KEY LIGHT HOLDINGS LTD AND ANOTHER v. SHIH HUA MIN AND ANOTHER

HCMP 2382/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2382 OF 2013

(ON AN INTENDED APPEAL FROM DCCJ NO. 1167 OF 2010)

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BETWEEN

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Hon Chu JA (giving the decision of the Court):

1.  This is the 1^st defendant’s application for leave to appeal to the Court of Appeal against the judgment of HH Judge Yee (“the Judge”) given on 22 April 2013 in an action for breach of a Deed of Mutual Covenants (“DMC”) and nuisance. The Judge ordered the 1^st defendant to pay to the 1^st plaintiff damages in the sum of HK$134,721.50 and to the 2^nd plaintiff nominal damages of HK$100. The 1^st defendant’s application to the Judge for leave to appeal was refused on 2 September 2013.

2.  Having reviewed the papers and written submissions lodged with the court, we are of the view that it is appropriate to determine this application without an oral hearing.   

3.  The 1^st plaintiff and the 1^st defendant were at the material time the registered owners of two properties in a building in Aberdeen, Hong Kong.  The 1^st defendant’s property was situated immediately above that of the 1^st plaintiff, which was used by the 2^nd plaintiff to operate an elderly home.  The plaintiffs’ claim against the 2^nd defendant, who was a subsequent assignee of the 1^st defendant, had been discontinued.

4.  The plaintiffs’ claim is for damages arising from water leakage from the 1^st defendant’s property for the period from 2006 to late 2009.  The plaintiffs’ case is that the leakage was due to demolition works of an illegal structure at the roof top of the 1^st defendant’s property and the subsequent alternation works. 

5.  Expert evidence from a Dr Paul Wong was adduced at the trial.  Dr Wong was initially assigned by the Building Department / Food and Environmental Hygiene Department to conduct an investigation into water leakage on the ceiling of the 1^st plaintiff’s property from 26 June 2007 to 28 August 20008.  Later, on the joint instructions of the parties, he compiled an expert report setting out in details his methodology and findings in the investigation.  He concluded that in a test conducted in August 2008, the water seepage found in an area of the 1^st plaintiff’s property (“Area 1”) “was almost certainly caused by water seepage from the balcony of the 1^st defendant’s property” and that the source of the water seepage was the defective floor slab of the balcony of the 1^st defendant’s property.  The 1^st defendant had subsequently with leave of the court procured a supplementary report from Dr Wong dealing with five specific questions raised by the 1^st defendant on the cause of the water seepage and the condition of the floor slab/ flooring of the 1^st defendant’s property.  

6.  The Judge accepted the evidence of the 1^st plaintiff and his witness, who was the chairman of the Owners Incorporation.  On the basis of Dr Wong’s evidence, he found that one of the sources of the water seepage was the defective floor slab of the flat roof owned by the 1^st defendant.  He concluded that the 1^st defendant was in breach of the duty to repair and maintain and the duty not to create nuisance under clauses 3(B)(e) and 10(c) of the DMC respectively.  He further concluded that the 1^st defendant was liable to the plaintiffs in nuisance.

7.  Section 63A(2) of the District Court Ordinance, Cap.336 provides that leave to appeal shall not be granted unless it is demonstrated that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.  

8.  The draft Notice of Appeal raised three grounds of appeal.  Ground 1 complains that the Judge did not make a full and accurate evaluation of the evidence on the issue of the source of water leakage.  In short, the 1^st defendant challenges Dr Wong’s conclusion that in the August 2008 test conducted on the 1^st defendant’s property, the source of water seepage was almost certain to be the 1^st defendant’s property.  This is because an earlier test conducted in March 2008 on another apartment above the plaintiff’s property (Apartment D) revealed water seepage to have come from that other apartment.  Mr Tsui for the 1^st defendant therefore argues that the possibility that the water seepage was from a source other than the 1^st defendant’s property could not be ruled out. 

9.  This ground is essentially an appeal against the finding of fact of the Judge, which is based on expert evidence.  The observations of the Court of Appeal in Hui Ling Ling v. Sky Field Development Ltd (unreported) CACV 122/2012, 22 March 2013, para.43 are relevant:

“Secondly, findings which are based on expert evidence are to be treated on appeal as findings of fact. To overturn such findings, it has to be shown that the trial judge went seriously wrong, for example, by overlooking critical evidence, misunderstanding the evidence, or making a finding that was wholly unsupported by any evidence (Au Yeung Miu Sim v Tsang Kwong Wai & Anr [2004] 2 HKLRD 187 at para 16). The high threshold to succeed on challenges to findings of fact as stated by the Court of Final Appeal in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 applies to this situation (Ansar Mohammad v Global Legend Transportation Ltd [2011] 2 HKLRD 985 at para 22(1)). When dealing with an expert witness, a trial judge still has a significant advantage over an appeal court in assessing the value, the reliability and the impressiveness of the evidence given by the expert, although the advantage of the trial judge is not so great as in the case where the witness is a witness of fact (Joyce v Yeomans [1981] 1 WLR 549 at 556E to H).”

