HKSAR v. CHOI YU LEUK

HCMA 396/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 460 OF 2011

(ON APPEAL FROM KCS 11843/2010)

________________________

________________________

________________________

JUDGMENT

________________________

1. The proceedings against the appellant arose from water seepage in a building in which he owned a flat known as "3A". Water seeped into the kitchen of the flat below his, "2A". It was the prosecution's case that the water emanated from a room, which apparently was usually used by an employee, in his flat which contained a shower, a hand basin and, initially, a toilet bowl: it was referred to at trial as "the servant’s toilet". I shall refer to it as the shower room. The shower room, below which is a sunken space, was directly above the kitchen of 2A.

2. Although it was not in contention that water seeped into the kitchen of 2A, the appellant disputed that the source of the water was the shower room after 26 March 2010. That stance necessarily involved disputing the evidence of the prosecution's witnesses and, in particular, the conclusions of its expert witness. The appellant testified as to various tests which he, the appellant, had conducted and arranged to be conducted and the conclusions to be drawn from their results. Although there was no onus on him do so, he hypothesised as to the actual source of the water. Unusually, he was in a position to do so as, in the course of obtaining a Ph.D. in civil engineering, he had previously obtained a Masters degree in water engineering: he had joined the Drainage and Highways Department as an engineer in 1960; in 1982 had been posted to Lands and Works Department as chief engineer; moved to the Civil Engineering and Territory Development Department; then had become Director of the Buildings Department before retiring in 1999.

3. The magistrate noted that the appellant "... also had his own expertise in hydraulics, so he was able to comment himself upon [prosecution] evidence that had been given. I accepted the comments he gave me.".

4. An information was laid against the appellant under s 127(3)(b) of the Public Health and Municipal Services Ordinance, Cap. 132, alleging that the appellant had failed to comply with the requirements of a nuisance notice served on him. The matter went to trial. That trial lasted eight days. The appellant was convicted. He was sentenced to pay a fine of $1750.00. He appeals the conviction.

THE BACKGROUND

5. Consequent upon the seepage, tests were performed by the Food and Environmental Hygiene Department (FEHD) as a result of which it concluded that the water emanated from 3A. A nuisance notice was issued to the appellant on 4 March 2010 which read:

Take notice that under the provisions of the Public Health and Municipal Services Ordinance, the Director of Food and Environmental Hygiene, being satisfied of the existence at [3A] of a nuisance being water seepage through the servant toilet of the aforesaid premises to the premises below at [2A] and such seepage has rendered the said premises below in such a state as to be a nuisance, do hereby require you, within 21 days from the service of this notice, to abate the nuisance and for that purpose to repair satisfactorily the floor slab and the enclosing wall of the servant toilet of [3A] by suitably maintaining and providing properly well-protected water-proofing material to the said floor slab and wall to prevent water seepage to the premises below at [2A] and the said Director of Food and Environmental Hygiene do (sic) hereby require you within the said period to do what is necessary for preventing a recurrence of the nuisance...

6. The magistrate summarised events prior to the laying of the information thus:

In January 2010, water was seen to leak and seep into the ceiling of 2A’s kitchen, directly below the servant's toilet and sunken space of flat 3A.

The joint office of the Food and Environmental Hygiene Department then conducted a number of tests inside the servant's toilet of flat 3A. Following a ponding test on 1 March 2010 and the observation of fluorescent sodium dye on the outer wall following the test, they formed the view that the water seepage to 2A’s kitchen ceiling originated from faulty waterproofing of 3A’s servant toilet floor slab.

A nuisance notice was issued on 4 March 2010, requiring the defendant to do the necessary repairs. The leakage of water continued and water coloured by fluorescent sodium was observed on the ceiling of 2A’s kitchen on 9 March 2010, 30 March 2010 and 12 April 2010. As the nuisance had not abated and satisfactory repairs were not done to the waterproofing system, it was said that the nuisance notice was not complied with on or before 26 March 2010 for 21 days. In fact, water continued to seep into 2A’s kitchen ceiling until July 2010. Shortly after that it ceased.

THE GROUNDS OF APPEAL

7. There were six grounds of appeal advanced on behalf the appellant, asserting that the magistrate erred in that he:

(1)  failed to attach due weight to the fact that the water collected in the bags attached to the ceiling of flat 2A was not scientifically examined;

(2)  concluded that visual inspection of such water was sufficient;

(3)  engaged in speculation in concluding that some remedial works had to have been performed in order to remove the servant toilet structure in the appellant's premises. This conclusion was contrary to the evidence of the appellant;

(4)   failed to attach due weight to the fact that the joint office had refused to conduct a second ponding test;

(5)  failed to attach due weight to the fact that seepage to flat 2A continued until mid July 2010 when the evidence before him was that the servant toilet was not in use after 21 April 2010; and

(6)  to reflect the real possibility that seepage to flat 2A was from another source, in particular the renovation works being carried out in flat 4A.

