CHENG SUK LAI v. WONG MAN FAI

DCCJ 2886/2020

[2024] HKDC 1500

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2886 OF 2020

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JUDGMENT

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I.  INTRODUCTION

1.  This is a trial in relation to water seepage in the ceiling of the master bathroom (the “Plaintiff’s Master Bathroom”), in the ceiling of the guest bathroom (the “Plaintiff’s Guest Bathroom”), and the ceiling of the corridor (the “Plaintiff’s Corridor”) next to the two Bathrooms of the plaintiff’s premises at Flat G, 36/F, Block 1, of a residential estate (the “Estate”) (the “Plaintiff’s Premises”).  At the material times, the defendant was the owner of the premises (namely, Flat G, 37/F) (the“Defendant’s Premises”) immediately above the Plaintiff’s Premises.   The Estate has been occupied since 1999.

II.  SINGLE JOINT EXPERT SHOULD HAVE BEEN ORDERED FOR WATER SEEPAGE CASES

2.  Before I proceed to the substance of the present case, I would like to say something in relation to experts in water seepage cases. 

3.  In the present case, for the plaintiff’s claim of a monetary value of less than HK$200,000, the parties’ respective experts take diametric positions on the crucial issues which I have to resolve, namely, the origin of the water seepage and quantum.  Their joint report consists of 27 appendices, running from page 195-918 (that is, almost 800 pages).  The expert directions were given on 16 March 2021.  Then upon the plaintiff’s application, on 28 June 2022, further directions were given on how the joint inspection and relevant tests should be carried out.  As each expert was expected to give oral evidence, the estimated length of the trial was 5 days.  As a rule of thumb, the longer the estimated length, the later the trial would be fixed for.  I of course note that the delay here was partly attributable to the COVID-19 pandemic, but clearly, compliance of the expert directions and the further directions contributed significantly to the delay.

4.  It is very often that the usual amount of loss and damage in a water seepage case is not high.  Further, very often, well before an action on water seepage is commenced, the Joint Office of the Buildings Department and Food and Environmental Hygiene Department (the “Joint Office”) would have been involved and would have inspected the relevant premises and carried out tests, and would almost always compile some written records of the inspections and tests carried out.  Such records, as a matter of common sense, should be accorded more weight given the Joint Office’s neutrality and independence: see Hui Ling Ling v Sky Field Development Ltd, HCA 35/2007, 8 May 2012 at §58.  I do not see why more costs should be deployed to have two experts who usually would give diametric opinions (for otherwise, the experts may be thought to have failed their duties to their clients).  Nor do I see why more judicial resources should be deployed to deal with such diametric opinions (indeed, as shall be seen, a substantial part of this judgment is on the analysis of the expert opinion), and why more time should be spent on the trial and thus more delay before the trial could begin.  An efficient, cost-effective way to resolve disputes in relation to water seepage is all the way more important when the water seepage is still on-going.  This is so even if, as in the present case, the plaintiff had before the commencement of the action engaged her expert to investigate the source of the water seepage, because the single joint expert would then be able to review the pre-action expert’s reports as well as the Joint Office’s records and give his or her view as a joint single expert, while the impartiality of pre-action experts may be in question.  For example, though I am not saying this happens in the present case, a pre-action expert vouching for opinion of water seepage coming from above that leads to the commencement of a legal action may have incentive to maintain his or her such view throughout.

5.  Further, in my view, a single joint expert report could bring parties closer to a settlement without the antagonism in courtroom to solve the water seepage problem rather than going through the forensic exercise while the water is still seeping through.  Even without a settlement, without the need for an expert for each side, at least that the victim of the water seepage could be more promptly remedied if it is the defendant who causes the water seepage, or he could more promptly know that he has claimed the wrong person and move on to the correct target.

6.  In this regard, the reasoning given by HH Judge Andrew Li in §§71-100, 103, 106-112 of Rai Chandra Kala v La Creperie 8 Ltd [2023] HKDC 671  in support of his view that the default position for personal injuries claim should be appointing a single joint expert is applicable with equal force mutatis mutandis to water seepage cases.

7.  Thus, in my opinion, the default position for all the water seepage (or leakage) cases should be, likewise, appointment of a single joint expert on both liability and quantum. 

III.  FACTS NOT IN DISPUTE

8.  The facts set out under this section are not in dispute.  Where certain events are set out based on one party’s version only, I would specifically say so.

9.  The Plaintiff’s Master Bathroom is, by definition, next to the plaintiff’s master bedroom.  Next to the Plaintiff’s Master Bathroom is the Plaintiff’s Guest Bathroom.  Both the Plaintiff’s Bathrooms sit on the same side of the Plaintiff’s Corridor, and the other side of the Plaintiff’s Bathrooms is the external wall.  Next to the Plaintiff’s Guest Bathroom is to the plaintiff’s living room. 

10.  The Defendant’s Premises is of the same layout.

11.  On 29 July 2017, the plaintiff lodged a complaint of water seepage with the management office of the Estate (the “Management Office”).  About 6 months later, the Management Office managed to contact the defendant’s wife for inspection, and on 8 January 2018, the Management Office managed to visit and inspect the Defendant’s Premises and noticed defects on the sealants along the bathtub of the Defendant’s Master Bathroom.

12.  As a result, on 12 January 2018, the Management Office issued a letter to the defendant referring to the plaintiff’s complaint about water seepage in the Plaintiff’s Premises and demanding him to carry out repair works in the Defendant’s Premises to stop the water leakage.  The defendant did not accede to the demand.

13.  Also on 12 January 2018, the plaintiff lodged a complaint of water seepage with the Joint Office.  On 5 March 2018, the Joint Office visited the Plaintiff’s Premises and found that the moisture content of the Plaintiff’s Master Bathroom exceeded 35, a benchmark above which indicates that there was water seepage.  On the same day, the Joint Office sought to visit the Defendant’s Premises referring to the water seepage observed in the Plaintiff’s Premises, but access was denied.

14.  On 25 January 2018 and 5 March 2018 respectively, the Management Office made enquiry over the phone with the defendant’s wife about whether the defective sealant in the Defendant’s Master Bathroom had been repaired.  The answers were effectively in the negative.

15.  Further, on 5 March 2018, the Management Office telephoned the defendant’s wife and informed her that a staffer from the Joint Office called Mr Lam Chit-Wang (“Mr Lam”) had received a water seepage complaint and was now in the lobby.  Mr Lam asked the defendant’s wife whether it was convenient for him to inspect the Defendant’s Premises, and the defendant’s wife answered in the negative.  Thereafter, Mr Lam inserted a notification letter into the defendant’s letterbox.  The letter was, according to the defendant, lost, and no discovery of it was made.

16.  On 7 March 2018, the defendant’s wife telephoned Mr Lam.  In the telephone conversation, Mr Lam told the defendant’s wife that there was a water seepage complaint and thus he would like to inspect the Defendant’s Premises.  According to the defendant, Mr Lam did not tell the defendant’s wife what the water seepage was.  In any event, as a result of the telephone conversation, on 14 March 2018, the Joint Office finally gained entry into the Defendant’s Premises and carried out colour water test to the drainage inlets.  No colour dye was found in the Plaintiff’s Premises.

17.  Despite the negative colour test result, about two and a half months later, on 2 June 2018, the Joint Office visited the Plaintiff’s Premises again and found, again, that the moisture of the Plaintiff’s Master Bathroom exceeded 35, ranging from 69.2 – 90.8.

18.  By a letter dated 9 July 2018 (the “JO Letter of 9 July 2018”), the Joint Office informed the defendant that:-

“本處於2018年3月5日到你的單位進行調查，並在有關排水渠進行色水測試。直至目前，仍未能確定引致滲水的源頭。由於滲水問題持續，本處會考慮進行專業調查。本處會稍後通知你有關的安排及調查進度。”

19.  Accordingly, by 2 August 2018, the Joint Office had engaged Multiple Surveyors Limited (“MSL”) for this purpose. 

20.  On 7 November 2018, MSL visited the Plaintiff’s Premises and found that the moisture contents of the ceiling of the Plaintiff’s Master Bathroom exceeded 35.  Specifically, in the investigation report prepared by the Joint Office (the “JO Report”) in relation to this inspection:-

(1)  “Condition of seepage: consistently all day long at the ceiling of master bathroom”;

(2)  “Moisture Content (MC) of the affected area is checked: Yes, MC varies greater than 35 at the ceiling of mast bathroom (MC>35)”;

(3)  “Severity: apparent water moisture (i.e. MC equal or over 35)”;

(4)  “Symptom: no dripping”;

(5)  “There is possibility that the source of seepage may originate within the affected premises: No it should be other sources”;

(6)  “The suspected premises is at: Upper floor”;

(7)  “Source of seepage has been identified: No, proceed with further investigation”.

21.  On both 3 January 2019 and 16 January 2019, MSL tried to visit the Defendant’s Premises but was not answered, and thus inserted appointment notice into the defendant’s letterbox requesting the defendant to call MSL to arrange for inspection of the Defendant’s Premises.  According to the defendant, he did not receive the letters, and according to his guess, he or his family may have discarded the letters as scrap paper or promotional materials.  

22.  According to the Joint Office, on 23 January 2019, the defendant telephoned MSL and agreed to an inspection on 13 February 2019.  However, according to the Joint Office, by telephone, the occupants (住戶) of the Defendant’s Premises repeatedly postponed the date of inspection.  However, according to the defendant, there were no such calls from his wife. 

23.  On 27 July 2019, the plaintiff complained to the Management Office that water dripped out of the warmer in the Plaintiff’s Master Bathroom.  The staff of the Management Office thus inspected the Plaintiff’s Master Bathroom and discovered that water did drip out of the warmer, and then attempted to enter the Defendant’s Premises for an inspection.  However, entry into the Defendant’s Premises was denied.

24.  On 29 July 2019 afternoon, there was a telephone conversation between MSL and the defendant’s wife for 27 seconds.  According to MSL, it requested entry into the Defendant’s Premises for inspection.  The defendant seems to dispute this.

25.  On 29 July 2019 evening, a staffer of the Management Office knocked at the door of the Defendant’s Premises and told the defendant’s wife about the plaintiff’s complaint of water seepage and the defects in the bathtub of the Defendant’s Master Bathroom.  The defendant’s wife reiterated that she did not use the bathtub in the Defendant’s Master Bathroom and did not allow the staffer into the Defendant’s Premises.

