to seek help so desperately without anything serious and urgent happening at the time.  I accept that on the date of the 1^st Incident, there was a backflow of waste water from the toilet inside Flat 1F, as described by D1 and Old Mr Kwok.

(c)  On the other hand, P2 insisted that there was no blockage in Pipes D, E, F in the Cockloft and he consistently refused to allow the defendants to take a plumber into the Cockloft to inspect the pipes.  The plaintiffs’ stance in this 1^st Incident was that, in any event, drilling a hole in the wall to release the waste water by the defendants as they did was unreasonable and the latter should be held responsible for that. 

(d)  It was D1’s evidence that he had immediately sought help from the plumber who was familiar with the pipes of the Building, Mr Law, who had tried to clear the blockage at Flat 1F for 30 minutes but could not do so as the blockage was found, according to the plumber, to be at Shop G downstairs.  D1 repeatedly asked for entry into the Cockloft but was refused by P2.  Even through the persuasion of Mr Wong (DW4), P2 still refused to assist. Before long, it became clear to D1 that the plaintiffs would never allow the plumber to go into the Cockloft to repair the pipe.  D1 was so desperate that he had even reported to the police but Shop G was already closed when a police party arrived.  When waste water continued to flow into Flat 1F, D1 used sandbags to stop the water to flood other rooms but the situation deteriorated so badly that he feared the waste water would flow to Flat D on the 1^st Floor as well as other units.   Eventually he resorted to drilling a hole on the external wall in Flat 1F to release the sewage onto the Service Lane.  He also said he gave notice to others to stay away by posting a warning at the Service Lane.  D1 stressed that he had no other way but drilling a hole as he did was to minimize the impact on his neighbours[49].

(e)  I am of the view that, if there was indeed a continuous backflow of waste water in Flat 1F (which I have already so found) and the plaintiffs refused entry by the plumber to the Cockloft to inspect (to at least find out if any blockage there), there was little, if any, the defendants could do that evening, particularly when it was reasonably anticipated that the flushing of toilets in other units on upper floors would cause further backflow into Flat 1F and that the situation would only deteriorate rapidly.   It is a reasonable inference that the use of toilets in any residential building would be even more frequent in the evening, when the residents return from school or work. 

(f)  I find P2’s non-negotiable refusal to allow D1 and his plumber to enter the Cockloft to inspect the pipes that evening an unreasonable act.  If there was nothing wrong with the pipes inside the Cockloft, no doubt the plumber could find out in no time and would have no reason to drag on.  It appears that, P2’s stern refusal of allowing D1 and his plumber to enter was due to his misunderstanding that Pipes C, D and E in the Cockloft were rainwater pipes and therefore had nothing to do with waste water or sewage, not to mention the fact that his personal animosity towards the defendants also added to his uncooperative attitude.

(g)  The plaintiffs submitted that D1 could have contacted other members of IO, including the then IO chairman Mr Wong Man Kai (DW5), to help.  I disagree with this argument.  At the time what mattered most was dealing with the backflow of waste water inside Flat 1F which might be caused by blockage of Pipes D, E, F in the Cockloft.  Calling other members of IO, even if they were willing to help, would serve nothing to alleviate the situation when P2 had expressly refused entry by others to the Cockloft to check the pipes.  This plaintiffs’ argument does not support the contention that the defendants were unreasonable in drilling a hole on the wall as they did.

(h)  As to whether the 1^st Incident was intentionally caused by the defendants, as the plaintiffs suggested, because they were unhappy with P2’s reporting to the Buildings Department of Flats 1E and 1F having unauthorized structures, I am not convinced that was the case. While I am mindful of the bad blood between the parties, it is most unreasonable and unimaginable for D1 or anyone in his position to deliberately cause backflow of waste water in his own flat in the first place for the purpose of finding an excuse to drill a hole on the wall to shower the waste water onto the Service Lane to disturb the plaintiffs in the vicinity.

(i)  I find that, because of P2’s unreasonable refusal of allowing D1 and his plumber entry into Shop G or the Cockloft to repair the pipes and the waste water backflow problem deteriorating rapidly that evening, D1 had no better practical choices other than drilling a hole on the external wall of his flat to allow the sewage to flow onto the Service Lane.  It was in the evening of the day, Shop G and most likely other shops in that area had closed or was about to close.  It is likely, as a matter of common sense, that more people would have been affected if the waste water backflow problem took place and continued on the residential floor as opposed to the Service Lane.  Also, D1 had already informed the plaintiffs and other possible passers-by about his act and to stay clear from the Service Lane.  D1, in my view, had already done what could have been expected from a reasonable man to minimize the adverse impact on others.  As such, D1 did not act unreasonably in these unique and urgent circumstances of the case and therefore should not be held liable for that 1^st Incident.

The 2^nd Incident

78.  The plaintiffs alleged that on 9 August 2011, Pipe F suddenly burst and water mixed with human waste rained down on the Cockloft, contaminating everything there.  The IO was notified and some plastic sheets were used to wrap up Pipe F[50].

79.  The defendants claimed that they noticed that the blockage of their toilet in Flat 1F (ie the 1^st Incident) ceased but did not learn about the bursting of Pipe F until the commencement of these proceedings when they noted it from the Statement of Claim[51].  The defendants believed that the blockage within Pipes D, E, and F had gone on for a whole week following the 1^st Incident and eventually caused the rusty Pipe F to burst in the 2^nd Incident. 

80.  The plaintiffs, on the other hand, alleged that the defendants intentionally damaged their section of Pipe F from their premises and caused its connecting section on the Cockloft to burst or, did so by negligence.  To this the defendants denied.

81.  In relation to the 2^nd Incident, the plaintiffs’ argument is twofold.  The plaintiffs first alleged the defendants intentionally breaking Pipe F, therefore amounting to nuisance; or alternatively, the bursting of Pipe F was the result of the defendants’ negligence by failing to keep the pipes in Flat 1F in good repair.

82.  Regarding this 2^nd Incident, it is my observation that:-

(a)  As said earlier in this judgment, it is not in dispute that Pipes D, E and F were as old as the Building itself and had been in use since 1988.  Also undisputed is that, back in 2006 the majority of the owners of the Building agreed that the Sewer Pipe needed to be changed from the original cast iron into plastic so as to prevent blockage caused by rusting. Having opted out from changing his sections of Pipes D, E and F in the Cockloft, the plaintiffs had, to say the least, been put on notice as to the risks entailed by the rust and age-related issues with Pipes D, E and F, which included rusting and its possible consequences like blockage, leakage and even bursting, as early as in 2006.   The plaintiffs, at the time of the 1^st and the 2^nd Incidents in August 2011 (when that relevant part of the Sewer Pipe made of cast iron, i.e. Pipes D, E and F inside the Cockloft, had been in continuous use for 23 years), were not only well aware of the said pipe problem but had also voluntarily taken the risk and responsibility for not repairing or changing them.

