CARRIE WOO v. LUI MO DOCK AND ANOTHER

DCCJ 4/2015

[2018] HKDC 977

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4 OF 2015

________________

________________

____________

JUDGMENT

___________

1.  By this Action, the Plaintiff sues the Defendants who are owners of a nearby house of the same real estate development known as Sha Lan Villas for damages on various causes of action including negligence, Rylands v Fletcher and nuisance[1]. The damages are said to have been caused when an illegal glass structure erected on the roof top of the Defendants’ house was blown off during a typhoon, and some of it landed on the roof and garden of the Plaintiff’s house. It was alleged by the Plaintiff that the shattered glass had choked the drain on the roof of her house. Water then accumulated during the following rainy days and eventually overflowed into her house, causing extensive and serious damages.

2.  While the Defendants admit the blown off structure was illegal and part of it had landed on the Plaintiff’s house, they deny it has caused the alleged damages, particularly those associated with flooding of the Plaintiff’s house, which is referred to as “the alleged July 26 flood” below (see [34]). The Defendants said the alleged July 26 flood was a fabrication with a view to extracting money from them whose only mistake was perhaps, erecting on their roof an illegal structure which was, unfortunately, blown off.

Brief Background

3.  On 8 February 2001, the Plaintiff became one of the joint tenants of a semi-detached house erected at Lot No. 201 in D.D. 27, known as House No.207 in Sha Lan Villas, Shuen Wan, Tai Po of the New Territories (“P’s House”). The other co-owner was one of her younger brothers with whom she was on bad term and even embroiled in litigation. On 6 July 2009, she served a notice of severance on her said brother and became a tenant-in-common in equal share with her said brother.

4.  By an assignment dated 7 July 2016, i.e. after the commencement of the present proceedings, she eventually became the sole owner of P’s House.

5.  The Defendants have been the registered joint tenants of another semi-detached house of the same Sha Lan Villas, namely House 222 erected on Lot No.192 in D.D. 27 (“D’s House”) since 3 June 1996.

6.  The2 houses are arranged along the 2 sides of a vehicular access road within the Sha Lan Villas. They are of 3-storey high, semi-detached, built with concrete and are of similar design. Each house comes with a garden and an open roof surrounded by parapet walls. P’s House and House 208 form a pair. The D’s House is part of another pair. It faces the P’s House at an angle. It is the Defendants’ unchallenged evidence that P’s House is situated at an altitude slightly higher than D’s House.

7.  The Defendants admitted that they had erected a structure made of rectangular aluminum hollows fitted with tempered glass panels of 6 mm thick (“Structure”). It covered the entire roof top of the D’s House in or about 2009 to prevent water from seeping through the roof[2]. They admitted the Structure was unauthorized[3].

8.  The Defendants admitted part of the Structure was blown off during the passage of Typhoon Vicente (颱風韋森特) on 23 and/or 24 July 2012 when the typhoon attacked Hong Kong direct. Within a short period of time in the afternoon of 23 July the typhoon signals escalated. Typhoon signal no 10 was hoisted in the early hours of 24 July 2012[4]. It came and went fast. The typhoon signal was lowered to no. 3 at around 10 am on 24 July 2012. It is believed while the typhoon was exploiting the area, part of the Structure was ripped off and landed on the roof top and the garden of P’s House (“the blown off incident”)[5].

9.  The Plaintiff said that the blown-off metal frame and glass had caused various damages to P’s House. More importantly, it is the Plaintiff’s case that the glass panels of the Structure brought to the roof of P’s House shattered. The glass fragments blocked the roof drain. As a result, water accumulated on the roof top after heavy rainfall on the following days. It eventually overflowed and entered the P’s House through the gap between the door sill and the door which was closed, causing damages of various degree to different levels of her house.

10.  In the Statement of Claim, the Plaintiff exhibited a bundle of photos showing all damages to her house. Extensive damages were said to have caused, including the roof, each and every floors within the house and the garden. The damages include water damage to flooring of stairs and wooden skirting, peeling off of wall paints, spalling of concrete on ceilings at almost all levels, rusting of roof iron door and ground floor sliding door, power supply to certain points as a result of water damages, etc (generally refer to as “water damages”). It is also claimed the landing of the blown-off Structure caused damages to the roof hood, a wall mounted light, glass panels of roof cabinet, breaking of garden floor tiles and even damage to decorative parts of garden metal gate, etc (generally refer to as “impact damages”). These photos are taken from the expert report prepared on her behalf. The Plaintiff sues for a total of $442,722, being the aggregate of repair costs of $330,722, alternative accommodation of $12,000[6] and general damage of $100,000 for distress, discomfort and inconvenience. Alternatively, she asks for damages to be assessed.

11.  It was pleaded the aforesaid damages were caused by the blown-off Structure on or about 23 and 24 July 2012[7]. However, the alleged July 26 flood was not pleaded. Alternatively, it is the Plaintiff’s case, upon a fair reading of her pleadings, that the flood (if any) took place on 23 or 24 July 2012[8]. It is fair to say that the Plaintiff only disclosed for the first time that a flood took place on 26 July 2012 in her Reply dated 4 June 2015[9]. The matter was elaborated further in the Plaintiff’s 1^st witness statement dated 26 April 2016[10] and another statement dated 25 April 2016 by Madam Dias Copperfield Angel Athena M alias Athena Luk (“Luk”)[11].

12.  The Defendants denied that the blown off Structure had caused the damages to the P’s House as alleged. They also denied there having been any overflow of water from the roof top consequent upon the blown-off incident. Hence both the water damages and impact damages were denied. Alternatively, they say even if there were water damages caused by water flowing down from the roof, it was caused by the Plaintiff’s lack of maintenance and/or being natural wear and tear of the P’s House totally unrelated to the blown off incident. The Defendants say the alleged water overflow a fabrication. They had never heard of any complaint of this kind until almost a year after the typhoon despite previous contacts.

13.  The Plaintiff relied heavily on a set of 8 photos said to have been taken on 28 July 2012 by the Plaintiff’s friend, Luk, when she came to visit the Plaintiff with a view to helping her. These 8 photos were identified by Luk[12] and provided to the Plaintiff’s expert for compiling the expert report[13]. I have compared the 8 photos identified and those attached to the expert’s report of the Plaintiff. They are identical[14]. The Defendants refused to admit that these photos were taken on 28 July 2012 though it is fair to say that they did not dispute these photos were taken near to the time of the blown-off incident. These 8 photos are collectively referred to as “the said July 28 photos” below.

14.  Apart from the material difference as stated above, there are also disputes between the parties on many minor issues such as:

(i) whether certain letters of the Plaintiff had been issued or received;

(ii) what photos have been attached to these letters; and

(iii) whether quotations, and if so, what quotations have been attached.

These are all disputes of fact. Credibility of the factual witnesses and reliability of the expert opinion are thus of paramount importance.

Factual Witnesses

15.  Three factual witnesses gave evidence for the Plaintiff at trial. They were:

i)   the Plaintiff: she prepared and relied on 2 witness   statements respectively dated 26 April 2016 and 21    March 2017;

ii)   Luk: she also prepared and relied on 2 witness    statements respectively dated 25 April 2016 and 21    March 2017; and

iii)   Mr Wong Shing Hau (王誠孝) (“WSH”): he prepared    and relied on his statement of 15 November 2017.

16.  Initially 3 factual witnesses would give evidence for the Defendants. They were the 2 Defendants and one Mr Eric Tsang (“Tsang”). Tsang was a loss adjuster instructed to deal with a claim after Typhoon Vicente by Plaintiff’s neighbour. Shortly after the typhoon, Tsang happened to meet the Plaintiff when he was inspecting her neighbour’s house. He went to the P’s House and took some pictures of her roof.

17.  Unfortunately, Tsang passed away in September 2017. Prior to his death Tsang prepared a witness statement and an affirmation (of the same content) both of 22 February 2016. A summons returnable at the first day of trial to adduce Tsang’s said statement and affirmation as well as printouts from website of Tsang’s company without calling the maker was issued on 20 November 2017. It was unopposed. An order was made in term of the application.

18.  Accordingly, only the 2 Defendants testified as factual witnesses at trial. They relied on the following witness statements:

i)   Lui Mo Dock (“D1”): the 2 statements    respectively made on 26 April 2016 and 13 April 2017; and

ii)   Ms Wong Miu Yung (“D2”) the 2 statements    respectively made on 26 April 2016 and 13 April 2017.

19.  Each of the above witnesses confirmed their respective statements at trial. They were heavily cross-examined.

Expert Witnesses

20.  Pursuant to the Court’s direction[15], the parties appointed their respective experts on liability, i.e. whether any of the damages allegedly done to P’s House was caused by the Structure of the D’s House, and if so, identifying such alleged damages; and on quantum, i.e. what loss or damages were suffered by the Plaintiff.

21.  Mr Lee Kwok Chuen (“Lee”), Chartered Building Surveyor and member of the Australian Institute of Building Surveyors and Hong Kong Institute of Surveyors, has been appointed by the Plaintiff. His report was dated 17 September 2015[16].

22.  Mr Cheung Kwok Ho, Richard (Cheung”) was appointed by the Defendants. He is a Chartered surveyor, a Fellow of the Hong Kong Institute of Surveyors, an Authorized Person and a Registered Professional Surveyor (BS). His report was dated 6 July 2016[17].

23.  They had prepared a joint statement dated 23 November 2016 setting out the areas on which they agreed and areas they disagreed[18].

24.  In the present case, the resolution of the factual dispute hinges on credibility of the factual witnesses and reliability of experts’ opinions after inspecting P’s House. The onus of proof remains on the Plaintiff. If the Plaintiff fails to establish the facts she asserted, that will be the end of her claim. It will then be unnecessary for this Court to examine the legal principles relating to the relevant causes of action pleaded by the Plaintiff. This Court therefore would like to deal with the parties’ evidence first. In order to assess credibility of witnesses, which is of paramount importance, their evidence will be set out in details below.

The Plaintiff’s Evidence

The Plaintiff

25.  In a nutshell, her evidence is this. She was a social worker before she retired in 2007. She has been living in the P’s House since February 2001. She said since the P’s House would be her retirement home, she therefore placed much emphasis on its maintenance and repair. Repairs and maintenance of various scale had been carried out at an interval of 1 to 2 years in order to upkeep her house in good conditions. When cross-examined she said 5 major maintenance works, including the one before she moved in, had been carried out to the P’s House so far. The 4 after moving in were as follows:

i)   2002: maintenance carried out by the witness WSH who was the building contractor;

ii)   2004: painting of the external wall and waterproofing work of roof which provided a 5-year guarantee;

iii)   2006: painting of the external wall and carrying out of regular maintenance to the roof pursuant to the 5-year guarantee;

iv)   2008: carrying out another water-proof work to the roof, not because of the work previously done defective but simply because it was time to do another waterproofing work as the guarantee period of the roof had expired[19]. She did not do any repainting of the external wall this time.