26.  On 2 August 2019, a Mr Yim of Joint Office telephoned the defendant’s wife and told him that in relation to the water seepage complaint made by the Plaintiff’s Premises, the matter had reached the stage of investigation by professional and water pond test would have to be carried out.  The defendant’s wife said that she had to discuss the matter with the defendant.

27.  On 3 August 2019, the defendant engaged a contractor to inspect the Defendant’s Premises originally scheduled on 6 August 2019 subsequently postponed to 7 August 2019.

28.  Meanwhile, on 5 August 2019, Mr Yim of Joint Office telephoned the defendant’s wife, where she told Mr Yim that she had already engaged her own professional to inspect of the Defendant’s Premises, and thus she would like to wait for her own professional inspection first before deciding to allow the pond test to be carried out.

29.  On 7 August 2019, the contractor inspected the Defendant’s Premises. However, despite her attempt, no entry was gained into the Plaintiff’s Premises, and no tests were carried out.

30.  On 8 August 2019, the Management Office asked the defendant, again, whether the defective sealant along the bathtub of the Defendant’s Master Bathroom, and the answer was, again, in the negative.

31.  On 11 August 2019, Mr Yim telephoned the defendant’s wife for entry into the Defendant’s Premises for inspection.  The defendant’s wife said that because she had been denied access to the Plaintiff’s Premises and because she would continue engaging professional, she would like to wait for professional advice first before deciding to allow the pond test to be carried out.

32.  On 15 August 2019, the Joint Office issued a Notice of Entry into the Defendant’s Premises on 23 August 2019 pursuant to section 126(1) of the Public Health and Municipal Services Ordinance (Cap 132).  The Joint Office does not issue such a notice lightly, because issuance of such a notice (if unheeded to) is a prelude to an application to the Court for a warrant under section 126(2)(b).  According to its letter dated 20 January 2021 (the “JO Letter of 20 January 2021”), the Joint Office explained to the defendant that:-

“…

[3] 根據顧問公司於2019 年9 月24 日及10 月3 日向本處提交的資料，顧問公司的職員曾於2018 年11 月8 日、11 月28 日、12 月7 日及2019 年l 月2 日致電37G 室住戶黃太（電話號碼： 9125xx ~xx ），預約進行滲水調査及專業測

試，但由於無人接聽而未能成功。其後，顧問公司的職員於2019 年1 月3 日到訪37G 室，惟無人應門，遂留下「預約通知」，要求戶主聯絡聯辦處以便安排進入單位進行調查及測試，但無人回應。顧問公司的職員於1 月14 日致電黃太，但未能成功聯絡。其後，顧問公司的職員於1 月16 日再次到訪37G 室，惟仍無人應門，遂留下「預約通知」，以期盡快相約時間安排進行調査及測試。

[4] 黃太於2019 年1 月23 日致電顧問公司的職員，並安排於2 月13 日到37G 室進行測試。其後黃太於2 月11 日致電顧問公司的職員，要求更改到訪日期至3 月1 日。及後黃太於2 月28 日、3 月20 日、4 月2 日、4 月15 日及5 月6 日致電顧問公司的職員，要求更改原已安排的到訪日期。於5 月6 日的對話中，黃太告知顧問公司會盡快回覆可行的到訪日期。由於一直未有回覆，顧問公司遂於6 月24 日致電黃太，黃太回覆顧問公司會盡快安排到訪日期。顧問公司的職員於6 月25 日及7 月2 日再次致電黃太，但未能成功聯絡。及後， 顧問公司的職員於7 月29 日與黃太成功聯絡，惟黃太拒絕讓顧問公司的職員進人調查及進行所需測試。

[5] 根據合約規定，若顧問公司已聯絡有關單位住戶但未能成功進入懷疑引致滲水的單位進行調查及測試，顧問公司須要向本處匯報並提供與涉事單位住戶的通話記錄及曾到訪日期。如有需要，本處會展開根據《公眾衛生及市政條例》向法庭申請入屋手令的程序。就此個案而言，由於未能進入37G室進行調查，顧問公司於2019年7月30日向本處匯報及建議展開根據《公眾衛生及市政條例》向法庭申請入屋手令的程序。”

For convenience, I added the paragraph numbers in [ ] in the quote above, because I shall refer to §§3 and 4 of this JO Letter.

33.  On 20 August 2019, the plaintiff noticed that water seepage also appeared in the ceiling of the Plaintiff’s Guest Bathroom and complained to the Management Office.  On 21 August 2019, the Management Office conveyed the complaint to the defendant’s wife.

34.  On 23 August 2019, despite the said Notice of Entry, the Joint Office or MSL did not gain access to the Defendant’s Premises.  Instead, the contractor engaged by the defendant started renovation works in the Defendant’s Master Bathroom, the Defendant’s Guest Bathroom and the corridor.

35.  On 28 August 2019, the plaintiff’s expert Ms Lau Shan La (the “Plaintiff’s Expert”) inspected the Plaintiff’s Premises and carried out the following tests in relation to the Plaintiff’s Master Bathroom and the Plaintiff’s Guest Bathroom:-

(1)  Visual Inspection;

(2)  Electrical Conductivity Sensing;

(3)  Water Sample Analysis;

(4)  Microwave Scan; and

(5)  Infrared Scan.

36.  In relation to the inspection and tests carried out on 28 August 2019, the data collected and recorded in her report dated 14 November 2019 (the “Plaintiff’s 2019 Expert Report”) are as summarised below:-

(1)  On 25 August 2019, the rainfall was 88.4mm; on 26 August 2019, it was 178.3mm; on 27 August 2019, it was 2.9mm, and on 28 August 2019, it was 0mm.

(2)  By visual inspection, signs of water seepage were observed in the ceiling of the Plaintiff’s Master Bathroom and the ceiling of the Plaintiff’s Guest Bathroom.

(3)  By electrical conductivity sensing, the ceiling of the Plaintiff’s Guest Bathroom towards the Plaintiff’s Corridor and the living room had signs of moisture, and the whole ceiling of the Plaintiff’s Master Bathroom had signs of moisture. I specifically note that the points near the external walls, like almost all other points, recorded the measurements of 99.9.

(4)  By water sample analysis, the water accumulated in the warmer in the ceiling of the Mater Bathroom was of the pH value 5.

(5)  By microwave scan:-

(a)  the ceiling of the Plaintiff’s Guest Bathroom towards the Plaintiff’s Corridor and the living room, not the areas near the external wall, had signs of moisture from the depth at 110mm up from the bottom of the ceiling to the depth at 30mm up from the bottom of the ceiling, with a larger area of more moisture towards the depth of 30mm; and

(b)  the whole ceiling of the Plaintiff’s Master Bathroom, including the sunken ceiling and the area near the external wall, had signs of moisture from the depth at 110mm up from the bottom of the ceiling from the depth at 30mm up from the bottom of the ceiling, again with a larger area of more moisture towards the depth of 30mm; and

(6)  By the infrared scan, there were signs of moisture in the external walls of the Plaintiff’s Bathroom.

37.  On 2 September 2019, Mr Leung of the defendant’s contractor opened the floor of the Defendant’s Bathrooms to carry out the reconstruction of the concrete slab and waterproofing layer of the floor of the Defendant’s Master Bathroom and the Defendant’s Guest Bathroom.  After the floor was opened, Mr Leung discovered that there were an electrical conduit and a hot water pipe.  As a result, the defendant informed the Management Office of the discovery and surmised to the Management Office that the water seepage was caused by the conduit and the pipe.

38.  On the same day, the waterproofing of the Defendant’s Master Bathroom and the Defendant’s Guest Bathroom had been completed, although tiles had yet to be paved.

39.  On 8 September 2019, the plaintiff complained to the Management Office that there was constantly dripping of water in the ceiling of the Plaintiff’s Corridor.

40.  Then, on 11 September 2019, the Joint Office was allowed to enter the Defendant’s Premises, but they were unable to carry out any tests due to the ongoing reconstruction works being carried out there.

41.  On 10 October 2019, the Plaintiff’s Expert inspected the Plaintiff’s Premises.  From this inspection, the data collected are as summarised below:-

(1)  On 6 October 2019, the rainfall was 46.8mm; on 7 October 2019, it was 17.9mm; on 8 October 2019, it was 4.9mm and on 9 October, it was “little”.

(2)  By visual inspection, there were signs of water seepage in the ceiling of the Plaintiff’s Master Bathroom and the ceiling of the Plaintiff’s Guest Bathroom.

(3)  By electrical conductivity sensing, there were signs of slight moisture with one spot of more moisture in the ceiling of the Plaintiff’s Guest Bathroom, and there were signs of moisture in the whole ceiling of the Plaintiff’s Master Bathroom.  I specifically note that the points near the external walls, like almost all other points, recorded the measurements of 99.9.

(4)  By infrared scan, the temperature of the ceiling of the Plaintiff’s Master Bathroom was unusually low.

42.  On 15 October 2019, the defendant’s contractor removed the electrical conduit and the hot water pipe found in the floor slab of the Defendant’s Master Bathroom.

43.  On 19 October 2019, all the works in the Defendant’s Premises were completed. 

44.  On 29 October 2019, the Joint Office visited the Plaintiff’s Premises and found that the moisture content of the ceiling of the Plaintiff’s Master Bathroom still exceeded 35 although it dropped significantly from the range 87.2-90.8 (with an exception of 69.2) as at 2 June 2018 to the range of 57.9-63.9 (with an exception of 91.6) as at 29 October 2019.  As regards that of the Plaintiff’s Guest Bathroom, its measurement was below 35%.

45.  About less than a month later, on 25 November 2019, MSL visited the Plaintiff’s Premises and found that the moisture of the ceiling of the Plaintiff’s Master Bathroom was below 35%.  On 16 December 2019, MSL visited the Plaintiff’s Premises again and found, again, that the moisture remained below 35%.

46.  As the moisture dropped below 35, by a letter dated 24 December 2019, the Joint Office informed the plaintiff that they would cease investigation.

47.  On 15 June 2020, the plaintiff commenced the present action.

48.  Subsequently, from 9 to 11 March 2022, the Management Office carried out works over the external walls. 

49.  Further, on 28 July 2022, the defendant engaged Tai Fook Electrical to carry out renovation works in the Defendant’s Master Bathroom and the Defendant’s Guest Bathroom of the Defendant’s Premises.  The works lasted for over a month.

50.  On 14 October and 14 November 2022, pursuant to the Orders of 16 March 2021 and 28 June 2022, the parties’ respective experts, namely, the Plaintiff’s Expert for the plaintiff, and Mr Jacob Tsang (the “Defendant’s Expert”), carried out joint inspections.  They then prepared a Joint Report dated 4 January 2023 (the “Joint Report”). 