(b)  In P2’s live evidence, he asserted that Old Mr Kwok once admitted that he broke Pipe C by a letter dated 5 September 2011 to the IO[52], which was not included in the trial bundles nor referred to in any witness statement.  The plaintiffs’ counsel rightly did not attempt to rely on that.  I accord no weight to this part of P2’s evidence.  I must say that this reference to a letter purportedly written by Old Mr Kwok but never produced goes to reinforce how cautious I should be in assessing the reliability of P2’s evidence – it is one thing to be excited or defensive when giving evidence because of the grievance P2 felt against the defendants; quite another to suddenly mention a document purportedly of the defendants admitting wrongdoing to the surprise of even his legal team.

(c)  There is in fact no evidence to show that the defendants intentionally broke Pipe F and little evidence to show that the defendants did so negligently.  What the plaintiffs were trying to rely on were the coincidences and the bad blood between the parties.  It is suggested by the plaintiffs, first, it so happened that the 2^nd Incident took place on P1’s birthday where the plaintiffs’ chicken business was expected to be good for it was a promotion day; second, that D1 admitted that his plumber tried to unblock the Sewer Pipe by inserting a bamboo stick from Pipe C on the day of the 1^st Incident; and third, that there had already been ill-feeling between the parties over the unauthorized structures in Flats 1E and 1F[53]. 

(d)  First, there is nothing to suggest that the defendants were aware of that day being P1’s birthday which was also a promotion day of the plaintiffs’ chicken business.  Second, even if the defendants knew that, it is purely speculative to suggest that the defendants would pick that day to deliberately cause damage to the plaintiffs’ pipes downstairs so as to cause trouble to the plaintiffs on that good business day, as there were many other days which were public holidays or festivals and the plaintiffs’ business would be expected to be good.  Third, the mere fact that the defendants’ plumber had tried to unblock the Sewer Pipe by inserting a bamboo stick from Pipe C during the 1^st Incident does not mean it would be more likely than not that the defendants would intentionally damage Pipe F on the Cockloft during the 2^nd Incident.  Finally, the mere fact that the parties had bad blood between themselves does not necessarily mean that one would deliberately cause damage to the property of another, particularly when causing trouble so openly and obviously (from the flat directly above, and just a few days after the previous incident) would inevitably lead to vigorous reaction from another.

(e)  I am of the view that, the defence suggestion, namely the blockage in the out-of-repair Pipes D, E and F at the Cockloft for a week after the 1^st Incident eventually resulted in the burst of Pipe F, was at least a possible cause for this 2^nd Incident.  On the balance of probabilities, I cannot conclude on the existing evidence that the defendants intentionally broke Pipe F or did so negligently and caused the 2^nd Incident. 

The 3^rd Incident

83.  It was undisputed that, on 21 January 2012, two days before the Chinese New Year, water mixed with human waste was discharged into the Service Lane via a pipe running across the external wall of Flat 1E to that of Flat 1F and directly above the back door of Shop G at the Service Lane[54].

84.  On 22 January 2012, officers from various governmental departments discussed with Old Mr Kwok about directing the waste water in a more hygienic fashion.  Therefore, Old Mr Kwok installed a vertical pipe to connect the pipe along the wall of Flats 1E and 1F (the “Temporary Pipe”)[55]. As a result, waste water landed on the ground between the back doors of Shop H and Shop G but wet toilet papers and other residue splattered on the ground of the Service Lane[56].

85.  Between 30 January and 2 February 2012, when the defendants and their parents were on holiday out of Hong Kong, they were informed that waste water was showering down in the Service Lane again.  On their return on 3 February 2012, they saw the Temporary Pipe had become disconnected with the pipe along the external wall of Flats 1E and 1F[57].

86.  According to the defendants, P1 promised to engage a plumber to deal with the blockage in Pipes D, E and F on 28 January 2012. However, P2 subsequently did not permit the plumber to enter the Cockloft and demanded the plumber to carry out his work from Flat 1F.  The defendants eventually let the plumber into Flat 1F with his large machinery and managed to unblock the pipes[58]. The blockage problem was solved at that stage.

87.  On 24 February 2012, the IO held a meeting where residents discussed the issue of waste water flowing into the Service Lane.  The plaintiffs and the defendants, Old Mr Kwok and Mrs Kwok attended the meeting.

88.  For the 3^rd Incident, it is undisputed that on 21 January 2012 waste water flowed into the Service Lane, and on the next day, Old Mr Kwok installed a Temporary Pipe but it went disconnected soon and waste water was showering down the Service Lane again.  I am now required to determine whether the 3^rd Incident amounted to nuisance caused by the defendants and whether there was any negligence on the part of the defendants.

(a)  It was initially P2’s version in his witness statement that the 3^rd Incident was a result of the defendants deliberately discharging waste water into the Service Lane because P2 did not agree to the defendants’ demand to install a pipe inside Shop G or the Cockloft by 28 January 2012[59]. Yet, while giving evidence in court, P2 admitted that he did not know if the defendants deliberately caused the discharge of waste water in the 3^rd Incident and he only suspected so, or in his words under cross-examination, “most suspicious”[60].  I take the view that this aspect of P2’s evidence was based on his long-held hostility against the defendants, whom he accused of seeking to expand their plans for more unauthorized structures[61].  I do not believe that the defendants deliberately caused this 3^rd Incident as suggested or suspected by P2.

(b)  It is apparent from the photograph that the Temporary Pipe installed by Old Mr Kwok on 22 January 2012 was merely fastened by a length of nylon string to the adjacent pipe[62]. Having also viewed the other photographs of waste water showering the Service Lane and seeing the large volume of sewage[63], I find that the installation of the Temporary Pipe not only amateurish but also a half-hearted attempt to deal with the problem.

(c)  Old Mr Kwok, in his live evidence, explained that he could not engage a specialist in pipework because businesses were closed just before the Chinese New Year[64]. Implicit in that is an admission by Old Mr Kwok that the installation of a pipe to deal with that particular waste water showering problem required some serious pipework.  Old Mr Kwok and D1 must be fully aware of that as they had their own renovation business.

