MAK WAI YIM AND ANOTHER v. TAM SIU LING AND ANOTHER

DCCJ 1428/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1428 OF 2012

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J U D G M E N T

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1.  This is yet another water seepage case that requires disposal by trial.

Background

2.  The following background facts are not in dispute.

3.  The plaintiffs have since 1999 been the registered owners of 1/F., No. 7 Shek Kip Mei Street, Sham Shui Po, Kowloon while the 1^st defendant was the registered owner (from 2008 to 31 October 2011) and the 2^nd defendant the current owner (since 31 October 2011) of a sub-divided unit on the 2^nd floor of the same building (“Unit 2A”).

4.  The plaintiffs’ unit is sub-divided into four rooms, all for rental purpose, and it is Room C (“Room 1C”) and Room D (“Room 1D”), adjacent to each other, which are affected by water seepage.  The bathroom of Unit 2A, which sits on what was originally a balcony, is immediately above the bathroom of Room 1D. 

5.  Water seepage in the ceiling of the bathroom of Room 1D was first reported by the tenant of Room 1D around October 2009. The plaintiffs complained to the Joint Office of the Buildings Department and the Food and Environmental Hygiene Department (“Joint Office”) soon afterwards and filed a claim with the Small Claims Tribunal against the 1^st defendant in December 2009.  The plaintiffs alleged that water seepage extended to Room 1C in the meantime.  In October 2010, the Joint Office concluded that the water seepage came from Unit 2A.  The 1^st defendant engaged a contractor to fix the problem in the same month.  In June 2011, the 1^st defendant settled the plaintiffs’ claim at $38,500 payable by 6 instalments (“Settlement Sum”).

6.  In August 2011, the plaintiffs received yet another complaint of water seepage from the new tenant of Room 1D (whose two-year lease commenced in May 2011).  On 23 August 2011, the 1^st plaintiff and the 1^st defendant jointly inspected Room 1D when the 1^st defendant signed an undertaking whereby the 1^st defendant promised to stop the water seepage from Unit 2A and effect thorough repair by 31 August and to bear all consequences arising from the water leakage (“Undertaking”).  In her Defence, apart from denying liability for water seepage, the 1^st defendant asserted that she signed the Undertaking under threat or undue influence.

7.  Meanwhile, as the 1^st defendant failed to effect payment of the remaining instalments of the Settlement Sum, the plaintiffs obtained a charging order nisi from this court which was registered against Unit 2A on 28 September 2011.  It turned out the 1^st defendant had contracted with the 2^nd defendant for sale and purchase of Unit 2A on 12 September 2011 and completion took place on 31 October 2011 after the 1^st defendant paid up the Settlement Sum for discharge of the said charging order nisi.

8.  In September 2011, the plaintiffs complained again to the Joint Office.  In December 2011, the plaintiffs filed a claim against both defendants with the Small Claims Tribunal which was subsequently transferred to this court, hence the present proceedings.  

9.  The test conducted in November 2011 having excluded the relevant drainage pipe as the source of leakage, the Joint Office commissioned a contractor to conduct a water dye test at Unit 2A on 25 February 2012.  The contractor revisited the premises on 24 March 2012[1] and found the ceilings of Room 1C and Room 1D to be dry and saw no water dye.  The Joint Office therefore took no further action.

10.  On 19 December 2012, the parties’ respective experts jointly inspected Unit 2A and noted that renovation works were being carried out.  This led the plaintiffs to believe the defendants were tampering with the status quo of Unit 2A.  At trial, upon clarification by the 2^nd defendant that the renovation works had nothing to do with the bathroom of Unit 2A, this complaint was not pursued any further. 

11.  Between 1 and 7 February 2013, a ponding test (using fluorescent dye) and infrared scan tests were conducted at Unit 2A.  A joint expert report was prepared recording the experts’ disagreement as to whether Unit 2A was the source of the water seepage.

12.  In July and October 2013, the plaintiffs’ expert twice tested the moisture contents of the ceilings of Room 1D and Room 1C.  A higher than normal level of moisture was recorded on the first occasion but not on the second occasion.  The plaintiffs therefore accept that water seepage has stopped since October 2013.

13.  The plaintiffs plead nuisance as a result of the water seepage without giving particulars, thereby causing the defendants to argue unnecessarily as to whether nuisance in the sense of interfering with one’s comfortable and convenient enjoyment of his land could be caused to the plaintiffs who never were occupants of the premises in question.  It is now clear that the plaintiffs are relying on nuisance merely as a basis for claiming damages for physical damage to their property and they are entitled so to do.  SeeLau Ting Hang & Anor v Leung Chi Wing (DCCJ 6539/2005) unreported, 18 February 2008 at §30 and Clerk and Lindsell on Torts (20^th ed) §20-06.  To that extent, nuisance and negligence coincide and whether one’s liability is described as falling one legal rubric or the other would seem to be only a difference of words.  See Clerk and Lindsell on Torts (20^th ed) §20-40.