51.  In the Joint Report, both experts agree that as at the time of the joint inspections, there was no water seepage in the Plaintiff’s Premises.  Further, they agree that there had been water seepage in the ceiling of the Plaintiff’s Master Bathroom and the ceiling of the Plaintiff’s Guest Bathroom.

IV.  PLAINTIFF’S CASE

52.  According to the plaintiff’s case, in respect of the Plaintiff’s Master Bathroom:-

(1)  Water seepage started in mid-July 2017 in the ceiling of the Plaintiff’s Master Bathroom. 

(2)  The water seepage had since persisted.

(3)  On 27 July 2019, water leakage was found at the warmer in the Plaintiff’s Master Bathroom.

(4)  The source of the water seepage and leakage was the Defendant’s Premises.

53.  In respect of the Plaintiff’s Guest Bathroom, the plaintiff’s case is that:-

(1)  Water seepage started noticeable on 20 August 2019.

(2)  Water seepage had since persisted.

(3)  The source of the water seepage was the Defendant’s Premises.

54.  The plaintiff observed on 26 February 2020 that the water seepage and leakage had ceased.

55.  The plaintiff claims, among others, that the water seepage and leakage was caused or permitted by the defendant and constituted nuisance, annoyance and/or inconvenience, interference with the quiet enjoyment of the Plaintiff’s Premises, and breach of the Deed of Mutual Covenant of the Estate (the “DMC”).

56.  The particulars of loss and damage are:-

“(a) Water dripping/leakage at the concrete ceiling into both master and guest bathrooms and the corridor outside the bathrooms of the Plaintiff’s Premises;

(b) Water dripping/leakage from the Defendant’s Premises through the floor, floor slabs, concrete level and/or the pipe(s) or howsoever into the Plaintiff’s Premises;

(c) Water stains and/or marks and/or damp patches at the concrete ceiling in the master and guest bathrooms and the corridor outside the bathrooms of the Plaintiff’s Premises;

(d) Rusty stains and/or sewage fluid stains and/or marks at the concrete ceiling in the master and guest bathrooms and the corridor outside the bathrooms of the Plaintiff’s Premises; and

(e) Damage of chattels in the Plaintiff’s Premises i.e. light fitting, thermos ventilator, cupboard, and so on.”

57.  The plaintiff further claims that the water seepage and leakage had worsened the plaintiff’s mental condition.

58.  The plaintiff thus claims damages.  The plaintiff also claimed for injunctive relief, but in his written opening submissions, Mr Ernest Wong, counsel for the plaintiff, informed the Court that the plaintiff no longer sought the injunctive relief given that it is the common view shared by the experts after joint inspection in 2022 that the seepage in the Plaintiff’s Premises had ceased.

V.  DEFENDANT’S CASE

59.  According to the defendant, on 8 January 2018, the staff of the Management Office inspected the Defendant’s Master Bathroom.  Minor defects to the water sealant in certain parts along the upper edge of the bathtub were observed, but all other apparatus and facilities therein were found to be in generally good condition.

60.  The defendant avers at §9(e) of the amended defence, that he and his family used the Defendant’s Master Bathroom “for storage and laundry purpose exclusively and the apparatus / facilities therein had not been in use since 2008”.

61.  For the period between January 2018 and July 2019, the defendant did not receive any complaint from the plaintiff about any water seepage or leakage in the Plaintiff’s Premises.

62.  The defendant’s case is thus that:-

(1)  There was no water seepage and leakage in the Plaintiff’s Premises as alleged or at all;

(2)  If there was any water seepage and leakage in the Plaintiff’s Premises as alleged, the Defendant’s Premises was not the source and origin;

(3)  The defendant did not do, cause or permit any act or omission that caused the water seepage and leakage;

(4)  The source of the water seepage and leakage, if any, was the abandoned electrical conduit (the “Abandoned Conduit”) embedded in the floor slab of the Defendant’s Master Bathroom and the Defendant’s Guest Bathroom; and

(5)  Any loss and damage was caused or self-induced by the plaintiff’s own delay in addressing the water seepage and leakage and failure to mitigate her own loss.

(6)  Any loss and damage was negligible due to the short duration of the water seepage and leakage.

(7)  In any event, the defendant carried repair works within reasonable time by which the water seepage and leakage was stopped.

(8)  In the premises, the defendant is not liable to pay any damages to the plaintiff.

VI.  ISSUES

63.  Therefore, the factual issues, as modified from the Joint Statement of Issues filed on 29 August 2023 bearing in mind that the plaintiff no longer seeks injunctive relief, are:-

(1)  Whether there is and/or was water seepage/leakage at the Plaintiff’s Premises and if yes, what are and/or were the affected area(s)?

(2)  What is or are the period(s) of time that the water seepage/leakage has or had subsisted at the Plaintiff’s Premises (if any)?

(3)  In respect of each of the affected area(s) during the period(s) of time as identified above, whether the said seepage/leakage originates from the Defendant’s Premises and if yes, what is or are the source(s)?

(4)  Whether the defendant is liable to the plaintiff for nuisance, breach of paragraphs 5.1.9, 5.1.12 and 5.1.13 of Section V of the DMC, breach of his duties under section 34H of the Building Management Ordinance (Cap 344) and his common law duty to maintain and keep good repaid of the Defendant’s Premises.

(5)  Further, if applicable, whether the said seepage/leakage was worsened as a result of any delay on the part of the plaintiff.

(6)  What is the plaintiff’s loss and damage as a result of the water seepage/leakage caused by the defendant?

(7)  What is the quantum of damages?

64.  It is trite that there is no presumption that the source of waste leakage comes from the premises above, and thus the burden of proof still lies on the plaintiff to prove that the source of water came from the Defendant’s Premises: see Hui Ling Ling v Sky Field Development Ltd, unreported, CACV 122/2012, 22 March 2013 at §42 per Kwan JA (as she then was), with whom Stock VP and Fok JA (as they then were) agreed.

VII.  EVIDENCE

65.  The plaintiff herself is the only factual witness for her case.  The defendant himself is the only factual witness for his case.  The Plaintiff’s Expert and the Defendant’s Expert also gave oral evidence.

VIII.  WHETHER THERE IS AND/OR WATER SEEPAGE/LEAKAGE AT THE PLAINTIFF’S PREMISES

66.  Both experts agree, and so I find, that there had been water seepage in the ceiling of the Guest Bathroom, the Mater Bathroom and the Corridor.  Further, both experts agree, and so I find, that by the joint inspection in 2022, the water seepage had ceased.

IX.  WHAT IS OR ARE THE PERIOD(S) OF TIME THAT THE WATER SEEPAGE/LEAKAGE HAS OR HAD SUBSISTED AT THE PLAINTIFF’S PREMISES (IF ANY)?

A.  Start of water seepage in Plaintiff’s Master Bathroom

67.  The plaintiff lodged with the Management Office on 29 July 2017 a complaint of water seepage in relation to the ceiling of the Plaintiff’s Master Bathroom.  Consistently, in the inspection in January 2018, the Management Office also observed water seepage in the ceiling.  Consistently, the plaintiff also took the trouble to lodge a complaint with the Joint Office in January 2018. The data collected by the Plaintiff’s Expert in an inspection on 28 August 2019 (see §36 above) are consistent with water seepage in the ceiling of the Plaintiff’s Master Bathroom.  To all these, the defendant simply mounts a bare denial of water seepage.  Having considered all these, I find that in relation to the ceiling of the Plaintiff’s Mater Bathroom, the water seepage started in July 2017.

B.  Start of water seepage in Plaintiff’s Guest Bathroom

68.  In relation to the ceiling of the Plaintiff’s Guest Bathroom, the plaintiff noticed water seepage on 20 August 2019.  The data collected by the Plaintiff’s Expert in an inspection on 28 August 2019 (see §36 above) are consistent with water seepage in the ceiling of the Plaintiff’s Guest Bathroom.  Again, the defendant mounts a bare denial only.  Having considered all these, I find that in relation to the ceiling of the Plaintiff’s Guest Bathroom, the water seepage started on 20 August 2019.

C.  End of water seepage

69.  As to when the water seepage ended, the inspections of the Plaintiff’s Premises by the Joint Office in October, November and December 2019 are pertinent:-

(1)  On 29 October 2019, the moisture content of the ceiling of the Plaintiff’s Guest Bathroom was below 35%.  Therefore, no more inspection was carried out with respect to this ceiling.

(2)  As regards the ceiling of the Plaintiff’s Master Bathroom, the inspection of 29 October 2019 showed a decreasing trend of moisture level, though still above 35.  The subsequent inspections on 25 November 2019 and 16 December 2019 recorded moisture content consistently below 35.

70.  The present action was started in June 2020.  According to §36 of the plaintiff’s witness statement field on 2 June 2023, on 26 February 2020, she discovered there was no more water leaking from the thermal ventilator in the ceiling of the Plaintiff’s Master Bathroom as before.  I notice that she has not made any complaint of water seepage in the year of 2020 except towards on 21 December 2020, when she wrote to lodge a complaint of seepage at a spot in the ceiling of the Plaintiff’s Master Bathroom.  However, this complaint was well after the commencement of the present action and was not mentioned in her own witness statement filed on 2 June 2023, but, rather, in the defendant’s witness statement.  Thus, even if there were any seepage in December 2020, this is not within the scope of the present action.

71.  Having considered all these, I find that:-

(1)  In relation to the ceiling of the Plaintiff’s Master Bathroom, the water seepage started on 29 July 2017 the latest and ceased on 25 November 2019 the latest.

(2)  In relation to the ceiling of the Plaintiff’s Guest Bathroom, the water seepage started on 20 August 2019 the latest and ceased on 29 October 2019 the latest.

72.  Having found the starts and the ends of the periods, the question is whether the water seepage persisted during the periods, or just occurred sporadically.

D.  Whether the water seepage persisted during the periods

73.  I notice that after the plaintiff lodged a complaint to the Joint Office in January 2018, the Joint Office kept the plaintiff updated of the progress of the processing of the complaint by letters dated 21 March 2018 and 9 July 2018.  Further, on 11 July 2018, the plaintiff emailed the Joint Office to express her disappointment about the progress.  Then, according to the Management Office’s record (the contents of which are not challenged), on 27 July 2019, the plaintiff complained about the water dripping of the ceiling of the Plaintiff’s Master Bathroom.  A month later, on 22 August 2019, the plaintiff emailed the Joint Office about the water dripping.  Thereafter, the plaintiff took the trouble to engage the Plaintiff’s Expert to carry out inspection in August 2019, during which the Plaintiff’s Expert found water moisture in the ceiling of the Plaintiff’s Master Bathroom and the Plaintiff’s Guest Bathroom.

