LET'S GO INVESTMENTS LTD v. YEUNG SAU HING

          HCMP 54/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 54 OF 2006

(ON AN INTENDED APPEAL FROM DCCJ NO. 4585 OF 2004)

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J U D G M E N T

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Hon Tang JA (giving the judgment of the Court):

1.  The defendant, Yeung Sau Hing, is the registered owner of Flat B on 4^th Floor and its adjacent Flat Roof, at Chau Hop Shing Building, No. 6 Chung On Street, Tsuen Wan, New Territories (“the defendant's premises”).

2.  The plaintiff is the registered owner of the 3^rd Floor of the same building (“the plaintiff’s premises”).

3.  The plaintiff’s claim against the defendant is that since about March 2002, the defendant caused or permitted water to escape, seep and/or leak from the defendant’s premises into the plaintiff's premises.

4.  There was a counterclaim by the defendant.

5.  There is a Lift Motor Room on the 4^th Floor.  The only access to the Lift Motor Room was through the defendant's premises.

6.  Since the defendant's flat was left unoccupied, it was not possible to have access as might be needed.

7.  So the plaintiff made a hole within the Lift Motor Room so that access to it could be had from the plaintiff’s premises by means of a ladder.

8.  The defendant's counterclaim was made on the basis that the security risk posed by the hole was such that she was unable to sell the flat.

9.  It was also her case that, if the plaintiff's premises had suffered any water damage, that was caused by or as a result of the hole in the Lift Motor Room.

10.  As a result of complaint made by the defendant, the Buildings Department required the hole to be closed but the Buildings Department also gave permission for a new hole to be made at exactly the same place together with a gate or door for fire safety reasons.  See the letter of 22 July 2003.

11.  The judge found in favour of the plaintiff on the plaintiff's claim for an injunction.  The judge came to that conclusion on the basis of the evidence before her, which included evidence from a Mr Albert Chan Kwok Wai, a Building Consultant in Dudley Surveyors Limited, who was accepted by the judge as an expert in this field.

12.  As for the defendant's counterclaim, she awarded the defendant damages of $50,000.

13.  The defendant now seeks leave to appeal, leave having been refused by the judge as well as by a single Justice of Appeal.

14.  Since the defendant’s application for leave to appeal relates to both the plaintiff’s claim and the defendant's counterclaim, I will deal with them in turn.

15.  So far as the plaintiff’s claim is concerned, the judge's decision is one of fact.  The Court of Appeal will not interfere with such a decision unless it is plainly wrong.  On the material before us, we are satisfied that the defendant has no reasonable prospect of success on appeal.

16.  As for the counterclaim, the defendant's complaint is that the award of $50,000 damages is too low.  However, on the material before her, the District Judge felt that she could only award the defendant nominal damages.  Here, the award of $50,000 is more than nominal.  Indeed, it could be regarded as high.

17.  The defendant submitted that the evidence at the trial was different from the findings made by the District Judge.  We have nothing more than the bare allegation of the defendant.  In any event, none of these allegations can affect the plaintiff’s claim.  As for the counterclaim, the defendant is dissatisfied with the award of $50,000, which was to compensate her for:

“… the security risk posed by the hole on the floor slab of the Lift Motor Room and to enable her to install a security gate and window bars and other security measures in the Defendant's Premises if she so wished.” para. 74 of the judgment.

18.  It is clear that the judge was of the view that the security risk posed by the hole could be overcome by:

“… a security metal gate and window bars.” para. 68.

19.  That being the case, we do not believe that the defendant has a reasonable prospect of success.  It is clear that the judge was not satisfied that the hole prevented her from selling her property.

20.  The application for leave is refused.