CHAU WAI HUNG AND ANOTHER v. LAM TAK CHUEN AND ANOTHER

HCA 1740/2023

[2024] HKCFI 2031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1740 OF 2023

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J U D G M E N T

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History

1.  This is the trial of a water leakage case. It has taken nearly 6 years for the case to come on for trial. This is partly due to the issue of whether the District Court has jurisdiction over the matter.

2.  The proceedings were commenced in the High Court on 12 September 2018. On 18 April 2019, the plaintiffs (“Ps”) applied for the case to be transferred to the District Court. By consent, a High Court Master ordered on 25 April 2019 that the proceedings be transferred to the Civil Action List in the District Court. Since then, the proceedings progressed in the normal manner (save for the delay caused by the General Adjournment Period due to COVID-19) in the District Court until August 2023 when DDJ Alexander Tang, upon receiving parties’ opening submissions for the trial noted that counsel for the defendants (“Ds”) had raised a jurisdictional point on whether or not the District Court had the jurisdiction to grant the injunctive relief sought in light of the wording of the District Court Ordinance (Cap. 336) (“DCO”) section 52(1)(c), and the fact that the rateable value of the Ds’ property exceeded HK$320,000. Parties were invited to make written submissions on the issue of jurisdiction.

3.  After submissions on jurisdiction were made on the first day of the trial before DDJ Tang on 7 August 2023, parties were informed that the court was unable to immediately determine the jurisdictional issue before the start of the trial. As such, Ps needed to decide whether to proceed with the trial at the risk of the court eventually determining that the District Court in fact has no jurisdiction, or alternatively, vacate the trial and have the case transferred back to the High Court. After discussions, Ps applied orally to vacate the trial and transfer the proceedings back to the High Court, to which Ds did not object. DDJ Tang thus acceded to the application and gave his detailed reasons for doing so in the decision handed down on 26 September 2023 (the “DC Decision”).

4.  It is unfortunate that parties had decided to apply for the trial at the District Court to be vacated, as DDJ Tang eventually, after an in-depth analysis in the DC Decision, came to the conclusion that the District Court does have jurisdiction to grant injunctive relief in the present case.

5.  There is a lot to be said about the wavering stance taken by the parties. They had at first by consent applied for the proceedings to be transferred to the District Court, yet it was also by agreement that the case was transferred back to the High Court. This will have an impact on the incidence of the costs wasted in having the trial vacated.

Jurisdiction

6.  As noted by DDJ Tang in the DC Decision, given the number of water leakage cases that come before the District Court, it would be beneficial for the issue of jurisdiction in granting injunctions to be examined and clarified.

7.  The crux of the reliefs sought by Ps in the present action are:

(1)  A mandatory injunction requiring Ds to carry out remedial work at the lower and upper penthouse PH02, including the terrace thereof of Tower B, Galaxia, No.3 Lung Poon Street, Kowloon (“Ds’ Property”) to stop water seepage from Ds’ Property to Suite 5102, 51/F of Tower B, Galaxia, No.3 Lung Poon Street, Kowloon (“Ps’ Property”).

(2)  A prohibitory injunction restraining Ds from causing or permitting water to be seeped from Ds’ Property to Ps’ Property.

(3)  Damages to be assessed.

8.  The argument against there being jurisdiction at the District Court to grant the injunctions in the present case was based on section 52(1)(c) of DCO:

“(1) The Court shall have jurisdiction to grant and to enforce injunctions of whatsoever nature and as the case may require and to make binding declarations of right—

…

(c) in all matters affecting immovable property, including any right, licence or easement in, to, through or over any immovable property and any agreement, covenant or condition respecting immovable property, where the annual rent or the rateable value, determined in accordance with the provisions of the Rating Ordinance (Cap. 116) or the annual value, whichever is the less, of the property does not exceed $320,000”

9.  Ds argued that as the rateable value of Ds’ Property exceeded HK$320,000, under section 52(1)(c), the District Court does not have jurisdiction to deal with the present case. This submission is premised upon: 1) section 52 being a jurisdiction-conferring section and 2) the court’s power to grant an injunction is only available under section 52.

10.  A line of cases including Ma Yu Cheung v Yu Wai Chun & Anor[1], Wong Kum Chi v Lee Tit Ying[2], Ng Cho Chu Judy v Chan Wing Hung[3] seem to have concluded that section 52 of DCO does not confer substantive jurisdiction on the District Court, but only provides ancillary jurisdiction once jurisdiction is otherwise established under DCO (e.g. under sections 32 – 39 of DCO). As explained below in paragraphs 25 – 27, I respectfully differ from those views and find that section 52 of DCO is a jurisdiction-conferring provision.

11.  In any event, even if I were wrong on the construction of section 52 as a jurisdiction-conferring section, on the facts of the present case, I agree with DDJ Tang that the District Court’s jurisdiction to grant an injunction can be found in sections 32 and 48 of DCO:

(1)  Section 32 provides:

“(1) The Court has jurisdiction to hear and determine any action founded on contract, quasi-contract or tort where the amount of the plaintiff’s claim does not exceed $3,000,000.

…”

(2)  Section 48 provides:

“48. General ancillary jurisdiction

(1) The Court has the same power as the Court of First Instance in any proceedings before it—

(a) to grant the relief, redress, or remedy or combination of remedies, either absolute or conditional; and

(b) subject to section 46, to give effect to every ground of defence or counterclaim, equitable or legal,

which ought to be granted or given.

…

(3) The Court has to give the same effect as in the past—

(a) to equitable estates, titles, rights, relieves, defences and counterclaims, and to equitable duties and liabilities; and

(b) subject to paragraph (a), to legal claims and demands and estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom or created by an Ordinance.

(4) The Court has to exercise its jurisdiction to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and multiplicity of legal proceedings on any of those matters is avoided.

…”

12.  As the cause of action involved in water leakage cases is typically based on either tort or contract, any claim with damages (within HK$3,000,000) as a relief would fall within section 32(1) of DCO. Once jurisdiction is found under section 32, the court can derive jurisdiction from section 48 of DCO to grant an injunction as a relief, just as the Court of First Instance has the power to do so.

13.  In the present case, Ps have claimed damages (to be assessed) based on contract/tort as a relief. Counsel for Ps also confirmed that the amount of damages sought will be within HK$3,000,000. As such, I am of the view that the District Court’s jurisdiction to grant an injunction in the present case is established under sections 32 and 48 of DCO.