74.  In my view, all such evidence points, on balance, that the water seepage persisted throughout the periods.  In all likelihood, the plaintiff would only take all the trouble to make various complaints and even engage an expert to carry out inspection when the water seepage persisted, because in all likelihood, it was that as a result of such persistence, coupled with the unsatisfactory progress of the processing of her complained as perceived by her, she felt compelled to engage her own expert.  Therefore, it is my finding that the water seepage persisted throughout the periods.

X.  IN RESPECT OF EACH OF THE AFFECTED AREA(S) DURING THE PERIOD(S) OF TIME AS IDENTIFIED ABOVE, WHETHER THE SAID SEEPAGE/LEAKAGE ORIGINATES FROM THE DEFENDANT’S PREMISES AND IF YES, WHAT IS OR ARE THE SOURCE(S)?

75.  There are in fact two main questions – what were the affected areas and what was the source of the seepage.

A.  Areas affected

76.  There is no dispute, and so I find, that the ceiling of the Plaintiff’s Master Bathroom (except the sunken area), the ceiling of the Plaintiff’s Guest Bathroom towards the Plaintiff’s Corridor, and the ceiling of the Corridor near the Plaintiff’s Guest Bathroom were affected by water seepage. 

77.  While the Plaintiff’s Expert, in reliance on her investigation report issued in 2019 as well as certain photos taken in 2022, takes the opinion that there was water seepage in the sunken ceiling of the Plaintiff’s Master Bathroom, the Defendant’s Expert pointed out that the photos only showed patch repair works in the sunken ceiling.

78.  I prefer the Plaintiff’s Expert’s opinion, because she did not rely only on the photos taken in 2022 but more importantly, she also relied on the Plaintiff’s 2019 Expert Report containing objective data collected from the tests (see paragraph §35 above), while the Defendant’s Expert simply did not have such a chance to inspect the Plaintiff’s Premises back in 2019, and thus the Defendant’s Expert simply did not have any response to the Plaintiff’s Expert’s reliance on the 2019 investigation report.  Therefore, I find that there was water seepage also in the sunken ceiling of the Plaintiff’s Master Bathroom.

79.  The Defendant’s Expert also disagrees with the Plaintiff’s Expert’s observation made in reliance on certain photos also taken in 2022 that there was blackening of the cabinet near the Plaintiff’s Guest Bathroom.  I have looked at the photos closely, and I think they do show that there were some shades or stains.  Whether it was blackening or otherwise is rather subjective and also depends on the lighting when the photos were taken.  Therefore, I find that there was some shades or water stain in the cabinet as show in the photos taken by the Plaintiff’s Expert in 2022.

80.  The source of water seepage is very much a question to be answered by me based on the experts’ opinions (which are, unfortunately, completely diametric). Before I turn to the parties’ respective expert opinions, I would like first to refer to the JO Report and the general credibility of the defendant. 

B.  JO Report

81.  The JO Report is, in my view, important because the Joint Office and MSL are a disinterested, independent party: see Hui Ling Ling v Sky Field Development Ltd, HCA 35/2007, supra at §58.  The JO Report concerns four inspections, respectively at 14:15 on 7 November 2018 (see §19 above), at 16:25 on 25 November 2019 (see §44 above), at 17:30 on 25 November 2019 (see §44 above) and at 14:15 on 16 December 2019 (see §44 above).  To appreciate the significance of these dates, one must bear in mind that in September 2019, the defendant engaged a contractor to carry out reconstruction works of the floor slab of the Defendant’s Master Bathroom and the Defendant’s Guest Bathroom (including waterproofing layering), and completed the same on the same day.  In other words, only the first inspection (7 November 2018) was carried out before the commencement of the reconstruction works.

82.  “Section D – Further Investigation” of the JO Report are worth quoting, as follows:-

“1. Tests, observations and result analysis on the following prescribed aspects in identifying the source(s) of seepage:

A. Possibility of drainage leakage:

i) Tests conducted: Colour Water Tests (CWT) to the drainage inlets was carried out by HI on 14/03/2018

ii) Observations: No colour dye was noted at the affected seepage area on 07/11/2018

iii) Conclusion: Leakage from drainage pipe was unlikely

B. Possibility on floor slab, in-situ made shower tray / roof infiltration:

i) Tests conducted: On 25/11/2019,

BS Pond test on the floor slab and spray test on the enclosing walls of shower area of guest bathroom

OII Pond test on the floor slab of guest bathroom

FS Pond test on the floor slab and spray test on the enclosing walls of master bathroom

ii) Observations: No colour dye was noted at the affected seepage area on 25/11/2019 & 16/12/2019

iii) Conclusion: Infiltration from the floor slab and the enclosing walls of shower area of guest bathroom was unlikely

Infiltration from the floor slab of guest bathroom was unlikely

Infiltration from the floor slab and the enclosing walls of master bathroom was unlikely

C. Possibility on seepage from enclosing walls of bathtub/shower tray…: … N/A

D. Possibility on water supply pipe (fresh & salt water) leakage:

I Tests conducted: MC Monitoring on 07/11/2018, 25/11/2019 & 16/12/2019

II Observations: MC readings were not consistently high and no water dripping was observed

III Conclusion: Leakage from water supply pipe was unlikely

E. Possibility on rain water leakage from building envelope (external wall & roof cover):

I Tests conducted: MC Monitoring on 07/11/2018, 25/11/2019 & 16/12/2019

II Observation: MC was not correlated with weather condition.

MC reading > 35 during prolonged sunny days on 07/11/2018

III Conclusion: Infiltration from building envelope was unlikely

2. Other observations:

The moisture content of the seepage area of ceiling of mater bathroom was greater than 35 on 07/11/2018 but less than 35 on 25/11/2019 & 16/12/2019.”

83.  As regards the observation in “D. Possibility on water supply pipe (fresh & salt water) leakage” that the “MC readings were not consistently high”, it must be remembered that it was the latter two readings that were not high and that these two latter readings were taken after the completion of the reconstruction works. 

C.  General credibility of the defendant

84.  The general credibility of the defendant is worth a section on its own in this judgment because as shall be seen below, it is a considerable factor in my findings below.  For the avoidance of doubt, I have also considered the general credibility of the plaintiff, but I do not find it necessary to spend time on her general credibility in this judgment.

85.  First, as can be seen from the JO Report mentioned above, while other tests had been done before the completion of the reconstruction works, the pond tests was the only set of tests done only after the completion of reconstruction works.  In fact, the Joint Office had requested the defendant’s permission to enter the Defendant’s Premises to carry out pond tests back in early August 2019.  However, the defendant did not accede to the request until 31 October 2019 for the pond tests to be carried out on 25 November 2019.  The defendant himself provides a reason for this change of mind in §§92 and 242 of his witness statement:-

“92. 另外，本人［於2019年8月16日］向朱景勝先生査詢，如果此20 年樓齡之舊樓去浸地台，以其經驗會不會可以證明有足夠防水能力，合格過關。朱景勝先生表示「這很難說，

機會一半一半吧」，至於接受浸地台與否，就由本人決定。於是，在這情況之下，本人為求穩妥，所以接受朱景勝先生的意見，用剔除法去做工程，希望可以停止原告人的投訴。同時，如果要浸地台，都做個全新地台先浸，這樣亦是最保護自己的做法，而且反正錢是用於本人物業，就當是對本人物業做一次裝修。

…

242. 本人在進行工程後，有了新石屎防水地台，之前地台內之電線管道及一段熱水暗呚亦被拔除，本人認為通過測試之機會亦大增，而且原告人之客廁已經乾了，原告人亦再沒有到管理處投訴滲水了，這亦證明梁貴華先生[the defendant’s contractor] 之工程有效，所以本人和本人太太都同意嚴志先生[of the Joint Office] 之要求進行測試。” (emphases added)

86.  I must say that the reason for not permitting the pond test and the reason for subsequent permission for the pond test are very unpalatable. Effectively, the defendant is saying that in the past, he did not permit the pond test because he feared that the pond test would show that indeed the water seepage came from the Defendant’s Premises, and he now permitted the pond test because he was now sure that any possible trace of showing that the water seepage came from the Defendant’s Premises had been removed.  His such attitude only means that he was not concerned about whether the Defendant’s Premises was the source of the water seepage.  He was only concerned that he would be “protected” from any possible means to find any trace pointing the source of the water seepage to the Defendant’s Premises. 

87.  Second, his such attitude is consistent with his pleaded defence in relation not the use of the Defendant’s Master Bathroom.

88.  In §9(e) of his pleaded defence and in §20 of his witness statement, the defendant emphasised time and again that the bathtub in the Defendant’s Master Bathroom was not used for any showering purpose, and that the Defendant’s Master Bathroom was “for storage and laundry purpose exclusively and the apparatus / facilities therein have not been in use since 2008”.  This no doubt is to give an impression that there was no water use in the Defendant’s Master Bathroom.  However, during cross-examination, when specifically asked, he had to admit that he used the basin, the toilet, the shower head for filling up buckets with water for handwashing clothes from time to time and for her mother-in-law to soak her feet once per month.   These uses are clearly contrary to his pleaded defence that “the apparatus / facilities therein have not been in use since 2008” and these uses, not previously mentioned, would at least have caused some water spills and droplets onto the walls and the floor, as the defendant had to admit.  Though such droplets, even flowing through the defective sealant along the bathtub, would unlikely cause the water seepage problem in the ceiling of the Plaintiff’s Bathrooms (as the Plaintiff’s Expert agrees and as the defendant himself mentioned in the cross-examination), the defendant still thought fit not to mention any of such uses but said, falsely with the statement of truth verifying the amended defence, that “the apparatus / facilities therein have not been in use since 2008”.  Even taking one step back, while the defendant had no duty to inform the court any facts that may be against his case, his emphasis simply on the lack of use of the bathtub for showering purpose shows that though entitled to he was, he is quite selective in his evidence.  This is important in the present context because as to the use of the bathroom and the facilities in the Defendant’s own Premises, much, if not all, depends on the evidence from the defendant.  It would be unrealistic to expect the plaintiff, say, to hire a private investigator to see (if it would be possible at all) how the defendant used the bathrooms.