8. It is sufficient to dispose of the first and second grounds simply to say that neither of them in any way called the magistrate's decision into question or is of any assistance to the appellant in the present appeal which, of course, is a rehearing by this court on the material before the magistrate.

9. The third ground is relevant to the magistrate's rejection of the evidence of a witness called on behalf of the appellant. The magistrate then extrapolates her evidence to call into question, effectively, the evidence of another expert witness called on behalf of the appellant. The complaint regarding the characterisation of the evidence by the magistrate is well founded: see §20 below.

10. The fourth ground raises an evidential difficulty in the context of this case for the prosecution in proving its case rather than constituting a discrete ground of appeal.

11. The fifth and sixth grounds effectively each relate to the necessity to evaluate whether the prosecution case established, beyond reasonable doubt, the failure of the appellant to comply with the notice. The magistrate put it this way:

For the information to be proved, the prosecution needs to prove beyond a reasonable doubt that the defendant failed to comply with the requirements of the nuisance notice. That required him to abate the water seepage by repairing the floor slab and the enclosing wall of the servant toilet. Those repairs being to maintain and provide proper waterproofing material to the floor slab and wall, and to prevent recurrence of the nuisance. The nuisance notice is premised on the basis that the nuisance originates from an act or default of the defendant. In this case, presumably, a failure to properly ensure and maintain the affected waterproofing of the servant toilet.

I consider that if the defendant can show any reasonable doubt that the nuisance arose or continued as a result of an act or a default or severance on his part or that he had failed to comply with any of the requirements of the nuisance notice, then he is entitled to be acquitted.

12. It, sensibly, is not suggested on behalf of the appellant that the magistrate reversed the onus when he used the expression "... if the defendant can show...".

THE TRIAL

13. Three witnesses were called by the prosecution as to their visits to 2A and 3A, work done there and their observations. A fourth witness, a Dr. Daniel Ng, a structural engineer employed by the Buildings Department, was called as the prosecution's expert witness. The appellant called two witnesses, in addition to his own testimony, each of whom professed to possess expertise in this field. There were a number of admitted facts: for the purposes of this appeal the relevant admitted facts are the tests carried out by prosecution witnesses with particular reference to the dates of them.

14. Three types of tests were performed by the prosecution witnesses: a colour water test (CWT) which involved introducing water containing a brightly coloured dye into the toilet bowl, wash basin and floor drain in the shower room and the kitchen sink, in 3A; a reversible pressure test (RPT), which is self-explanatory, on fresh and flushing water supply pipes to the shower room; and a “ponding test” to the shower room which involved blocking the drainage outlet in the floor, flooding the area with water containing Fluorescein Sodium dye (FSD) and allowing it to remain in situ for a period of time before allowing it to drain away normally.

15. The following chronology emerges from the evidence including the admitted facts:

Date	Place	Event	Evidence of/ Test by
30.1.2010		Complaint made by owner of 2A
2.2.2010	3A	CWT on drainage pipes in shower room -	PW1
		toilet bowl; washbasin; floor drain - and kitchen sink.
7.2.2010	3A	RPT on fresh water supply pipe to shower room.	PW1
8.2.2010	3A	RPT on flushing water supply pipe to shower room.	PW1
9.2.2010	7A	CWT on main soil pipe inside pipe duct of shower room.	PW1
1.3.2010	3A	Ponding test in shower room using water marked with FSD.	PW3
4.3.2010		Appellant informed by PW3 that water with FSD seen in 2A “almost immediately” after release.	App.
	3A	Appellant performs ponding test.	App.
5.3.2010		Appellant performs CWT on drainage pipe	App.
		from hand basin to common drainage pipe at wall. Leakage in drainage pipe noted in shower room.
		Nuisance abatement notice served on appellant.
8.3.2010	3A	Leak in drainage pipe located. FEHD notified.	App.
9.3.2010	2A	FEHD inspect leaking drainage pipe.	App.
		Water marked with FSD seen to be dripping from kitchen ceiling of 2A.
10.3.2010	3A	Leaking drainage pipe replaced.	App.
26.3.2010		21 day period for abatement of nuisance expired.
30.3.2010	3A	CWT on drainage pipes in shower room -	PW1
		toilet bowl; washbasin; floor drain - and kitchen sink.
	2A	Water marked with FSD seen to be dripping from kitchen ceiling of 2A: rate 7-10 drops per minute.
12.4.2010	2A	Water marked with FSD seen to be dripping from kitchen ceiling of 2A: rate 30 drops per minute.
15.4.2010		Summons issued to appellant.
21.4.2010	3A	Use of shower in shower room discontinued	App.
		and toilet bowl removed therefrom.
1.6.2010	3A	Ponding test in shower room. No seepage	DW2
		Detected.
7.2010	2A	Dripping ceases.