Section 52 of DCO – Jurisdiction Conferring?

14.  It remains important to analyze section 52 of DCO because in cases where there is no underlying claim (where jurisdiction may be derived under sections 32 – 39 of DCO) and where injunctions are the only reliefs sought, the District Court would only have the power to grant an injunction if section 52 of DCO is a jurisdiction-conferring provision.

15.  As can be seen from the detailed retrace of the legislative history by DDJ Tang in the DC Decision[4], the legislators were all along keenly aware of the need to remedy the previous position that the District Court did not have jurisdiction to grant injunctions/declarations in aid of common law claims.

16.  When amendments were introduced in 1962, which resulted in the amended District Court Ordinance 1953 (the “1953 Ordinance”) and a new Ordinance entitled District Court (Civil Jurisdiction and Procedure) Ordinance 1962 (the “1962 Ordinance”), a new section 21, entitled “Extension of jurisdiction to grant injunctions and to make declarations” (which, for all practical purposes, is the equivalent to the current section 52 of the DCO) was introduced.

17.  The intended purpose for the new section 21 (the current section 52) was clear, as ascertained through an investigation on Hansard by DDJ Tang[5]: it was to implement the recommendations in the 2^nd Interim Report published by a committee appointed by the Chief Justice:

“[the section] represents an attempt to endow the District Court with jurisdiction to grant an injunction where no claim for damages is made. Under the corresponding provisions of the County Court Act it has been held that the County Court has no jurisdiction to grant an injunction unless some other claim within the jurisdiction of the Court, as for example a claim for damages, is made.” (emphasis added)

18.  As such, it is amply clear that the purpose of the new section 21 (the current section 52) was to extend the jurisdiction of the District Court to grant injunctions to situations where no claim for damages is made. In that sense, it was anticipated and expected that such a section is a jurisdiction-conferring section.

19.  As noted by DDJ Tang[6], and I agree, this is bolstered by the following:

(1)  The heading of the section itself, i.e., “Extension of jurisdiction to grant injunctions and to make declarations”. (emphasis added)

(2)  The wording of the proviso to section 21(1), i.e., the court’s jurisdiction to grant injunctions under the section:-

“…notwithstanding that any claim for damages or for any other relief or remedy which the Court is competent to grant shall be made in the proceedings.”

(3)  The wording of section 21(2), which states unequivocally that section 21 is not designed to ouster the Court’s existing power under section 19 (equivalent to the current section 48):-

“Nothing in this section shall...

(b) prejudicially affect the provisions of section 19 (equivalent of current section 48) and 20…”

20.  In 1972, as part of further reforms, the previously separate 1953 Ordinance and the 1962 Ordinance were consolidated into one Ordinance – the 1972 District Court Ordinance (the “1972 Ordinance”) where:

(1)  section 14 of the 1953 Ordinance, which later became section 19 of the 1962 Ordinance, was renumbered as section 48 of the 1972 Ordinance;

(2)  section 21 of the 1962 Ordinance was renumbered as section 52 of the 1972 Ordinance.

21.  One further amendment was introduced in 1973: section 52B, which provided:

“1) The Court may appoint a receiver by an interlocutory order in all cases in which it may appear to the Court to be just or convenient that such order should be made; and any such order may be made either unconditionally or on such terms and conditions as the Court may think just.”

22.  The next reforms took place in 2000. This was primarily to raise the monetary jurisdictional limit in respect of claims in contract, tort etc. and relieving the workload of the then Supreme Court. Section 52B was amended in 2000 to become (mark-up against the DCO 1973 version):

“(1) The Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in any action or proceedings in the Court and within its jurisdiction in which the Court considers it by an interlocutory order in all cases in which it may appear to the Court to be just or convenient so to do that such order should be made; and any such order may be made either unconditionally or on such terms and conditions as the Court may think just.”

23.  This amendment expressly conferred power on the District Court to grant injunctions (whether interlocutory or final), if such was considered to be lacking before.

24.  Thus, if one were to look purely at the above legislative history, there can be little doubt that as a result of the various reforms and amendments made to DCO from 1950s up to 2000, culminating in the present DCO, the jurisdiction of the District Court had gradually been extended rather than limited. It is also amply clear that the purpose for doing so is to confer more jurisdiction on the District Court over more cases.

25.  Against the above context and analysis, the benefit of which the learned Judges in Ma Yu Cheung v Yu Wai Chun & Anor, Wong Kum Chi v Lee Tit Ying, Ng Cho Chu Judy v Chan Wing Hung did not have, I would respectfully disagree with the conclusions reached therein for the following reasons:

(1)  In Ma Yu Cheung, the learned Judge did not provide reasoning for his conclusion that: “…section 52 which gives the court “jurisdiction” to grant injunctions … only relates to the type of relief a court may grant in an action which it has jurisdiction to hear, but does not, in my judgment, deal with what type of actions the court may hear…”.

(2)  In Wong Kum Chi, the learned Judge likewise did not provide any reasoning in reaching his view that: “[section 48 and section 52] only provide ancillary jurisdiction to the District Court to make various kinds of order once the jurisdiction to hear a particular case has been established. The wordings of these provisions are not to extend the primary jurisdiction of the District Court, and hence I cannot rely on these provisions to make the order as sought by the Plaintiff.

(3)  In Ng Cho Chu Judy, the learned Judge’s conclusion is based on the decisions in Ma Yu Cheung and Wong Kum Chi. As such, there was also no other reasoning in support of the conclusion that section 52 is not jurisdiction-conferring.

26.  Ng Cho Chu Judy went on appeal. Kwan JA in §10 of the appeal judgment[7] stated:

“… The judge held that [section 52 of the DCO] is concerned only with the type of relief that can be granted and does not operate to confer substantive jurisdiction on the District Court[8], citing the decision of Judge Andrew Cheung (as Cheung CJHC then was) in Ma Yu Cheung v Yu Wai Chun, DCMP 268/2001, 22 November 2001 at §23 and the decision of Judge Lok (as Lok J then was) in Wong Kum Chi v Lee Tit Ying [2002] 1 HKLRD 420 at §9. In this appeal, it was not seriously suggested by either party that section 52 can be relied on to found substantive jurisdiction. I am also in agreement with the judge.”

