YEUNG YIK CHUN v. WONG LAI MING AND ANOTHER

CAMP 2/2024, [2024] HKCA 662

On An Intended Appeal From [2023] HKDC 1160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2 OF 2024

(ON AN INTENDED APPEAL FROM DCCJ NO 2004 OF 2019)

________________________

________________________

______________

J U D G M E N T

______________

Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the 1^st and 2^nd Defendants’ renewed application for leave to appeal against the judgment of Deputy District Judge M Lam (“the Judge”) dated 30 August 2023 (as varied on 22 September 2023 in relation to the issue of costs).

2.  Having considered the documents and the submissions filed by the parties, we consider that it is appropriate to deal with the present application on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court, Cap 4A.

BRIEF BACKGROUND

3.  The Plaintiff and the Defendants are respectively the registered owners of the Ground Floor (“the Plaintiff’s Premises”) and the First Floor (“the Defendants’ Premises”) of a two-storey residential building with a flat roof known as House 22 (“House 22”), Cameo Court, Tai Po, New Territories, Hong Kong. The Plaintiff’s Premises are situated immediately below the Defendants’ Premises.

4.  Cameo Court is a low-rise residential estate built in 1991. House 22 adjoins House 23 on one side, and a building (“the Office Building”) comprising the management office and a transformer room on the other.

5.  The Plaintiff’s complaint is that since around October 2018, there has been water leakage from the Defendants’ Premises to the Plaintiff’s Premises, causing substantial damage to the ceiling, walls, external walls and furniture of the Plaintiff’s Premises. Despite complaints to the Defendants and the Joint Office of the Buildings Department and the Food and Environmental Hygiene Department (“the JO”), the water leakage from the Defendants’ Premises to the Plaintiff’s Premises has persisted.

6.  By an action commenced in the District Court (DCCJ 2004/2019) on 23 April 2019, the Plaintiff claimed that the water leakage was caused by the Defendants’ breach of the relevant Deed of Mutual Covenant, negligence and nuisance, and sought, inter alia, damages and a mandatory injunction to compel the Defendants to take all reasonable steps to prevent or stop the water leakage. The Plaintiff’s claim was denied by the Defendants.

7.  The action was tried by the Judge, who received expert evidence adduced by the Plaintiff (Mr Hau) and the Defendants (Mr Wu) on the cause(s)/source(s) of the water leakage. There was no dispute that there were two major areas of water seepage in the Plaintiff’s Premises, namely, (i) the ceiling and walls of the bathroom, the corridor (connected to the bathroom) and the kitchen (adjacent to the bathroom) (“Affected Area A”), and (ii) the ceiling of the balcony and living room (“Affected Area B”).

(1)  Mr Hau’s evidence was that the water seepage at Affected Area A was caused by leakage from the defective freshwater facilities and defective waterproofing facilities in the bathroom of the Defendants’ Premises, and the water seepage at Affected Area B was caused by leakage from the defective flooring and defective waterproofing facilities in the balcony of the Defendants’ Premises.

(2)  Mr Wu did not positively identify any source of water seepage but suggested that the source(s) or cause(s) of the seepage might have been –

(a)  a horizontal pipe duct which might have been hidden in the thickened concrete area in the concrete ceiling of the Plaintiff’s bathroom and corridor (referred to in the Judgement as “the Addition”);

(b)  the external wall of the House 22 (“the External Wall”);

(c)  House 23;

(d)  the Office Building; and/or

(e)  underground water, raising damp, or condensation.

8.  The Judge handed down a written judgment on 30 August 2023 (“the Judgment”), finding that the water seepage at Affected Area A was caused by leakage in the freshwater facilities of the Defendants’ bathroom and the defective waterproofing facilities of the Defendants’ bathroom, while the water seepage at Affected Area B was caused by the defective flooring and defective waterproofing facilities of the Defendants’ balcony[1]. In so finding, the Judge accepted the expert evidence of Mr Hau, whose opinion the Judge considered was “logical in reasoning and well-supported with evidence, photos, test results and objective facts”[2], “convincing”, and “justified” by various tests and relevant photographs[3]. The Judge rejected the evidence of Mr Wu, taking the view that his evidence was “long-winded, repetitive, unfocused and not readily comprehensible”, and his suggestion of other possible sources of water seepage was “unconvincing”[4]. In the Judgment, the Judge considered in detail, and rejected, each of the other possible sources of water seepage raised by Mr Wu[5].