14.  The plaintiffs further plead a breach of s.34H of the Building Management Ordinance (Cap 344) on the defendants’ part.  The section imposes on an owner or occupant of any part of a building an obligation to all owners of the building to maintain the part in good repair and condition absent a similar obligation in the deed of mutual covenant.  Miss Yung, counsel for the defendants, accepted that the defendants would be in breach of the section should water leakage be found to have come from Unit 2A.

15.  The plaintiffs seek a mandatory injunction against the defendants requiring them to remove all the unauthorized structure erected on Unit 2A and a prohibitory injunction requiring the defendants to stop water leakage from Unit 2A permanently.  They also claim damages for loss of rental income from and physical damage to Room 1C and Room 1D.

Factual Evidence

16.  All parties hereto gave evidence in support of their respective cases.

The 1^st Plaintiff

17.  In his witness statement, the 1^st plaintiff verified the factual background as aforesaid.   In his supplemental statement, he deposed to his observation on 22 October 2013 when he visited Unit 2A to see if repair had been done to the floors and walls of the bathroom and the kitchen.  He noted that a new layer of floor slabs appeared to have been laid on the original flooringand he did not consider this a complete repair.  He took photographs of the bathroom and the kitchen and showed them to his expert Mr. John Wong (“Mr. Wong”) who opined that the mere laying of a new layer of floor slabs would not completely resolve the water seepage problem. 

18.  At trial, the 1^st plaintiff confirmed that water seepage had stopped.  When asked about the meeting with the 1^st defendant on 23 August 2011 when the latter signed the Undertaking, he said the 1^st defendant came alone to meet him and the 2^nd plaintiff.  The tenant of Room 1D and her husband were also present.  Despite the recurrence of water seepage after the recent repair effected by the 1^st defendant, the 1^st defendant insisted there should be no (seepage) problem.  He therefore requested her to sign the Undertaking prepared by him.  He stressed that the meeting was peaceful throughout and denied having threatened the 1^st defendant or that the latter signed the Undertaking against her will.

The 2^nd Plaintiff

19.  The 2^nd plaintiff’s witness statement echoes that of the 1^st plaintiff.  In her testimony, the 2^nd plaintiff insisted that on 23 August 2011 the 1^st defendant signed the Undertaking willingly and promised to stopanywater seepage from Unit 2A.

The 1^st Defendant

20.  In her witness statement, the 1^st defendant deposed that on 23 August 2011 she went with her decoration worker first to Unit 2A.  Having found no sign of water seepage, they proceeded to inspect Room 1D and the decoration worker conducted some test on the ceiling and ruled out Unit 2A as the source of seepage.  The decoration worker then left, leaving her to continue the discussion with the plaintiffs.  When she was about to leave Room 1D, however, the plaintiffs blocked her way and the 1^st plaintiff, who was indignant, took out the Undertaking demanding her to sign the same or else she would not be allowed to leave.  Given the atmosphere and the negative result of the test conducted by her decoration worker, she reckoned that it would do no harm to sign the Undertaking.  Before signing the same, however, she asked whether she would not be held responsible should the Joint Office found that the seepage was not caused by Unit 2A and the plaintiffs replied in the affirmative.  She urged the plaintiffs to arrange for the Joint Office to conduct a test as soon as practicable and promised to shoulder responsibility and pay reasonable compensation should Unit 2A be found to be the source of seepage.  In cross examination, she maintained that she was unwilling to sign the Undertaking and did so only after the plaintiffs assured her that they would not pursue her if the water seepage was not her responsibility.

21.  The dispute on the voluntariness of the 1^st defendant in signing the Undertaking turned out to be a red herring as Miss Yung submitted, and Mr. Chen, Counsel for the plaintiffs, agreed, that even if found to have signed the Undertaking voluntarily, the 1^st defendant should not be bound by the Undertaking if no water seepage from Unit 2A to Room 1D is found. Miss Yung therefore did not put forward any argument on the 1^st defendant’s pleaded case of duress or undue influence.  At any rate, the burden lies with the 1^st defendant to prove duress or undue influence.  Notwithstanding the indignation of the 1^st plaintiff, it seems the 1^st defendant signed the Undertaking because of the plaintiffs’ reassurance rather than under compulsion.  On balance, I am inclined to find her to have failed to discharge her burden of proof in this regard insofar as such a finding is necessary.

The 2^nd Defendant

22.  The 2^nd defendant confirmed in her witness statement that she was aware of the plaintiffs’ complaint about water seepage around the time of purchase.  It is likely that she had acquired knowledge of the same shortly before completion of the sale and purchase of Unit 2A by reason of the registration and de-registration of the charging order nisi as aforesaid.  Upon taking over Unit 2A, she caused her husband Mr. Law Man (“Mr. Law”), a retired decoration worker, to apply a layer of waterproofing gel to the existing flooring and to the lower portion of the walls of the bathroom and the kitchen.  Immediately above Room 1C, she said, was Unit B of the 2^nd Floor (“Unit 2B”) owed by someone else.  After her tenant moved out in mid November 2012, she caused Mr. Law to refurbish the ceiling and walls of Unit 2A to make it easier to rent out the unit.  She confirmed she had not caused any repair to the floor or pipes on 19 December 2012 when the experts conducted a joint inspection.