27.  Although Ng Cho Chu Judy was upheld by the Court of Appeal, it is of note that on the face of the appeal judgment:

(1)  the arguments before the Court of Appeal only concerned section 36 of DCO;

(2)  neither party argued that section 52 of DCO can be relied on to found jurisdiction,

(3)  the Court of Appeal did not have the benefit of the above legislative history before agreeing with the Judge’s view on section 52 of DCO.

as such, I am of the view that the Court of Appeal’s agreement with the Judge’s decision on the effect of section 52 of DCO made on the above bases, can at most be classified as obiter dicta and as such is not binding.

28.  As a result, I am of the view that:

(1)  where there is no underlying claim and no jurisdiction can be derived from sections 32 – 39 DCO, if the rateable value is under HK$320,000, section 52 of DCO does confer jurisdiction on the District Court to grant injunctions.

(2)  where there is an underlying claim within sections 32 – 39 DCO, the District Court has jurisdiction to deal with the matter and grant an injunction even if the rateable value is over HK$320,000, as sections 32 – 39 together with section 48 of the DCO will confer the necessary jurisdiction.

Agreed List of Issues

29.  The parties have set out the following as agreed issues:

(1)  Whether there has in fact been water seepage to the ceiling of the following areas of Ps’ Property:

(a)  the master bedroom (主人房);

(b)  bedroom 2 (房間2);

(c)  the living room (客廳).

(2)  If so:

(a)  did it originate from Ds’ Property;

(b)  are Ds liable in nuisance, in negligence or in breach of the Deed of Mutual Covenant (the “DMC”).

(3)  If the source(s) of the water seepage are part of the common parts of the building, whether it would render Ds not liable to Ps at all.

(4)  If liability is established, what reliefs should be granted to Ps.

(5)  Costs of:

(a)  the trial;

(b)  costs thrown away by the vacation of the trial in the District Court;

(c)  costs of the application to transfer the action back to the High Court.

30.  For illustration purposes, a plan of the lower level of Ds’ Property and a plan of Ps’ Property are annexed.

31.  Mr Paul Wong (counsel for Ps) and Mr Isaac Yung (counsel for Ds) agreed that issues (1), (2) and (3) turn on the expert evidence tendered by parties.

Expert Witnesses

32.  Pursuant to an order dated 10 July 2020 in the District Court (under DCCJ 914/2019), Ps have engaged Ms Lau Shan La (“Ms Lau”) as their expert while Ds have engaged Mr Chung Wai Hoi (“Mr Chung”) as their expert. Ms Lau and Mr Chung had carried out a joint inspection at Ps’ Property and at Ds’ Property. Both Ms Lau and Mr Chung had carried out various tests in November and December 2020 and reached their respective conclusions. Parties had lodged a joint statement dated 9 March 2021 (the “Joint Statement”).

33.  In addition to the Joint Statement, Ms Lau had produced 3 reports, dated 15 December 2017 (the “2017 Report”), 26 September 2018 (the “2018 Report”) and 1 February 2021 (the “2021 Report”) (together, “Ps’ Reports”). Mr Chung on the other hand had produced one report in addition to the Joint Statement (“Ds’ Report”).

Ps’ Reports: The 2017 Report, 2018 Report and 2021 Report

34.  In the 2017 Report, Ms Lau had carried out the following tests on area A of the master bedroom, bedroom 2 and the living room:

(1)  Visual Inspection (目測法);

(2)  Infrared Scan (紅外線掃描法);

(3)  Electrical Conductivity Sensing (導電感應法);

(4)  Microwave Scan (微波濕度掃描法); and

(5)  Flow Meter Test (流量錶測試法).

35.  Ms Lau concluded in the 2017 Report that that the water seepage at the master bedroom and the living room are related to the defective water-proofing membrane of the flooring and adjacent vertical walls of the small terrace (小露天平台) and the big terrace (大露天平台) (together, the “Terraces” (露天平台)) and of the related sewage pipes.

36.  On 5 September 2018, Ms Lau carried out the Visual Inspection and Electrical Conductivity Sensing tests and concluded in the 2018 Report that there was still water leakage in the master bedroom, bedroom 2 and the living room.

37.  The 2021 report contained photo records of the following tests carried out on 24, 26 November and 29 December 2020:

(1)  Visual Inspection (目測法);

(2)  Infrared Scan (紅外線掃描法);

(3)  Electrical Conductivity Sensing (導電感應法);

(4)  Microwave Scan (微波濕度掃描法);

(5)  Flow Meter Test (流量錶測試法) ; and

(6)  Fluorescent Dye Test (螢光色水測試).

Ds’ Report

38.  Mr Chung had carried out the following tests on 24, 26 November and 29 December 2020:

(1)  Visual Inspection (目測法);

(2)  Infrared Scan (紅外線掃描法);

(3)  Electrical Conductivity Sensing (導電感應法)

(4)  Microwave Scan (微波濕度掃描法);

(5)  Flow Meter Test (流量錶測試法) ; and

(6)  Fluorescent Dye Test (螢光色水測試).

Area A of Master Bedroom (主人房天花A區)

39.  Mr Chung came to the opinion that there was water seepage in area A of the master bedroom but the cause was not from seepage from Ds’ Property. The reason being:

(1)  According to the Vision Inspection, there was no sign of the fluorescent water stain inside Ps’ Property.

(2)  According to the Electrical Conductivity Sensing, before the Fluorescent Dye Test, there were 12 testing points with an over-35% reading. After the Fluorescent Dye Test, there were only 6 testing points with an over-35% reading.

(3)  According to the Infrared Scan, the low temperature area were similar both before and after the Fluorescent Dye Test.

(4)  According to Microwave Scan, there was water retention inside the 30 mm, 70 mm and 110 mm of the ceiling slab. However, there was no sign of water seepage from the Fluorescent Dye Test, Vision Inspection, Electrical Conductivity Sensing and Infrared scan results.

Living Room

40.  For area B of the living room (客廳天花B區), Mr Chung’s opinion was that there was no water seepage. For area A of the living room (客廳天花A區), Mr Chung’s opinion was that there was water seepage but the cause was not water seepage from Ds’ Property because:

(1)  According to the Vision Inspection, there was no sign of the fluorescent water stain inside Ps’ Property.

(2)  According to the Electrical Conductivity Sensing, before the Fluorescent Dye Test, there was 1 out of 20 testing points with an over-35% reading. After the Fluorescent Dye Test, the same testing point has a similar reading.