89.  Another example of his selective attitude can be found in relation to JO Letter of 20 January 2021 setting out the contacts between MCL and the defendant’s wife (quoted in §32 above).  For this Letter, the defendant raised a very serious allegation that all these purported contacts were fabricated against his wife.  In an attempt to support his such serious allegation, to contradict §3 of the JO Letter of 20 January 2021, initially, the defendant would like to use his wife’s mobile phone records obtained from the service provider to show that there was no call from MCL’s phone number shown on its official website. However, when confronted with the suggestion that MCL may have used some other phone numbers than those in its official website, the defendant then changed his evidence to become that her wife’s mobile phone records were used to show that his wife did not use the mobile phone to make calls to MCL as alleged in §4 of the JO Letter.  However, §4 never said that his wife used her mobile phone to call MCL.  I do not understand how the defendant would have read (as he alleges) §4 to mean that his wife used her mobile phone to call MCL.  In fact, he must have understood what §4 means – because in oral evidence, he said that he did also try to enquire the phone service provider (same as the one for his wife’s mobile phone) for his home landline to see if similar records would have been supplied, but he was answered in the negative.  However, he did not mention this enquiry at all in his witness statement, but he simply referred only to his wife’s mobile phone records to present a picture that there was simply no contact between MCL and his wife, while (as appears from his enquiry) obviously knowing that the landline would be another means for his wife to contact MCL. This is another example showing his selective attitude towards evidence.

90.  Insofar as there would be any suggestion that the defendant simply ignorantly misread the letter, I would reject the same.  It is inherently improbable and simply against common sense that a person of average intelligence would have read the letter in such a way.  In this regard, I note that the defendant who is a professional accountant.

91.  Third, the defendant not only approaches evidence in such selective way; he goes further – in order to hide his own fault, he baselessly makes a serious allegation against others with selective, incomplete evidence.  In relation to the same JO Letter of 20 January 2021, the defendant went so far as to say that the Joint Office or MCL fabricated the story of the contacts between MCL and the defendant’s wife.  He explained that they did such dishonest act because of the pressure arising from the plaintiff’s complaint to the Ombudsman about their progress of handling the plaintiff’s complaint. However, in support of his such a serious allegation:-

(1)  He did not call his wife to give evidence.  His explanation is that both he and his wife tell the truth, and his wife told him what happened.  Thus, it is the same that he comes out to give evidence.  Further, he is more detailed on documents, and thus he thinks it is sufficient for him alone to give evidence.  I do not accept such explanation.  Clearly, his wife has the personal knowledge of the matter, and without subjecting her to cross-examination, the defendant cannot say that his evidence is sufficient for such a serious allegation.  Without any good explanation for the failure to call his wife to give evidence, I draw an adverse inference that his wife would not be able to come up to prove that there were no contacts between MCL and her as set out in the said letter.

(2)  He adduced only his wife’s mobile phone records, without explaining that he had made enquiry about his home landline record.  As mentioned above, the fact that he made such enquiry must mean that he well knew that the mobile phone record could not be a conclusive proof that there was no call from his wife to MCL, but in making such a serious allegation against the Joint Office and MCL, he did not highlight this enquiry at all.

92.  This shows that the defendant was prepared to say whatever was necessary to support his allegations, even a very serious allegation, with inadequate evidence and worse, knowingly with incomplete (if not deliberately misleading) picture, in order to shift the responsibility to others.

93.  Fourth, the defendant has a tendency to misinterpret (if not misrepresent) evidence in his favour.  As mentioned above, in the JO Letter of 9 July 2018, the Joint Office informed him, and it is worth quoting again here:-

“本處於2018年3月5日到你的單位進行調查，並在有關排水渠進行色水測試。直至目前，仍未能確定引致滲水的源頭。由於滲水問題持續，本處會考慮進行專業調查。本處會稍後通知你有關的安排及調查進度。” (emphasis added)

The emphasised part clearly, leaving no doubt, that the Joint Office was saying that they could not identify the source of the water seepage despite the colour test carried on 5 March 2018, and further investigation would be arranged.  However, in respect of this letter, in §46 of his witness statement, he said:-

“於2018 年7 月9 日，本人收到滲水辦的信件，通知本人因為有關之前滲水投訴而於本人物業所做之色水測試所顯示，直至目前仍未能確定引致滲水的源頭，本人理解，即沒有證據反映和本人物業有關，既然與本人無關，即本人物業沒有滲水問題，本人亦沒有事情需要跟進。” (emphasis added)

94.  This also brings me to the fifth point – the defendant has a tendency to turn a blind eye towards matters that are against him, or even worse, to deliberately ignore such matters.

95.  The above significantly undermines the defendant’s general credibility. In particular, in making fact-findings, I should bear in mind that the defendant’s evidence is incomplete at best and misleading at worst, hindering me to know the picture as complete as possible. 

D.  Expert opinion on source of water

96.  I now turn to the parties’ expert opinion.

97.  The Plaintiff’s Expert takes the opinion that the water seepage was caused by the Defendant’s Premises, for the following reasons:-

(1)  According to Plaintiff’s 2019 Expert Report, the moisture level in the ceiling of the Plaintiff’s Guest Bathroom decreased significantly from 28 August 2019 to 10 October 2019, towards the completion of the reconstruction works of the floor of the Defendant’s Master Bathroom and the Defendant’s Guest Bathroom on 19 October 2019.

(2)  The test result of the microwave scan carried out in 2019 shows that water came from the floor of the Defendant’s Master Bathroom and the Defendant’s Guest Bathroom spreading to the ceiling of the Plaintiff’s Master Bathroom and the Plaintiff’s Guest Bathroom.

(3)  During the reconstruction works carried out in the Defendant’s Premises on 8 September 2019, there was water dripping in the Plaintiff’s Corridor. Given that there was little rain on 8 September 2019 and the Plaintiff’s Corridor was not near the external wall, the water dripping must have come from the Defendant’s Premises.

(4)  After the completion of the renovation in the Plaintiff’s Premises in 2022, there was no more water seepage.

98.  I should deal with (4) above immediately.  As I have found that the water seepage ceased by November 2019 (see §71 above), (4) is irrelevant.

99.  The Defendant’s Expert takes the view that the water seepage was caused by the rainwater seeping from the outside through the cracks on the external walls.  According to him, the rainwater then seeped through the concrete to the openings of the abandoned electrical conduit in the middle of the ceiling of the Plaintiff’s Master Bathroom.  The rainwater then accumulated in, and then spread by, the abandoned electrical conduits above the ceiling of the Plaintiff’s Master Bathroom, the Plaintiff’s Guest Bathroom and the Plaintiff’s Corridor.  His main reasons are:-

(1)  As shown in the JO Report, the colour water tests carried out by the Joint Office on 14 March 2018 and 7 November 2018 (in relation to the Defendant’s Master Bathroom only) did not show any positive results.  If the water seepage was caused by defective drainage pipe, there would be colour trace left in the drainage pipe.  He further says that there would be growth of wild vegetation such as moss and fungus, but there was none.

(2)  The water seepage was not caused by any defective potable water pipe, because the JO Report ruled out the possibility (in relation to the Defendant’s Master Bathroom only) since “the MC readings were not consistently high and no water dripping was observed on 7 November 2018”.  If it were the case, there would be continuous water dripping given the high water pressure for potable water.  However, there were no continuous water drippings but intermittent dripping only.

(3)  Nor was the water seepage caused by the defective waterproofing system in the Defendant’s Bathrooms. 

(a)  If the water seepage were caused by the defective waterproofing system, the water would accumulate onto the sunken floor slab of the Defendant’s Master Bathroom by gravity.  The plaintiff’s complaint about the Defendant’s Master Bathroom started on 29 July 2017, but there was no water seepage-related defects at the soffit as appears from the photos taken by him on 4 October 2019.

(b)  The floor slab of the Defendant’s Master Bathroom and that of the defendant’s master bedroom are of the same level and thickness.  The complaint started on 29 July 2017, and if it was the waterproofing that was defective, water seepage should also have occurred in the ceiling of the plaintiff’s master bedroom as well as the Plaintiff’s Guest Bathroom.

(c)  Intermittent malfunctioning of the lightings and the warmer in the Plaintiff’s Master Bathroom may have been caused by vapour during normal bathing or showering.

(d)  The routing of the abandoned electrical conduit coincided with the water seepage area in the ceiling of the Plaintiff’s Premises.  The conduit served as a conduit to store and spread water from any directions.

(4)  It was the rainwater from the outside seeping through the cracks of the external wall that the abandoned conduits spread onto the ceiling of the Plaintiff’s Master Bathroom and the Plaintiff’s Guest Bathroom.  The pH value of the dripping water measured on 28 August 2019 was 5.0, which means the water was acidic and could only be rainwater.

100.  I accept the Defendant’s Expert’s opinion that the water seepage was not caused by any leakage from the drainage pipe, for the following reasons:

(1)  His such opinion is consistent with the view expressed in the JO Report upon tests carried out before the commencement of the reconstruction works in the Defendant’s Premises in September 2019.

(2)  The Plaintiff’s Expert’s explanation that a negative result of a colour water test may not mean absence of water leakage from drainage pipes is based on an assumption that it is only those parts of the drainage pipes inside the walls or beneath the floors that leak.  This assumption means that it so happens that those parts that are not in the walls or beneath the floors and are visible do not leak; for otherwise, colour would have been seen on the surface of those parts.  While this could happen as a mere possibility, it is in my view unlikely.

101.  I also accept that the Defendant’s Expert’s opinion that the water seepage did not come from potable water pipes, for the following reasons:-

(1)  His such opinion is consistent with the view expressed in the Joint Report upon tests carried out before the commencement of the reconstruction works in the Defendant’s Premises in September 2019.

(2)  Further, as confirmed by both experts, if water leaks from potable water pipes, given the high water pressure for potable water, there should be continuous dripping.  While there is evidence that water did drip from the warmer and in the Plaintiff’s Corridor, had the water seepage come from water dripping, it is inherently improbable that water would only drip in the warmer and the Plaintiff’s Corridor.

(3)  Still further, the pH value of the water collected from the warmer was, according to the Plaintiff’s Expert’s test, pH 5, that is, acidic.  Potable water does not carry such pH value.

102.  If the water seepage does not come from drainage pipe leakage and potable water pipe leakage in the Defendant’s Master Bathroom, then the only possibilities as can be seen from the evidence put before me are:-

(1)  Defective waterproofing system with some acidic water passing from the Defendant’s Master Bathroom and the Defendant’s Guest Bathroom (the “Possibility of Defective Waterproofing System with Acidic Water”); and

(2)  Rainwater seeping from the external walls into the openings of the abandoned conduit in the Defendant’s Master Bathroom, and the conduit then provided a free water channel to store and pass the rainwater to the ceiling of the Plaintiff’s Guest Bathroom (the “the Possibility of Rainwater Travelling”).