26.  The one referred to (iv) in the preceding paragraph was the last maintenance done to her house. She said initially she had a plan to do another repair by end of 2012. However, after the blown-off incident and the alleged July 26 flood, she wanted to carry out the regular maintenance and the requisite repair in one go. She did not want scaffoldings erected outside her house at different times. She therefore withheld any repair until after disposal of the present proceedings.

27.  By chance, said the Plaintiff, her television had been out of order 2 weeks before Typhoon Vicente (颱風韋森特) approached Hong Kong. She had neither computer nor radio at home. In addition, she did not deny the CCTV of her house had been out of order for quite some time and she had no intention to fix it. Accordingly, she did not know Typhoon Vicente was attacking Hong Kong direct on 23 and 24 July 2012. Neither was she aware that in the early morning of 24 July 2012, typhoon signal no. 10 was hoisted.

28.  She said that in the morning of 24 July 2012 at around 7 am she saw a man, which she thought being owner of House 206, and 2 Filipino helpers clearing up glass debris and metal frames along the road outside House 206 and her house. She thought that the glass debris were from House 206. She also thought something from House 206 might had fallen onto her garden because she could see a lot of shattered glass fragments scattered over her garden. The man she saw asked to enter her garden. She agreed. This man later said he would ask his helpers to help clean up the debris in her garden and removed the metal frame. She said she did not realize that by then, her roof had been damaged. Two Filipino domestic helpers whom she assumed coming from House 206 did come later. She accepted at cross-examination that after Luk’s visit on 28 July 2012, she knew this man to be D1.

29.  In the Plaintiff’s statement, although she appears to say the man she met was the owner of the adjacent house, it also appears she realized later that man who asked to enter her garden was in fact D1[20]. She disagreed to Mr Ng’s suggestion that it was she who invited D1 to enter her house for an inspection. It is common ground that her neighbour, i.e. owner of House 206 had reported the matter to the police. However, she made no such report. Neither had she reported the damage to the management office. She did not deny it was because she had not paid management fee since about 2010/2011[21]. She did not have a good relationship with the management office.

30.  In any event, it is the Plaintiff’s evidence that in the morning of 24 July 2012, she did not find any water coming down from the roof. Neither could she find any evidence of rain water seeping into her house[22]. That explained, she said, why she did not check the roof on the very same day the typhoon left when she saw glass fragments in her garden. She said she did not go to the roof after the typhoon until she found water coming down on 26 July 2012 (see below). She said at the material times of the flood, it would be too demanding physically for her to climb to the roof.

31.  What was said to have happened 2 days later, i.e. on 26 July 2012, by the Plaintiff was heavily disputed by Defendants. The Plaintiff was heavily cross-examined on this part of her evidence.

32.  The Plaintiff’s evidence is that at around 7 to 8 pm on 26 July 2012, she found water pouring from the roof level down the stairs like waterfall[23]. The water at the ground level rose to about 1 inch high then. She immediately went upstairs, and found water was entering the house through gap between the door sill and closed door on the roof level. She immediately called Luk who told her a black rainstorm signal[24] had been hoisted up. Luk offered to come over to help. She declined for the sake of Luk’s safety.

33.  It is not in dispute that according to the Hong Kong Observatory, no rainstorm was hoisted at that time. According to the undisputed weather reports, amber rainstorm signal was hoisted on 24[25], 25[26] and 27[27] but not on 26 July 2012[28].

34.  After 2 telephone conversations with Luk[29], she went upstairs again and tried hard to push open the metal door. She said she could only manage to open a small gap good enough to allow her to squeeze her rather thin body out[30]. She removed her slippers and stepped out. She found she had stepped on something pebble-liked and pointed. Instead of walking, she started to crawl on her knees towards the drain opening. She crawled for about 2 to 3 metres before reaching the drain opening. She found a lot of pebble-liked objects around. She brushed those on the floor aside and took them out from the drain opening using her bare hands. Water eventually stopped from overflowing into the house. She later managed to soak all water of the house using whatever stuffs available to her, including quilts, blankets, towels, etc. During the whole process, she said it was raining heavily (referred to as “the alleged July 26 flood”).

35.  She was asked why she chose to crawling instead of walking straight to the drain opening. She explained her physique had become poor after her retirement in 2006. She was physically weak and her eye-sight was very poor at that time because of cataract[31]. She described her then condition at trial as half-blind (半盲狀態). The night was dark and the rooftop light was not switched on. She was afraid she might trip over if she walked on her feet. She was later told by Luk the skin of her knees broke. However, she said she was not sure whether her hands were cut.

36.  She was asked in details as to how she removed the objects that caused the drain blockage. She basically said she swept away the glass fragments[32] and put her hand into the drain opening to pluck out the glass fragments. She only stopped doing so when she felt water drain and the water level on the roof came down below the rim of the door sill. She said when she stopped digging she could still reach something inside the drain which was hard to touch. The stuffs were blocking the inside though she found it difficult to remove them. She felt exhausted. She recalled it was unnecessary for her to remove any grating before she put her hand into the drain. She marked the position of the opening into which she plucked out the choked objects on a photo of the drainage area: Exhibit P-4.

37.  She described in her witness statement that the door of the roof was heavy, and normally could only be opened with assistance of another person[33]. At trial, she was repeatedly asked how then she could manage to push open the door on 26 July 2012; and how often she went up to the roof. She basically said she tried hard on that day. She was there at least once a month to clean the birds droppings so that the roof was clean enough for her dogs[34]. She, however, confirmed that since about early 2012, she had not run her dogs on the roof. By June 2012 the latest, she had not engaged any domestic helper. She lived on her own since then[35].

38.  On 28 July 2012, a Saturday, Luk together with 4 volunteers from church come to help her clean up. She said they also had difficulty to open the door on the roof. Even when they managed to do so eventually with some effort, it could only be half-opened[36].

39.  The Plaintiff said Luk found there was a lot of shattered glass fragments on the roof. According to their respective first statements, they said the water level of the roof top was about 6 inches high[37]. Both the Plaintiff and Luk corrected it to 3 inches in their respective 2^nd statements[38]. Since the door sill was about 8 inches high, water did not come in.

40.  It is important to note that both the Plaintiff and Luk said in their statements that Luk took several photos of the roof top, the garden and the interiors before Luk and the volunteers tidying up the house and cleaning up the roof[39]. 8 out of these photos have been given to experts for comments. They were at Bundle D1/68-71 (each with an upper and lower photo) and later identified by Luk as having been taken on that occasion. Each of these 8 photos were imprinted with “28 July 2012”. Presumably the date was fixed by certain setting of the camera used to take the photos (“the said July 28 photos”).

41.  At trial, the Plaintiff claimed she had made a mistake. She now said the said July 28 photos were taken by Luk after cleaning up instead of before. Luk made the same correction.

42.  Upon repeated cross-examination, she maintained when crawling towards the drain opening on 26 July 2012, she did not bump into any metal frame which was shown in one of the said July 28 photos.

43.  On the alleged date when Luk came to clear up the roof, i.e. 28 July 2012, the Plaintiff said she met a lot of people. They included Luk, 4 volunteers called by Luk, owner of House 206, friends of her son (but not her son) who came to visit him and 2 policemen. She also agreed these policemen entered her house for an inspection. The Policemen took pictures of her garden and the roof (which are not among the evidence before the Court). It was after discussion with people she met, particularly owner of House 206 on that date that she realized the debris in her garden and rooftop came from the D’s House.

44.  What happened on 28 July 2012 and subsequently are also in serious dispute. The Defendants said the Police did not come as alleged on 28 July 2012 but on the next day, i.e. 29July 2012. They disagreed the said July 28 photos were taken on the 28 July 2012, and put the Plaintiff to strict proof the circumstances under which they were taken. On the other hand, the Plaintiff denied having met D1 on 29 July 2012 as alleged[40]. She was, however, a bit uncertain as to whether she met D1 on 28 July 2012.

45.  The Plaintiff alleged she later issued letters to the Defendant with attachments. There is serious dispute as to what letters had been issued, and if so, what quotations/photos had been attached. Although they are not directly relevant to whether the alleged flood had actually taken place. The overall assessment of what had happened subsequently including what letters had been sent out or received must affect the Court’s view on the credibility of witnesses.

46.  The Plaintiff explained in or about July 2012 one of her brothers was suffering from cancer. She was shocked. Since then, she was busy arranging her said brother to receive medical treatment and to be admitted to sanatorium. She was then physically weak and lacked energy. She therefore entrusted Luk, who was her good friend, to take care of her claim against the Defendants. Luk would report to her what action had been taken. However, it was she who would make the final decision. Luk only followed what she was instructed. All letters issued by Luk were issued with her approval.

47.  The Plaintiff told this Court that D2 gave her a telephone call on 8 August 2012 requesting sending over helpers to help clear up P’s House[41]. She declined because of poor health.

48.  The Plaintiff said Luk issued the following 2 letters to the Defendants on her behalf[42]. The Defendants denied having ever received them:

i)   Letter dated 10 August 2012 (“P’s 1^st Letter”):

The Plaintiff alleged the said July 28 photos were enclosed with this letter to the Defendants; and

ii)   Letter dated 24 August 2012 (“P’s 2^nd Letter”):

The content of this letter is identical to P’s 1^st Letter. The same set of July 28 photos were allegedly enclosed.

49.  The Plaintiff said that the P’s 2^nd Letter was a photocopy of P’s 1^st Letter. Luk issued the P’s 2^nd Letter because there was no response from the Defendants after the 1^st one. Obviously by comparing the 2 letters, the 2^nd Letter is not a photocopy of the 1^st Letter. They are identical in content but different in, at least, font size and layout[43].

50.  It was the Plaintiff’s case that despite these 2 letters and the visits of Luk to the D’s House thereafter almost once every 2 to 3 weeks, Luk met with no response from the Defendants. Neither was Luk able to meet the Defendants. Luk was told by the Defendants’ helpers that they were not there.

51.  The Plaintiff said it was not until 22 January 2013 that Luk was able to meet D2. It was heavily disputed by the Defendants[44]. The Plaintiff alleged D2 said her husband D1 busy and could only respond after the Lunar New Year. The Plaintiff added that between 22 January and 1 March 2013, Luk was unavailable because Luk’s mother, who was suffering from dementia, was hospitalized. Luk was with her mother throughout the hospitalization as advised by doctor.

52.  The Defendants’ case was that the first letter from the Plaintiff was, though dated 22 January 2013, received by them on 1 February 2012 (see the following paragraph). The Plaintiff, however, denied having issued this.

53.  The Defendants’ version is this. On 1 February 2013 (instead of 22 January as alleged by the Plaintiff [45]), Luk left a letter dated 22 January 2013 with their Indonesian domestic helper (“P’s 3^rd Letter”)[46]. The Defendants said P’s 3^rd Letter had the following enclosures:

(i)    9 photos (comprising the said July 28 photos and one    more with the words “not use” marked thereon[47].) and

(ii)    a quotation dated 16 December 2012 from an interior design contractor with a Chinese name 藝陞室內設計   裝飾工程 (Ngai Sing Interior Design Works) (referred   hereafter to as “Ngai Sing”, and the quotation attached    “Ngai Sing’s 2012 quotation”)[48].