(3)  According to the Infrared Scan, there was no low temperature area both before and after the Fluorescent Dye Test.

(4)  According to Microwave Scan, there was water retention inside the 30 mm of the ceiling slab. However, there was no such humidity in the 70 mm and 110 mm.

Area B of Master Bedroom (主人房天花B區)

41.  For area B of the master bedroom, Mr Chung’s opinion was that there was water seepage but the cause was not water seepage from Ds’ Property because:

(1)  According to the Electrical Conductivity Sensing, before the Fluorescent Dye Test, there were 2 testing points with an over-35% reading. After the Fluorescent Dye Test, all 12 testing points had a reading less than 35%.

(2)  According to the Infrared Scan, there was no low temperature area both before and after the Fluorescent Dye Test.

(3)  According to Microwave Scan, there was water retention inside the 30 mm, 70 mm and 110 mm of the ceiling slab. However, there was no sign of water seepage from the Fluorescent Dye Test, Vision Inspection, Electrical Conductivity Sensing and Infrared Scan results.

Bedroom 2

42.  For bedroom 2, Mr Chung opined that there was water seepage, but the cause was not water seepage from Ds’ Property because:

(1)  According to the Vision Inspection, there was no sign of the fluorescent water stain inside Ps’ Property.

(2)  According to the Electrical Conductivity Sensing, before the Fluorescent Dye Test, there was 1 out of 15 testing points with an over-35% reading. After the Fluorescent Dye Test, all testing points had a below 35% reading.

(3)  According to the Infrared Scan, there was no low temperature area both before and after the Fluorescent Dye Test.

(4)  According to Microwave Scan, there was water retention inside the 30 mm, 70 mm and 110 mm of the ceiling slab. However, there was no sign of water seepage from the Fluorescent Dye Test, Vision Inspection, Electrical Conductivity Sensing and Infrared Scan results.

Joint Statement

43.  In the Joint Statement, Ms Lau and Mr Chung agreed that:

(1)  area A of the master bedroom and

(2)  area A of the living room are affected by water seepage, and that the cause is not due to the fresh water supplies.

44.  However, Ms Lau and Mr Chung could not agree on:

(1)  Whether:

(a)  area B of the master bedroom,

(b)  bedroom 2,

(c)  area B of the living room and

(d)  the ceiling and beam of the master bathroom (主浴室)

were affected by water seepage.

(2)  The cause of water seepage in the master bedroom , bedroom 2 , living room and the ceiling and beam of the master bathroom.

45.  Ms Lau’s opinion is that the water seepage at the master bedroom and the living room were related to the defective water-proofing membrane of the flooring and adjacent vertical walls of the Terraces and of the related sewage pipes of Ds’ Property.

46.  Mr Chung on the other hand was of the opinion that the water seepage at Ps’ Property is due to the defective water-proofing in the external walls.

47.  Where two experts provide different opinions, parties agree that the principles as set out by HH H. Au-Yeung J (as he then was) in Polysoon Investments Limited v Lau Mo Kun & Anor[9] apply:

“40. When this court considers the experts’ evidence in more detail in the latter part of this Judgment, as far as those areas where the experts have come to different conclusions are concerned, I will have to take into account the reasoning provided by the experts in support so as to decide whose opinion should be accepted. However, there may be times when the court is unable to decide which of the reasoning is more sound. In such scenario, the court may have to take into account the reliability of the experts generally. In this process, I will bear in mind what Lam J (as Lam PJ then was) stated in paragraphs 483 to 491 of Chinachem Charitable Foundation Ltd v Chan Chun Cheun (HCAP 8/2007, unreported, 2 February 2010). Although His Lordship was dealing with a case in which subjective expert judgements (handwriting expert evidence) were involved, I am of the view that what he said is still instructive and applicable in the present case:

‘483. […] As I observed in Best Origin Limited v Commissioner of Rating and Valuation LDGA 14 of 1998, 25 February 2008, paras. 97 to 105, one of the important criteria that the court can adopt in testing the reliability of the evidence of an expert is his impartiality and due observance of his overriding duty to the court. Though judges may not be as well qualified as experts in the areas of the latter’s expertise, we are experienced and well trained in detecting partisan and biased witnesses (both in respect of ordinary factual witnesses and expert witnesses).

484. An expert should not advance an argument or use a piece of information or data to support his opinion unless he is professionally convinced of the validity of the argument or the appropriateness of the use of that supporting material. The inclusion of something the validity of which the expert himself considered doubtful in his report inevitably undermines his credibility in the court’s assessment[10]. An independent and impartial professional expert should not resort to a tactic of putting forward some plausible arguments in favour of his client which he personally has difficulty in vouchsafing and leaving it to his counterpart to convince the court that the arguments should be rejected. In my view, such an expert has not discharged his overriding duty to the court, which is to use his own professional expertise to assist the court without regard to the exigencies of litigation.

485. Here lies the crucial distinction between an advocate and an expert witness. Even though counsel and solicitor also owes an overriding duty to the court in certain respects, the court understands that as advocates they are not impartial as they also have a duty to present the case of their respective clients. But the position of an expert witness is different. His evidence is admitted to assist the court on a subject which requires expertise he has acquired (but not the court). Therefore, what the court wishes to hear is the expert’s own independent professional opinion on the topic instead of a biased view constructed and put forward for the purpose of advancing a party’s position. Given the court’s lack of expertise on the subject which an expert gives his evidence, the strict adherence by expert to the duty of independence is important for the proper administration of justice. Whilst there might still be bona fide reasonable disagreements between two experts, the disagreements should only be based on independent professional judgments instead of being client interest driven.

486. Sometimes, the line between professional divergence in opinion and biased partisan debate may not be easy to draw. But the court is vigilant in ensuring that the integrity of the legal process would not be tainted by evidence of an expert who put a party’s interest above his professional duty to the court. If it can be shown that an expert persistently adopted a stance which he himself had obvious difficulty in sustaining, most of the time this is the hallmark of the expert’s failure to adhere to the duty of independence.

487. Further, a judge is assisted by counsel (who in turn are assisted by their own expert) at the trial. Counsel’s cross-examination of an expert witness will assist the court in forming a view as to the reliability of his evidence. Very often, the most telling indicia of the professionalism and impartiality of an expert witness is how he deals with his weakest point under cross-examination. In Best Origin, I have set out what this court expects from an expert witness when he is faced with his own mistake after he produced his report. Instead of keeping silent and hoping that the point would not be discovered, he should correct it on his own volition as soon as practicable.