23.  At trial, the 2^nd defendant told this court that the new layer of floor tiles which the 1^st plaintiff saw on 22 October 2013 was laid in March 2013 and Unit 2A had since been rented out.  Mr. Law, who used to be a mason by profession for over 30 years, carried out the works on his own.  While Mr. Law did not tell her what exactly was done, she knew Mr. Law had applied waterproofing gel to the existing flooring before adding a new layer of floor tiles.  Since then, she had received no further complaint of water leakage.

24.  Under cross examination, the 2^nd defendant confirmed that Mr. Law did not remove any existing structure before laying new floor tiles in March 2013 but simply applied waterproofing gel on the existing floor tiles as they were worried that removal of the existing floor tiles might cause damage to the floor structure.

Expert Evidence

25.  As said, the plaintiffs engaged Mr. Wong as their expert herein. The defendants engaged Mr. Fung Tak Yin of Infrascan (Asia) Limited (“Mr. Fung”) as their experts.  Their respective views are found in their joint report dated 15 March 2013 (“Joint Expert Report”) to which a water leakage test report dated 5 March 2013 (“QTC Report”) prepared by one Qualitech Testing & Consultancy Limited (“QTC”) and an infrared scan test report dated 7 May 2013 prepared by Mr. Fung (“Fung’s Report”) are attached.  The expertise of Mr. Wong and Mr. Fung is not in dispute.  

26.  It should be noted from the outset that all expert evidence adduced herein focuses only on Room 1D and there is a glaring absence of any reference in the Joint Expert Report to Room 1C.   

27.  QTC, a company accredited by the Hong Kong Laboratory Accreditation Scheme (“HOKLAS”) to conduct test on construction materials, was engaged by the plaintiffs to conduct a water leakage test.  The QTC Report records the results of the visual survey, infrared survey and ponding test conducted on 1, 3 and 7 February 2013 by Mr. Li Siu Fung (“Mr. Li”) and a Mr. Chau, both technicians in the employ of QTC.  A number of colour photographs are re-produced in the same report, of which WP8, WP11 and WP13 are said to have shown yellow-greenish dye appearing on the ceiling of Room 1D after the ponding test, which in turn signified water seepage from Unit 2A.  Mr. Li told this court that the QTC Report was prepared by his supervisor Mr. Michael Leung on the basis of the test results.

28.  The very engagement of QTC was a subject of disagreement between the parties.  Following Mr. Wong’s advice, the plaintiffs proposed to the defendants to have an independent third party jointly engaged by the parties to conduct the necessary tests but the defendants disagreed on grounds of costs and because they had already engagedMr. Fung to perform an infrared scan test.  It turned out Mr. Fung himself would have to engage a third party to conduct a ponding test as his expertise was limited to infrared scanning. The plaintiffs therefore proceeded with unilateral engagement of QTC and the defendants were content to have their own water leakage test confined to infrared scanning.

29.  Mr. Wongdid not attend the joint inspection scheduled for 3 February 2013 which was therefore attended by only QTC technicians from the plaintiffs’ side.   Evidence revealed that the plaintiffs’ solicitors had written to the defendants’ solicitors to invite Mr. Fung to join Mr. Wong on 7 February 2013 for a further inspection but the invitation was declined as the latter as well as Mr. Fung took the view that a further joint inspection would serve no purpose other than incurring unnecessary costs.  No objection was otherwise raised to the proposed inspection on 7 February 2013.  Mr. Wong therefore conducted an inspection on his own and causedmore photographs to be taken including WP11 and WP13. 

30.  I should also record the plaintiffs’ presentation of the digital versions of the photographs in the Joint Expert Report at trial.  Without the courtesy of forewarning the defendants of such an intention or notifying the court in advance of the need for using the courtroom facilities, Mr. Chen sought to show to Mr. Wong such digital photographs.  No prior discovery of the digital photographs was made (or sought by the defendants) and no leave was sought to introduce such evidence at trial.  Mr. Chen submitted that the digital photographs were not new evidence.  I disagreed.  At the very least, a digital version and a hard copy of a photograph are different ways of presentation of a photographic image. Miss Yung objected to the digital presentation on grounds of prejudice.  After hearing argument, I allowed Mr. Wong to view the digital versions of the said photographs solely for the purpose of easy identification of the spots in those photographs where he said he saw yellow-greenish colour.  Miss Yung raised no objection and all parties, including Mr. Fung who was in attendance during Mr. Wong’s evidence, were given a chance to closelyexamine the digital images but such images did not otherwise form part of the plaintiffs’ evidence.