54.  The Ngai Sing’s 2012 quotation was allegedly signed by the Plaintiff and one Mr Leung, the person in charge of Ngai Sing. The quotation appeared to set out 7 items of work necessary to make good the damages caused by the blown off Structure amounting to $57,100[49] only.

55.  It is noted that no matter whether it is the P’s 1^st, 2^nd or 3^rd Letters, it was stated that serious damages were caused to the Plaintiff on 27 July 2012 because of the unauthorized structure erected by the Defendants during the typhoon[50]. Neither 23 or 24 July 2012, i.e. the dates on which the Structure might have been blown off, nor 26 July 2012, the date on which the flood was said to have occurred were mentioned. Flood was never mentioned in these letters.

56.  The Plaintiff’s explanation for not mentioning any flood was that she was then busy with her family matters, and had asked Luk to help her write her letters. The 1^st and 2^nd letters were meant to prompt the Defendants coming out to talk.

57.  The Plaintiff denied having issued the P’s 3^rd Letter nor instructed Ngai Sing to issue Ngai Sing’s 2012 quotation[51]. She said Luk had never reported to her nor had she ever instructed Ngai Sing to prepare the 2012 quotation. She said it was impossible for Luk to meet D1 on 1 February 2013 because Luk was tied up with her mother in hospital. She said her purported signature to the Ngai Sing’s 2012 quotation a forgery.

58.  The Plaintiff, however, said that through introduction of Luk, she did instruct Ngai Sing to prepare a quotation. It was dated 2 March 2013[52]. The Plaintiff said it was intended for urgent repair on a temporary basis before the start of the rainy seasons (it is referred to as “Ngai Sing’s 2013 quotation”). She said it was not meant to be a comprehensive list of repairs, and thus damages liable by the Defendants[53]. The quoted price was, however, $57,100, i.e. the same as that appeared in Ngai Sing’s 2012 quotation. This Ngai Sing’s 2013 quotation was posted by Luk to D1 under cover of the Plaintiff’s letter of 2 March 2013 signed by both the Plaintiff and Luk (“P’s 4^th Letter”)[54].

59.  The Plaintiff said this P’s 4^th Letter had elicited from D1 a lengthy response by a letter dated 19 March 2013 (“Ds’ March 19 Letter”)[55] which mentioned about the date of 22 January 2012(sic)[56] and the compensation of $57,100.  

60.  Though the Plaintiff denied having instructed Luk to approach the Defendants on 1 February 2013, she did not deny having received a prior letter from the Defendants dated 6 February 2013 (“D’s February 6 Letter”)[57].

61.  D1 asserted in Ds’ March 19 Letter that there had been an oral agreement made on 29 July 2012 to settle whereby he was not required to compensate. By that alleged agreement, D1 said the Defendants were only required (i) to remove all the debris, and (ii) to cut electricity supply to the broken lamp installed at the roof. By this letter, D1 requested particulars of each and every items of the damages suffered by the Plaintiff[58].

62.  It is apparent from Ds’ March 19 Letter that it was written in response to P’s 3^rd Letter (which the Plaintiff denied being written by her). It is because D1 quoted verbatim a line which appeared in P’s 3^rd Letter but not P’s 4^th Letter[59]. The Plaintiff could not explain why.

63.  In response to Ds’ March 19 Letter, the Plaintiff replied by her letter of 23 March 2013 (“P’s 5^th Letter”)[60]:

i)   she had never met D1 on 29 July 2012 as alleged. Instead, they might have met on the 28 July 2012[61] (or they did not meet at all on both dates); and

ii)   in any event, there was no agreement reached as alleged.

64.  The P’s 5^th Letter was written in English under the Plaintiff’s own hand[62]. In that letter she offered 3 options. So far as can be discerned from the P’s 5^th Letter, the options appeared to be:

i)   Option 1: the Defendants were to accept payment of the quoted fee, presumably the sum of $57,100. However, she wrote “… Quotation that I have sent you a few weeks ago in which I decided to paint the whole exterior and thus cover cost of have (sic) to build a wooden structure to fix my rooftop…”. It is not understood what exactly she meant. It was suggested by D1 that he understood the Plaintiff to mean he was requested to shoulder the costs of painting the exterior of P’s House as well;

ii)   Option 2: the Defendants were to pay for fixing the damage caused only by “this incident” but a new quotation would be obtained for that purpose; and

iii)   Option 3: a formal inspection of the P’s House at the Defendants’ own costs plus payment of a daily rate of $1,000 to someone of the Plaintiff’s choice to “oversee” the property while the repair work was undergoing in addition to costs of replacing all the locks of the House.

65.  The Plaintiff further elaborated in her second witness statement that she was then trying to obtain a quotation for urgent repair in a safe and economy way. Accordingly, the quote of $57,100 was meant to be costs for urgent repair, not full compensation. It was meant to open up dialogue between the parties.

66.  P’s 5th Letter attracted another response from D1 of 26 March 2013 (Ds’ March 26 Letter”)[63]. It was the Plaintiff’s case on the same date, D1 tried to talk to Luk on the phone to discuss the damages, but was unable to reach any agreement[64].

67.  The Plaintiff said since nothing concrete was forthcoming from the Defendants, she instructed her present solicitors[65] to issue a demand letter of 7 October 2013[66]. By this letter, the Plaintiff said there was heavy rainfall for 2 days after the typhoon on 24 July 2012. P’s House “was seriously flooded”[67]. The Plaintiff asked for damages arising out of the blown off incident and the flood a total sum of $1,959,000, comprising repair cost of $1,749,000; temporary accommodation during repair of $205,000; and legal costs of $5,000. In support of the claim for repair costs, a quotation dated 26 September 2013 prepared by one Lee Creative Decoration and Engineering (“生創作室內設計裝修工程”) [68] (“Lee Decoration” and the quotation referred to as “Lee Decoration’s 2^nd quotation”).

68.  As regards quotations from Lee Decoration, again, there were 2 similar but different quotations prepared by the same company on similar/same subject matter. The Plaintiff sought to clarify at trial as follows.

69.  The Plaintiff said on 26 August 2013, i.e. about 1½ month before the Lee Decoration’s 2^nd quotation, Lee Decoration prepared a prior quotation of $1,485,000 (“Lee Decoration’s 1^st quotation”) upon her instruction. She said it was this Lee Decoration’s 1^st quotation which she had given to her appointed experts, i.e. Lee, in the present proceedings for comments. In her 2^nd witness statement, the Plaintiff explained that Lee Decoration’s 1^st quotation was incomplete in that it did not cover her damaged furniture.

70.  She said that the Ngai Sing’s quotation was meant for urgent repair of the P’s House whereas the Lee Decoration’s 2^nd quotation was meant for a comprehensive repair[69].

71.  As regards alternative accommodation during the repair period, she said there is a 2-storey village-type house in the nearby Sha Lan Tsuen of 1,400 square feet offered for rental at a monthly rent of $25,000. Accommodation of $12,000/month is no longer available.

72.  It is not in dispute that the proprietor of Ngai Sing is one Mr Leung Kwai Sang (梁貴生), who was also one of the partners of Lee Decoration.

73.  In Lee Decoration’s 1^st quotation, it is noted that:

i)   the Plaintiff subscribed her signature to the quotation;

ii)   the address was stated to be “Sha Han Villas Sani   Mun Tsai Shuen Wan, I ai PO N.I”. Obviously there    are a lot of typo errors. Surprisingly, these errors are    identical to what has been printed as address on Ngai    Sing’s 2012 quotation annexed to the P’s 3^rd Letter,    which the Plaintiff denied having ever issued and    accused her signature there being a forgery[70].

74.  Apart from insisting her signature on the Ngai Sing’s 2012 quotation being forged, she basically gave no explanation for the surprising coincidence.

Luk

75.  Luk was the Plaintiff’s friend since about 2009. She explained she was a Chinese and could speak Chinese and English. She, however, said she could only read Chinese slowly and with explanation. She said the Plaintiff was suffering from poor health, insomnia and associated problems. Since about 2010 she had been visiting the Plaintiff helping her clean her house almost on a weekly basis. She said her visits normally took place on Sundays[71]. Sometimes helpers from church also came with her. From what she knew about the Plaintiff, the latter was very concerned with keeping her house in good condition.

76.  She accepted she had never help the Plaintiff find contractors renovating P’s House. She only sometimes helped fix the clogged drain of her garden.

77.  She said in the morning of 24 July 2012, she received a phone call from the Plaintiff that there were metal frames and glass fragments in her garden. Someone had offered to clean for her. She reminded the Plaintiff not to allow stranger entering her house for security reason.

78.  In the afternoon of 26 July 2012[72], she received a phone call from the Plaintiff. She could feel that the Plaintiff was then very nervous. The Plaintiff told her there was a lot of water coming down from the roof entrance to the inside of her house. She advised the Plaintiff to be calm, and used towels and blankets to stop water from entering the rooms on the 1^st and 2^nd floors. She offered to come but was stopped by the Plaintiff on ground of poor weather.

79.  On 28 July 2012[73] at about 10 am, Luk said she came to visit the Plaintiff at the P’s House with other 4 friends. She noticed the Plaintiff was with a pale face and appeared lost, not knowing what to do. She was surprised to see the Plaintiff dressed in sleeping pyjamas walking around. She felt it was not the usual Plaintiff who always paid attention to appearance.

80.  She could find the ground floor and stairs were still wet and filled with water-soaked towels. She therefore directed her friends to clear up the soaked towels and quilts first. She then went up the roof with the Plaintiff. She found the roof door slightly open, only wide enough to allow the skinny Plaintiff to squeeze herself out. With the help of friends, they managed to push open the door further, wide enough to allow them to go out.

81.  She said she could find the roof was covered with white metal frames of different sizes and light-green glass fragments. The depth of water was 6 inches high[74]. In her 2^nd witness statement, she corrected it to 3 inches[75].

82.  It is Luk’s evidence that her friends started to remove the grass fragments from the drain opening. She and her friends had tried to dig out these fragments from the drain using bare hands and iron bars/wires (鐵枝等)[76]. She said they could not remove them all and a lot of these fragments were believed to have been flushed and were stuck inside the drain[77].

83.  Luk said she had taken photos of the garden, the iron gate, roof and the water damages caused to the inside of the P’s House[78]. In her 2^nd statement, Luk supplemented that the photos (which obviously included the said July 28 photos) were taken immediately when she saw the flood[79]. She identified the July 28 photos were those contained in Bundle D1/68 to 71[80]. 

84.  She said on 28 July 2012, she could see the Plaintiff meeting the owner of house 206 which was adjacent to the Plaintiff House. That owner even went up to the roof and found out drainage pipes of house 206 had been damaged. She and that owner believed the damage was caused by the blown-off of the Structure.