488. Another acid test on the reliability of an expert witness is the way in which he deals with the arguments of his counterpart. Nowadays, the court expects expert witnesses to act responsibly and professionally in meeting the points raised by the experts on the other side. The whole point of requiring expert reports to be served or exchanged and directing meetings of experts and the preparation of joint statements/reports is to facilitate independent and frank communications between the experts in order to narrow down their differences through a dialogue on a professional level. The objective is to focus on the real issues that need to be adjudicated by the court. Unnecessary and unhelpful arguments should be trimmed down through these pre-trial procedures.

489. No matter how experienced and well qualified an expert may be, it is always possible that he misses some salient points in the preparation of his first report despite the exercise of due care and diligence. Further, with the accelerated growth and development of human knowledge, new techniques or learning may emerge. Also, especially in areas where an opinion depends a lot on subjectivity, whilst there is always scope for reasonable disagreement, every expert would appreciate that amongst the arguments he relied upon, some is of greater force than others. An impartial and responsible expert, after studying the report of his counterpart, should re-assess his own views and if there are valid points against his opinion, he should acknowledge them instead of finding other new material to salvage an exposed weakness.

490. The joint meeting is an opportunity for the experts to narrow their differences. It takes two to tango. It requires both experts to focus on the objective of the meeting and act responsibly and frankly with each other. At such meeting, an expert should bear in mind his overriding duty to the court to act independently without any fear of compromising his client’s position. Thus if his professional judgment dictates that a concession should be made in the light of arguments advanced by the other side, he should not feel inhibited from doing so due to conflicting opinion previously expressed by him in favour of his client. On matters within his expertise, an expert needs not seek instructions from his client before reaching an agreement with the other side’s expert. A self-respecting expert should not accept instructions that placed limitations on his professional judgment in the performance of his duty as an expert witness. And it is not proper for lawyers to give such instructions on behalf of his clients. In line with his duty to act independently, an expert should not be dictated by his client in respect of the substance of his expert evidence and the agreement to be reached in joint meeting.

491. Thus, instead of spending time on indiscriminant defence of one’s position, expert witnesses should give due weight to the arguments set out in their counterpart’s opinion and try to reach agreement on points which are not worthy of argument. Unfortunately, there are occasions (here I am speaking generally rather than with specific reference to what happened in this trial) where some experts jumped straight to a defensive mode instead of adopting a “step-back and look” approach in considering the other side’s arguments. In so doing, I am afraid that such expert is abandoning his impartiality and neglecting his overriding duty to the court.

492. Worse still, there are occasions where expert uses the joint meeting and reply reports as platforms for putting forward new arguments and open new fronts for debate. Confronted with such a report, the other side would retaliate by putting in further materials in the name of rebuttal. More issues are raised. A vicious cycle is perpetuated. Instead of narrowing down the differences, expert issues are proliferated. The presentation of too many (including some unnecessary) expert issues not only adds to the costs and time of a trial, it also creates a risk of diverting the court’s attention away from the central issues in a case. It is not conducive to the effective resolution of the dispute. In many instances, the proliferation of issues is the hallmark of an expert struggling to defend an indefensible position by generating new issues as smokescreen.

493. Obviously, such an approach is inconsistent with the underlying objectives under Order 1A. Even though there is no reference to the expert witness in Order 1A Rule 3, after the commencement of the rules introduced by the Civil Justice Reform, an expert giving evidence in court has to observe the Code of Conduct in Appendix D, see Order 38 Rules 37B and 37C. Paragraph 13 of the Code of Conduct highlights the importance of an expert witness exercising his independent professional judgment in relation to expert meeting and joint report.’”

48.  I shall adopt the above principles when resolving the different opinions of the experts in relation to the different areas.

Burden of Proof

49.  It needs to be noted that whilst Mr Chung contended that the water seepage is from the defective water-proofing of the external walls of the building, Ps do not bear the burden in proving that the water seepage is not from the external walls. Instead, Ps bear the burden of proof in proving on a balance of probabilities that the water seepage at Ps’ Property was related to the defective water-proofing membrane of the flooring and adjacent vertical walls of the Terraces and of the related sewage pipes of Ds’ Property.

Master Bedroom – Area A

50.  Ms Lau and Mr Chung agreed that there was water seepage in this area. Indeed, it would have been impossible not to agree on this as the water seepage had greatly affected the appearance of the ceiling of this area.

51.  In the Joint Statement, Ms Lau came to the conclusion that the water seepage at the master bedroom was related to the defective water-proofing membrane of the flooring and adjacent vertical walls of the Terraces and of the related sewage pipes based on the results of the following tests undertaken by her:

(1)  The Visual Test: there were clear water stains and the ceiling paint peeling off.

(2)  The Infrared Scan: on 24 November 2020 and 26 November 2020, there are clear patches with abnormally low temperature, indicating there was water seepage.

(3)  Electrical Conductivity Sensing: on 24 November 2020 and 26 November 2020, there were clear testing points in the master bedroom with a reading of over 35, indicating clear and obvious seepage. In particular, testing point nos. 9 and 14, which were nearer to the ceiling lamp than the external walls had a reading of 99.9.

(4)  Microwave Scan: on 26 November 2020, tests were carried out at 30 mm, 70 mm and 110 mm from the ceiling of area A of the master bedroom. There was humidity recorded at all three depths, indicating there was water seepage through the floor slab between Ds’ Property and Ps’ Property.

52.  The results as set out in the Joint Statement (derived from tests carried out in 2020) are largely consistent with that in the test results in the 2017 Report:

(1)  The Visual Test: water stain and damage to the ceiling were observed.

(2)  The Infrared Scan: there were some areas of low temperature in the middle part of the ceiling, indicating water seepage.

(3)  Electrical Conductivity Sensing: 13 points were tested and 1 point had a reading higher than 35, indicating obvious and clear water seepage. 8 other points had readings between 20.5 to 28, indicating mild water seepage.

(4)  Microwave Scan: tests were carried out at 30 mm, 70 mm and 110 mm from floor slab between the ceiling of area A of the master bedroom and the roof flooring of Ds’ Property. Ms Lau’s opinion is that as there was humidity (hence water seepage) at all levels (being 30 mm, 70 mm and 110 mm), indicating that the water source was from the rooftop platform flowing towards the ceiling of Ps’ Property. During her oral evidence, she explained that she reached this conclusion because there was no water source from the ceiling of Ps’ Property. Therefore, the fact that there was water seepage means that the water came from the roof and seeped down to Ps’ Property.