103.  In assessing the likelihood of these two Possibilities, I have to consider all the evidence in relation to these two Possibilities before I can come to a conclusion on which one is more probable than not.

104.  For the Possibility of Defective Waterproofing System with Acidic Water to work, there must have been defective waterproofing system and acidic water. In respect of defective waterproofing system:-

(1)  As noted above, the Joint Office was not allowed to carry out any pond test before the completion of the reconstruction works but only after the completion of such works with which the defendant felt confident that the pond test would not reveal any trace of water seepage from the Defendant’s Premises.  Thus, the opinion expressed in relation to the waterproofing system in the Joint Report sheds no light at all in this regard.

(2)  Photos were taken by the Management Office on 8 January 2018 of the Defendant’s Master Bathroom.  There is no dispute that the sealant along the bathtub was defective with cracks in the sealant and water droplets on the walls and near the cracks.

(3)  In §92 of the defendant’s witness statement, referring to the inspection of the Defendant’s Bathrooms by a contractor Mr Chu engaged by the defendant on 16 August 2019, the defendant said:-

“另外，本人向朱景勝先生査詢，如果此20 年樓齡之舊樓去浸地台，以其經驗會不會可以證明有足夠防水能力，合格過關。朱景勝先生表示「這很難說，機會一半一半吧」…”

(4)  In fact, some direct evidence could have been produced by the defendant as to whether the floor slab was wet or not, which would then shed significant light on whether the waterproofing system still provided sufficient waterproof.  As said by the defendant in §91 of his own witness statement, once the floor was opened, one could then see whether it was wet.  The floor was opened on 2 September 2019.  However, the defendant was not there, but only his wife and of course the contractor who opened the floor.  Photos were allegedly taken by the Management Office but it is not clear whether the photos were taken right after the floor was opened, though it seems from §180 of the defendant’s witness statement that some time was waited until the Management Office came to take the photos.  In any event, the photos were not clear to show whether the floor slab was wet or not.

(5)  No good reason was provided for the failure to call his wife or the contractor to give evidence to assist the Court.  The defendant’s essential explanation is that he tells the truth and there is no need to trouble his wife.  As regards the contractor, he alleged he had asked the contractor to give evidence but the contractor refused.  However, he could not explain why he did not subpoena the contractor to give evidence.  In the circumstances, I should draw an adverse inference from such failure that when the floor was opened on 2 September 2019, the floor slab was found to be wet.

(6)  I am aware that the fact that the floor was wet could be caused either by the rainwater seepage in the Possibility of Rain Travelling or the defective waterproofing system.  Thus, this inference is not decisive.

105.  As mentioned above, the Defendant’s Expert alleges that the sunken ceiling should have been damaged by the water seepage given that if water seeps through the waterproofing system, the water would, by gravity, flow into the sunken area just below the bathtub in the Defendant’s Master Bathroom.  He said that the ceiling of the sunken area was not damaged and must have been dry, contrary to the readings of the electrical conductivity test carried out on 28 August 2019 show that the whole ceiling of the Plaintiff’s Master Bathroom (including the ceiling beneath the sunken area) was also wet.   The Defendant’s Expert’s explanation that it was wet because of the wet trade works carried out by the defendant’s contractor is stated to be rejected as contradicted by the fact that the reconstruction works of the floor slab only started on 2 September 2019.  As he admitted in the cross-examination, if the works started only on 2 September 2019, then it would be “far-fetched” to see that the wet trade works would give rise to the readings. 

106.  The Defendant’s Expert did not give up.  In his oral evidence, having had to admit that the wet trade works could not affect the moisture level in the sunken area, he said that the existence of the moisture of the sunken slab was strange and inconsistent, and then suggested for the first time that the moisture may be caused by the relative humidity in the atmosphere (depending on the weather that day) and/or the possibility that someone may have just taken a shower and thus there was moisture in the Plaintiff’s Master Bathroom.   I cannot accept such belated explanation for the following reasons:-

(1)  First, it was belated – if there were any truth in the explanation, I do not see why, and indeed, the Defendant’s Expert could not explain, why it was not stated in the Joint Report. 

(2)  Second, if the Defendant’s Expert were really serious in this explanation, he could have at least referred to the relative humidity recorded by the Observatory that day and explain how the relative humidity would have caused such readings, but he did none of that. 

(3)  Third, he must have assumed the Possibility of Rainwater Travelling to be true in saying that it was strange and inconsistent to see such readings. Then, based on such assumption, he suggested all these explanations which I have rejected.  In other words, he assumes the truth of the Possibility of Rainwater and then try to think up of purported reasons in support, as if he were an advocate rather than an independent expert who should have considered the matters objectively, and see where what conclusion those matters would point to. 

(4)  I must say that his such approach of circular reasoning undermines the general credibility of the Defendant’s Expert.

107.  The Defendant’s Expert also alleges that if the water seeped through the waterproofing system, water should then also seep through and spread to the plaintiff’s master bedroom (just next to the Plaintiff’s Master Bathroom), given that the floor slab of the Defendant’s Master Bathroom and that of the defendant’s master bedroom are of the same level and thickness.  However, in the cross-examination, when confronted with a building plan, he had to admit that the floor slab was not of the same thickness, though he insists that it was on the same level.  Even though it is on the same level as shown from the building plan, as the Defendant’s Expert admitted during the cross-examination, he had no idea of the structure of the ceiling of the plaintiff’s master bedroom, which may have affected whether water would seep through and spread to there. Thus, his suggestion that water should have spread to the bedroom remains a mere suggestion, again with some assumptions without any evidence to substantiate.

108.  Having considered the above, I am satisfied and thus I find that the waterproofing system of the Defendant’s Master Bathroom was defective. 

109.  This, however, does not mean that the Possibility of Defective Waterproofing System with Acidic Water is proved.  One still has to explain the whereabouts of the acidic water.  The plaintiff suggests that the acidity may have come from the cleaning agents used by the defendant.  However, the pH value of cleaning agents is not as low as pH 5, and as admitted by the Plaintiff’s Expert, when the cleaning agents are mixed (or diluted) with water for use, the pH value would even be higher towards pH 7, that is, further away from pH 5. 

110.  The Defendant’s Expert offers an explanation of the acidity – rainwater.  If it were rainwater, it would be consistent with the Possibility of Travelling Rainwater.  To say that the rainwater was acidic, the Defendant’s Expert refers to a publication issued by the Environmental Department back in 2001.  Such publication more than two decades ago is of little probative value.  He said, without any basis, that the air pollution now is “not much better” than two decades ago, and thus the rainwater should still remain acidic.  When asked why he did not collect recent rainwater to test the acidity, his explanation was that he did not think about that.

111.  Further, there were a few pieces of evidence pointing against the possibility that the water seepage was caused by rainwater.  First, the JO Report.

(1)  That the water seepage was caused by rainwater was ruled out by the Joint Office based on its inspection of the Plaintiff’s Master Bathroom carried out on 7 November 2018 (well before the reconstruction of the floor of the Defendant’s Bathrooms).  It is noted that at least more than 10 days before 7 November 2018, there was basically no rain.  Despite such prolonged dryness and the “prolonged sunny days on 07/11/2018” as stated in the JO, there were still points in the ceiling of the Plaintiff’s Master Bathroom with readings over 35. 

(2)  This is entirely inconsistent with the Possibility of Rainwater Travelling, for which the Defendant’s Expert said that even during the dry days, there may still be water seepage because rainwater could have been stored in the abandoned conduit when, according to his oral (not written) evidence, (a) there had been raining over 50mm over a few days; and (b) the stored rainwater would take a few days to seep out.  Putting aside that this “50mm” and “a few days” has no scientific basis but simply based on the Defendant’s Expert’s alleged experience without giving me any concrete particulars or examples, and putting aside that such “experience” was only said for the first time during the oral evidence, the fact that there had been no rain for more than 10 days only means that the Defendant’s Expert’s explanation about storage of rainwater cannot stand at all.

(3)  If this explanation about storage of rainwater cannot stand at all, then the Defendant’s Expert simply cannot explain why there could still be moisture in the ceiling of Plaintiff’s Master Bathroom on 28 August 2019 and 10 October 2019, when on both days, there was no rain. 

(4)  Indeed, when asked whether the result of the JO Report in this respect is inconsistent with his explanation about storage of rainwater, after a long pause, the Defendant’s Expert’s answer was “no comment”, not even trying this time to say that the Joint Office was wrong or explain based on wet trade works, moisture from showering and/or the relative humidity in the environment.

112.  Second, the electric conductivity sensing readings taken by the Plaintiff’s Expert on 28 August 2019 and 10 October 2019.  Just two days before 28 August 2019, on 26 August 2019, heavy rain of 139mm was recorded.  The MC readings taken of the points near the external wall of the ceiling of the Plaintiff’s Master Bathroom were all 99.9 (virtually the maximum reading possible) except two points recording 51.2 and 48.5.  On 10 October 2019, there was no rain on 9 and 10 October 2019, only 3.5mm on 8 October 2019 and only 15.5mm on 7 October 2019.  Thus, if it were rainwater that caused the high readings on 28 August 2019, then the readings, at least those near the external walls, should be lower.  However, the readings taken on 10 October 2019 were all 99.9 with no exception.  On this, the Plaintiff’s Expert thus concludes that the water seepage was not caused by rainwater.  The Defendant’s Expert simply cannot offer any valid explanation to counter, save and except repeating the possibility of just having a shower and/or high relative humidity in the environment. 

113.  At the very most, the Defendant’s Expert emphasised that due to the reconstruction works, there was no water use on 28 August 2019 and 10 October 2019, and thus the water could not have come from the Defendant’s Premises. However, the Defendant’s Expert was not the one who carried out the reconstruction works, but at the same time, the Defendant’s Expert would, where he found it necessary, explain that moisture may have come from the wet trade works being carried out during the reconstruction works (see §104 above). Thus, I do not give much weight to his such incoherent opinion.  There is simply no evidence before me as to whether water was used in the Defendant’s Master Bathroom during the reconstruction works (from 23 August 2019 to 19 October 2019), though one would have thought that the cement works in relation to the floor would need some water.