85.  On the same day (i.e. 28 July 2012),

i)   she could see from the roof owner of house 206    quarrelling with another man on the street. The    Plaintiff later brought the said man on the street to the    roof;

ii)   a group of friends of the Plaintiff’s son came to visit    the Plaintiff;

iii)   she and her group of friends helped clean up the roof    and the inside of the P’s House; and

iv)   2 policemen came to visit the Plaintiff. The Plaintiff    accompanied them to the roof for an inspection. It was    later known that the inspection was prompted by the    owner of house 206 reporting the matter of damage to    the Police. 

86.  Luk explained that the Plaintiff’s younger brother, Tony, was diagnosed to have suffered from cancer in July 2012. The Plaintiff was then busily engaged taking care of her brother. The Plaintiff therefore asked her to approach the Defendants for compensation. She, however, reiterated that she only acted as a middleman relating the Plaintiff’s message to the Defendant. The Plaintiff had the final say on her claim. She would not make any promise nor decision without her approval[81].

87.  The following was a summary of her evidence regards her contacts with the Defendants:

i)   6 August 2012: she went to the D’s House with a view    to discussing with D1 about compensation but he was    not there. Her phone number was left with the    Defendants’ helper;

ii)   she sent a letter of 10 August 2012 to the Defendant    by post enclosing the said 8 July 28 photos (this was    P’s 1^st Letter referred to in [48(i)] above);

iii)   she sent out a second letter to the Defendant dated 24    August 2012 enclosing the said July 28 Photos by   hand to the Defendant’s helper (this was the P’s 2^nd    Letter referred to in [48 (ii)] above);

iv)   between September 2012 and January 2013, she had    been to the D’s House many times with a view to    talking to D1 but was unsuccessful. Every time she    was told by the Defendants’ helper that D1 was not at    home;

v)   On 22 January 2013, she finally met D2 who    acknowledged receipt of the Plaintiff’s previous letters.    D2 said to her that D1 was very busy and could only revert after the Chinese Lunar New Year. During    cross-examination, she said 22 January 2012 was her    daughter’s birthday and that was why she could    remember what had happened on that date. Further,    she elaborated that it was a Filipino helper who    answered the door at the D’s House. Later a lady   identified herself to be Mrs Lui, i.e. D2 came out;

vi)   On    the other hand, Luk denied having met the    Defendants on 7 February 2013[82], nor had she ever    issued the P’s 3^rd Letter (dated 22 January 2013) together with the enclosures as alleged by the    Defendants[83]. She said that letter and the    enclosures a fabrication;

vii)    She said between 22 January to 2 March 2013 she was    tied up in hospital with her mother, and therefore did    nothing for the Plaintiff during this period;

viii)   On 2 March 2013, she wrote another letter (referred to    P’s 4^th Letter above) to D1 enclosing a quotation dated    2 March 2013 of Ngai Sing (referred to Ngai Sing’s    2013 quotation)[84]. She said she approached Ngai Sing    to prepare the quotation in February 2013;

ix)   on 20 & 27 March 2013, she got 2 phone calls from    D1 on the questions of compensation. In the second    phone call, she said D1 explained he could not    understand the Plaintiff’s letter of 23 March 2013 (i.e.    P’s 5^th Letter)[85]. In her 1^st statement, she said D1 in this phone call requested an inspection of the P’s    House. In her 2^nd statement, she clarified that D1    made no such request. What had been said in the 1^st    statement in this respect was a mistake, said Luk;

x)   thereafter, she was not involved in the Plaintiff’s    compensation claims further as the Plaintiff said she had already settled all her family matters and was able   to manage her own affair now; and

xi)   she denied having ever talked to D1 as alleged on 1    April 2013. It should be on 27 March 2013 instead.

88.  The following were her evidence during cross-examination:

i)   on 26 July 2012 when the alleged flood happened, she    initially said she had one phone call with the Plaintiff   but later said it should be 2 when counsel for the    Defendants put to her that the Plaintiff had testified    there were 2;

ii)   she explained that since it was dark outside, she therefore told the Plaintiff a black rainstorm signal was    hoisted on 26 July 2012 without actually checking;

iii)   when she saw the Plaintiff on 28 July 2012 she could    see the Plaintiff’s knees and fingers were injured. She helped dress her wounds. She still could find some    broken glasses in those wounds. She was told by the    Plaintiff that on 26 July 2012, she crawled on the    roof floor which was covered with broken glasses;

iv)   despite she was shown a letter from the Police dated 5    January 2016 stating that policemen came to the    outside of House 206 and the roof of P’s House on 29    July 2012 (instead of 28 July 202 as alleged) upon receipt of a complaint, she insisted she met the Police    on 28 July 2012. Her reason was that she had advised    the Plaintiff to take rest on 29 July 2012 and therefore    it was impossible for the Plaintiff meeting the Police that day. She, however, agreed she did not go to the    P’s House on 29 July 2012. She further said she could    only enlist help of volunteers on Saturday;

v)   On 28 July 2012, on arrival at the P’s House, she    immediately went up to the roof level. She, however,    could not open the exit door of the roof. She therefore    asked the volunteers to help open that door. After   opening the door, the volunteers helped clear up the    glass fragments using big soup spoons of about 2.5    inches in diameter into water buckets. The volunteers    said the water passage was blocked by these glass    fragments. She took the said July 28 photos after the    volunteers had cleared away a total of 3 buckets of glass fragments (size of buckets: 24 inches high with    diameter of about 18 inches)[86]. During re-   examination, she said of the 3 buckets, one was dug    from the drain while the other two were from other    part of the roof[87]. She said the volunteers had    confirmed they had not touched the big frame as seen    in the photos during clear-up exercise; and

vi)   Regarding the lower photo on D1/68[88], she insisted the    door was not rusty, as suggested by Mr Ng. She said    the photo only showed some paint of the door had    peeled off and dropped. The difficulty in pushing open    the door was because glass fragments had gone between roof floor and the door.

WSH

89.  WSH’s evidence is short and simple. He adopted his witness statement of 15 November 2017[89]. Basically he said he was the proprietor of one Wo Fung Engineering Co (“Wo Fung”) in or about 2002 which had since ceased business. He confirmed Wo Fung issued 2 quotations of the respective sums of $46,100 and $126,000 to the Plaintiff for water-proofing and renovation works to be carried out for P’s House[90]. He also confirmed Wo Fung had duly completed the works as per the quotations in 2002. Thereafter he did not meet the Plaintiff again. She could not recall having ever met anyone by the name of Luk.

90.  According to the Plaintiff’s evidence, WSH’s works was the 2^nd renovation she had ever carried out to the P’s House, with the one carried out before she moved in being the first one[91].

The Defendants’ Evidence

D1’s Evidence

91.  D1 and D2 are husband and wife. D1 was a former deputy secondary school principal and a senior government education administrator before his retirement in 2014. Since then he and D2 had been engaged in charity work. He and his wife D2 had become the registered owners of D’s House as from 1996.

92.  The relevant part of his evidence is this. The houses of the Sha Lan Villas are of poor water-proof quality. The Structure was erected at the roof of D’s House in 2009 for the purpose of minimizing water seeping through the roof. These kind of structures were very common in the Villas. He considered the one erected by him strong and sturdy as it could withstand several strong typhoons until 2012. 

93.  Typhoon Vicente was the first typhoon attacking Hong Kong with signal no.10 in 13 years since 1999. It was considered a typhoon with the second strongest wind speed recently according to media reports[92].

94.  Typhoon signal no. 10 was hoisted at about 00:45 on 24 July 2012. At around 1 am, he and D2 heard a glass shattering noise from above. He immediately went upstairs. He found a hole was made to the glass panel of the Structure by a foreign object. The next morning, he found part of the Structure had disappeared. He believed the ruptured part in the Structure facilitated lifting off of the Structure by the strong wind. He accepted part of the Structure had landed onto the garden and roof of the P’s House[93]. According to the diagram drawn by him, the blown-off parts flew by about 40 feet before landing onto the Plaintiff’s garden, and 60 feet on her roof[94].

95.  In the morning of 24 July 2012 when the wind slowed down, he went out and met the Plaintiff while removing the aluminium hollows off the access road. The Plaintiff said there were also aluminium hollows in her garden. He was invited into her garden. He offered to send her domestic helper to help clean up the shattered glass in the garden. They exchanged telephone numbers (this was denied by the Plaintiff). However, he said apart from talking about the Plaintiff’s dog which leg(s) had been cut by the glass fragments, the Plaintiff mentioned nothing about any flood nor any damage whatsoever. He also removed some aluminium hollows from the Plaintiff’s garden on that occasion.

96.  They did not contact each other between 25 to 28 July 2012.

97.  He said on 29 July 2012, one Mr Liu, the owner of House 206 (i.e. the one next to the P’s House) came to him discussing about damage caused to Liu’s house by the blown-off Structure. Liu said it was the Plaintiff who said the damage might have been caused by the Structure blown away from his house. They could not come to terms and Liu made a report to the Police.

98.  D1 said during his conversation with Liu, the Plaintiff came to him and said there were aluminium hollows and glass fragments found on the roof floor of the P’s House. The Plaintiff requested D1 remove them.

99.  D1 followed the Plaintiff to the roof floor. He said the Plaintiff indicated (i) a wall lamp shade was broken and (ii) a marble slab on the parapet wall was chipped off by the blown off Structure from his roof. However, he alleged, the Plaintiff said there was no need for compensation because they were neighbours. She only requested him to cut electricity supply to the said damaged wall lamp as she did not use this light often. Accordingly, he said, he did not examine whether the alleged damages were actually caused by the blown off Structure. He promised to send an electrician to check the wiring the following week as 29 July was a Sunday.  He regarded this a settlement agreement reached between the Defendants and the Plaintiff arising out of the blown off incident.

100.  D1 said in the cross-examination that the position of the aluminium hollows as observed by him on 29 July 2012 was very similar to that shown in the said July 28 photos.

101.  He said he could not see any sign of water damage to the P’s House when he went up and came down the stairs on that occasion.

102.  Later, Policemen came upon report of Liu. The Policemen also entered the P’s House upon the Plaintiff’s invitation while he and Mr Liu were then engaged in a heated argument.

103.  On 7 August 2012 at around 10 am, he said D2 called the Plaintiff with a view to sending their domestic helper to clean up the roof of the P’s House and an electrician to fix the said wall lamp. However, the Plaintiff declined, saying she needed to discuss with her son. However, no damage or complaints of whatever kind had been related to D2.

104.  It is D1’s evidence that the first time they received claims for compensation was on 1 February 2013. It was the P’s 3^rd Letter (dated 22 January 2013) from Luk together with Ngai Sing’s 2012 quotation and a set of 9 photos details of which are set out in [52] to [54] above. The Plaintiff then asked for $57,100 only. This happened some 6 months after the typhoon.