31.  It is common ground between Mr. Wong and Mr. Fung that the ceiling of Room 1D was dry before tests were conducted and that the fresh water system and waste water system of Unit 2A were irrelevant to the issue of water seepage.  The external wall of the building was also excluded as a possible source of water leakage.

32.  On the basis of yellow-greenish fluorescent dye having been found(through the use of ultraviolet light) on the ceiling of Room 1D, Mr. Wong concludes that the waterproofing membrane on the toilet area of Unit 2A is defective and cannot stop water from penetrating into the unit immediately below.

33.  Mr. Fung reliedon his infrared scan test on the ceiling of the bathroom of Room 1D which revealed no water seepage from Unit 2A.  He did not see any fluorescent yellow-greenish dye on the ceiling of the bathroom of Room 1D during his inspection on 3 February 2013 under ultraviolet light irradiation.  To him, photographs WP8 to WP10 merely showed some areas in light blue and not fluorescent yellow-greenish.  As to photographs WP11 to WP13 taken on 7 February 2013 in his absence, they did not show fluorescent yellow-greenish colour either. 

34.  In Mr. Fung’s Report, Mr. Fung commented that there was no ground at all for Mr. Wong to opine that the waterproofing membrane of the toilet area of Unit 2A was defective.  He further referred to an incident during the inspection on 3 February 2013 when one of the QTC technicians claimed to have seen a yellow-greenish colour spot on the ceiling.   Thereupon, he took a closer look at that particular spot but only saw a small spot in blue-greenish colour. After a QTC technician took  photographs of the same spot (see photographs WP9 and WP12), he hacked off the surface layer thereof and saw no more colour underneath. He himself took several photographs of the spot which are attached to Fung’s Report.

35.  Mr. Wong, Mr. Li and Mr. Fung were all called to testify in court.

Mr. Wong

36.  Mr. Wong confirmed that the ponding test conducted by QTC was in accordance with the guideline of the Food and Environmental Hygiene Department (“FEHD Guideline”) a copy of which is also attached to the Joint Expert Report.  Before the ponding test was conducted, the ceiling of the lower floor was checked to make sure there was no traces of pre-existing colour that might affect the test result.  While WP8 was taken in his absence, he had viewed the digital version of the same in which he saw fluorescent yellow-greenish colour.  As to photograph WP11, it was taken by QTC technicians in his presence on 7 February 2013, on which date he saw fluorescent yellow-greenish colour at two other spots (covered by photographs WP12 and WP13).  He confirmed the colour was that of the fluorescent dye used in the ponding test.  He admitted to have omitted toask QTC to mark the relevant spots in photographs WP12 and WP13 in the same way as they did to photograph WP8 before re-producing those photographs in the Joint Expert Report.  The crucial part of his evidence is his confirmation that he personally saw fluorescent yellow-greenish colour at all those locations during his site visit on 7 February 2013.

37.  On Mr. Fung’s act of hacking off the surface layer of a spot to examine the underneath, Mr. Wong said the FEHD Guideline did not require such an exercise.  As to the negative result of the infrared scan test conducted by Mr. Fung, he said infrared scan tests would only show a temperature difference if there was sufficient amount of seepage and not where the amount of seepage was small.  Infrared scan testswould also be affected by adverse factors in the surrounding environment and had not been adopted by the FEHD for indoor testing.  As to the state of repair of Unit 2A as at 22 October 2013, he was only able to tell from the photographs taken by the 1^st plaintiff that the flooring was thicker than normal suggesting the addition of a new layer of floor tiles on top of the existing flooring but he had no idea if waterproofing works were performed beforehand.[2]

38.  In cross examination, he said lighting should be turned off for 12 hours before conducting an infrared scan test lest the result should be adversely affected. As to whether a laboratory test should be conducted to verify the yellow-greenish substanceappearing on the ceiling of Room 1D, Mr. Wong pointed out that the FEHD Guideline did not require such a test. 

Mr. Li

39.  Mr. Li told this court he was a senior technician of QTC with training in both ponding tests and infrared scan tests and had taken part in several ponding tests and over 100 infrared scan tests on external walls and waterproofing works in the past.  It was he who took all the photographs reproduced in the Joint Expert Report.  Mr. Michael Leung was his Quality Manager who analyzed all the data and digital photographs obtained by them before preparing the QTC Report.

40.  In cross examination, Mr. Li admitted he had been employed by QTC for only 8 months as at February 2013 and the certificate he obtained on infrared testing was only issued in April 2013.  He knew of no organizations for accreditation of ponding tests. On 3 February 2013, his team and Mr. Fung conducted inspection independently of each other.  He maintained that he saw a yellow-greenish colour spot on the ceiling as shown in photograph WP8 and he did not suffer from defective colour perception.  He however did not recall seeing Mr. Fung hack off anything from the ceiling.