114.  Relatedly, Mr Michael Lee, counsel for the defendant, emphasised that the electric conductivity sensing readings taken by the Plaintiff’s Expert on 10 October 2024 were almost 99.9, and such readings were inconsistent with the fact that that waterproofing work had been completed on 2 September 2019 if the water came from the Defendant’s Premises.  However, as said above, there is no evidence before me as to whether water was used in the Defendant’s Master Bathroom during the reconstruction works.  Further, I should not just consider the electric conductivity sensing readings on that day.  I have also to consider the fact that the readings taken by the Joint Office on 29 October 2019 showed a decreasing trend there (see §44 above) and the readings in November and December 2019 led the Joint Office to cease the investigation.

115.  Third, the Defendant’s Expert’s own evidence in respect of the rainwater is confusing and unreliable.  In his report of 15 June 2021, he attached a diagram titled “Section showing the major water seepage flow directions” with the legend to explain the arrow in the diagram “Water seeping/travelling direction”.  The arrows in the diagram show that the water seepage/travelling direction was from the plaintiff’s living room, to the Plaintiff’s Guest Bathroom and then to the Plaintiff’s Master Bathroom.  It is immediately noted that according to the Possibility of Rainwater Travelling, the rainwater did not travel from the living room, but from the external wall of the master bathroom.  It is also immediately noted that the travelling direction, according to the Possibility of Rainwater Travelling, was from the Plaintiff’s Master Bathroom to the Plaintiff’s Guest Bathroom, exactly opposite to the arrows in the diagram.   This very same diagram was subsequently attached to the Joint Report prepared in 2022.

116.  When asked about this diagram, the Defendant’s Expert said that there should be no water travelling from the living room.  He also said that the direction shown by the arrows was wrong.  When asked why he still produced the same diagram in the Joint Report, his answer was “It would be strange if there were two versions.”  This answer is very unattractive.  This answer means either (1) that at the time of the Joint Report, he still failed to notice the two inaccuracies, which are very obvious to anyone who would review documents knowing that the documents would form part of his evidence to the Court, or (2) that at the time of the Joint Report, he noticed this obvious inaccuracies, but because he felt it would be strange, he still knowingly allowed the inaccuracies to be part of the evidence he was going to give to the Court. Either version can only mean that the Defendant’s Expert evidence, at least in this respect, is very unreliable.

117.  Not only this diagram.  In his 2021 report, he also prepared a diagram mapping out the location of the abandoned conduit.  In that 2021 diagram, the conduit did not extend to the external walls of the bathrooms.  However, in the diagram he produced in the Joint Report, the conduit was drawn to extend to the external wall of the Plaintiff’s Master Bathroom and also to the external wall of the Plaintiff’s Guest Bathroom.  Of course, if the conduit did extend to the external wall, this would add strength to the Theory of Rainwater Travelling, because rainwater would then not have to go through the convoluted routes through the concrete and then into the openings of the conduits for travelling and storage within.  But these two extensions were obviously wrong, as admitted by the Defendant’s Expert in cross-examination.  His explanation for this mistake is that he should have supervised the work of his inferior properly, and it was still his responsibility.  That he is the one responsible for the report is a matter of course.  This, however, can only mean that the report supervised by him is unreliable.

118.  Fourth, for the rainwater to seep through the external wall to the abandoned conduit, the rainwater would have to pass through the concrete, and somehow find its way to the conduit.  This assumes that there must be a large amount of rainwater, and the Defendant’s Expert said for the first time in his oral evidence that the rainfall would have to be 50mm for 1-2 hours to constitute such amount of rainwater.  There is no basis for these figures, and there is no basis for such assumption.

119.  Fifth, the openings of the conduit do not really match the area affected by water seepage.  The whole ceiling of the Plaintiff’s Master Bathroom was wet, and the ceiling of the Plaintiff’s Guest Room towards the Plaintiff’s Corridor was also wet, while the openings were approximately in the middle of the ceiling of the Plaintiff’s Master Bathroom and that of the Plaintiff’s Guest Bathroom respectively.

120.  Sixth, as regards the infrared scan done on 28 August 2019 by the Plaintiff’s Expert of the external walls showing areas of low temperature, the scan can serve at most an indicator that there was water or moisture in those areas.  As to whether the water came from inside or from the outside, the scan itself cannot be determinative.

121.  Seventh, evidence shows that even in 2020 and 2021, there was concreate spalling in the ceiling of the Plaintiff’s Master Bathroom near the external wall.  Counsel for the defendant, Mr Michael Lee, relies on this as evidence to prove that the water seepage was caused by seepage from the external wall.  However, as I have found based on the Joint Office inspections carried on in November and December 2019, the water seepage had ceased by then.  Therefore, any spalling of concrete or water seepage in 2020 and 2021 is unrelated to the water seepage in this case.  Alternatively, if the spalling of concrete simply was some spalling continuing from the water seepage in 2017-2019 which ceased by the end of 2019, then this could not be proof of water seepage from the external wall as Mr Lee submits.

122.  Lastly, there are several subsidiary or minor points raised by both sides in terms of submissions and evidence.  It is not necessary for me to deal with them all here, as I have dealt with the major points above.  I only have to say that I have considered all those points as well.

123.  Having considered the above, I find that the water seepage was not caused by rainwater.  As such, the Theory of Rainwater Travelling must fall apart.

124.  However, if water came through the defective waterproofing system as I found from above, what water could it be?  The Plaintiff’s Expert fairly accepts that droplets caused by water spill arising from filling in buckets with water using the shower, even if the droplets would go into the defective sealant along the bathtub, would not be sufficient to cause such water seepage as found.  Further, the pH value of the water seeped through would not be as low as pH 5. 

125.  The ultimate question, however, is whether it is necessary for me to find what the water was.  The answer must be in the negative, because “it is too onerous a burden to require a plaintiff to prove the actual activities taking place in a defendant’s premises in order to prove his water leakage claim”: see Atlantic Link Ltd v The Incorporated Owners of Yen Ying Building [2022] HKDC 825 at §146.  The issue I have to resolve is whether the water came from the Plaintiff’s Premises.  The findings I have made now are (1) there was water seepage; (2) the waterproofing system was defective; (3) the water was not rainwater; and (4) the water was not from drainage pipes or potable water pipes.  While a finding, if possible, of what the water really is would be relevant to determining whether it came from the Defendant’s Premises, absence of such a finding does not necessarily mean that I am hamstrung from making findings on balance based on the facts I have already found and enumerated above.  Further, in such finding process, I should also take into account that the defendant’s own claim about use of bathrooms and of water should be assessed cautiously as possibly self-serving: see 皇河實業有限公司v Wan Chiu Yuen & another, DCCJ 4448/2011, 20 April 2015 at §§162-163 and a fortiori, that the defendant in the present case has a tendency not to give a complete picture of what really happens and worse sometimes would give evidence in a misleading manner (see §§84-95 above).

126.  Given the facts I have found and enumerated in the preceding paragraph, and the fact that after the reconstruction of the floors of the Defendant’s Master Bathroom on 2 September 2019, water seepage showed a decreasing trend on 29in October 2019 and ceased by 25 November 2019, then in all likelihood, and so I find, the acidic water came from the Defendant’s Master Bathroom.  I can make no findings as to what the acidic water was, but this is not necessary for me to do so in order to resolve the dispute before.  This finding that the acidic water came from the Defendant’s Master Bathroom is sufficient to determine the liability of the defendant.

127.  The above deal with the water seepage found in the ceiling of the Plaintiff’s Master Bathroom.  As regards the water seepage in the ceiling of the Plaintiff’s Guest Bathroom, as the Possibility of Rainwater Travelling falls apart, rainwater was not a source of the water seepage there.  From the microwave scanning carried out by the Plaintiff’s Expert on 28 August 2019, the readings show that from 110mm, 70mm and 30mm deep up from the ceiling of the Plaintiff’s Guest Bathroom, there was moisture, showing the likelihood that water came from the above.  Further, considering that the waterproofing system in the Defendant’s Master Bathroom had become defective, it is more probable than not that the same happened to the Defendant’s Guest Bathroom.  In the circumstances, I also find that water seepage in the ceiling of the Defendant’s Guest Bathroom was caused by the water from the Defendant’s Guest Bathroom above.  I note here that there is no evidence on the pH value of the water of the water seepage in the ceiling of the Plaintiff’s Guest Bathroom.

128.  As regards the water seepage in the ceiling of the Plaintiff’s Corridor, the area affected by the water seepage was near the affected area of the Plaintiff’s Guest Bathroom.  In all likelihood, the water seeped through and spread to the ceiling of the Corridor.  In other words, the water seepage in the ceiling of the Plaintiff’s was also caused by the water from the Defendant’s Guest Bathroom.

XI.  WHETHER THE SAID SEEPAGE/LEAKAGE WAS WORSENED AS A RESULT OF ANY DELAY ON THE PART OF THE PLAINTIFF

129.  The defendant’s defence does not plead any specific time at all as to what time at which the damage would have stopped had there been no delay.  Nor is there any plea as to the extent of the alleviation of the damage would be had there been no delay.  Further, there is no evidence in these two aspects either, putting aside the pleading issue.  I do not see how determination of this issue would have any material impact on the parties’ cases.

130.  In any event, on the evidence available to me, I fail to see how the plaintiff had delayed.  First, the plaintiff was the victim of the water seepage and she had no reason to delay.  Second, consistently, the plaintiff complained to the Management Office and then to the Joint Office.  As mentioned above, there was various correspondence between the plaintiff, the Management Office and the Joint Office since early 2018.  In my view, the plaintiff had taken all reasonable steps available to her in the circumstances.

131.  From the defendant’s witness statement, he seems to suggest that the Management Office never told him that there was water seepage other than the one in 2017, and the Management Office just kept asking him whether he had repaired the defective sealant in the bathtub of the Plaintiff’s Master Bathroom.  The defendant’s such suggestion is, in my view, disingenuous.  If there had been no more water seepage after the 2017 water seepage, the defendant would not expect the Management Office to continue asking him about the repair of the defective sealant.  I find that the defendant well knew that the water seepage problem in the Plaintiff’s Premises continued throughout.

132.  The defendant further alleges that had he known that there was other seepage, he would have promptly taken measures to address the problem and thus the damage would have been reduced.  It is again, in my view, disingenuous of the defendant.  As mentioned above, the defendant simply was not concerned about solving the water seepage problem.  As found above, he was more concerned about removing any trace pointing the water seepage to the Defendant’s Premises.  Had he really harboured such a laudable attitude, he would have allowed further investigation to be carried out by the Joint Office without any delay upon receipt of the Joint Office letter of July 2018.  As mentioned above, he took this letter (deliberately or not) to mean that the Defendant’s Premises caused no water seepage, contrary to an objective reading of the text of the letter by any reasonable, objective standard. 