(d)  However, given that Old Mr Kwok was acting on directions from the government agencies thus he must have been fully aware of the serious impact of waste water showering the Service Lane, the installation of that Temporary Pipe was less than satisfactory to start with.  Even at the beginning when the Temporary Pipe was fastened to the adjacent pipe by a piece of nylon string, waste water was merely directed to land onto the ground but human waste with lots of used wet toilet paper still spattered on the ground of the Service Lane[65], as opposed to finding a proper way to the underground drainage.  The hygienic condition at the Service Lane was only marginally improved.  The idea of installing that Temporary Pipe together with the shoddy workmanship involved demonstrated the defendants’ perfunctory attitude towards the problem and their cursory attention paid to the governmental agencies’ demand.  I am of the view that the incompetent handling of the problem by installation of the Temporary Pipe in that casual manner by the defendants to be unreasonable in the circumstances of the case.

(e)  The substandard installation of the Temporary Pipe was even more jarring and inexcusable given that Old Mr Kwok was in the renovation business and had substantial experience in the field[66].  Having known the seriousness of the problem, any reasonable man, even for one not in the trade of renovation, could tell the connection of the Temporary Pipe with the adjacent pipe by just a short piece of nylon string was far from secure and the risk of disconnection because of continuous waste water pressure and flow of other items was more than obvious.  It just showed the defendants’ half-heartedness in effectively remedying the unhygienic situation of which they had full knowledge in the first place.

(f)  As said, although Old Mr Kwok installed the Temporary Pipe to cause the sewage to flow into the Service Lane between Shop H and Shop G at ground level instead of showering from above of Shop G, the waste water was not directed to underground drainage but splattered onto the ground of the Service Lane[67]. D1 acknowledged that and said the purpose of the Temporary Pipe was only to limit the area onto which the waste water showered.  When asked why he did not use a large bucket or other ways to contain the waste water from the Temporary Pipe, D1 merely said he could not think of better ways.  D1 frankly agreed that allowing waste water to flow via the Temporary Pipe onto the ground of the Service Lane was a nuisance[68]. I take the view that the defendants adopted a somewhat irresponsible attitude, as evidenced by the half-measure they took with the Temporary Pipe coupled with the poor workmanship and the less than satisfactory resolution with the unhygienic situation.

(g)  The sloppiness of the installation of the Temporary Pipe and hence its unreasonableness was evident in the Temporary Pipe falling off and disconnecting with the adjacent pipe just a day or a few days later when the defendants and Old Mr Kwok and Mrs Kwok were out of Hong Kong for holiday.

(h)  Worse still, the matter did not end there. After the Kwok family returned from holiday and learned of the falling off of the Temporary Pipe, they did not re-install it to remedy or do anything at least to alleviate the situation.  As a result of their inaction,  waste water was allowed to shower the Service Lane from above as before[69].  No explanation was offered by any defence witnesses as to why they left the Temporary Pipe as disconnected as it was after they learned about it having disconnected with the adjacent pipe.  Indeed, as it was Old Mr Kwok who had installed the Temporary Pipe to minimize the impact of waste water showering the Service Lane, at the very least he or D1 should have re-attached it after their return from holiday.  I find that omission irresponsible and therefore unreasonable on the part of the defendants.

(i)  The defendants’ own case was, D1 knew very well that the plaintiffs used the Service Lane, ie collected their supplies through the back door of Shop G, hence on the day of the 1^st Incident he warned the plaintiffs not to go into the Service Lane as he resorted to drilling a hole on the external wall to release the waste water.  It is plain that the defendants’ property was the source of waste water (in the sense that it was due to their intervention that waste water reached the Service Lane instead of passing through the Sewer Pipe) but they did not take necessary and prompt remedial measures or actions within reasonable time to avoid or prevent waste water from pouring down into the Service Lane, or to minimize the impact of its discharge.

(j)  The defendants’ said failure prevented the plaintiffs from using their back door to access Shop G, which was part of their rightful enjoyment of Shop G[70]. The consequence of letting waste water shower the Service Lane was plainly foreseeable.  Anyone in the position of the plaintiffs would be abhorred to have water mixed with human waste showering outside their premises and onto one of the routes they normally take to access their property.  I find that, during the 3^rd Incident, the substandard installation of the Temporary Pipe and the subsequent failure to re-attach the Temporary Pipe after its disconnection were not only knowing and intentional acts of the defendants but also irresponsible and inexcusable acts on their part.  I find that the defendants were acting unreasonably in the 3^rd Incident and it was a nuisance caused by them to the plaintiffs.

(k)  Additionally, D1 knew full well the consequences of letting waste water shower the Service Lane and he as an upper floor neighbour was under a duty of care to prevent such consequences or, at least, minimize the impact of those, as they were all reasonably foreseeable.  By failing to do so, he was negligent[71]. As D1 knowingly created the unhygienic situation in the 1^st Incident, albeit forced by the circumstances at that time, he had a duty to take necessary remedial measures or actions afterwards within reasonable time to avoid or prevent waste water from pouring down into the Service Lane.  His failure to do so prevented the plaintiffs from using their back door to access Shop G and also seriously affected their enjoyment over their property[72].  In that respect, I also find that the defendants were negligent in the 3^rd Incident.

The 4^th Incident

89.  On 26 February 2012, two days after the IO meeting where residents of the Building discussed the issue of waste water flowing into the Service Lane, waste water was again seen flowing into the Service Lane above the back door of Shop G[73]. The then chairman of the IO, Mr Hui Tak Wai (PW3), entered Flat 1F to inspect. Inside Flat 1F, there was a “cleaning eye” for Pipe C (ie an access opening which allowed observation and clearing of obstruction) and it was observed that waste water could not flow downwards and some sludge-like matters lined the inside of Pipe C[74]. It was clear that there was blockage in Pipe C and most likely in Pipe F.  The discharge of waste water into the Service Lane lasted for about 10 days in the 4^th Incident.

90.  On the following day, D1 posted notices in the Building lobby suggesting that they would install a pipe to re-direct the sewage then flowing into the Service Lane to the sewer pipe of Shop E where Pak Kar Lee carried on their business.  According to D1, he hoped that this suggestion would solve the persistent problem[75]. Also, Old Mr Kwok wrote to the Sha Tin District Office on 28 February 2012 to seek help for the sewage problem[76].

91.  On 13 March 2012, Mrs Kwok wrote to the IO to state that she was willing to make a donation of HK$10,000 to the IO for the purpose of changing the Sewer Pipe in the toilet for the disabled and inside the Cockloft so as to solve the sewage problem[77]. What seemed to happen next was that Mrs Kwok’s proposed suggestion and donation was rejected[78].

92.  In late March 2012, Mrs Kwok applied to the Buildings Department to carry out minor work, ie to install a backup pipe to direct the waste water to flow into the sewer pipe of Shop E.  The minor work was approved and carried out at the defendants’ cost of HK$28,000[79] and as a result, waste water no longer flowed into the Service Lane.