53.  Ms Lau had carried out the Visual Test and the Electrical Conductivity Sensing again in 2018.

(1)  The Visual Test: water stain and damage to the ceiling were observed near the middle part of the ceiling of the master bedroom and living room.

(2)  Electrical Conductivity Sensing: 13 points were tested on the master bedroom ceiling and 2 had a higher reading than 35 (35.1 and 77.8). These two points (nos. 5 & 6) were towards the middle part of the ceiling. For the living room, 20 points were tested and 1 had a reading of 38.4 whilst 14 had a reading between 20.6 and 28.1.

Mr Chung’s Reasoning

Test Results

54.  Mr Chung had the following criticisms against Ms Lau’s opinion, and is of the view that the source of the water seepage is from the external walls rather than from Ds’ Property:

(1)  Mr Chung relies heavily on the results from the Fluorescent Dye Test carried out in November 2020 to rebut Ms Lau’s conclusion. Fluorescent Dye Test was carried out on 24 November 2020 at Ds’ Property for a period of 48 hours. However, on 26 November 2020, no fluorescent dye was visible in Ps’ Property.

(2)  Further, the readings from the Electrical Conductivity Sensing were similar from before or after the Fluorescent Dye Test, some even had a lower reading – the fact that there was no obvious increase in the readings after the test indicated that there was no water seepage.

(3)  Likewise, the results from the Infrared Scan were similar before and after the Fluorescent Dye Test.

55.  I am of the view that the test results carried out before and after the Fluorescent Dye Test do not determinatively rule out water seepage from Ds’ Property:

(1)  Although there was no fluorescent dye visible on the ceiling of Ps’ Property after 48 hours, the Professional Guide to Water Seepage Investigation, Diagnosis, Testing & Reporting in Residential Buildings (2014 Edition) published by the Hong Kong Institute of Surveyors clearly sets out that: “…the dye test is not always successful. A failure to record its presence in the damp zone cannot be taken as definite evidence against the suspected source. However, a positive test confirmed by the laboratory is firm proof of the source.” Therefore, the lack of visible fluorescent dye is not in itself detrimental to Ps’ claim. The court will take into account all the available evidence when determining if Ps have come up to proof.

(2)  Likewise, the fact that the results for before and after the fluorescent dye test are similar is not determinative that there was no water seepage from Ds Property down to Ps’ Property. One possible explanation put forward by Ms Lau was that 48 hours was insufficient for the water to have seeped through the floor slab. In any event, the results for some points in area A of the master bedroom indicated a rise in the humidity level after the water test, whilst others have a slight drop.

56.  The interpretation of all test results need to be considered as a whole together with the totality of all evidence.

Water Use on roof of Ds’ Property

57.  In support of his conclusion that the water seepage could not have come from Ds’ Property, Mr Chung relied on there being no evidence of water use on Ds’ Property as there was no plant on the terrace. However, Mr Chau, the 1^st plaintiff, testified that there was originally a plant visible on the big terrace on the roof of Ds’ Property, which was suspected to have been removed in December 2018. Mr Chau gave evidence in a straight-forward manner. I find him to be a reliable witness. The photos from paragraph 4.18 of the 2017 Report also showed a plant having been on the big terrace on the roof of Ds’ Property, which corroborates Mr Chau’s evidence.

58.  On the other hand, there was no contrary evidence on this aspect from Ds, as the 2^nd defendant, the only witness from Ds, chose not to give oral evidence at the last minute at trial, despite having put in a witness statement previously. I thus find that there was originally a plant on the big terrace on the roof of Ds’ Property prior to December 2018.

59.  Although it might be said that there was no plant as at 2020 when Mr Chung inspected Ds’ Property, I would have thought that he would, or at least should have asked if any plants were previously in existence, given that it was Ps’ case that there was a plant which was removed in December 2018 and there is no dispute that the water seepage had occurred since before 2017. Ps’ position that there was a tree on the big terrace was also set out in the 2017 Report. For Mr Chung to base his opinion on the assumption that there was no plant on the roof of Ds’ Property is to turn a blind eye on what has been set out in the 2017 Report and the 1^st plaintiff’s witness statement. This is not a correct or proper assumption.

60.  Mr Chung’s opinion based on the premise that there was no water use on Ds’ Property therefore cannot stand and I reject it.

Efflorescence on Ds’ elevated flooring system

61.  It is common ground that Ds had installed an elevated flooring system on top of the original tiling provided by the developer on the Terraces. It is also assumed by parties that underneath the original tiling, there would have been a water-proofing membrane laid by the developer.

62.  There were cracks and efflorescence on the joints of the tiles on the elevated flooring system installed by Ds on the roof. The experts agree that the presence of efflorescence indicates water having invaded the tiles, due to poor internal structure. However, Mr Chung is of the opinion that if the water-proofing membrane of the original tiling by the developer is not defective, such damage to the tiles on the elevated flooring system would not in any event lead to water seepage.

63.  Mr Chung’s opinion that the water seepage did not originate from the Terraces is premised upon the assumption that there was no damage to i) the water-proofing membrane laid by Ds’ on the elevated flooring system, as well as ii) the original water-proofing membrane laid by the developer. However, Mr Chung accepted and agreed that unless Ds agreed, it would not have been possible to excavate the tiling laid by Ds and inspect whether the water-proofing membrane laid by the developer had been damaged. There is also no dispute that this was not done. It is thus not possible to ascertain with certainty whether there was damage to the water-proofing membranes of either or both of Ds’ elevated flooring system and the developer’s original flooring. It is therefore unsound for Mr Chung to base his opinion that the water seepage does not originate from the Terraces on the assumption that there was no damage to the water-proofing membrane of the original tiling laid by the developer. I reject his opinion in this regard.

Ds’ reasons for asserting water seepage was from external wall

64.  Other than explaining why the water seepage cannot be from the Terraces of Ds’ Property, Mr Chung positively asserted that the water seepage was caused by defects of the external wall because: 1) there were cracks and efflorescence on the tiles on the external walls; 2) there were fluorescent drips found on the heater in the master bathroom.