9.  The Judge made, inter alia, the following orders in favour of the Plaintiff:

(1)  the Defendants do at their own costs, carry out remedial works to rectify the causes of the water seepage at the Defendants’ Premises, namely, the freshwater facilities and the waterproofing layer of the bathroom of the Defendants’ Premises, and the waterproofing layer of the balcony of the Defendants’ Premises, within 28 days from the date of the Judgment;

(2)  the Defendants do pay the Plaintiff the costs of remedial works at HK$48,400;

(3)  the Defendants do pay the Plaintiff the loss of rental income up to the date of trial at HK$756,469;

(4)  the Defendants do pay the Plaintiff the loss of rental income thereafter at the monthly rate of HK$13,190 until the Defendants’ full compliance of paragraph (1) above; and

(5)  the Defendants do pay the Plaintiff damages for distress, discomfort and inconvenience in the sum of HK$30,000.

10.  The detailed facts of this case, and the Judge’s reasons for her decision, are fully set out in the Judgment and will not be repeated here.

11.  On 25 September 2023, the Defendants issued a summons in the court below seeking leave to appeal against the Judgment. On 18 December 2023, the Judge gave a written decision (“the Leave Decision”) refusing to grant leave to appeal, on the ground that none of the grounds advanced by the Defendants had any merits and the intended appeal did not enjoy any reasonable prospect of success, and there was no other reason in the interest of justice why leave to appeal should be granted.

THE PRESENT APPLICATION

12.  By a summons taken out on 2 January 2024 (“the Leave Summons”) in the Court of Appeal, the Defendants renew their application for leave to appeal against the Judgment. The Defendants’ draft Notice of Appeal contain seven intended grounds of appeal, which we will consider below.

DISCUSSION

13.  The relevant principles for (i) granting leave to appeal from a judgment given by the District Court, and (ii) appeals against findings of fact made by a trial judge, are well-established, and will not be repeated here.

Ground 1

14.  Under Ground 1, the Defendants argue that the Judge erred in finding that there were two distinct and separate affected areas, ie Affect Area A and Affected Area B, in the Plaintiff’s Premises where the moisture content declined exponentially with distance from the bathroom (in respect of Affected Area A) and the intersection between the balcony and the living room (in respect of Affected Area B) by:

(1)  misinterpreting the evidence in the “Joint Expert Report” that Mr Hau and Mr Wu essentially agreed on the patterns of water seepage; and

(2)  failing to give proper regard or at all to the moisture content surveys carried out by the experts which contradicted the Judge’s finding concerning the delineation and description of the patterns of water seepage in the Plaintiff’s Premises.

15.  The Defendants’ argument under this ground involves a misreading or misunderstanding of the Judgment. The Judge did not find that the experts agreed on the patterns of water seepage. What the Judge said, at §33 of the Judgment, was that the two experts had no serious disagreement on the affected areas of the water seepage in the Plaintiff’s Premises as illustrated in their expert reports. The statement in the first sentence of §33(a) of the Judgment in respect of Affected Area A, namely, that “very high moisture content was detected at the ceiling and walls of P’s bathroom, of the corridor (which connected to the bathroom) and of the kitchen (which was adjacent to the bathroom)”, was not in serious dispute[6]. The Judge’s observation in the second sentence of §33(a) of the Judgment, namely, that the “moisture content of the other affected areas, as the living room, room A and room B, reduced according to their distance from the bathroom”, was based on the Judge’s recognition that “very high moisture contents were detected at the ceiling and walls of the Plaintiff’s bathroom, which were connected to the corridor and adjacent to the kitchen”, and she considered the above observation to be well justified by the moisture content surveys produced by the two experts[7]. The Judge’s assessment of the expert evidence, including the moisture content surveys produced by the two experts, was a matter for her. The Judge was entitled, on the basis of the evidence before her, to come to the view in the second sentence of §33(a) of the Judgment. We do not see her view of the matter to be plainly wrong. The same comment applies to the Judge’s observation in the second sentence of §33(b) of the Judgment in respect of Affected Area B, namely, that the “moisture content of the surrounding areas reduced according to their distance from [the intersection of the ceiling of the Plaintiff’s balcony and of the Plaintiff’s living room]”.