93.  The 4^th Incident was a repeat of the previous occasion where waste water was allowed to splash freely into the Service Lane via the pipe above Shop G’s back door.  Again, I now have to determine whether the 4^th Incident amounted to a nuisance caused by the defendants and whether it was caused by any negligence of the defendants.

(a)  The video clip showing what could be observed in Pipe C supported the defendants’ case that the discharge of waste water to the Service Lane was caused by the blockage in Pipe C and Pipe F.  However, as I have remarked above, the defendants, or Old Mr Kwok, did not re-attach the Temporary Pipe or did anything else to remedy the situation or prevent the recurrence of the problem.  As a result, waste water again showered the Service Lane above Shop G’s back door.  It was obvious that the discharge created a wet and unhygienic environment in the Service Lane[80]. I find this knowing and continuous omission on the part of the defendants unreasonable in the circumstances of the case.

(b)  It is noted that the subsequent installation by the defendants of a backup pipe to direct the waste water to flow into the sewer pipe of Shop E in late March 2012 had solved the problem.  That supports the plaintiff’s contention that the installation of the Temporary Pipe in the first place and the subsequent failure to re-connect the Temporary Pipe after its disconnection were both unreasonable acts by the defendants.  

(c)  Just as what I have observed above in relation to the 3^rd Incident, the defendants’ failure to remedy the situation of the disconnection of the Temporary Pipe, or failure to take any other remedial action, prevented the plaintiffs from using their back door to access Shop G during the 4^th Incident and the defendants knew it.  I find that the defendants’ unreasonable behavior amounted to nuisance in the 4^th Incident to intervene with the plaintiffs’ lawful enjoyment of their premises.

(d)  Also for the same reason as I expressed in relation to the 3^rd Incident, it is my view that, in the 4^th Incident, the defendants were negligent in failing to take remedial action within reasonable time to prevent the consequences of their allowing sewage water to shower the Service Lane above the plaintiff’s Shop G at the back door.

The experts’ evidence

94.  For the sake of completeness, the expert evidence produced by way of the joint experts’ reports should also be considered when determining whether the 1^st to the 4^th Incidents were caused by the defendants’ negligence in failing to keep their premises in good repair.  In particular, the supplementary joint experts’ report addressed whether the backflow of waste water into Flat 1F was caused by the blockage of Pipes D, E, F in the Cockloft.  The two experts, Mr Lee Kwok Chuen (KC) and Mr Simon W S Cheung (SC), inspected Flat 1F and the Cockloft on 25 May 2017, for the preparation of the supplementary joint experts’ report dated 10 June 2017.  

95.  KC and SC agreed that Pipes A, B and C inside Flat 1F were connected to Pipes D, E and F in the Cockloft respectively and they were all part of the Sewer Pipe.  At the time of the inspection, there was no backflow of waste water into Flat 1F.  The expert agreed that Pipes D, E, F belonged to the IO and therefore were for IO to maintain[81].

96.  However, the experts could not agree on the essential issue of the cause of the 1^st to the 4^th Incidents: were the backflow of waste water into Flat 1F caused by the blockage of Pipes D, E, F or caused by the altered (authorized or not) connection of pipes inside Flat 1F?

97.  KC was of the opinion that the altered connection of pipes inside Flat 1F was not approved by the Buildings Department hence the fall of the pipes was questionable and would likely cause the blockage of pipes and would cause the backflow of sewage if the pipes were blocked at floor level of the 1^st Floor.  KC further explained that the insufficient fall of pipes (ie the gradient or angle slop of the pipes to ensure unimpeded flow of discharge) inside Flat 1F – only a 6-inch difference between the raised floor and the original floor level of the flat roof area) combined with the fact that after the unauthorized alterations of Pipes A and C collected a higher volume of discharge from 4 flush toilets meant that the pipes would be more likely to get blocked.  However, KC did not carry out any test on the date of inspection to confirm the correctness of his opinion on the insufficient fall of pipes combined with the high volume of sewage discharge as he suspected.  KC agreed that the backflow of waste water into Flat 1F could not be caused by blockage of pipes above the 1^st Floor and agreed that he could not say with certainty whether the backflow of waste water into Flat 1F was caused by blockage of Pipes D, E, F or at the manhole[82].

98.  SC was of the view that the altered connection of pipes inside Flat 1F, if it caused any blockage at the floor level of the 1^st Floor, would merely cause the waste water not to be able to drain but would not cause a backflow of waste water.  Under cross-examination, SC stated that the horizontal pipe inside Flat 1F connected to Pipe C was of 50 millimeter diameter and the Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrine) Regulations (Cap 123I) required that the fall for such a pipe to be 1:80.  SC agreed that the thicker a sewage pipe is, the fall required by the relevant regulation is lower.  However, he did not measure the depth of the raised floor inside Flat 1F during the inspection[83].

99.  I have the following observations regarding the expert evidence on the likely cause of the backflow problem in this case:-

(a)  First, neither KC or SC could say with certainty which section(s) of the Sewer Pipe (ie Pipes A and C inside Flat 1F, Pipes D, E, F in the Cockloft, or that section in the toilet for the disabled and the manhole) was more likely to cause backflow of waste water in Flat 1F.

(b)  Second, KC did not carry out any tests on the date of inspection to confirm the soundness of his proposition based on insufficient fall of pipes inside Flat 1F and therefore not being able to afford the higher volume of discharge than intended.  As such, his proposition is untested and unsupported by any test findings. 

(c)  Third, waste water was discharged or showered onto the Service Lane for 7 days in August 2011 (the 1^st Incident), about a month in January and February 2012 (the 3^rd Incident) and 11 days in February and March 2012 (the 4^th Incident).  In other words, such waste water problem happened intermittently.  If the backflow was caused by blockage on the floor level of the 1^st Floor, ie due to the insufficient fall of pipes plus unaffordably high volume of discharge (as suggested by KC), one would expect backflow of waste water to happen on a daily basis or at least more regularly and frequently because the defendants and his family lived in Flats 1E and 1F and must have used the toilets on a daily basis.  There was no evidence that when no waste water flowed into the Service Lane the defendants were absent from Flats 1E and 1F.  

100.  In the circumstances, in view of the insufficiency and uncertainty of the expert opinion, I am unable to make a finding as to the source of blockage within which section(s) of the Sewer Pipe and it follows, that I am unable to find whose responsibility it was for causing the backflow of waste water in this case. 

101.  Apart from the expert evidence, I also have the benefit of watching some of the video clips showing what could be seen from the cleaning eye of Pipe C inside Flat 1F.  I pause here to say that the materials created after the 1^st and the 2^nd Incidents are also relevant and may be of assistance because the series of incidents were inter-related and it is likely that they shared the same cause. 