105.  The following is an account of the Defendants’ version of how the Plaintiff approached them for compensation and their responses:

i)   6 February 2013: upon receipt of the P’s 3^rd Letter, he    wrote a letter of 6 February 2013 to the Plaintiff    seeking to clarify Luk’s role and asserting the    aforesaid agreement. This is the D’s February 6 Letter    referred to in [60] above;

ii)   7 February 2013: Luk came to visit them and met D2.    For details, see [109 (iv)] below;

iii)   2 March 2013: the Plaintiff replied confirming Luk    being her authorized representative. This is the P’s 4^th Letter referred to in [58] above. The Ngai Sing’s 2013 quotation and the same set of 9 photos he received before were enclosed;

iv)   19 March 2013: he wrote D’s March 19 Letter    referred to in [59], [61] and [62] above;

v)   23 March 2013: he received 2 letters from the Plaintiff.    The first was a short one written at bottom of one page    of his D’s March 19 Letter, and the other was a letter   under the hand of the Plaintiff setting out 3 options, i.e.    the P’s 5^th Letter referred to in [63] and [64] above;

vi)   26 March 2013: D1 sent out his D’s March 26 Letter    referred to in [66] above;

vii)   1 April 2013: D1 said he had 2 to 3 telephone    discussion with Luk before this date and the last one    took place on this date. He basically queried the    reasonableness of the damage claimed;

viii)   7 October 2013: he received a letter from the    Plaintiff’s solicitors demanding compensation of    $1,959,000 with Lee Decoration’s 2^nd quotation for    $1,749,000: see [67] above. The said July 28 photos    were enclosed. A lot other areas as well as furniture    were said to have been damaged. Though the Plaintiff mentioned a flood caused by glass fragments and   metal[95], there was no mention of any specific date on    which the said flood as now asserted by the Plaintiff    had taken place. To the Defendants, this was the first    time the Plaintiff asserted a flood had occurred and it was caused by the blown-off Structure;

ix)   15 October 2013: D1 replied, basically querying the    claims and asking for explanation;

x)   3 November 2013: D1 wrote again, asking for reply;

xi)   7 November 2013: the Plaintiff’s solicitors replied,    denying any waiver of rights;

xii)   16 November 2013: D1 raised queries as to whether    the Plaintiff had authority to sue unless all the co-   owners consented; and

xiii)   18 December 2014: the Plaintiff through her same firm of solicitors demanded compensation again from   the Defendants, but this time for a sum of $532,722    only[96]. A draft statement of claim was also annexed.

106.  It is D1’s evidence that since the Plaintiff’s first allegation of flood by her solicitors’ letter of 7 October 2013, he has repeatedly kept an eye on the roof door and the conditions of the P’s House. It is his observation that:

i)   the door was always left open even when red or    black rainstorm signal or typhoon signal no. 8 was    hoisted;

ii)   on 19 March 2016, when he and D2 accompanied their expert attending the P’s House for an inspection with a view to preparing the expert report, he could find signs of want of maintenance, including:

a)   the door of the roof was so heavily rusted that it    could not be opened;

b)   water even came out from certain parts of the    stairs when pressed by hand;

c)   there were water pockets on the external walls    of the P’s House;

d)    despite the facts that at least 3 dehumidifiers    were switched on, the P’s House appeared to    them to be very humid with mould found    growing on the surface of walls inside the house;

e)   the ground floor aluminium door could not be    opened due to rusting; and

f)   broken mosquito nets, rusting furniture and wall skirts could be found.

107.  He confirmed that he and D2 were out of Hong Kong in Boston between 12 and 26 January 2013[97]. It would be quite impossible for Luk to meet D2 on 22 January 2013 as alleged by her. Luk handed the P’s 3^rd Letter (dated 22 January 2013) to his Indonesian domestic helper. He produced the itinerary issued by the travel agent[98], room reservation confirmation from the US hotel[99] and passport with chop affixed by the US Custom showing entry into the States on 12 January 2013[100].

D2’s Evidence

108.  D2 is a university graduate. She had been a secondary school teacher since graduation until 2012 when she retired. She was now involved in charity work with D1.

109.  The gist of her evidence was this:

i)   7 August 2012: at about 10 am she called the Plaintiff    with a view to fixing a time for her domestic helper   and electrician to attend the P’s House to respectively remove the aluminium hollows/glass fragments and    cutting the electricity supply to the broken roof light.    The Plaintiff told her that she would not allow anyone   to enter his house otherwise she needed to change the    house’s lock. She said she was awaiting her son’s return from the States to inspect the house. It was D2’s evidence that the Plaintiff had indicated if there    was anything she would definitely called D2;

ii)   22 January 2013: she and D1 were in the States.    Neither she nor D1 could have met Luk on this date as    alleged by Luk. She produced passport record[101] and    boarding pass[102] as evidence in support. She also    obtained a movement record from the Director of    Immigration[103];

iii)   1 February 2013: she received a letter dated 22    January 2013 (“P’s 3^rd Letter”) from Luk. She had the habit of jotting notes on her calendar and she    produced the same for Court’s reference[104]. The    circumstances under which the letter was received was    this. She and D1 were not at home when Luk came to    see them that date as they returned home late that date.    She was handed the said letter by her Indonesian domestic helper, who appeared scared, after they   returned. Her helper told her that the letter was handed    in by a lady    in an afternoon. When doing so, that lady    was rude, banged on the door hard and spoke in a loud    voice.

iv)   7 February 2013: she confirmed Luk attended her   house on her own and they had a discussion. It was the    first time she met Luk. Her Indonesian domestic    helper who answered the door confirmed later that Luk was the lady who delivered the letter on 1    February 2013. Luk also identified to her as the one    who visited her house on 1 February 2013. She made    an entry on the calendar[105]. The gist of the discussion was as follows:

a)   Luk’s mother was the Plaintiff’s godmother.    Therefore, she could be regarded as the Plaintiff’s nominal younger sister (契妹);

b)   Luk would supervise the work to be carried out    on the roof. Luk further suggested it would be    inconvenient to use her own company to do    renovation for the Plaintiff. That was why Ngai    Sing was appointed. Survey company appointed    by the Plaintiff’s son had inspected the roof of    the P’s House;

c)   Luk said initially the compensation would be in    the region of about $200,000 as suggested by    the Plaintiff. Luk thought it might appear    excessive in the eye of others, and therefore Luk proposed $57,100. D2 asked Luk why the    Plaintiff needed replacement of all marble slabs    of all the parapet walls. Luk told her the high    price was attributable to the fact that the    original work was done some 20 to 30 years ago, and it would be difficult to find matching building materials, such as Italian and Spanish    tiles, for the repair;

d)   she requested to meet the Plaintiff and would    try settle the dispute before the Lunar New Year.    Luk replied to the effect she had been duly   authorized and there was no need to talk to the    Plaintiff; and that they needed not rush before    the Lunar New Year as everyone would be very   busy. They should talk about that after the    Lunar New Year.

110.  D2 said the above were the only contacts between her and Plaintiff/Luk but in none of these contacts had she ever been told of any flood or other damages.

Discussion

111.  The evidence on the alleged flood on 26 July 2012 and the clearing up event allegedly taken place 2 days later are one-sided coming from the Plaintiff and Luk. Their credibility is being challenged because the Defendant had no direct knowledge. This Court will test the evidence of all witnesses against contemporaneous documents or undisputed and/or independent evidence. If that is impossible and the truthfulness of the evidence depends entirely on a witness’ credibility, the evidence will be assessed by reference to the consistency of a witness’ testimony with his/her prior answers/statements given orally or in writing. Whether a witness’ evidence is to be believed will also be assessed by reference to its inherent plausibility taking into account the circumstances of this particular case. Further, when a witness is discredited in the cross-examination, it sheds light on his/her overall credibility.

112.  After an overall assessment of the witnesses’ evidence, this Court has no hesitation coming to the conclusion the Plaintiff and Luk are neither honest, truthful nor credible witnesses. I have tried to see whether some benefits can be given to the Plaintiff given her age, her claim (and in fact my observation of her apparently) of poor health and poor memory. However, I find her answers are at times vague, non-committal and at times obtuse, which I believe, deliberately so. Both her and Luk’s evidence is unsafe, contradictory and shifting in many material respects. I particularly find the Plaintiff evasive which is not attributable to poor memory or old age. Her account of the alleged July 26 flood and the subsequent events are inherently implausible and is totally unreliable. Neither is Luk’s account believable. Luk’s evidence is exaggerating and inherently implausible.

113.  On the other hand, I found D1 and D2 honest, truthful and reliable witnesses. Their evidence is coherent, consistent with uncontroversial evidence and supported by contemporaneous documents. They are unshaken despite cross-examination. Their evidence will be accepted in preference to that of the Plaintiff and Luk.

114.  It will not be necessary for this Court to state here each and every fact which this Court finds against the Plaintiff. Suffice it for this Court to state in the following paragraphs a few examples demonstrating how untruthful and unreliable the Plaintiff’s and Luk’s evidence is.

115.  The happening or otherwise of the alleged flood on 26 July 2012 or any flood at all was in serious dispute. It is the cause of the water damages. No doubt the said July 28 photos, which are the only alleged contemporaneous pictures capturing the aftermath of the flood, are crucial, if not determinative, evidence in support of the flood. In fact, the Plaintiff and Luk (and obviously their legal advisors as well) also realized such importance. A detailed account of under what circumstances the pictures were taken and what they considered important were recorded in 2 batches of 4 witness statements. They saw fit to make correction to the height of water found accumulated on the roof on 28 July 2012 from 6 inches to 3 inches in their second batch of statements. They, however, made no correction to the time Luk took these photos. Instead, they repeated in the 4 statements that the photos were taken immediately when Luk went up to the roof, i.e. before any clearing up of the roof[106].

116.  At trial they both corrected themselves and insisted the said July 28 photos were taken after the clearing up. They did not offer any convincing explanation as to why they made such material mistake despite a prior chance to make correction. The mistake, if there were, is so obvious. It is because the said photos obviously showed no accumulation of water of whatever height. Some part of the floor appears dry: see photo at D1/68 lower. So the mistake is blatantly obvious to the eye. Yet no correction was made despite chance of a second statement.

117.  Furthermore, as shown in the photo at D1/68 lower[107], there was an almost perfect fan-shape pattern of the glass fragments shown on the floor at the doorway. This fan-shape pattern was made when the door was swung open from inside. Had the photos been taken after the clear-up, this Court believes it would have destroyed the said perfect fan-shape pattern. It has to be remembered that according to Luk, each bucket used in taking away the glass fragments was estimated to have a capacity of about 100 litres[108]. A total of 3 buckets of fragments were said to have been removed. The density of the glass in question, as explained by Cheung at trial, is 2.5g/cm³ [109]. A full bucket of glass (100 litres) would have the weight of around 250 kg (or 550 lbs)[110]! It will be impossible to be moved even with the joint effort of 4 men. Half of it would be around 125 kg (or 275 lbs) and is still too heavy to move. I have serious doubt as to whether a plastic bucket is strong enough to carry this weight. Assuming each time, the volunteers carried a bucket filled up to one-quarter of its capacity, the weight would still be 62.5 kg (or 137.5 lbs)! This Court believes in any case it would be quite impossible for the fan-shape pattern to be preserved in its perfect shape if the photos were taken after the clear-up. Further, it would appear strange if those fragments at the doorway would not have been cleared first. The allegation that the photos were taken after the clear-up is therefore not believable.