Mr. Fung

41.  Regarding Mr. Wong’s comment that infrared scan tests were not suitable for indoor testing, Mr. Fung accepted that such tests would not normally be used in smaller enclosed areas when one could detect moisture with bare eyes but would otherwise be suitable for use inside such as a school hall because of the ceiling height.  It would also be suitable for detecting water leakage on rooftops and windows/bay windows as well as leakage of concealed hot water pipes.  In the case of seepage through a hairline crack without the surrounding concrete being soaked with water, a closed-up scanning from different angles would be required.  As to the spot where he hacked off a surface layer on 3 February 2013, he clarified that the QTC technicians merely pointed at theareaaround the spot saying there was leakage but without saying if they saw any colour.  That prompted him to hack off a surface layer measuring about 3 to 4 (square) inches.   

42.  In cross examination, Mr. Fung admitted to have only a limited knowledge of ponding tests and was aware of but not conversant with the FEHD Guideline. He confirmed that the ponding test conducted by QTC technicians was proper despite some initial hiccups.  He insisted that he did not see any yellow-greenish colour at the locations shown in photographs WP8 to WP10.  He acknowledged that infrared scan test results could be affected by factors like thickness and density of concrete in that lower density would make it easier to detect water leakage, and vice versa.  He fairly accepted that the heat generated from the fluorescent tube of Room 1D, which was turned on at the time he took the photographs in Fung’s Report, would have some effect on the accuracy of his test result and a minor seepage in the area around the fluorescent tube could have escaped detection.  He also acknowledged that the distance from which he conducted infrared scanning was not the distance for detecting hairline cracks.  He also admitted that he took photographs of just the ceiling to one side of the fluorescent tube but not the other. This was because the QTC technicians did not say they detected water leakage on the other side.  He confirmed each party conducted inspection independently of each other.

Whether Unit 2A was the source of water seepage to either Room 1D or Room 1C?

43.  In law there is no presumption that the source of leakage would necessarily come from the flat above and that the burden of proof is on the plaintiffs to show that Unit 2A is the source of water seepage to Room 1D and Room 1C.  See Leung Yung Chun & Anor v Chan Wing Sang & Ors [2001] 1 HKLRD 456 applying 張秀玲及另一人對鄭禮莊 (CACV 268/2009) unreported, 9 April 1999.

The plaintiffs’ case

44.  In arguing for the plaintiffs, Mr. Chen highlighted the following factors.  Mr. Wong positively identified yellow-greenish colour at various spots of the ceiling of Room 1D. Mr. Fung was invited but failed to attend the inspection on 7 February 2013.  Mr. Fung was not familiar with ponding tests and the photographs he took were confined to one side of the ceiling so that it is doubtful if his attention was sufficiently drawn to the other side of the ceiling.  That Mr. Fung saw no colour underneath the plaster might well be explained by the fluorescent dye not having penetrated in a vertical manner but from all other angles.  Mr. Fung admitted that infrared scan test results could be affected by factors like thickness and density of concrete and by the heat emanating from the fluorescent tube in Room 1D when the yellow-greenish spots identified by Mr. Wong were located around the light tube.  In any event, if the court accepts Mr. Wong’s evidence on the result of the ponding test, the result of Mr. Fung’s infrared scan test would become inconsequential as such a test only serves to detect temperature difference and, according to Mr. Wong, would not detect minor water seepage.

The defendants’ case

45.  In her opening submission, Miss Yung fairly accepted that if the spot seen in photographs WP8 and WP11 was in fluorescent yellow-greenish, then there was water leakage from Unit 2A to Room 1D.  

46.  In her closing submission, Miss Yung highlighted the fact that the investigation commissioned by the plaintiffs did not include Room 1C and the plaintiffs could not possibly discharge their burden of proof to show Unit 2A to be the source of water seepage to Room 1C.  She must be right in this regard.  In his written closing submission, Mr. Chen acknowledged that neither expert inspected the ceiling of Room 1C during their various inspections.  All he could do was to highlight the fact that Room 1C is adjacent to Room 1D and that the area affected by water seepage was the ceiling beam area in close proximity to Room 1D and invite this court to draw an inference that the water seepage in Room 1C shares the same origin as the water seepage in Room 1D.  Acutely aware of the weakness of his argument, Mr. Chen did not make any oral submission to supplement his written one. 

47.  The lack of evidence, expert or otherwise, is fatal to the plaintiffs’ case on the source of water seepage to Room 1C.  The proximity of the affected area in Room 1C to Room 1D can hardly assist the plaintiffs absent any evidence of linkage between the affected area and the source of seepage in Unit 2A, particularly when it is Unit 2B and not Unit 2A which sits immediately above Room 1C.  There is simply no basis for any inference to be drawn in the plaintiffs’ favour.  All in all, the plaintiffs have failed to discharge their burden of proof with regard to the water seepage to Room 1C.