102.  A clip taken on 21 December 2011 (ie after the date of the 2^nd Incident but before that of the 3^rd Incident) showed that the horizontal pipe carrying some sewage water when D1 flushed a toilet in his flat and the water flowing unimpeded into Pipe C and down to Pipe F[84].  It is visible from this video that Pipe F was rusty by comparing its grey and rust-coloured patches to the silvery interior of Pipe C.  A clip taken on 26 February 2012 (ie the date of the 4^th Incident) shows the inside of Pipe C lined with slush, waste water with undissolved pieces of tissue paper filling up Pipe F and Pipe C and even reaching the junction between Pipe C and the horizontal pipe[85].   It appears that Pipe F was also blocked in the 4^th Incident because I can observe from the video clip of 21 December 2011 the visible proximity between Pipe F and Pipe C. 

103.  As said, the expert evidence could not pinpoint which section(s) of the Sewer Pipe had blockage and in turn, caused the backflow of waste water.  Those video clips could not provide a conclusive answer either.  I am not in a position to find that it was more likely than not that the pipes within the defendants’ premises had caused the blockage. Therefore, the plaintiffs fail to show on the balance of probabilities that the defendants caused the backflow of waste water or were responsible for that as a result of their negligence in keeping their premises in good repair.

The 5^th–8^th Incidents: my findings

104.  The 5^th to the 8^th Incidents can be conveniently dealt with together, as they all concern flush water leaking at the Cockloft and in particular, in the 7^th Incident, a piece of concrete fell off from the ceiling of the Cockloft allegedly caused by the leakage of flush water.    

105.  Essentially, the 5^th, the 6^th and the 8^th Incidents all concerned flush water leaking from the ceiling of the Cockloft on 28 February 2012, 8 August 2012 and 6 April 2013 respectively.  The 7^th Incident concerned a large piece of concrete falling from the middle of the ceiling in the Cockloft on 21 November 2012 and landing a few inches from P1.  Supported by video clips and photographs taken on those dates[86], it is undisputed that these incidents happened.

106.  As a result of the 7^th Incident, the area of the serious spalled concrete with rusting of reinforcement at Location 1 measured around 2.3 meter x 2.3 meter[87].

107.  D1 confirmed in his evidence that the plaintiffs complained to him after each of the Incidents.  D1 confirmed that the living room of Flat 1E was directly above the location where the water leaked from the Cockloft ceiling and from where the piece of concrete fell.  There was also little dispute that prior to the unauthorized alterations, Flat 1E’s kitchen and washroom were directly above the location where water leaked from the Cockloft ceiling in the 5^th, the 6^th and the 8^th Incident; after the alterations, the living room of Flat 1E was directly above the Cockloft.

108.  There are 4 attachments to D1’s witness statement which are cross-section diagrams prepared by D1 depicting the pipes in question to show purportedly how the pipes were connected and how the movements of sewage discharge caused the 5^th to the 8^th Incidents[88].  I remind myself to exercise caution with these attachments because D1, even in the renovation business, is not an expert in pipe works and the diagrams were prepared by D1 for the purpose of these proceedings and therefore not from an independent source. 

109.  According to these diagrams, and therefore it was D1’s evidence that, a pipe connected to Pipes D, E and F in the Cockloft, ran across the Cockloft and fed to the ceiling of the Cockloft directly beneath the dining table in Flat 1E[89], which is Location 1.  The joint experts’ report did not specifically refer to the existence of such a pipe in the Cockloft.  Therefore, I shall only use these diagrams as mere aids to understand the relevant evidence of D1, but will not automatically take them as matters having been proved.

110.  The plaintiffs’ allegations in relation to the 5^th to the 8^th Incidents are twofold, ie that the defendants intentionally caused these Incidents to create a nuisance or, alternatively, that the defendants were negligent in keeping their premises in good repair.  The hurdle for the plaintiffs to overcome is to convince the court with sufficient evidence that the flush water leaking from the Cockloft ceiling came from the defendants’ premises.

111.  On 18 June 2013, officers from the Food and Environmental Hygiene Department attended Flat 1E to carry out colour dye test and took samples from the Cockloft.  The test result showed that the samples collected did not contain the colour dye used in the test[90].  However, it has been held by the court on many occasions that negative result from a seepage test is not conclusive evidence that there was no water seepage: See for example, Yeung Chiu Wing & Chan Nga Sze v Ho Chi Ming DCCJ 3244/2015.  It is nevertheless the starting point for me to take into account when considering this issue.

The expert evidence

112.  Regarding the 5^th to the 8^th Incidents, the focus is on whether the source of the water leakage was from the defendants’ premises at Flat 1E.  The key evidence each party relies upon, and which I shall in due course consider and decide on, is the experts’ evidence produced by way of the joint experts’ reports and the experts’ live testimonies.  The two experts attended the Cockloft and Flats 1E and 1F for inspection thrice on 10 May and 22 July 2016 (for the joint experts’ report dated 9 December 2016[91]) as well as 25 May 2017 (for the supplementary joint reports’ report dated 10 June 2017[92]).  That means, it was already over 4 or 5 years after the incidents[93].

113.  In the Cockloft, the experts identified the “serious spalled concrete area” in the ceiling as “Location 1”, the “peeled off paint area” as “Locations 2 & 3” and the “spalled concrete area” near Pipes D, E, F as “Locations 4 & 5”[94]. For ease of reference, I shall adopt these references in the joint experts’ report to various parts in the ceiling of the Cockloft when referring to any of them in this judgment.

114.  KC stated that the water leakage at Location 1 was most likely caused by water from concrete slab of the unauthorized altered living room area of Flat 1E.  He further explained that as it was not a legal requirement to perform waterproofing work for living rooms, it was expected that Flat 1E’s living room did not have waterproofing work done and that daily usage or misuse of water might cause moisture which eventually finds a way to seep into the concrete slab to the Cockloft ceiling in Location 1.

115.  To this, SC advanced a counter-argument that, in the absence of proof, it was mere speculation to say that daily usage or misuse of water in Flat 1E would cause water to seep into the concrete slab in the living room therefore resulting in leakage and excessive moisture in the Cockloft ceiling at Locations 1 to 4. 

116.  Under cross-examination, KC admitted that he came to the above conclusion that spalled concrete at Location 1 was caused by water seepage as he described without conducting any tests but only by way of his visual inspection and on the basis of his 30 years’ experience.  KC agreed that there might be many reasons for water seepage which might or might not be leakage from pipes.