118.  Furthermore, it was Luk’s evidence that she helped dress the wounds of the Plaintiff’s knee and palm. From the photo at D1/68 upper, it does not appear the Plaintiff, who was in pyjamas, got any wounds at her knees and palms.

119.  It is also Luk’s evidence that she met D2 on 22 January 2013 instead of 1 February 2013 as asserted by D2. Despite repeated cross-examination Luk insisted and went on to say she could recall this date particularly and clearly because it was her daughter’s birthday. However, according to the Defendants’ movement record issued by the Immigration Department (which this Court has no ground to query and therefore accepts), both D1 and D2 were out of Hong Kong. This Court also accepts the boarding pass, itinerary, hotel booking documents and passports with chops affixed by the US Customs produced by the Defendants which all show that the Defendants were then in fact in the States. The documentary evidence is not controversial. Luk’s evidence is obviously in contradiction with uncontroversial evidence and is, at the very least, not reliable.

120.  Another example is this. It is also both the Plaintiff’s and Luk’s evidence that they had never issued the P’s 3^rd Letter together with the enclosures[111]. The enclosures include, inter alia, the Ngai Sing’s 2012 quotation. Both the Plaintiff and Luk said the said letter and the enclosures were fabricated. The Plaintiff said her signatures thereon were forged. This is a serious allegation against the Defendants.

121.  It is the Plaintiff’s own evidence that she had instructed Lee Decoration to issue Lee Decoration’s 1^st quotation setting out a repair costs of $1,485,000[112]. It is noted the place at which work is to be carried out was stated as “Sha Han Villas Sani Mun Tsai Shuen Wan, I ai PO N.I”[113]. It is an obvious mistake. Quite a number of typographical errors were found (as underlined).

122.  Surprisingly, these mistakes, which are unique, were repeated in the prior Ngai Sing’s 2012 quotation[114] which the Plaintiff denied having ever issued and signed.

123.  According to the Defendants, Ngai Sing’s 2012 quotation was issued by the Plaintiff prior to the Lee Decoration’s 1^st quotation. In the Court’s judgment, it would be impossible for the same typographical errors to repeat in a fingerprint manner in a subsequent document, unless the latter copied from the former. This is good evidence in support of the Defendants’ testimony. The possibility of copying the other way round is also considered in order to do fairness to the Plaintiff. Assuming (without accepting) the Defendants may wish to fabricate the Ngai Sing quotation, in the Court’s judgment there appears no good reason why the Defendants have to forge a document using a wrongly spelt address. It is admitted by the Plaintiff that Ngai Sing and Lee Decoration shared one common proprietor Mr Leung Kwai Sang. The more logical conclusion is that both documents originated from the Plaintiff and/or Luk. Mistakes had been made to the address in the Ngai Sing’s quotation. They were inadvertently repeated in the Lee Decoration’s quotation. The Plaintiff’s and Luk’s concerted denial of the existence of P’s 3^rd Letter and the attachments, though not understood, is obviously a lie. They are dishonest.

124.  Luk disagreed with counsel’s suggestion the black powders on the roof floor shown on D1/68 lower being rust. She said it was only peeled off paint fallen on the floor. This Court has looked at the photo carefully. Judging from the appearance of the foot of door and the colour of that part, this Court has no difficulty concluding the said photo shows clearly the foot of the door being rusty. Paint and rust have peeled off and many of which have fallen on the floor. The rusting was so serious that the lower edge of the door has become irregular in shape. Luk’s evidence is biased and is obviously unreliable.

125.  As demonstrated above, Luk’s evidence is grossly exaggerating and inherently implausible. This Court does not believe there was any clear-up as alleged. Further, although this Court believes the said July 28 photos were taken close to and after the blown-off incident, this Court does not believe these pictures were taken on 28 July 2012 as alleged. Since the Plaintiff’s evidence is unreliable, she has failed to discharge the burden of proof.

126.  Concerning specifically areas of their evidence on the alleged July 26 flood, this Court would like to high-light further the following observations.

127.  Firstly, despite the detail and dramatic description by the Plaintiff of her exhausting and tragic experience when the flood took place, this Court is surprised to note that the alleged flood has never been mentioned in any of the contemporaneous letters issued by or on behalf of the Plaintiff until the Reply dated 4 June 2015[115], which was almost 3 years from the date of the alleged flood:

i)   according to the Plaintiff’s evidence (which this Court    does not accept), she made no mention of the flood in    the P’s 1^st Letter and 2^nd Letter issued in August 2012    (which this Court does not believe the Plaintiff or Luk    had ever issued them). It was also not mentioned in    the P’s 3^rd Letter issued in January 2013 (which this    Court believes being the first letter sent by the    Plaintiff to the Defendants). All these 3 letters only    referred to 27 July 2012 on which date damages    generally were said to have been caused by the illegal    structure because of the typhoon. Neither 23, 24 July    2012 as suggested in the Statement of Claim, nor 26 July 2012 as elaborated subsequently in the Reply and    witness statement had ever been mentioned: see [11]    and [48] to [55] above;

ii)   Even in P’s 5^th Letter which was written by the    Plaintiff, she mentioned neither flood nor 26    July 2012: see [64] above. She only set out various    options for the Defendants;

iii)   when the Plaintiff instructed her lawyer to issue a   demand letter of 7 October 2013, it referred only to    heavy rainfall for 2 days following the typhoon,    suggesting that the flood took place in these 2 days. In    any event, she did not mention specifically 26 July    2012: see [67] above;

iv)   even when the Statement of Claim was issued on or    about 30 December 2014, it mentioned nothing about the specific flood which took place on 26 July 2012.    At least the date of the flood was not pleaded. On the    other hand, it suggested that the flood took place on    23 or 24 July 2012: see [11] above[116]. It was not until    in the Reply dated 4 June 2015 that the Plaintiff mentioned the alleged July 26 flood[117]. The said    Statement of Claim, which was verified by a statement    of truth signed by the Plaintiff on 30 December 2014,    did not sit well with her own Reply, which also bears    a statement of truth duly signed by the Plaintiff.

128.  It is essential to note that this is not a case in which the Plaintiff lodged no claim or made no contact with the Defendants after the alleged incident until the commencement of the proceedings. According to her, she maintained a dialogue with the Defendants soon after the typhoon. The P’s 1^st Letter was allegedly sent out on 10 August 2012. As can be seen above, she set out her various grounds of claims in various letters. Yet she said nothing about the alleged flood of 26 July 2012. She initially asked for a damage of $57,100. Her explanation that it was meant to start a dialogue. It is unacceptable in the circumstances of the case. By the P’s 5^th Letter (under her own hand writing) she invited the Defendants to settle. On a fair reading of this letter, it seems she was suggesting option 1 the best otherwise the Defendants might end up paying more[118]. Had the alleged July 26 flood actually taken place as alleged, this Court believes the Plaintiff would have been more specific, assertive and straightforward about the flood with a view to forcing the Defendants accepting her option or coming to the negotiating table, instead of mentioning various other causes[119] and various other dates than 26 July 2012. It simply offends common sense and is totally unbelievable for anyone having gone through such tragic experience as alleged mentioned absolutely nothing about it in contemporaneous exchanges until 3 years later.

129.  Secondly, the Plaintiff’s account of how she removed the glass fragments is exaggerating and impossible to accept. It is her evidence that she crawled towards the drain opening without bumping into anything. However, as seen in the 2 photos at D1/68, the big aluminium frame was resting on the parapet wall and the roof floor at an angle. It is exactly in the way, leaving little or no room for anyone to get through without bumping into it. Further, there is also another hollow lying on the floor near the opening. In the Court’s judgment, it would be impossible for anyone crawling towards the opening without bumping into any hollow.

130.  Thirdly, as can be seen from the said July 28 photos[120], there did not appear to be many glass fragments around the drain opening. Most importantly, both experts agreed that the drain inlet led to a pipe falling the entire height of the building. There is no goose neck/u-trap in the drain[121] that can hold anything. The Plaintiff said she had put her hand into it, digging and pulling out using her bare hand[122]. First, the inlet is at the foot of the wall, not a hole on the floor. It should not be sort of a digging exercise. Second, there is simply no u-trap/goose neck that can hold anything. How can any glass fragments be trapped inside for her to pull out, not to mention there remained something hard to feel to her hand after her excavation! Her version of what had happened on the alleged date of flood did not sit well with objective evidence. It is totally unbelievable. It is a lie.

131.  Fourthly, Luk’s evidence on how she and the volunteers helped clear up the scene is also impossible to accept. As elaborated above, the amount of glass fragments said to have been removed in 3 buckets appeared too heavy to be removed in the manner as described. It is also too much. It is the estimate of both experts that the weight of glass brought to the roof was about 225 Kg or at most 300 kg[123]. 3 buckets of glass fragments, even each being half-filled, would have exceeded the total mass of glass brought to the roof estimated by experts[124]. It can still be seen there is still a lot of grass fragments on the roof now. Further, a half-filled up bucket would weigh 125 kg. It remains too heavy to move in plastic buckets without machine[125]. As there is no goose neck/u-trap that can hold any glass fragments, the allegation of Luk that she and/or her volunteers used bare hands, iron bar/wires and even spoons removing one bucket of glass fragments from the drain is exaggerating, inherently implausible and in my judgment, a lie[126]. There is simply nothing to hold anything for them to dig out, or good enough to fill a whole bucket.

132.  The evidence of the Plaintiff and Luk about the alleged July 26 flood as alleged or at all is rejected. All claims for water damages arising from the alleged July 26 flood therefore, fall away.

133.  In addition, this Court does not believe the Plaintiff is a person who cares about repair and maintenance of her house as alleged. Quite the contrary, it is just the opposite. This Court accepts the evidence of D1, who has observed the Plaintiff for a long period of time, that the Plaintiff simply takes no steps at all to protect her house from water and bad weather even in rainstorm days and when typhoon was attacking. Certain video recordings had been taken. As shown in the photo at D1/68 lower, the roof door was quite rusty and a lot of paint and rust had fallen off. If the Plaintiff was someone who cared about the repair and maintenance of her house, the said roof door would not have been in such poor condition even in 2012. This Court also does not believe someone who placed emphasis on regular repair and maintenance would allow her television (she did not appear to have computer and radio) to be out of order for 2 weeks. There is no evidence of any effort on her part to have it repaired. She even did not have any plan to fix her CCTV which had been out of order for very long time. The fact that she takes no steps to fix the damages allegedly caused in 2012 until the time of trial is telling, and supports the Court’s conclusion.

134.  Concerning repair and maintenance of P’s House, this Court does not consider WSH’s evidence useful. He only said he carried out repair to the P’s House in 2002. A closer look of the items listed in his 2 quotations[127] shows that the Plaintiff was basically doing internal renovation. The Plaintiff also exhibited invoice and receipts for the repair in 2008[128]. The substantial item is for internal painting and water-proofing work at the roof. The fact that she carried out such work does not support her allegation that she cared about the maintenance of P’s House. The fact that she carried out another round of water-proofing work in 2008 showed that the initial waterproofing work done some 5 years ago was, at least, not satisfactory. It tends to support D2’s evidence that Sha Lan Villas was a development which buildings are with poor water-proofing quality.