Ground 2

16.  Under Ground 2, the Defendants argue that the Judge erred in her overall assessment of the expert evidence by overlooking the fundamental flaws in the evidence and opinion of Mr Hau that the Defendants’ Premises were the cause of the water seepage to the Plaintiff’s Premises. The Defendants challenge in particular Mr Hau’s view that the External Wall should be excluded as a cause of the water seepage, his interpretation of the microwave scan result, and his view that water seeped to Affected Area B though the door frame sitting on the threshold at the entrance to the balcony of the Defendants’ Premises, and contend that Mr Hau failed to collate all necessary information and data in relation to other possible causes of water seepage, or successfully eliminate them as possible causes of water seepage.

17.  The Defendants are, effectively, seeking to re-argue the case afresh in the hope that the Court of Appeal may come to a view different from the Judge on matters of fact, but fail to point to any palpable error of the Judge. Ground 2 is not a valid ground of appeal. In any event, the Judge specifically considered the various points raised by the Defendants, and rejected them:

(1)  In respect of the exclusion of the External Wall as the source of water seepage, the Judge did not merely accept Mr Hau’s evidence. She rejected Mr Wu’s contrary evidence after cross-referring to the relevant photographs, diagrams, layouts and opinions of the two experts, and came to the view that although there were some defects on the External Wall, they were minor in nature and could not have caused the significant water seepage in question[8].

(2)  In respect of the microwave scan result, the Defendants’ argument is premised on the existence of the Addition and its thickness. However, Mr Wu’s suggestion of the existence of the Addition (or the existence of a pipe duct in the Addition) was rejected by the Judge as being “a kind of guesswork” and was “merely multiple pure speculations”[9].

(3)  Mr Hau’s view that water seeped to Affected Area B through the door frame sitting on the threshold at the entrance to the Defendants’ balcony was supported by photos taken during his visit to the Defendants’ Premises, which showed that the flooring, door frame and surrounding areas of the Defendants’ balcony were seriously damaged, and further supported by the moisture tests carried out by him[10]. The Defendants’ argument that Mr Hau’s view was a mere conjecture without any proof of defect or damage in the threshold and the waterproofing layer embedded in the floor slab of the Defendants’ balcony is not reasonably arguable.

The Judge was entitled to come to the above views.

Ground 3

18.  Under Ground 3, the Defendants argue that the Judge erred in finding that (i) the freshwater facilities of the Defendants’ bathroom were leaking, (ii) the waterproofing layer embedded in the floor of the Defendants’ bathroom was ineffectual, and (iii) the waterproofing layer embedded in the floor of the Defendants balcony was ineffectual, and in her finding that the Defendants had knowledge that their premises were the cause of water seepage to the Plaintiff’s Premises, by:

(1)  failing to recognise the fundamental flaws in Mr Hau’s opinions as aforesaid;

(2)  failing to appreciate the weight and bearing of the evidence relating to the defects and water seepage in the External Wall; and

(3)  falling into an error of fact that water seepage at Affected Area B was extensive involving a large amount of water and that the sealant of the Defendants’ balcony door and its surrounding area was seriously damaged.