48.  As regards the water seepage to Room 1D, Miss Yung submitted that the plaintiffs had no compelling evidence other than Mr. Wong’s comment in the Joint Expert Report that small patches of yellow-greenish colour appeared in photographs WP8, WP11 and WP13.  She highlighted Mr. Wong’s absence during the inspection on 3 February 2013 leaving Mr. Li and his colleague to conduct inspection on their own but Mr. Li, a Form-5 graduate, had only 8 months relevant experience and his certificate of proficiency in infrared testing was only obtained  months after the inspection.  As to QTC itself, while a HOKLAS accredited laboratory, QTC’s accreditation did not relate to infrared scan tests or ponding tests.  Miss Yung therefore questioned the competency of Mr. Li.  She further questioned the reliability of the QTC Report because it was prepared by Mr. Michael Leung who had no involvement in the investigation and had to rely on the accounts of the attending technicians and also because of the failure to record the incident of Mr. Fung hacking off some concrete from the ceiling to find no colour underneath.  Since Mr. Wong’s opinions were based wholly on the QTC Report, she submitted, they should not be regarded as expert opinions.

49.  As to the need for a laboratory test to verify the substance appearing in the ceiling of Room 1D, Miss Yung observed that the FEHD letter to the 1^st plaintiff suggests that the FEHD did commission this kind of tests after a ponding test.[3]  Without an objective finding, Miss Yung submitted, it would be impossible for the court to determine if the substance allegedly seen by Mr. Wong was the colour dye used in the ponding test.  She further asked photographs WP11 and WP13 to be excluded on grounds of prejudice as they were taken in Mr. Fung’s absence.

Discussion

50.  I first deal with the QTC Report.  I find the defendants’ attack on the report quite unnecessary.  For one thing, Mr. Fung himself was unable to perform a ponding test and would have to engage a contractor like QTC to perform the same. Indeed it is not uncommon for experts to engage a third party who has the necessary expertise and equipment to perform one or more kinds of water leakage tests.  The defendants declined the plaintiffs’ invitation to jointly engage an independent contractor to perform water leakage tests because of costs consideration rather than objection to such engagement per se. The contractor so engaged would not replace the experts who remain to be the ones to give expert opinions.  

51.  Nor do I find the attack on the reliability of the QTC Report substantiated.  That QTC is only accredited to conduct tests on construction materials is neither here nor there when the defendants are not suggesting that only a specialist with any particular qualification is qualified to perform either infrared scan or ponding tests.  Indeed, Mr. Fung himself did not have any special qualification even in relation to infrared scanning apart from his professed experience in conducting such tests.  As to the competence of Mr. Li or his colleague, there appears to be no requirement for any special qualification at least in relation to ponding tests and the key evidence of the plaintiffs lies in the result of the ponding test and not any infrared scanning performed by QTC technicians.  In any event, Mr. Fung saw no problem with the ponding test conducted by the technicians.  The fact that the QTC Report was prepared by the technicians’ supervisor on the basis of the latter’s findings is a mere question of presentation and would not without more affect the validity of the report, especially when Mr. Li himself gave testimony in court.  Nor do I find it necessary for the incident of Mr. Fung hacking off a surface layer to be reported when the two teams conducted inspection independently of each other.  That Mr. Li did not recall seeing Mr. Fung hack off a surface layer may well reflect the fact that each team conducted their own inspection without conferring with each other.  I therefore conclude that Mr. Wong is entitled to rely on the QTC Report as the basis of his expert opinions.

52.  As to those photographs taken by QTC technicians on 3 and 7 February 2013 which are said to have shown yellow-greenish colour on the ceiling of Room 1D, the defendants’ argument for exclusion of such photographs is misplaced when it is the evidence of the persons who claimed to have seen such colour and not the photographs they took that matters.  Admittedly, one may find it difficult to tell if the hard copy photographs re-produced in the QTC Report measuring 7cm x 5cm each do show a yellow-greenish colour.  The state of evidence might have been different had the plaintiffs (or rather their solicitors) timely disclosed the digital versions of those photographs, which Mr. Wong said were provided to the plaintiffs’ solicitors some time ago.  Even so, such photographs would serve only as a better record (and presentation) of the observation of the relevant personnel on site and the plaintiffs would in any event be relying on the evidence of the personnel itself as evidence on water seepage.  For the avoidance of doubt, I base my finding entirely on the evidence of the relevant personnel and not any hard copy photographs or the digital presentation thereof.

53.  As Miss Yung fairly accepted, if the spot seen in the relevant photographs was in fluorescent yellow-greenish, then there was water leakage from Unit 2A to Room 1D.    Here lies the conflicting evidence of Mr. Wong and Mr. Li on the one hand and that of Mr. Fung on the other.  Mr. Wong had the benefit of viewing the digital versions of the photographs taken by Mr. Li on 3 February 2013.  He then personally attended Room 1D on 7 February 2013 and confirmed the observation of the QTC technicians and found additional spots showing the same colour as that of the fluorescent dye used in the ponding test.  Mr. Fung however said he did not see such colour during his inspection.