135.  On a whole, this Court believes P’s House was not in a state of regular repair and maintenance, contrary to what the Plaintiff would like to portray. Further, in light of the Court’s conclusion that there is a soft landing of the blown-off Structure (see [148] to [152] below), and that there is no or insufficient evidence on how damages in the garden was made, this Court considers the Plaintiff has simply failed to discharge her burden of proving the impact damages. This Court therefore rejects all the Plaintiff’s claims relating to the impact damages to the P’s House.

Expert Evidence

136.  The Court’s finding of facts as stated above should have been sufficiently disposed of the Plaintiff’s claims. However, the expert’s evidence, properly analyzed, also supports this Court’s finding based on evidence of factual witnesses. Accordingly, this Court will also conduct a brief analysis of the expert evidence adduced in the proceedings.

137.  This Court accepts both Lee and Cheung are qualified to act as experts for the purpose of the proceedings.

138.  Mr Registrar Lui made an expert direction on 20 January 2016 prescribing the scope of their evidence:

(i)   For liability, whether any of the damage allegedly done to the P’s House was caused by the Structure of the D’s House, and if so, identifying the alleged damage; and

(ii)   For quantum, i.e. what loss or damages were suffered by the plaintiff[129].

139.  In fact, when the aforesaid direction was sought, the Plaintiff had already appointed Lee as her expert. His report was ready. Save and except minor amendments which was unrelated to the body of the report, the Plaintiff adopted his report.

140.  The parties relied on their respective reports in support of their case:

i)   Lee: his report dated 17 September 2015 (“Lee’s report”) and his joint report with Cheung dated 23 November 2016 (“joint report”); and

ii)   Cheung: his report dated 6 July 2016 (“Cheung’s report”) and the joint report with Lee.

141.  In the Court’s judgment, their reports suffer a major drawback. Their inspections took place long after the blown-off incident and the alleged July 26 flood. Lee made his only inspection of the P’s House on 22 January 2014[130], i.e. about 1½ years after the alleged flood. His report was written on 17 September 2015, which was another 1½ year after that only inspection. Cheung even did the inspection on 19 March 2016[131], i.e. almost 4 years after the alleged incident. The obvious difficulty is whether helpful evidence was preserved at the P’s House for experts’ analysis.

142.  Apart from inspections, both experts appeared to have relied heavily on the said July 28 photos which were said to show the conditions of the roof taken soon after the alleged July 26 flood.

143.  However, the inherent difficulty was that both experts were only told by the Plaintiff that a flood had taken place on 26 July 2012. This crucial fact was hearsay and was heavily disputed. They were now asked to conduct a forensic examination of the alleged damages to see whether any or all of them match the happening of a flood and/or an impact. However, the fact that a damage is found to be consistent with a flood does not mean that the flood did actually happen on 26 July 2012. It might equally match any flood happened anytime unless a time-precise scientific test exists and has been administered. No such test was said to have existed or administered. It remains for the Plaintiff to satisfy this Court that the alleged flood did occur on 26 July 2012 in the manner as said by the Plaintiff causing various water damages; and the blown-off Structure had caused certain damages as now alleged by the Plaintiff.

144.  In any event, both experts have given their opinion on the issues relating to liability and quantum.

145.  As said above, the 2 reports and their opinion in court shed light on liability. Their evidence helps support this Court’s conclusion based on assessment of the credibility of factual witnesses.

146.  I have read both reports. In Lee’s report, he only stated his conclusion without any analysis. He stated:

i)   in paragraph 6.1, the damages at the roof “were likely    damaged by the glass house which was blown off by    no. 10 typhoon signal from House 222 [i.e. the D’s    House]”; and

ii)   in paragraph 6.2, the defects at the garden “were    likely damaged by the debris of glass house under no. 10 typhoon signal”;

iii)   in paragraph 6.3, the water damages inside P’s    House “were likely caused by the blockage of rain water pipe at roof by the debris of glass house and    which affected discharge of rain water at roof during    the typhoon; resulted in the roof flooding and water    seeped into the house through staircase.”

The Weight and Size of the Blown off Structure

147.  It has been agreed between the 2 experts that the part of the Structure blown off the D’s House and landed on the roof top of P’s House was of approximate size 5m (L) x 3m (W). Both initially estimated it to weigh about 400 kg, with 300 kg being that of the tempered glass of 6mm thick, and 100 kg being that of the aluminium frame. At trial, Cheung had estimated the glass to weigh around 225 kg. He came to this figure on the assumption the Structure complied with British Standard 6262 (“BS 6262”) which was normally adopted for Hong Kong buildings as a result of the Practice Notes for Authorized Persons and Registered Engineers (“Exhibit D-1”) issued by the Buildings Authority. The said Practice Notes stipulates BS 6262 was to be adopted for glazing for buildings in Hong Kong. BS 6262 specifies for glass of 6 mm thick, the glass should have a mass of 15 kg/m². From this he worked out the mass of the glass would be around 225kg. As a result, he said the blown-off mass should be at least 325 kg. However, he agreed that 400 kg remains a reasonable estimate. Lee had no comments of this further refinement of Cheung. I accept Cheung’s opinion on this issue.

How Part of the Structure landed

148.  Lee suggested at trial that the blown off part might have first of all hit the stair hood of the roof of P’s House before landing. This was because he could observe scratch marks on the surface of the upper part of the hood in one of the 2012 photos[132]. The structure then landed, with one side resting on the edge of parapet wall and other the end on the roof top. Lee said it was very likely the structure broke off a corner of a granite top of the parapet wall when it landed. The metal frame, or part thereof, that damaged this granite might have fallen off the street, or on the roof (as can be seen on D1/68 upper and D1/70 upper). Alternatively, the strong wind might have pushed the frame further closed to the stair hood after breaking the said granite top. As a result, the frame as seen in the said photo did not sit exactly on the broken granite, but a few inches away towards the stair hood.

149.  It is fair to say Cheung had no quarrel with Lee that when the Structure landed, some parts might had fallen onto the street. Cheung also accepted that as a matter of possibility, the stair hood might be hit as it was the highest point of the P’s House. However, he disagreed that the particular scratches on the stair hood was made by the blown-off metal frame. His view was that in order to make the scratches as could be seen from the photo, a stronger and harder collision should have been required.

150.  There is dispute as to whether the landing is a hard or soft one. Cheung said he had examined the aluminium hollows of the remnant and the said July 28 photos. He was of the view that they were basically intact and suffered no deformation, twist, bent or dent, except at the end of one or 2 hollows. He explained that the minor deformation found at those ends might have been caused when the blown-off parts were torn off from the mother structure by the sheer force of the typhoon. He said he had carefully examined the floor tiling of the roof. He could found no broken or scratch marks on it. It was his views that given tiles being made of ceramic, marks or scratches (if any) caused by a hard collision should have survived even after 3 years. His conclusion was that fortunately, there had not been any hard landing.

151.  Lee initially considered it was a hard landing. It fact his view was a very hard landing. He compared the impact of the blown-off structure onto the floor of the roof to the bumping of a motorcycle[133] at a speed of 146 km/hr. He later corrected himself because the speed of 146 km/hr he had adopted was in fact only the wind speed of gust recorded by the Hong Kong Observatory. It was not equivalent to that of the motorcycle. Despite the giving of another chance to express his further opinion in response to what Cheung had said at trial in the preceding paragraphs, he made no further comments.

152.  On a balance, I find Cheung’s view concerning landing sound and reasonable. From a survey of the said July 28 photos, it is noted the aluminium frame lying on the parapet top, i.e. the coping, is rather intact, and the different elements of the frame are still connected to one another[134]. I can see from these pictures the remnant of the frame not showing any sign of deformation that is expected to arise from serious impact as said by Lee. Neither is it shown in any of the said July 28 photos that the frame has been dented or disfigured or bent. Signs of heavy impact have not been shown. What has been revealed in the said photos tallies with Cheung’s proposition but not Lee’s. The analogy of a motorcycle bumping is obviously wrong. On a balance I accept there was no hard landing that would cause serious impact at the point of contact. It can be seen from one of the said July 28 photos that a rather long section of a broken fluorescent tube could even survive the impact[135]. Although there is no evidence as to where came this fluorescent tube, it is this Court’s judgment had there been a hard landing it would have caused severe vibration and damages, and thus a more fragmented tube.  

Whether the shattered glass fragments were piled up    artificially

153.  Both experts agreed that the piling up of shattered glass fragments in the manner as seen in the 2 photos (D1/68) of the said July 28 photos was natural and was caused by the wind and rain when the glass panels shattered in the landing. It did not appear to be a deliberate piling up during clean-up exercise. Lee referred to a fan-shaped glass fragments pattern caused by swinging open of the door in support of his said conclusion.

154.  This Court shares the 2 experts’ views in this respect. If the piling up is part of a clearing up exercise, it is more likely than not that the cleaners would have cleared up as much as possible the glass fragments at the doorway. It is because not to do so would cause much inconvenience and in fact pose danger to those carrying them down. Alternatively, no prefect fan-shaped swing pattern could be preserved because it would have been disturbed in the removal exercise.

155.  The views of both experts in this respect support the Court’s conclusion of both the Plaintiff’s and Luk’s evidence unreliable.

Stair Hood Damage

156.  Although Cheung agreed that the scratch marks made to the stair hood should have been made by external force, he did not believe the same was made by the blown-off Structure.

157.  According to [4.2.2.1] of his report, Cheung said that it was due to lack of maintenance and is wear and tear. He did not mention anything about external force. At trial, he said the scratches might have been made by stronger impact which he did not believe to be the case here as it could have caused much distortion to the frame which was not observed in the remnant.

158.  There is not much description about the damages to the stair hood by Lee in his report save and except he took 3 photos showing the alleged damage[136]. He said nothing, both in report and at the hearing as to the kind of external force necessary to create the scratch to this extent. The scratches on the stair hood were, apparently, not the centre of attention in any of the said July 28 photos. Lee’s proposition of an impact as hard as a motorcycle bumping at 146 km/hour was clearly a fallacy. On a balance, I do not think the Plaintiff can satisfy the burden of proof in establishing that the damages done to the stair hood were caused by the blown-off structure.

Granite Top (Coping)

159.  Cheung agreed the granite top in question must be chipped off by external force. Again, he disagreed the same to be caused by the blown-off Structure as said by the Plaintiff. His view is that if there was an impact by the metal frame which caused the break-off, the pattern of damage would have been quite different.

160.  Lee has neither given any analysis nor any elaboration on the pattern of chipping off. Basically, what he said was it was possible for the metal frame to chip off a part of the granite top in the manner as shown in D1/70, which is one of the said July 28 photos[137].

161.  Given the Court’s conclusion that the Plaintiff did not care, contrary to what she has alleged, about the repair and maintenance of her house, on a balance, I accept Cheung’s explanation that the break off of the granite top was not caused by the fall of the blown-off Structure.