65.  However, applying the same argument employed by Mr Chung against there being water seepage from Ds’ Property despite the presence of cracks and efflorescence on the tiles of the elevated flooring system, if the water-proofing membrane of the external wall is not damaged (and there is no evidence of it having been damaged), the water seepage should not be from the external walls either, despite there being cracks and efflorescence from the tiles on the external walls. I find it equally unsafe to reach a conclusion on the source of the water seepage simply based on the visual presence of efflorescence and cracks. I thus reject Mr Chung’s opinion in this regard.

66.  As to the very few fluorescent drips found on the heater in the master bathroom, neither expert could provide a reasonable explanation in support of their respective assertion. Ms Lau explained that the fluorescent drip came through the big terrace floor slab. However, there was no sign of such dye having seeped through the ceiling in the master bedroom at all. Mr Chung explained that the fluorescent drips could have come through the light troughs. However, he accepted that it was mere speculation and he had provided no basis for such speculation. I reject both explanations and find that the fluorescent drips do not support either Ps’ claim or Ds’ defence.

67.  On the evidence, I reject Mr Chung’s bases for asserting that the water seepage was from the external wall.

Evidence in support of water leakage from Ds’ Property

68.  Ms Lau’s opinion in the 2017 Report, the 2018 Report and the Joint Statement, is that there was water seepage found in the following areas:

(1)  area A of the master bedroom,

(2)  bedroom 2 and

(3)  living room.

69.  One of the tests that sheds light on the water source is the Microwave Scan. There is no dispute that for all 3 locations, there was humidity detected at 30 mm, 70 mm and 110 mm from the ceiling of Ps’ Property, 110 mm being the closest to the floor slab of Ds’ Property. Ms Lau opined that this meant that there was humidity detected from all three depths, and that the water flowed from Ds’ Property downwards to Ps’ Property. This is based on the premise that there was no water source from the middle of the ceiling of Ps’ Property, and that water normally flows downwards.

70.  Mr Chung was asked during cross-examination to explain why the Microwave Scan consistently showed that there was humidity detected at 30 mm, 70 mm and 110 mm from the ceiling of Ps’ Property for all 3 locations. Mr Chung explained that the water source came from the external walls, travelled horizontally through the ceiling slab and then seeped upwards from the ceiling of Ps’ Property towards the floor slab of Ds’ Property due to the “capillary effect”.

71.  This “capillary effect” explanation was only raised by Mr Chung for the first time during cross-examination. Mr Chung acknowledged that this explanation was not put forward in his report nor the Joint Statement, despite the fact that Ms Lau had consistently relied on the Microwave Scan results in support of her conclusion that the water source flowed from Ds’ Property downwards to Ps’ Property. As such, there was simply no opportunity for Ms Lau to respond or rebut such an explanation. It will be prejudicial to Ps if Ds were allowed to rely on such an explanation that only came out during cross-examination.

72.  Further, the capillary effect usually only occurs when liquid flows through narrow spaces. What we have here is a flat surface of the entire ceiling plane. Mr Chung had not explained how the capillary effect will occur in a flat surface. I reject this explanation as there is simply insufficient basis to assert that the capillary effect would apply in the present circumstances.

73.  One also needs to bear in mind the indisputable fact that the areas most affected by water leakage in Ps’ Property are located not near the exterior of the walls, but rather, they are in the middle parts of the ceiling of all 3 locations.

74.  When Mr Chung was asked why would water gather in the middle part of the ceiling rather than the parts near the external wall if the water had seeped in from the external wall as suggested by him, he said it could be due to the density of the cement used: if the cement near the middle parts of the ceiling are less dense, water could be readily retained in those areas. However, this explanation offered by Mr Chung was again only raised for the first time during cross-examination. There was also no test carried out on the cement. Mr Chung accepted this explanation was mere speculation on his part as to why the parts of the ceiling near the exterior walls were not affected. I reject this explanation as there is simply insufficient evidence to support such a conclusion.

75.  Overall, I find Mr Chung to have been a partial expert who had taken on the task of advocating or defending Ds’ case, rather than to provide an unbiased opinion. In contrast, Ms Lau’s opinions are supported by objective data and she has provided reasonable explanations to the test results which on the face of it are inconsistent to her conclusions.

76.  Mr Yung tried to discredit Ms Lau’s opinion by citing the rejection of her opinion on Microwave Scan in another case by another Judge[11]. With respect, the fact that Ms Lau’s opinion was rejected in another case with completely different set of facts is irrelevant to the court’s assessment of her opinion in the present case based on the present evidence.

77.  Based on the above, I am of the view that Ms Lau’s interpretation of the Microwave Scan results showing consistently humidity at all three depths throughout the years from 2017 – 2020 in all 3 areas are to be preferred: that the water flowed from Ds’ property downwards to Ps’ Property.

Determination on Source of Water Seepage

78.  As can be seen, the various test results do not consistently point to the same conclusion. On the one hand, the Fluorescent Dye Test had produced no positive result, and the humidity level overall did not drastically increase after the Fluorescent Dye Test. On the other hand, the following supports Ps’ case that the water seepage came from Ds’ Property:

(1)  The Microwave Scan results have consistently shown humidity at all three levels of all three areas throughout the years;

(2)  The fact that the most humid areas are mostly away from the immediate areas surrounding the exterior walls;

(3)  The lack of plausible explanation provided by Ds against the above.

(4)  Lack of sufficient evidence in support of water leakage from exterior walls.

79.  Taking the evidence on the whole, I am of the view that Ps have proven on a balance of probabilities that:

(1)  There are water seepages in the living room, bedroom 2 and the master bedroom of Ps’ Property; and

(2)  The cause of such seepage is from the Terraces.

Ds’ Liability

80.  Ps’ claim is based on a breach of the DMC, nuisance and negligence.

81.  Mr Yung tried to argue that even if it is found that the water seepage originated from Ds’ Property, as the water-proofing membrane of the original tiling falls within the common area of the building, Ds are not liable.

82.  However, it is not disputed that Ds had installed an elevated flooring system which had completely covered up the developer’s original tiling. The developer had replied to Ps back in 2006 that due to the works that Ds had undertaken on top of the original flooring, the maintenance of the original flooring has fallen outside the ambit of the developer’s responsibility.