10.  The Judge was aware of and had taken into account the result of the earlier test.  He pointed out in paragraph 45 of the Judgment that the 1^st defendant should have called Dr Wong to testify and cross-examine him on the issue, or alternatively, asked Dr Wong to specifically deal with the issue in the supplemental expert report.  The Judge held that in the absence of contrary evidence, there was no basis to question the findings and conclusions reached by Dr Wong in relation to the test conducted on the 1^st defendant’s property. 

11.  Mr Tsui argues that this is shifting the burden to the 1^st defendant and that even in the absence of contrary evidence the Judge must still evaluate the expert evidence.  We do not agree. 

12.  Dr Wong was the parties’ joint expert.  He had given an expert opinion on the source of water leakage in the test conducted on the 1^st defendant’s property. Although the Judge was not bound to accept his opinion, he should only reject the expert evidence on proper ground.  The fact that an earlier test conducted on Apartment D revealed Apartment D to be a source of water leakage did not by itself provide a proper ground for questioning the reliability or accuracy of Dr Wong’s findings and conclusions in respect of the test done several months later on the 1^st defendant’s property.  In our view, the Judge is correct in accepting and relying on Dr Wong’s conclusions since there was no proper basis for holding otherwise.

13.  Ground 2 contends that the Judge had applied an unreasonable standard of care in holding that the 1^st defendant had failed to properly repair and maintain the floor slab of the flat roof in his property.  It is suggested that the 1^st defendant only had a duty to maintain the top layer of the floor slab under the DMC and there was no evidence on the nature of the defect in the floor slab in question.  Reliance is also placed on John So and Anr v. Lau Hon Man & Ors (unreported) CACV110/1993, 5 October 1993, to say that the waterproofing floor slab below the top layer of the floor is a common part of the building. Consequently, it is argued, the 1^st defendant had no duty to ensure the top layer was 100% waterproof.

14.  The fundamental problem with this ground is that there was no evidence at the trial of the actual existence of a waterproofing layer below the top layer in the flat roof of the 1^st defendant’s property.  The question put forward by Mr Tsui in his written submission as to whether the defendant had a duty to make the top layer 100% waterproof if the common part below was waterproof is a hypothetical one and does not arise for determination in this case.  On the facts of the case, we do not agree it is unreasonable to hold the 1^st defendant responsible for the repair and maintenance of the floor slab that forms part of the premises under his exclusive possession.

15.  Ground 3 complains that the Judge did not elaborate on his finding that the 1^st defendant failed in his duty not to create nuisance.  It is argued that it had not been established that the 1^st defendant foresaw that nuisance would be created given that he had no knowledge of the existence or otherwise of waterproofing membrane in between the top layer of the floor of his flat roof and the ceiling of the 1^st plaintiff’s property, or of how water could have travelled through the concrete floor slab in between. 

16.  In his Defence, the 1^st defendant merely denied breach of the duty not to create nuisance (see paragraph 9) but had not plead in the alternative that he could not have foreseen nuisance would be created.  It is not open to him now to complain that the Judge had not specifically dealt with the issue of foreseeability in the Judgment.  In any event, we agree with Mr Lo for the plaintiffs that it is a matter of common sense that if the 1^st defendant did not properly repair and maintain the floor of the flat roof of his property, it was reasonably foreseeable that water could escape from his property to other units in the building thereby causing nuisance to other owners and/or occupiers in the building.

17.  In conclusion, we do not consider the intended appeal has any reasonable prospect of success, nor is there any other reason in the interests of justice why the appeal should be heard. We therefore dismiss the application for leave to appeal.

18.  We are further of the view that the application is wholly without merit.  We therefore order pursuant to Order 59 rule 2A(8) of The Rules of the High Court, Cap. 4A that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

19.  We make an order that the 1^st defendant pays the plaintiffs the costs of this application, which we assess summarily on a nisi basis at $30,000.  Any party who seeks to vary the amount of costs shall lodge and serve a written submission within 7 days from the date of this Decision, in which event the other party may lodge and serve a submission in answer within 7 days thereafter, and we shall make a final determination in writing.