The Underside of the Coping

162.  The underside of the granite top along the parapet walls was completed with a quarter-circular granite strips, and together they formed the coping. It was Cheung’s view that each of these strips were adhered to the underside of the granite top. There was a loss of adhesion between some strips and the underside of the granite top, and thus they fell off. When he visited the roof, there were more falling on the roof. It was due to, according to him, a lack of regular maintenance.

163.  At the time of Lee’s inspection, he found fallen off marble strips at 3 places (referred to in his photos RF4, RF5 and RF6). He took the views that the impact when the metal frame landed caused their falling off. After he had acknowledged that the impact might be a soft one or at least not a hard one, he still insisted at least the damage at RF4 was likely to be caused by the impact whereas those at RF5 and RF6 might not[138].

164.  Despite Lee had found a number of fallen off strips and identified them in his location plan at C/69, there is only one fallen off strip found in the said July 28 photos: see D1/68 upper[139]. It corresponds to that shown in photo RF4[140]. No other falling off strips can be found in the said July 28 photos. This Court believes, had there been other fallen strips, Luk should have taken pictures of them. Accordingly, this Court did not believe the falling off shown on RF5 and RF6 were caused by the landing of the blown-off structure. This Court accepts Cheung’s view that the falling off was caused by loss of adhesion between the 2 granites. It was a wear and tear due to lack of regular maintenance.

165.  The question is whether the one shown in D1/68 upper, i.e. RF4 were dislodged by the blown-off metal frame.

166.  This Court considers Lee’s overall explanation unsafe and too simplistic. The Plaintiff had not put in more convincing evidence in support of her case. Given this Court’s conclusion of a soft landing, and there was a lack of maintenance of the P’s House, on a balance this Court does not believe the falling off of strip as shown in RF4 was caused by the impact of the metal frame. It might have been there before the incident. The Plaintiff has not discharged her burden of proof.

Water Tank Top

167.  The top of the water tank, which is made of marble was dislodged and fell on the roof floor: see D1/68 upper photo[141]. Cheung was of the view that its falling off was not caused by the blown-off structure. He explained that the water tank was a thin structure, which is a few inches shorter, attached to the parapet wall. It was therefore at a sheltered position and could not have been struck by the blown-off frame easily.

168.  On the other hand, Lee took the view it was struck off by the frame on the simple view that it was shown in one of the said July 28 photos.

169.  On a balance, I accept Cheung’s view. I accept the tank top was sheltered by the parapet wall, less susceptible to be struck by a large but rather intact blown-off frame in the circumstances.

The Loosen Grating and the Flood

170.  Lee said when he carried out the inspection, the grating of the drain opening had already been removed as shown in his photo RF9. He did not know who had removed the grating from the drain opening. From the cement marks on the wall, he was of the view the original position of the grating should be vertical and attached to the lowest part of the parapet wall where the floor drain goes out to the vertical drain. He had not measured the size of the drain opening. Neither had he put his hand nor used any aid to see through the opening. He estimated the height of the opening to be about 2 inches (about 50 mm). The height of the door sill was 100 mm (about 4 inches). Water accumulated beyond this height would overflow into the house. The water stains found inside the house were consistent with there having been water coming down and a flood.

171.  Cheung said that the inlet of the opening was rectangular and was a little bit more than 2 inches high. He had used an endoscope to inspect the drainage pipe. There was no u-trap or goose neck to hold up anything (Lee also agreed at trial). Water and anything carried with it, after entering the opening, would run down the vertical drainage pipe, falling the entire height of the house to the ground level. The vertical drain was not connected to any pipe on the ground level. It simply discharged onto the surface open channel along the side of the house. This was referred to as an open channel design.

172.  Lee said at the date when the alleged July 26 flood occurred, the black rainstorm signal was hoisted. His hypothesis was that when water accumulated during the heavy rainfall, the shattered glass fragments would be pushed towards the opening by the running water. Lighter particulars moved faster and further and would eventually block the opening. He could see glass fragments on the roof floor and near the opening in the said July 28 photos. These, he said, were evidence in support of his proposition.

173.  In fact, it was common ground of the 2 experts that as shown in 2 of the said July 28 photos (D1/68 upper and 70 lower), the grating of drain open had fallen off its original position. It lay down on the depressed trough, obviously not flat but at an angle tipping up, with the upper end more-or-less levelling with the roof floor and the lower end towards the inlet.

174.  Cheung took the view that given this position, water would tend to discharge faster than when the grating was standing. In the latter case, particles pushed towards the grating would be blocked and piling up, thus blocking it. However, if the grating was lying down, particles would be pushed through the opening. Since there was no U-trap to hold them, they simply went straight down the vertical drain onto the ground floor open channel.

175.  Lee disagreed with Cheung. Though he agreed particles would be flushed inside the drain, they had to travel horizontally the thickness of the parapet wall before falling into the vertical drainage pipe. He estimated the thickness of the parapet wall to be 4 to 6 inches. He took the view such distance should be sufficient to cause the necessary blockage causing the flood. Cheung insisted on his view, though he accepted this might perhaps be the distance the flushed-in particles needed to travel before falling down.

176.  Given this Court’s finding that the said July 28 photos should not have been taken after any clean-up as alleged by Luk or at all, the photos at D1/70 lower must be the condition of the drainage inlet, the position of the grating and the spread of glass fragments around that said inlet when the alleged flood was said to have taken place. That being the case, this Court did not believe Lee’s proposition of the cause of flood supported by contemporaneous evidence. Firstly, there was simply no or insufficient glass fragments surrounding the opening which help support Lee’s said proposition. No glass fragments could be seen accumulated or trapped around the opening. If lots of fragments could be seen, it tends to support Lee’s proposition and disapprove Cheung’s. It appears to be the other way round.

177.  Secondly, Lee did not appear to have examined the drain inlet in a manner required of an expert. Apart from not taking the measurement of the parapet wall, he did not even know whether there is any u-trap or goose neck which, if existed, would have affected accumulation of the glass fragments, and thus caused a choking. His opinion in this respect is unreliable.

178.  Thirdly, it is hard to believe Lee did not even bother to check with the weather reports of the Hong Kong Observatory. As a matter of fact, there was simply no black rainstorm signal hoisted on 26 July 2012. In fact, amber rainstorm signals were hoisted at the following time:

i)   24/07/2012 1:55 - 24/07/2012 10:40;

ii)   25/07/2012 11:30 - 25/07/2012 14:20; and

iii)   27/07/2012 - 27/07/2012 12:30.

179.  Lee did not deny the above weather condition. So on the date of the alleged flood, there was no rainstorm warning issued by the Hong Kong Observatory. Neither had the Plaintiff adduced any evidence that at the time of the alleged flood, it was raining at the locality of the Sha Lan Villas. It has to be borne in mind the worth of an expert opinion depends on whether he has got the material facts correct, and his logic and reasoning when applying a theory. If he simply repeats what has been instructed him to say without doing any verification, his opinion is of no value, unreliable and should be rejected. In the present case, this Court cannot help forming a view Lee has not appreciated enough the importance of being a Court’s expert and considered he should speak for the Plaintiff as he was instructed by her. It has to be emphasized that an expert owes an overriding duty to the Court and should not be partisan. He is not a hired gun of those instructing him.

180.  This Court accept Cheung’s view and does not believe a flood had taken place on 26 July 2012 as alleged by the Plaintiff or at all. This Court also did not believe the drain grating was dislodged by the blown-off Structure. The Plaintiff simply cannot discharge her burden of proof.

Wall Mounted Light on the Roof

181.  Save and except Lee stated he believed such damage was likely caused by the blown off Structure[142], he stated no other reasons for such conclusion in his report. Cheung took the view that it was due to wear and tear. In light of this Court’s conclusion that the Plaintiff is not the sort of person who would care to maintain and repair her house as she tried to portray herself to be, this Court does not believe the damage to this light was caused by the blown-off Structure landing on her roof. The Plaintiff failed to discharge her burden of proof.

Other Damages to the Roof

182.  In light of the Court’s conclusion that it was a soft landing and the lack of reasoning in Lee’s report, this Court considers the Plaintiff has failed to discharge her burden of proof. The allegation that the cracks on the glass of the storage cabinets, the loosing of the grating, etc. allegedly caused by the blown-off Structure cannot be substantiated.

Other Damages in the Garden and the External Wall

183.  Again, Lee stated he believed such damages was likely caused by the blown off Structure. On the other hand, after perusing Cheung’s report, it is fair to say Cheung gave a better analysis. He was of the view that given the size of the Structure, it could not have caused such widespread and extensive damages to P’s House, from roof to garden, inside to outside including surface channel, floor tiling, iron grille at the gate, fencing, etc. as now claimed by the Plaintiff. He also considered some of the tile breakage was caused by vegetation, and the drain blockage was caused by vegetation and debris consistent with a lack of regular maintenance.

184.  This Court agrees with Cheung. It would not have been possible, unless the Plaintiff had put in convincing evidence, which she failed now, for only part of the Structure to cause the damages to the garden and the external wall as widespread and extensive as the Plaintiff now claimed. No remnants of the aluminium hollows and glass fragments could be retrieved from the ground floor drain to support that its choking, if any, was caused by the blown-off Structure.

Conclusion

185.  By reason of the above, this Court rejected the allegation of the alleged July 26 flood totally. The Plaintiff’s claim of impact damages is also rejected. It will therefore be unnecessary for this Court to enter into a discussion of the legal principles relating to the Plaintiff’s case. This Court would like to briefly mention 2 further points.

186.  Firstly, this Court does not believe, taking P1’s evidence to the highest, there was a settlement agreement reached on 29 July 2012. There is simply no consideration given for the settlement.

187.  Secondly, with the greatest respect to Mr Ng, this Court considers the Defendants do owe the Plaintiff a duty of care. Typhoon attack is a common occurrence in Hong Kong, and any glass structure to be broken by foreign objects blown onto it during a typhoon is not something not foreseeable. Once the structure is broken, it will be susceptible to strong wind. Its being ripped off and carried away to his neighbours are natural and foreseeable consequences.

188.  The Defendants are therefore liable for the damages caused by the landing of the Structure onto the P’s House. Save and except the costs of removal of the glass fragments and the aluminium hollows which are still on the roof top of the P’s House, all claims by the Plaintiff cannot be substantiated. The removal costs were estimated to be $3,592.64 by Cheung[143]. That was the price estimate for 2016. I am prepared to adjust it to $5,000, taking into consideration of inflation for these 2 years.

Disposition & Costs

189.  This Court now orders the Defendants to pay the Plaintiff a sum of $5,000, being damage representing expenses of removing the shattered glass fragment and aluminium hollows remaining at P’s House.

190.  As seen in the evidence, D2 has in fact offered to help remove the debris shortly after the blown-off incident but that was declined. This was admitted by the Plaintiff. Further, despite the award in the preceding paragraph, the Plaintiff fails in each and every issues she has raised. This Court therefore makes a costs order nisi that the Plaintiff do pay the Defendants costs of the action, with certificate for counsel, on District Court scale to be taxed if not agreed. Such order be made absolute if no application is made to vary the same in 14 days.