16. The issue, then, is whether the prosecution has adduced evidence that enables the drawing of the irresistible inference that, by 26 March 2010, the appellant had failed to abate the water seepage by providing and maintaining proper waterproofing materials thereby preventing recurrence of the nuisance. For reasons which I trust will become clear, I do not regard it is necessary to go into great detail either into the background of earlier complaints about water seepage in 2A and 3A and their resolution or the voluminous evidence tendered before the magistrate.

17. It is apparent that the magistrate took the view that the evidence necessary to enable the drawing of this inference was the presence of marked water, whether it be the dye used during CWTs or the FSD from ponding tests, in the water gathered from the ceiling of 2A. That is correct insofar as it went but with the qualification that it had to be water gathered after 26 March 2010, for the appellant had until that date to comply with the nuisance notice.

18. The prosecution case hinged on the presence of FSD in the collected water which had dripped from the ceiling of the kitchen of 2A. There is no merit in the complaint by the appellant relating to the evidence that, after 26 March 2010, that collected water contained FSD: it plainly did.

19. In setting out the conclusions at which he arrived based on the evidence the magistrate said:

Nevertheless, water continued to flow into flat 2A’s ceiling. The water coloured with fluorescent sodium from ponding test on 1 March 2010. Clearly, the flow of the fluorescent sodium coloured water must have originated from the ponding test. The continuing water flow could only have originated from the continued use of the servants toilet at flat 3A because it was regularly used and all other sources had been eliminated by that date such as the drainage pipes repaired by 9  March and the flushing system excluded by tests. I also note that I have and can eliminate flat 4A as the source of that water.

This, I find, proves that the use of the servant’s toilet at flat 3A was, in fact, the source of the water observed by the joint office at the ceiling of flat 2A’s kitchen from January to April 2010. All other sources of water seepage have been eliminated.

REJECTION OF DEFENCE WITNESS’S EVIDENCE

20. The magistrate criticised the conclusions of one of the two witnesses, Miss Cordelia Chan, who had expressed the expert opinion that the ponding test conducted on 1 June 2010 by the appellant’s other expert witness, Mr. Benson Yau, was conclusive as to the fact that the waterproofing in 3A was effective. In doing so, the magistrate referred to the appellant's evidence concerning removal of the toilet bowl on 21 April 2010. The magistrate expressed the view that those works "... clearly must have had an impact on the waterproofing of the servants toilet." There was no evidence to support this finding. The appellant's evidence in that regard, which was unchallenged, is that those works did not interfere with the waterproofing.

21. The effect of this was that the magistrate found that Miss Chan's evidence was incorrect when she opined that the negative result of the ponding test carried out on 1 June 2010, on behalf of the applicant, was conclusive evidence of adequate waterproofing. He rejected her motivated opinion that the accused had fulfilled his obligations on before the date specified in the nuisance notice: whilst, of course, whether the appellant had done so was a matter for the magistrate, and is now for me, to determine, it is proper to take her opinion into account.

EVIDENCE RELATIVE TO THE PERIOD POST-26 MARCH 2010

22. Be that as it may, the real difficulty with which I am faced is this: it can only be, as the magistrate found, that the FSD present in the water collected from the ceiling of 2A as late as 12 April 2010 must have been introduced into the water during the ponding test on 1 March 2010 because not only is there no evidence of a further ponding test using FSD being conducted after that date but there was also a direct refusal by FEHD to carry out such a further test.

23. There is then the evidence of the prosecution expert, Dr. Ng - which the appellant accepted and to which he drew attention when being cross-examined - that there are a number of factors which may affect the rate at which water seeps: an example of his evidence in this connection is to be found in his evidence in chief:

Q.  ... is it correct that sometimes the ponding test result could be observed right away, immediately after the test?

A.  Yes, if... the defect of the waterproofing layer or the concrete is significant, or there is a major defect, then we can see the seat water... in a very short period. But if the defect itself is very minor, then it did take times for the water to penetration through the concrete slab and then down to the ceiling of the affected premises. So, very much depends on the conditions of the subject toilet.

Q.  Is it correct that... apart from the defect of the waterproofing material, it also depends on the path available for the water to go down?

...

A. Exactly.

Q.  But if the path... inside the concrete is a narrow path... it may take time to travel the same distance?

A.  Yes.

Q.  So, is it correct that the ponding test result might... not be available, for example, after several days or up to 3 to 4 weeks?

A.  Yes it's very common, in our experience it takes about 2 to 4 weeks time.

24. An essential finding upon which the magistrate convicted the accused was:

... the defendant did take remedial measures but the part specified in the nuisance notice, namely the maintaining and providing of a properly well-protected material was not done to the standard sufficiently to prevent the recurrence and continuation of the nuisance.