54.  On 3 February 2013, Mr. Fung and the QTC technicians in fact conducted inspection independently instead of teaming up or conferring with each other.  Mr. Fung hacked off a surface layer of a spotto verify the position underneath because he was prompted by what he overheard from the discussion between the QTC technicians.  Contrary to what is stated in paragraph 6.1 of Fung’s Report, the QTC technicians did not say they saw any colour on the ceiling.  That being so, the respective observations of Mr. Fung and the QTC technicians are not necessarily mutually exclusive and I do not have to disbelieve one party before accepting the evidence of one other.

55.  Mr. Wong was firm in his evidence that he saw the colour of the fluorescent dye first in the photographs taken on 3 February 2013 and then during his own inspection on 7 February 2013.  He was also able to point to the exact positions in the photographs where he said he saw such colour.  He was not merely relying on the photographs or hearsay from the QTC technicians but had personally verified the position on site.

56.  Admittedly, there is some inconsistency betweenMr. Wong and Mr. Li as to the total number of spots where yellow-greenish colour was seen.  At the very least, they were in agreement in relation to the spot highlighted in photograph WP8.  And such inconsistency may well suggest that the seepage from Unit 2A was not so serious in terms of permeability or extensiveness as to allow the fluorescent dye to be readily observable.

Conclusion

57.  On balance, I am inclined to accept the evidence of Mr. Wong and Mr. Li that yellow-greenish colour appeared on the ceiling of Room 1D 48 hours after the ponding test which was still observable on 7 February 2013, whichproves Unit 2A to be the source of the water seepage to Room 1D.

58.  This conclusion is not affected by the lack of a laboratory test to verify what appeared on the ceiling of Room 1D to be the fluorescent dye. The FEHD Guideline specifically provides that “the appearance of specific colour dye shall deem to be a positive result indicating the source of seepage”.  Before the ponding test, Mr. Wong and Mr. Fung had ensured there was no pre-existing colour on the ceiling of Room 1D that might affect the result of the ponding test.  One can therefore safely apply the “deeming” provision in the FEHD Guideline and assume what appeared in Room 1D was the fluorescent dye used in the ponding test.

59.  The defendants’ complaint about Mr. Wong’s solo inspection on 7 February 2013 is justified only to the extent that Mr. Wong should have personally attended the 3 February 2013 inspection and jointly with Mr. Fung. He tried to make up for the failure by attending on a later date and the defendants’ solicitors were invited to send their own expert to participate but the invitation was declined on grounds of necessity.  In such circumstances, Mr. Wong went ahead with his inspection and the Joint Expert Report was finalized in collaboration with Mr. Fung.   No issue of prejudice was raised until trial when the defendants asked to exclude the photographs taken on 7 February 2013.  Nor did the defendants see fit to ask for the digital copies of the photographs during the interlocutory stage to verify the colour for themselves.  In the circumstances, the defendants’ complaint about prejudice has no merits. 

60.  Neither is my finding affected by the negative finding of Mr. Fung’s infrared scan test.  I need not rule on the general reliability of infrared scan tests which work on the basis that any moisture trapped inside concrete would cause differential temperature relative to the surrounding concrete from which one can infer the existence of water leakage and which do not provide direct evidence of the existence of moisture inside concrete. In the instant case, I need only highlight Mr. Fung’s agreement with the proposition that the heat of the ceiling light of Room 1D could warm up the surrounding area to the extent that water leakage through hairline cracks could have escaped detection by infrared scanning.  This may well be a minor seepage case and the use of infrared scanning does appear to be less suitable than a ponding test which remains the test recommended by the FEHD.  It is also interesting to note that on his own admission Mr. Fung in fact relied on the ultraviolet light irradiation projected by the QTC technicians during his inspection.  He did so because the ultraviolet light used by the QTC technicians gave wider projection than his own equipment. As each team was acting independently, it is almost certain that Mr. Fung could not have stood in a better position than that of the QTC technician who was projecting the ultraviolet light.  There is however no evidence as to whether this might have affected the angle of perception of each inspecting party and I say no more on this.

61.  I am satisfied that Unit 2A is the source of the water seepage to Room 1D and the defendants should be held liable to the plaintiffs for damages.  I find against the plaintiffs in respect of the water seepage to Room 1C.

Damages

62.  In the light of my finding above, the defendants should only be responsible for the repair cost and rental loss in respect of Room 1D.

63.  Regarding the necessary repair work and the cost thereof, the parties did not adduce expert evidence and were content to argue on the basis of quotations obtained from contractors.