83.  As admitted by Mr Chung, it is impossible to ascertain whether there is damage to the original water-proofing membrane without completely dismantling Ds’ elevated flooring system. Ds had never offered to do so. It is therefore not open to Ds to escape liability by saying that the water seepage is solely the developer’s responsibility.

84.  In any event, logically speaking, in order for water to seep through, both the water-proofing membranes of Ds’ elevated flooring system and the original water-proofing membrane installed by the developer would have been faulty. The Court of Appeal, in Ling Tsang Cho, the Administrator of the Estate of Yik Yuen Ling, Deceased v Tso Wing Yan[12], when deciding a similar point, held:

“18. Grounds 1-5 concern the Incorporated Owners’ duty to maintain the original floor surface. Mr Cheung (who did not appear for the defendant in the court below) argued that had the Incorporated Owners properly maintained the waterproofing membrane on the original floor surface, there would have been no water seepage, and that therefore the defendant should not be liable. In effect, he submitted that the seepage was the sole responsibility of the Incorporated Owners.

19. With respect, this argument is misconceived. In order for the leaks or seepage to take place, it was necessary both for the waterproofing membrane (which might have been the responsibility of the Incorporated Owners, although the judge reached no definitive conclusion as to this) to have been defective, and also for the elevated concrete flooring erected on top of the original flooring (which was clearly the responsibility of the defendant as its owner) to be not watertight.

20. The fact, if it be the case, that the Incorporated Owners might bear some responsibility to the plaintiff for the damage caused to her property by the water seepage does not, in our view, absolve the defendant from any breaches of the DMC on her part…”

85.  The above reasoning is respectfully adopted. I find that despite the fact that the original water-proofing membrane may fall within the common area of the building, Ds cannot absolve their liability as the water-proofing membrane of their elevated flooring system must also have been defective, for the water seepage to be able to reach Ps’ Property.

Breaches of the DMC, Nuisance & Negligence

86.  Clause 5 of the Third Schedule of the DMC in the present case provides: “No owner shall … 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 the other Owners…” This clause is the same as the one in Ling Tsang Cho, where the Court of Appeal held that water seepage from the above unit causing damage clearly constituted a breach of such a clause in the DMC.

87.  Clause 31 of the Third Schedule of the DMC also provides: “... each Owner … shall keep and maintain the part of the Development in respect of which he is entitled to exclusive possession and all wirings and pipings thereto which do not form part of the Common Areas and Facilities … and shall maintain the same … in a manner so as to avoid any loss damage nuisance or annoyance to the Owners… the expenses of keeping in good and tenantable repair and condition … all the fixtures and fittings and all plumbings therein or appertaining thereto … shall be borne by such Owner who is entitled to the sole and exclusive use…”. In failing to maintain the water-proofing membrane to Ds’ elevated flooring system, Ds are in breach of Clause 31.

88.  Given there was water seepage from Ds’ Property into Ps Property and such water seepage had caused damage, Ds were clearly negligent in not taking sufficient steps to stop the leakage and to allow the developer to access and repair (if necessary) the water-proofing membrane. The fact that such water seepage is clearly a nuisance is also not disputed by Ds.

Reliefs

89.  Ps seek the following reliefs:

(1)  HK$35,000 pre-action surveyors fee – Although such expert fees were incurred without any directions from the court, they were necessary to carry out the timely investigations into the cause of the water seepage in order to limit damage. This sum is for the 2017 Report and 2018 Report. I find the fee charged to have been reasonable. I will allow this sum in full.

(2)  The repair costs of HK$13,924 is agreed.

(3)  General Damage in the sum of HK$150,000 – Drawing support from case law where HK$180,000 had been awarded as general damages for a 10-year water leakage case[13], and HK$50,000 had been awarded as general damages for a 14-month water-seepage[14], Mr Wong submitted that a sum of HK$150,000 is appropriate as the water seepage had spanned more than 9 years since 2014 in the present case. Mr Yung relied on other cases and submitted that a HK$60,000 is appropriate as there is no specific evidence on inconvenience tendered. I agree with Mr Wong that HK$150,000 is an appropriate sum to be ordered, as the affected areas include the middle of the master bedroom and the living room, which would have majorly affected the daily living of Ps for a long period of time. The fact that the affected areas are such prominent areas of the flat is sufficient evidence of nuisance and inconvenience.

(4)  A mandatory injunction that Ds do within 30 days hereof remove the elevated flooring system and rebuild the water-proofing system in the big terrace and the small terrace – The wording of such injunction has been amended to take into account Mr Yung’s complaint that the original wording of “stop and prevent water seepage” might be impossible for Ds to comply with without the co-operation of the developer, hence, the Incorporated Owners. As found above, the fact that there was water seepage means that both water-proofing membranes would have been defective. However, this finding may not bind the Incorporated Owners as they have not been joined. Although the court can order a mandatory injunction which requires Ds to dismantle the elevated flooring system and rebuild a new one, it will be up to Ps and Ds to decide if they wish to involve the Incorporated Owners in the process. I will grant the mandatory injunction as sought, after the amendment.

90.  Costs follow the event. Parties have sensibly agreed that there be no order as to the costs thrown away by the adjournment of the trial before DDJ Tang and the costs of the application for the transfer of the case back to the High Court. This is the correct course to take, as I am of the view that parties are equally responsible for such thrown-away costs.

91.  Further, as explained above, the case ought to have commenced and stayed at the District Court. Therefore, the scale of costs applicable should be the District Court scale.

92.  Thus, Ps do have costs of the action at the District Court scale (save that there be no order as to the costs thrown away by the adjournment of the trial before DDJ Tang and the costs of the application for the transfer of the case back to the High Court), with certificate for counsel, to be taxed if not agreed.

Orders

93.  I will grant the following orders/declarations:

(1)  The defendants do pay the plaintiffs HK$35,000 as pre-action surveyors fee.

(2)  The defendants do pay the plaintiffs repair costs of HK$13,924.

(3)  The defendants do pay the plaintiffs general damages for discomfort and inconvenience in the sum of HK$150,000.

(4)  Interest on HK$35,000 and HK$13,924 to be calculated from the date of the Writ until the date of this Judgment at 1% above the best lending rate of HSBC, and thereafter at judgment rate until payment.

(5)  Interest on HK$150,000 to be calculated from the date of this Judgment at Judgment rate until payment.

94.  I thank counsel for their assistance.

Annex 1: Plan of the lower level of Ds’ Property

Annex 2: Plan of Ps’ Property