25. I have to be satisfied that the prosecution has shown that the water collected after 26 March 2010 containing FSD is water which had been introduced into the area of seepage after 26 March 2010: that that water had mixed and become marked with the residue of water and FSD introduced during the ponding test on 1 March 2010. If there remains a realistic possibility that what was dripping into 2A after 26 March 2010 was some of the FSD-laced water which had been used during the ponding test on 1 March 2010 or was water which had been contaminated by FSD after being introduced into the seepage area prior to 26 March 2010 in some other manner, then it seems to me not to be open to infer that the waterproofing was inadequate after 26 March 2010. The appellant plainly cannot be held liable for water which had already saturated the concrete as a result of defective waterproofing prior to 26 March 2010, yet the water had not passed right through the concrete and dripped into 2A until after that date.

26. There is nothing in the evidence of Dr. Ng, as I read it, to the effect that, even if some of the water may have moved quickly from 3A to 2A at the time of the first ponding test, more of it could not have seeped through slowly for the very reasons he suggested.

27. It may be that the volume of gathered water recovered in 2A from the ceiling when compared with the volume of water used during the ponding test may have provided the answer: whilst there is some data in Mr. Yau’s report regarding the volume of water gathered between 11 May and 9 July 2010 - which appears to amount to well under one litre - there is no evidence as to the amount of water which had been used in the ponding test. It is therefore not possible to make that comparison.

28. The issue also could have been resolved simply by FEHD carrying out a further ponding test using a different coloured dye. Dr. Ng indicated in his report that because there was no sign of repair work nor "improvement at the seepage area" it was "considered" that the nuisance notice had not been complied with and current practice dictated that no confirmation test would be contemplated. If that is so, it is a practice which may well benefit from being revisited.

29. There is, thus, insufficient evidence to enable me to determine whether the water gathered after 26 March 2010 was water that had only been introduced into the area of seepage after that date. The effect of that, this being a rehearing, is that there is no material by which I am able to be satisfied that the prosecution has established, beyond reasonable doubt, that the appellant failed to comply with the nuisance notice.

THE APPELLANT'S EXPERTISE

30. There is a further matter which deserves mention. As has been seen in §3 above, the magistrate recognised the expertise of the appellant and then added, when referring to his ability to comment on the prosecution evidence: "I accepted the comments he gave me.".

31. In many instances, those comments directly challenged or contradicted the opinions of the prosecution witnesses, particularly Dr. Ng; for example during cross-examination with the prosecutor putting questions which reflected the prosecution evidence:

Q.  If you observe some coloured dye, that would be a very positive result of that ponding test, do you agree with that?

A.  ... the simple answer is not necessarily.

Q.  ... there is inherent deficiency in [the kind of ponding test carried out by the appellant] when compared with the test conducted by the JO, do you agree with that?

A.  No, I do not.

Q.  But do you agree the lesser amount of water used in test, the slower the rate of the seepage?

A.  No... the depth of water does not have any significant effect on the seepage flow rate. That is a well-established hydraulic principle.

A.  There were two things that I said... Secondly, we know that there was no colour water appearing in flat 2A. Therefore... what we can say at that stage, was that the seepage source that appeared on 2 February or prior to that date... must have an additional source if not the only other source.

Q.  So, the dripping which continues from January 2010 to March could not have sourced from the leaky drainage pipe you discovered, would you agree with that?

A.  No. You have not considered the other possibility of time lag... As it was already explained earlier, it might take time - if there were any leakage through the reinforced concrete slab it would take time for it to reach the ceiling of 2A.

A. ... there has never been any report of the appearance of the pink colour in the water beds.... Therefore, this raises a very fundamental scientific question; if the greenish FS colour could seep through the reinforced concrete slab, why would the pink colour not appear in the water beds?... One thing is certain - if the pink colour never appear at flat 2A that means that the reinforced concrete slab would not have allowed the pink dye to pass through. Consequently the reinforced concrete slab must be sufficiently waterproof...

32. I have not enjoyed the advantage available to the magistrate to see the witnesses testify. There was, unsurprisingly given the nature of this matter, no criticism of the credibility of the appellant. The issues in the trial essentially revolved around differences of expert opinion rather than the credibility of witnesses.

33. I must have due regard to the fact that the magistrate “accepted the comments” the appellant made concerning the prosecution evidence. That was plainly a course that was open to him to follow in this matter. Once, like the magistrate, I accept the appellant's comments on the prosecution evidence I cannot see how I am able to be satisfied that it establishes the prosecution case beyond reasonable doubt.

CONCLUSION

34. The appeal is allowed and the conviction and sentence is set aside.