133.  Indeed, even during the trial, he still did not admit that there was any water seepage and that in any event the Defendant’s Premises was the source of the water seepage.  I do not see how he would have been different had he been informed of the other water seepage earlier (assuming, for the sake of argument, that he really did not know that there was any other water seepage than the one in 2017).

134.  Therefore, there was no delay on the part of the plaintiff and in any event, the water seepage was not worsened by any delay, and in any event, the defendant would not have addressed the problem.

XII.  WHAT IS THE PLAINTIFF’S LOSS AND DAMAGE AS A RESULT OF THE WATER SEEPAGE/LEAKAGE CAUSED BY THE DEFENDANT?

135.  The areas affected, as found in §§76-80 above, are loss and damage caused by the water seepage.  Such loss and damage is physical to the Plaintiff’s Premises.

136.  The plaintiff further claims that the water seepage has worsened her psychiatric illness and caused skin problem to her.  Despite the sympathy I have towards her irrespective of what worsened or caused such health problem to her, the difficulty she has to surmount is that there is no expert evidence to prove any causation of the water seepage to the health problem, which is disputed by the defendant.  While there are medical notes or records prepared by her treating doctors produced before me, there has been no expert directions on this medical issue and thus such notes and records are not expert evidence. Without any expert evidence, in the light of the defendant’s dispute on the causation, I have to find that the plaintiff has not properly discharged her burden of proof in this respect.  I do not think that Lee Wai Chuen & another v Cheung Chor Keung & another, DCCJ 3098/2006, 7 January 2011 at §§57-64 stands for the proposition that expert evidence is not required to prove causation.  It is not clear what were the procedural history in that case, and in any event, it does not seem that in that case, issue was taken as to the appropriateness of the evidence for such a medical issue.

XIII.  WHETHER THE DEFENDANT IS LIABLE IN BREACH OF DMC, ETC

A.  Nuisance

137.  To establish nuisance, the plaintiff has to prove that the defendant knew or ought reasonably to have known that the water seepage comes from the defendant’s premises: see 張秀玲及另一人  對鄭禮莊, CACV 268/1998, 9 April 1999 at § 6-7.  “Ought reasonably to have known” here connotes a “duty to investigate, locate and repair the water leakage in a prompt and reasonable manner” once the defendant became “aware that there was a water leakage the source of which could reasonably be identified to be from its property”: see Yan Wing Fai Rick & Another v Century One Ltd DCCJ2773/2009, 2 February 2011 at §85 per DJJ Harold Leong (as he then was).  This is consistent with the plaintiff’s plea in §33 of the amended statement of claim that the defendant had “fail[ed] or neglect[ed] to take any or any appropriate actions to prevent or stop water from escaping, leaking and/or seeping into the master and guest bathrooms and the corridor outside the bathrooms of the Plaintiff’s Premises, especially when the Defendant had been given notices of the water leakage problem”.

138.  In the present case, the defendant became aware at latest by 8 January 2018 (the day when the Management Office visited and inspected the Defendant’s Master Bathroom in relation to the plaintiff’s complaint of water seepage) that the water seepage existed in the Plaintiff’s Master Bathroom.  I also find that the defendant ought reasonably to have known that the water leakage came from the Defendant’s Master Bathroom – he could have carried out the pond test which would then have discovered the water source originating from the Defendant’s Master Bathroom, but he refused.

139.  In respect of the water seepage in the Plaintiff’s Guest Bathroom, the defendant became aware of that by 21 August 2019 when the Management Office conveyed to him about the plaintiff’s complaint of water seepage in the Plaintiff’s Guest Bathroom.  I find that the defendant ought reasonably to have known that the water leakage came from the Defendant’s Guest Bathroom – he could, similarly, have carried out the pond test and found this out.

140.  Thus, the defendant is liable to the plaintiff in nuisance.

B.  DMC

141.  As regards breach of DMC, paragraph 5.1.9 of Section V of the DMC provides that:-

“Each Owner shall pay all costs, charges and expenses incurred in repairing or making good any loss or damage caused by the act, neglect or default or omission of any person occupying with his consent expressed or implied any part or parts of the Estate owned by him… in the case of loss or damage suffered by other Owners or Occupiers of any part or parts of the Estate for which the Manager is not responsible hereunder to repair or make good, such costs, charges and expenses together with all other damages recoverable by law shall be recoverable by the person or persons sustaining the loss or damage.”

142.  Paragraph 5.1.13 of Section V provides that:-

“No Owner shall use or permit or suffer the part of the Estate owned by him to be used for any illegal or immoral purpose nor shall he do cause or permit or suffer to be done any act or thing which may be or become a nuisance or annoyance to or cause damage or inconvenience… to other Owners and Occupiers for the time being of Units in the Estate…”

143.  I am satisfied that the defendant is also liable in breach of those clauses of the DMC.

144.  I do not think breach of duties under section 34H of the Building Management Ordinance and his common law duty to maintain and keep good repaid of the Defendant’s Premises would add anything to the plaintiff’s claim.  It is not necessary therefore for me to rely on such breach, if any.

XIV.  QUANTUM OF DAMAGES

145.  In the amended statement of claim, as further amended by his Closing Submissions, the plaintiff particularised the loss and damage as follows:-

(1)  Costs of basic repair works carried out and replacement of facilities in the Plaintiff’s Premises: HK$8,000 (already incurred) and HK$2,270 (already incurred);

(2)  Costs of alternative accommodation between 9 and 11 February 2023: HK$800;

(3)  Pre-action surveying fees: HK$30,000;

(4)  Medical expenses in relation to her psychiatric illness: HK$3,385;

(5)  Estimated costs for repair works to be carried out: HK$45,180.50.

(6)  General damages for inconvenience, annoyance and discomfort: HK$90,000.

146.  As regards the repair of the ceilings of the Plaintiff’s Bathroom, I find HK$8,000 to be reasonable.

147.  As regards the replacement of the warmer for HK$2,270 in (1), I find it reasonable to have a replacement – the warmer was, in all likelihood in the light of the water seepage, damaged by the water seepage. 

148.  Therefore, I allow (1) in total.

149.  There is no dispute over (2).  Therefore, I allow it.

150.  As regards (3): the pre-action surveying fee, the surveying is in relation to the inspection on 28 August 2019 and 10 October 2019 by the Plaintiff’s Expert, which lead to the Plaintiff’s Expert 2019 Report.  This 2019 Report was in turn relied upon by the Plaintiff’s Expert as well as by the Defendant’s Expert in the Joint Report.  Thus, I think it more appropriate to regard the costs of this pre-action surveying as part of the costs of the action subject to taxation.

151.  As regards (4): the medical expenses, as explained above, the plaintiff has failed to discharge her burden of proof.  So, this head should not be allowed. 

152.  As regards (5): costs of repair, I agree that it is necessary to carry out remedial works over the rebars in the Plaintiff’s Master Bathroom, given that evidence clearly shows that there was rust and rusty stains that were, in all likelihood in the light of my findings of water seepage, caused by the water seepage.

153.  With respect to the hanging cabinet in the Plaintiff’s Corridor, the defendant suggests that because the damaged part would be the part near the bathrooms only, but not the part near the plaintiff’s master bedroom, so the costs of replacement of the whole cabinet are either unnecessary because the other parts could still be used or the costs should be lower than claimed.  I do not accept this suggestion.  First, as regards that the other part could still be used, as the plaintiff explained, unchallenged, in cross-examination, she would then have to move out the items out of the parts that are damaged. Second, as regard the replacement of the cabinet, the cabinet bottom is a one-piece wood extending from one end of the corridor to the master bedroom, and thus it would be impossible to just replace part of the cabinet to reduce the costs.  Therefore, I find it reasonable to replace the whole cabinet.

154.  Therefore, I find (5) to be reasonable and allow it.

155.  For general damages, there are no hard and fixed rules.  Each case depends on its own facts including the parties conduct (for example, whether the defendant had been cooperative), although the previous cases may serve as starting points.  I have considered the authorities cited by the parties (namely, Yau Wing Fai Rick and another v Century One Limited, DCCJ 2773/2009, 2 February 2011; Leung Chin To Michael v Wong Siu Cheuk Ping Selina [2023] HKDC 376; the summaries of the cases in 林鎮彬 v Ko Chee Ko, DCCJ 3009/2012, 16 February 2016 at §80-81, in Leung Hoi Kee Regin v Tam Sau Kam [2021] HKDC 1050 at §99-101 and in Chan Pak Wing & another v Chu Hsiao Lan [2024] HKDC 698 at §§17-18).   Given the extent of the damage and the duration of the nuisance especially in respect of the Plaintiff’s Master Bathroom, and the defendant’s uncooperative attitude adopted throughout, I find it appropriate to award HK$90,000.

156.  In summary:-

(1)	Costs of basic repair works carried out and replacement of facilities in the Plaintiff’s Premises	HK$8,000  HK$2,270
(2)	Costs of alternative accommodation between 9 and 11 February 2023	HK$800
(3)	Costs for repair to be carried out	HK$45,180.50
(4)	General damages	HK$90,000
	Total:	HK$146,250.50

XV.  INTEREST

157.  In the opening submissions, Mr Wong, for the plaintiff, asked for pre-judgment interest rate at 1% above the HSBC prime rate.  This interest rate is for commercial cases: see Lo Yuk Sui v Fubon Bank (Hong Kong) Ltd [2019] HKCA 1345 at §34 per Lam VP, Cheung and Barma JJA, to compensate the innocent party for the loss of return from investment of the money kept by the wrongful party.  I indicated to Mr Wong that unless there are authorities explaining the rationale for applying 1% above prime rate to water seepage cases, I do not think that this rate is applicable to water seepage cases.  In his closing submissions, Mr Wong asks for interest rate like in personal injury cases, which I think is more appropriate and is, for example, what was done in Chiu Yi Tung v Lo Yue Fung Franky & another [2023] HKDC 1117 at §198.  Mr Lee, for the defendant, also agrees to this approach, if I would find the defendant liable to pay damages.

XVI.  ORDER

158.  In the circumstances, I make the following order:-

(1)  The defendant do pay the plaintiff damages of HK$146,250.50.

(2)  There be interest on general damages at 2% per annum from the date of the service of the Writ of Summons until today.

(3)  There be interest on special damages at half judgment rate applicable as at today from the date of the Accident until today.

(4)  There be judgment rate on (1) – (3) above from today until payment.

159.  I make the costs order nisi that the defendant do pay the plaintiff’s costs of this action (including all the costs reserved), to be taxed if not agreed, with certificate for counsel.