64.  Miss Yung observed that the quotationobtained by the plaintiffs for renovation of Room 1D[4] was for refurbishment of the whole room and contended that the defendants should only be held responsible for the cost of repairing the ceiling.  She did not otherwise challenge the reasonableness of the said quotation or seek to rely on the quotation obtained by the defendants.  In the end, the plaintiffs claimed only the cost of repainting and cleansing in the total sum of $10,800.  There being no grounds for doubting the reasonableness of the figure, I award the plaintiffs $10,800 as the repair cost for Room 1D.

65.  Regarding rental loss, the plaintiffs asserted, and the defendants did not challenge, that due to the water seepage problem the tenant of Room 1D sought early termination of lease and moved out in May 2012.  The plaintiffs said they had since been unable to rent out Room 1D and claimed a loss of rental at $3,800 per month from May 2012 to December 2013 totaling $72,200.  I find it reasonable for the plaintiffs to ask for two months after stoppage of water seepage in October 2013 for renovation and finding a tenant. Miss Yung did not argue otherwise.  At the start of the trial, the defendants conceded that the plaintiffs should be compensated for the rental loss in respect of Room 1D should liability be established.  I therefore award $72,200 to the plaintiffs.

Whether injunction relief should be granted?

66.  Notwithstanding the relief claimed in the pleading, the plaintiffs merely asked for a mandatory but not prohibitory injunction at trial.  When it comes to water leakage, it matters not whether a prohibitory or mandatory injunction is sought as a prohibitory injunction requiring a defendant to stop water seepage is in fact a mandatory injunction to prevent water leakage and it is very important when mandatory injunctions are framed that they are framed in precise terms so that everybody, including in particular the defendant, must know exactly what he must do and what steps he must take. SeeTech Focus Ltd v Austria Property Management Ltd & Anor (CACV 130/2003), unreported, 22 October 2003, per Rogers VP.

67.  Mr. Chen referred to the recurrence of water seepage prior to the repair effected by Mr. Law in March 2013 and Mr. Wong’s comment on the inadequacy of such repair and asked for a mandatory injunction requiring the 2^nd defendant to permanently resolve the water seepage problem by removing the floor slabs of Unit 2A so that the defective waterproofing membrane can be re-waterproofed before re-laid with floor tiles.  He relied on Lau Ting Hang, supra where the court granted an injunction against the defendant despite stoppage of water leakage.

68.  It is common ground that water seepage to Room 1D has stopped.  The plaintiffs accept that there has been no water seepage as from October 2013.  The fact is, however, that no further water seepage has been reported after Mr. Law carried out repair to the bathroom of Unit 2A in March 2013.  In arguing that the repair effected by Mr. Law is inadequate, Mr. Chen had very little to work on apart fromthe 1^st plaintiff’s observation during his visit to Unit 2A on 22 October 13 and Mr. Wong’s opinion that the defective waterproofing membrane must be repaired before laying floor tiles.  For one thing, Mr. Wong based his opinion on the hearsay from the 1^st plaintiff and the limited information gathered from the photographs taken by the 1^st plaintiff instead of any proper investigation.  More importantly, there is no evidence to contradict the 2^nd defendant’s evidence that her husband, a retired construction worker, had applied a layer of waterproofing gel onto the existing floor tiles before laying a new layer of floor tiles.  Inelegant as the product of Mr. Law’s works may appear, there is no evidence to suggest itdoes not serve the purpose of fixing a minor seepage problem or otherwise preventing water from passing onto what Mr. Wong believed to be a defective waterproofing membrane beneath the original floor tiles.  The higher than normal moisture level recorded by Mr. Wong in July 2013 might or might not point to any water seepage from anywhere at all and no further investigation was conducted to verify the position.  No weight can therefore be given to such moisture test readings. 

69.  In Lau Ting Hang, supra, water seepage recurred twice during the year immediately before trial and it was not entirely clear whether the stoppage of seepage in the interim had anything to do with the renovation work carried out inside the defendant’s flat.  On balance, the court saw the need to grant an injunctive relief for protection of the defendants there.  In the present case, however, the long lapse of time since March 2013 without recurrence of water seepage militates against the granting of an injunctive relief.

70.  If water seepage recurs and Unit 2A is once again identified as the source, it may well be that a mandatory injunction would be appropriate to require the 2^nd defendant to effect a more definitive repair to Unit 2A.  For now, I am not prepared to grant the injunction as requested by the plaintiffs.

Order

71.  I order that the defendants do pay the plaintiffs damages in the total sum of $83,000 ($10,800 + $72,200) with interest at half judgment rate from the date of writ until judgment and thereafter at judgment rate until payment.

72.  Notwithstanding that the plaintiffs have failed to obtain damages for Room 1C or any injunctive relief, this has had no material effect on the length of trial and I see no grounds for depriving the plaintiffs of any part of their costs simply by reason of such failure.  I make an order nisi thatthe defendants do pay the plaintiffs costs of this action, to be taxed if not agreed with a certificate for counsel.  The order nisi shall become absolute unless an application is made for variation of the same within 14 days from the date of judgment.

(D. Ho) Deputy District Judge