19.  This ground of appeal is another attempt to re-argue the case in the Court of Appeal afresh in the hope that it may take a view different from that of the Judge on matters of fact. We have already dealt with the Defendants’ specific complaints mentioned at §18(1), (2) and (3) above. The Judge was entitled to accept Mr Hau’s evidence, and find, on the basis of his evidence and other objective evidence such as photographs showing the conditions of the Defendants’ Premises, that the defects in the External Wall could not have caused the significant water seepage in the Plaintiff’s Premises, that there was serious water seepage at Affected Area B, and that the sealant of the Defendants’ balcony door and its surrounding area was seriously damaged. This ground adds nothing of substance to the previous grounds of appeal.

Ground 4

20.  Under Ground 4, the Defendants argue that the Judge erroneously reversed the burden of proof, and misdirected herself to choose between the competing opinions of Mr Hau and Mr Wu.

21.  This complaint has no merits. The Judge correctly set out the relevant principles at §26 of the Judgment, stating clearly that the Plaintiff bore the burden to prove on a balance of probabilities that the source of the water seepage was from the Defendants’ Premises, and found that the Plaintiff had discharged such burden at §139 of the Judgment. The Judge was entitled to assess Mr Hau’s evidence by considering whether Mr Wu’s challenges to his evidence had any merits or were well-founded[11]. The Judge did not commit any error of principle or approach.

Ground 5

22.  Under Ground 5, the Defendants argue that the Judge erred in failing to give weight to the tests (“the JO Tests”) carried out by the JO or the contractor engaged by the JO (“the JO’s Contractor”) by:

(1)  misinterpreting the letters from the JO that the JO Tests were unsuccessful and that the JO did not rule out the drainage pipes and waterproofing system of the Defendants’ bathroom as a possible cause of water seepage;

(2)  failing to take into account that (a) the JO Tests were the only direct evidence of the condition of the drainage pipes and waterproofing facilities of the Defendants’ bathroom, (b) the JO Tests were conducted by impartial and independent official bodies, and (c) the Plaintiff had access to the information relating to the JO Tests but decided not to challenge the results of those tests; and

(3)  failing to appreciate that the JO Tests had raised sufficient doubt on Mr Hau’s conclusion that the freshwater facilities in the Defendants’ bathroom were leaking and the waterproofing layer embedded in the Defendants’ bathroom was ineffectual, and the evidential burden rested on the Plaintiff to refute the findings made by the JO and the JO’s Contractor.

23.  This ground of appeal can be dealt with briefly.

24.  In relation to §22(1) above, the conclusion of the JO and the JO’s Contractor was that “the source of the water seepage could not be identified”[12] despite their investigations. This conclusion logically means, as held by the Judge, that they did not rule out the pipes and waterproofing system in the Defendants’ bathroom as possible sources of water seepage to the Plaintiff’s Premises[13]. The contrary is not reasonably arguable. When the Judge said that “[t]he Joint Office … reported that the tests carried out by it and its contractors were unsuccessful”[14], all she meant was that the tests carried out by the JO and the JO’s Contractor were not successful in locating the source(s) of the water seepage. The Judge’s statement is correct when read in its proper context.

25.  In relation to §22(2) above, in view of the fact that the JO and the JO’s Contractor were unable to identify the source(s) of the water seepage, the matters relied upon by the Defendants have no evidential significance.

26.  In relation to §22(3) above, we are unable to see that the results of the JO Tests cast any doubt on Mr Hau’s evidence, or that the Plaintiff bore any evidential burden to refute the (negative) findings of the JO and the JO’s Contractor.

Ground 6

27.  Under Ground 6, the Defendants attack the considerable weight given by the Judge to the “Water Sample Tests” carried out by Mr Hau referred to at §§54-57 of the Judgment (which the Defendants refer to as the “Chemical Test” in the draft Notice of Appeal) by:

(1)  failing to appreciate that the scientific analysis of chemical contents in the samples was outside Mr Hau’s expertise;

(2)  misinterpreting the Professional Guide to Water Seepage (“the Professional Guide”) issued by the Hong Kong Institute of Surveyors (“the Institute”) that a test of chemical contents in water samples was a common test recommended by the Institute;

(3)  wrongly rejecting the complaint of Mr Wu and holding that Mr Hau had provided a detailed account of the standard and procedure of the Chemical Test, the locations where the samples had been taken, and the analysis of the chemical contents in the samples, and failing to appreciate that Mr Hau’s failure to provide sufficient information about the Chemical Test had prevented Mr Wu from giving a proper assessment of its accuracy and reliability; and

(4)  failing to appreciate the importance of control samples in a sample test.