117.  SC, on the other hand, offered an alternative explanation for the water leakage and the damage in the Cockloft ceiling.  He stated that moisture could reach the Cockloft ceiling by condensation from repeated opening and closing of freezers in the Cockloft and cooking process in the Shop.  SC also pointed out that there was unauthorized extension of the metal floor in the Cockloft which created “additional huge loading” to the structural elements of the Cockloft.  Under cross-examination, after viewing the video clip of water leakage from the ceiling in the 5^th Incident[95], SC conceded that the opening and closing of freezers and cooking process would not cause such serious water dripping.  As to the metal floor extension, he said, if it had any structural effect on the Cockloft, it would first affect the wall before the ceiling.  SC could not say whether there was any structural effect observed on the wall in the Cockloft.

118.  KC was also of the opinion that the unauthorized alteration in Flat 1E to convert the original kitchen and washroom to living room would have damaged the original waterproofing work in the concrete slab over Locations 2 and 3.

119.  Regarding Locations 4 and 5, KC formed the view that moisture was likely to have seeped through the weak points surrounding the pipework during the 1^st to the 4^th Incidents but it was unrelated to the unauthorized connection of pipes to the Sewer Pipe.  Under cross-examination, KC agreed that he did not mention the conditions of the pipes in Flats 1E or 1F which he said might have been the source of leakage.

120.  SC was of the opinion that water ponding test should have been done to test if there was any water leakage from Flat 1E and test the effectiveness of the waterproofing system in the area concerned.  The raised floor in Flat 1E’s kitchen and toilet meant that the waterproofing work, if any, could not be seen with naked eyes by way of inspection.  SC stated that he could not tell from his inspection of the premises whether new or additional waterproofing work was done when the kitchen and the washroom were moved to the original flat roof area after the unauthorized alterations taken place at the premises.  He opined that the original waterproofing work was well-maintained as the concrete was found to be very dry at the time of the experts’ inspection.

121.  On the other hand, KC disagreed that water ponding test should have been done because he was of the view that such test might cause further pieces of concrete to fall in the Cockloft.  When being cross-examined, KC conceded that he was not sure about the existence or the effectiveness of the waterproofing system in the premises.

122.  SC said that the spalling of concrete may be caused by the rusty bend or elbow embedded in the concrete or by the aging of concrete at Locations 4 and 5.  Under cross-examination, SC agreed that when there was existing problem of aging concrete, water seepage would accelerate the rate of concrete falling. 

123.  KC disagreed with this observation and contended that the aging of concrete and the rusting of iron bend could not cause such serious spalling of concrete but water seepage must have had a part to play.

124.  I first consider the defence propositions advanced by SC in relation to the possible cause(s) of the water leakage in these incidents:-

(a)  I have viewed the video clips showing the 5^th, the 6^th and the 8^th Incidents and noted that the amount of water dripping from the ceiling was quite significant.  According to the plaintiffs, the 5^th and the 6^th Incidents each lasted for 7 or 8 days and the 8^th Incident also lasted for a few days.  These were not challenged by the defence.  It seems to me that the duration and the seriousness of water dripping here in these incidents could not be the result of mere condensation from opening and closing of freezers and cooking process in the Cockloft and/or Shop G.  The suggestion by SC for the defence that being a possible cause of water seeping and concrete falling in these incidents is unconvincing.

(b)  I have also looked at Photo No P6 of the joint experts’ report, which clearly showed the rusty elbow/bend and concrete on the Cockloft ceiling[96]. In view of the condition as shown, I am not convinced by SC’s contention that the rusting of the elbow/bend and the aging of the concrete there could be the sole cause of the large area of spalled concrete in the 7^th Incident.

125.  Nevertheless, I bear in mind that it is still for the plaintiffs to prove, on the balance of probabilities, that the source of the water leakage was from the defendants’ premises and, that there is no presumption that the defendants being the upper floor owner must be responsible for the water leakage to the plaintiffs’ premises immediately underneath.

126.  Apparently, there are shortcomings in KC’s evidence which the plaintiffs seek to support their case:-

(a)  The main theme of KC’s evidence was that: first, there had been unauthorized alterations in the defendants’ premises and as a result, it is likely that the original waterproofing work of the floor had been damaged even if in existence in the first place; second, it follows that, because of the lack of effective waterproofing, moisture might have found a way from the floor slab of the defendants’ premises to the Cockloft ceiling; and finally, water leakage took place thus causing damage to Locations 1-5 in the Cockloft ceiling.

(b)  The basis of KC’s such contention is not supported by any test results but, as he agreed, only from his visual inspection and his 30 years’ experience.  It is in the evidence that the floor level in Flat 1E had been raised after renovation but no part of the floor had been removed during the experts’ inspection.  As such, I agree to SC’s view that the waterproofing work or its effectiveness could not be seen or assessed by naked eyes during inspection by the experts.

(c)  The first and foremost difficulty with such contention by KC for the plaintiffs is that it is pure speculative with no evidence at all about the state or condition of the waterproofing work on the floor of the defendants’ premises at any stage of the case.  There is no causal link between the existence of unauthorized alteration and the lack of effective waterproofing work on the floor of the defendants’ premises.  It is unclear as to whether there was any original waterproofing work on the floor and if so, how good and effective it was, before the defendants acquired the flat and carried out the unauthorized alterations.  It is also unclear as to whether the defendants, after having acquired the premises, had destroyed the original waterproofing work or on the contrary, had redone or improved the waterproofing work on the floor.  It is likely, or at least not unlikely, that the defendant had redone or improved the waterproof system there as it is undisputed that the defendants acquired the premises for self-use and that the floor level had been raised after renovation.

(d)  The colour dye test conducted at Flat 1E on 18 June 2013 by the officers from the Food and Environmental Hygiene Department do not assist here as the samples taken did not contain the colour dye used in the test and therefore cannot show the source of the water leakage in this case.

(e)  The experts differ in their opinion as to whether some tests, for instance, water ponding test, should be carried out during their inspection of the premises.  SC opined that water ponding test should be done whereas KC opined that test should not be done as he envisaged that it might cause further concrete falling in the Cockloft.

(f)  Leaving aside whether KC’s reason for not conducting any tests a proper justification or not, it remains the fact that no tests of any sort had been done by the experts for this case to ascertain the source of the water leakage. 

(g)  When once asked about why KC concluded that the spalled concrete at Location 1 was “most likely” or even “confirmed” (the defence challenged that being a change of opinion) to have been caused by water leakage through the living room area of the floor above, KC explained that he had viewed the videos taken of the dripping and saw “it was like raining”. This aspect of his evidence alerts me to the danger of putting the horse before the cart.  In my view, seeing how heavy the leakage was would not assist in ascertaining the source of the leakage.  In particular, it is worth-noting that all KC was able to pinpoint as possible sources of water from Flat 1F or 1E could be misuse of water, daily cleaning or leakage from pipes upstairs.  There is however no comment made in the reports on the conditions of the pipes inside Flat 1F or 1E and more importantly, no endoscopy was ever carried out to ascertain this matter.  KC was not able to say the volume of water and the length of time required for water to leak or seep from the 1^st Floor to the Cockloft to cause such heavy dripping and extensive damage.

(h)  In essence, KC’s propositions of (i) lack of proper waterproofing work in the concrete slab under Flats 1F and 1E and (ii) existence of weak points through which water seeped into the Cockloft ceiling are simply grounded on his unaided visual inspection (without opening up the floor slab or using any endoscope) and experience.  This, in my view, is less than satisfactory and does not form sufficient basis to show the source of water leakage in this case.   The lack of any proper test or other valid examination having been conducted at the subject premises seriously handicapped the plaintiff’s case.

(i)  Ultimately, neither experts are able to demonstrate and convince me, with satisfactory basis or sufficient certainty, of the cause of the water leakage in these incidents.  They could at most show that there was water leakage (which is not disputed) as shown from the moisture meter readings and then respectively speculate on the cause or the source of the water leakage without any proper test having been conducted during their inspection at the subject premises.  

127.  As said, it is well-settled law that the defendant has no obligation to find out the source of the water leakage or to prove that it did not come from his premises, but it should be the burden of the plaintiff to establish that the source of water was from the defendant’s property.  

128.  For all the above reasons, the plaintiffs cannot, on the balance of probabilities, discharge their burden of convincing me that the source of water leakage, ie the cause of the 5^th to the 8^th Incidents (which also includes and leads to the spalling of a piece of concrete in the 7^th Incident), was from the defendants’ premises.  As such, the plaintiffs fail to prove the defendants’ liability, which includes that under negligence, nuisance as well as the alleged breaches of the relevant sections of the DMC and the BMO, in the 5^th to the 8^th Incidents.

CONCLUSION ON LIABILITY

129.  Regarding the 1^st Incident, I find that the defendants by drilling a hole on the wall of Flat 1F to release the waste water onto the Service Lane did not act unreasonably in the circumstances of the case and, that the plaintiffs fail to prove, on the balance of probabilities, that it was an act of nuisance by the defendants or that there was negligence of the defendants.

130.  Regarding the 2^nd Incidents, I find that the plaintiffs fail to prove, on the balance of probabilities, that the waste water leakage at the Cockloft was caused by an intentional act or negligence of the defendants.

131.  Regarding the 3^rd and the 4^th Incidents, I find that the defendants failed to properly install the Temporary Pipe and promptly re- attach the Temporary Pipe after its disconnection or take any other remedial measure within reasonable time to prevent the waste water showering in the Service Lane at the back door of Shop G of the plaintiffs and that their acts amounted to nuisance as well as negligence wrongfully affecting the rights of the plaintiffs over their enjoyment of their property.

132.  Regarding the 5^th, the 6^th and the 8^th Incidents, I find that the plaintiffs fail to prove, on the balance of probabilities, that the cause of the water leakage in the Cockloft was from the defendants’ premises.  Similarly, for the 7^th Incident, the plaintiffs fail to prove, on the balance of probabilities, that the spalled concrete was caused by water leakage from the defendants’ premises.

133.  In summary, I find that the plaintiffs succeed in their claims in relation to the 3^rd and the 4^th Incidents but fail in those in relation to the 1^st, the 2^nd and the 5^th to the 8^th Incidents.  I find that the defendants should be responsible only for the 3^rd and the 4^th Incidents.

RELIEF AND QUANTUM

134.  I have found that the 3^rd and the 4^th Incidents were nuisance and negligence by the defendants and as a result, the plaintiffs were prevented from their rightful enjoyment of Shop G, ie prevented from accessing Shop G via the back door.  The plaintiffs claim for (i) an injunction to restrain the defendants from continuing the 1^st to the 4^th Incidents (ii) a mandatory injunction requiring the defendants to facilitate an inspection of Flat 1E and to carry out the necessary repair works to stop the discharge of waste water onto the Service Lane and (iii) damages for “injury of discomfort”.  By an amendment of the Statement of Claim, the plaintiffs gave up their claim for damages for their loss of business[97].

Restraining injunction and mandatory injunction

135.  I was told that D1, Old Mr Kwok and Mrs Kwok moved out of Flat 1F in late 2014 or early 2015.  D2, her husband and their baby moved into Flat 1E in September 2015.  But at the time of the trial, only D2 lived in Flat 1E temporarily[98]. Since August 2016, Flat 1F was rented to others.  The plaintiffs’ evidence was that since D1 and his parents moved out of Flat 1F, all incidents of leakage from the Cockloft ceiling ceased.  The discharge of waste water onto the Service Lane was put to an end by a pipe installed with the Buildings Department’s permission.

136.  More importantly, for the above reasons, I have found against the plaintiffs in their claims in the 1^st, the 2^nd, the 5^th to the 8^th Incident.

137.  In the circumstances, there is no need for me to grant any injunction, be it prohibitive or mandatory.

Damages for inconvenience and discomfort

138.  I have found that the defendants were acting unreasonably which amounted to nuisance and negligence in the 3^rd and the 4^th Incidents and as a result the plaintiffs were prevented from having their rightful enjoyment over Shop G, ie prevented from accessing Shop G via the back door, due to the discharge of waste water onto the Service Lane.

139.  Therefore, the plaintiffs should be entitled to damages for the inconvenience and discomfort suffered as a result of those two incidents.

140.  The plaintiffs claimed damages for “injury discomfort”, or more conventionally known as inconvenience and discomfort, arising from those incidents.  This head of damages is recoverable: John So v Lau Hon Man CACV 110/1993 (dated 5 October 1993) and Lo Yu Chu v Kam Fu Lai Development Co Ltd CACV 50/1994 (dated 29 September 1994).  As often said in cases where the court awards damages for discomfort and inconvenience, there is no mathematical formula.  The sum awarded must be conventional: John So v Lau Hon Man (supra).

141.  Counsel have referred me to a number of cases on this head of damages.  All of those cases concerned seepage inside flats rather than nuisance outside the property therefore disrupting access as what happened in this case.

142.  Counsel for the plaintiffs seek to rely on:-

(a)  John So v Lau Hon Man (supra): $100,000 awarded for water leakage for a period of about 1½ months.