28.  These complaints are repetitions of arguments unsuccessfully raised before the Judge, and have no merits.

(1)  In respect of §27(1) above, the Judge was of the view that “the use of Water Sample Tests was confined to finding out the seeping water was not salty water and the seeping water in the bathroom, kitchen and the Pipe-edge Area shared the same source. The test was simple without complications in methodology or examination of detailed chemical components. Hau’s interpretation was straightforward that did not require the expertise of a chemist. Indeed, the acceptance of the use of test papers by experts to detect chloride in eliminating salty water facilities as a source of seepage is not uncommon in court”[15]. The Judge was entitled to take this view.

(2)  In respect of §27(2) above, the Defendants have failed to substantiate how the Judge misinterpreted the Professional Guide when she stated, at §66 of the Judgment, that “the use of test paper and the water sample tests as adopted by Hau is well-recognized as common test to distinguish between fresh water and flushing water by assessing the chemical properties of the water so as to eliminate certain causes of seepage by the Professional Guide at §3.2.10”. Ms Wong has produced a copy of the relevant part of the Professional Guide in the Defendants’ List of Authorities, but has failed to refer to any relevant evidence given by Mr Hau/Mr Wu on the meaning or effect, or the practical application, of §3.2.10 of the Professional Guide. Anyhow, §3.2.10 of the Professional Guide states that “[o]ne simple common test is to distinguish between fresh water … and flushing water. The differences in the chemical properties of these types of water are highlighted … By applying a pH indicator (such as litmus paper or phenolphthalein indicator) and a urine test paper to sample the leaked water/damp surface, one can eliminate certain causes of the seepage”. On the face of this paragraph, it seems to us that testing the chemical contents (or properties) of a leaked water sample is a common way to determine whether the leaked water is fresh or flush water.

(3)  In respect of §27(3) and (4) above, the complaints were considered, and rejected, by the Judge at §§68-70 of the Judgment and §62 of the Leave Decision. We agree with the Judge’s view of the matter.

(4)  Lastly, as the Judge pointed out, the results of the Water Sample Tests were only one of the factors considered by Mr Hau in support of his opinion on the source(s) of the water leakage[16]. The Judge considered that the test results supported Mr Hau’s opinion. The Defendants’ complaint that the Judge erred in relying and attaching considerable weight to this piece of evidence is unfounded.

Ground 7

29.  Ground 7 concerns the Judge’s award of general damages for inconvenience, discomfort and distress in the sum of HK$30,000.

30.  It is clear that such damages may be awarded in a claim for private nuisance/breach of contract in an appropriate case in addition to damages for loss of rental (see the authorities referred to by the Judge at §§165-166 of the Judgment).

31.  The complaints that the Judge erred in finding that the Plaintiff had cleaned up his premises, or failing to appreciate that the Plaintiff’s personal discomfort, inconvenience and distress was caused by his effort to collect evidence in order to substantiate his claim of nuisance, were considered and rejected by the Judge at §§67-72 of the Leave Decision. The Judge did not err in principle or approach, and her findings are not plainly wrong.

32.  We see no basis for the Court of Appeal to interfere with the modest award of general damages granted by the Judge in the present case.

33.  Overall, Grounds 1 to 7 are not reasonably arguable, and the Defendants’ intended appeal does not have a reasonable prospect of success. There is also no other reason in the interests of justice why the intended appeal should be heard.

DISPOSITION

34.  The Leave Summons is dismissed with costs to the Plaintiff, which we summarily assess in the sum of HK$80,000. The above summary assessment of costs is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.

35.  Since the application for leave to appeal is totally without merit, we make an order that no party may request the present determination of the leave application to be reconsidered at an oral hearing inter partes, pursuant to Order 59, rule 2A(8) of the Rules of the High Court.