(b)  Leung Yung Chun v Chan Wing Sang HCA 12235/1998 (dated 28 January 2000): $80,000 awarded for water leakage lasting nearly 2 years.

(c)  Chung Che Sum v Dong Sai Ming Fernando DCCJ  21504/2001 (dated 15 February 2007): $80,000 for water leakage affecting 3 bedrooms for about 2 years. 

143.  Counsel for the defendants, on the other hand, invited the court to distinguish the said cases cited by the plaintiffs and consider these cases:-

(a)  Wong Hon Hung and anor v Jolly Birds Ltd DCCJ  5341/2006 (dated 24 June 2008): water seepage causing “simply horrendous” damage to the master bedroom, $50,000 awarded as damages for inconvenience and discomfort.

(b)  Cheng Chi Wing and ors v Ho Shu Wah and anor DCCJ  2370/2005 (dated 27 July 2007): water leakage into the plaintiff’s premises causing damage to premises, spreading of small insects and skin disease suffered by the 3^rd plaintiff, $45,000 awarded for inconvenience and nuisance suffered by the plaintiffs.

144.  I also tried to look for some other cases, in particular the more recent ones, concerning fresh or waste water seepage, in the hope that they may provide further guidance on or reference for assessment of damages, as such leakages tend to bring considerable distress to the plaintiffs.

(a)  In Lam Ting Kwan and Anor v Teamwell Corporation Limited [2019] HKDC 1593, DCCJ 17/2016 (dated 26 November 2019), the defendant operated sub-divided flats above the plaintiffs’ shop. The court found that the defendant was liable for nuisance by fresh water seepage during 8 years continuously where the plaintiffs’ use of buckets and plastic covers to catch dripping water which had no doubt affected the image of the plaintiffs’ business which was aggravated by the defendant’s uncooperativeness.  The court granted damages of $100,000.

(b)  In Chan Wai Shin v Pang Chung Kong and Anor [2019] HKDC 1289, DCCJ 2346/2017 (dated 27 September 2019), the plaintiff suffered 4 years of soil and waste water seepage, dislodgment of concrete in his flat and the defendants’ persistent denial of the problem.  The court granted $150,000 for discomfort and inconvenience.

(c)  In Chung Yin Ha v Tse Shui Sum [2019] HKDC 139, DCCJ 2605/2016 (dated 22 February 2019), the plaintiffs dared not switch on air conditioners for 4 years in fear of the water seepage might cause electric short-circuit to the whole property. The plaintiff’s family also suffered from respiratory problems due to the paint peelings from the ceiling. The court granted $100,000 for discomfort and inconvenience.

(d)  In Choi Man Wing and Anor v Wong Tai Hoi Alice [2018] HKDC 901; DCCJ 4825/2016 (dated 31 July 2018), the plaintiffs and their family suffered extensive damage to their bathroom ceiling and fixture for 2 years because of the corrosive flush water seepage.  It was aggravated by the defendants’ persistent uncooperativeness.  The court granted $80,000 for distress and inconvenience.

(e)  In Wong Yim Fong v Lee Hok Chau DCCJ 343/2013 (dated 22 July 2014), there was fresh as well as flush water seepage for almost 4 years, causing serious damage to the ceiling, bad smell and sanitary problem in the plaintiff’s flat.  The court granted $70,000 for discomfort and inconvenience.

(f)  In Kwok Sui Shum Dorothy v Tse Chi Keung and Anor DCCJ 2910/1999 (dated 22 May 2001), the defendants operated sub-divided flats above the plaintiff’s flat.  The plaintiff found that the water seepage caused foul odour to her entire flat and she and her family had to move out.  The plaintiff’s tenant complained of odour from dripping water and electronic short-circuiting.  The situation persisted for 22 months.  The court, apart from other damages under different heads, awarded damages of $10,000 for discomfort and inconvenience caused.

145.  In the present case, the 3^rd Incident lasted for about a month, ie between 21 January to mid-February 2012.  The 4^th Incident lasted for 11 days, ie between 26 February and 7 March 2012.  Of course, I do not overlook the possibility that the plaintiffs may not have used the back door of Shop G since the 3^rd Incident until the eventual connection of pipes to Shop E because they were, as any reasonable man would be, mindful that waste water could shower the Service Lane again at any time on any given day.  The fact that the plaintiffs were still able to access Shop G from the front door mitigates against the inconvenience caused by the defendants’ act.

146.  I also bear in mind that the 3^rd and the 4^th Incidents were extremely unpleasant to the plaintiffs, in particular so for them to run a chicken business at Shop G.  Although the discharge was outside their business premises (as opposed to inside a residential unit), waste water poured from the pipe outlet above the back door of Shop G and even above the windows of the Cockloft.  I have watched the video clips taken at the Service Lane.  It is appropriate to describe the waste water as “showering” the Service Lane.  One cannot fail to understand the disgust of seeing, smelling and hearing what is normally flushed down the toilets to splash down like a rain shower in a public place, let alone directly over one’s premises.  The 3^rd and the 4^th Incidents were even more frustrating for the plaintiffs who sold cooked chickens in Shop G and anyone who learnt of such unhygienic incidents happening in the vicinity would most likely refrain from buying from the plaintiffs.

147.  Having compared to the cases which I have referred to above and considered all the circumstances in the present case, I am of the view that the appropriate damages payable to the plaintiffs by the defendants for discomfort and inconvenience for the 3^rd and the 4^th Incidents should be $60,000 and I so award.  The plaintiffs should also be entitled to interests on this head of general damages, which I now order to be calculated at judgment rate from the date of the writ until full payment by the defendants.

COSTS

148.  As a matter of general principle, costs should follow the event.  There is no reason why that general principle should not apply in this case.

149.  The plaintiffs succeed in their claims in two incidents (the 3^rd and the 4^th Incidents) but fail in the remaining six incidents (the 1^st, the 2^nd and the 5^th to the 8^th Incidents).  If the complexity of the matters and the time taken for each of those 8 incidents were exactly the same, the defendants should be compensated by half of their costs.  However, I noted that most of the time taken for the preparation of the case and that for the trial was spent in arguing and handling the 1^st to the 4^th Incidents.  For instance, the witnesses of facts from both sides (whose evidence covered the 1^st to the 4^th Incidents) took 5 days in the trial; on the other hand, the two expert witnesses (whose evidence covered the 5^th to the 8^th Incidents) took only 2 days.  As a matter of fairness, that should be reflected in the costs order. 

150.  I therefore make an order nisi, which shall become absolute in 14 days in the absence of any parties’ objection in writing, that one-fourth of the costs of this action shall be paid by the plaintiffs to the defendants, with a certificate for counsel, to be taxed if not agreed.