LEE WAI CHUEN AND ANOTHER v. CHEUNG CHOR KEUNG AND ANOTHER

DCCJ 3098/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3098 OF 2006

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ASSESSMENT OF DAMAGES

1.  This is a claim for loss and damage as a result of water leakage between 2 flats of Yan On Building, Kwun Tong, Kowloon.

2.  Flat 5K is the family home of the Lee’s since birth.  The flat became registered in the name of W C Lee in 2004.  W C Lee soon moved out.  At the material time, his sister, H Lee, lived, and still lives, there with their mother.  The two siblings, as the owner and the occupant respectively, now sue together as the Plaintiff.

3.  Flat 6K is immediately above Flat 5K.  Cheung and Shuk are the registered owners of Flat 6K.  Neither of them resides there.  They are named together as the Defendant.

4.  On 10 May 2010, an injunction was granted and judgment for damages to be assessed was entered against Cheung and Shuk.

5.  Cheung and Shuk used to put forward a counterclaim on the basis that the complaint by H Lee constituted nuisance and interference to them.  At the beginning of the trial, their counsel conceded that such counterclaim had to be dismissed.

The water leakage and damage

6.  In about late December 2005 or early January 2006, Cheung and Shuk commenced extensive renovation works in Flat 6K.  Since then, H Lee had discovered water leakage in her flat. The first complaint about that was lodged with the management office of the building on 9 January 2006.

7.  On the same day, a joint inspection at Flat 6K was conducted by the representative of the management office, the incorporated owners and H Lee.  It was revealed that the internal partitions of Flat 6K were being altered; and the flat was being sub-divided into 3 separate units with individual toilets.  Water pipes connecting the 3 self-contained units were embedded in raised floor slab.  Water seepage was noticed near a water tap installed at the right end of Flat 6K.

8.  Days later, the water leakage became more serious.  Complaint was lodged with the management office and the Food and Environmental Hygiene Department (“FEHD”).  Due to the suspected unauthorised structural alterations in Flat 6K and the water leakage, complaint was also lodged with the Buildings Department (“BD”).

9.  On two occasions in January 2006, attempt by the consultant contractor of BD to inspect Flat 6K did not succeed.  Eventually, on 26 January 2006, a joint inspection of the two premises was conducted by the consultant contractor of BD and the Chairman of the incorporated owners.  It was discovered that the area in the ceiling of Flat 5K affected by the water leakage had expanded significantly.

10.  The water leakage problem persisted until March 2006 when H Lee lodged another complaint to the management office.  A joint inspection of the two premises by the representative of the incorporated owners, the management office and the then contractor of Flat 6K was conducted in April 2006.  Continuous water dripping from the ceiling and bulging ceiling plaster were recorded.

11.  In the meantime, an order dated 23 March 2006 was issued by the BD requesting for the removal of the unauthorised building works, namely, the thickened floor slab, in Flat 6K and the reinstatement of the parts affected.  Cheung and Shuk complied with the order the BD also certified that in writing on 12 April 2006.

12.  In late April 2006, a hole measuring 2 inches in diameter was discovered at the corner of the ceiling of H Lee’s bedroom.  The hole was through and through.  A couple of days later, the hole was somehow sealed on the side of Flat 6K.  It was believed that the hole was caused during the renovation work at Flat 6K.

13.  The belief that the water leakage had been contained was apparently short-lived.  On 6 May 2006, H Lee complained to the Joint Office of the FEHD and BD (“the Joint Office”) for persistent water leakage.  Inspection by the Joint Office on 17 May 2006 confirmed signs of water leakage at the ceiling of the living area of Flat 5K. However, attempt to enter Flat 6K for investigation failed, as no one answered the door.  Letter was left in the flat’s letterbox.

14.  By letter dated 13 September 2006, the Joint Office reported the result of its investigation over the past months.  It confirmed that the water leakage to Flat 5K was due to the damage to the water-proofing materials in the floor slab of Flat 6K.

15.  Upon the instruction of H Lee, Daniel Ho, an architect and authorised person (“the Architect”), inspected Flat 5K on 19 May 2007.  Water leakage at the ceiling of the living-dining area was recorded.  The leakage had caused the paint to peel off and mould to grow.  Lighting and electricity fittings on the ceiling were affected.

16.  The Architect could not gain access to Flat 6K for inspection in May 2007.  Application to the court for such purpose was made in September 2007.  It was on 7 November 2007 did the Architect manage to enter and inspect Flat 6K.

17.  The Architect discovered that despite the compliance with the building order in April 2006, Cheung and Shuk had apparently had their flat again sub-divided into 3 self-contained units, each fitting with living-dining and bed space, bathroom and kitchen.  There was alteration of the communal water pipe on the external wall outside the bathroom/kitchen of Flat 6K in the light well, including alteration of the approved sanitary fitment locations, addition of water closets, floor drain, basins and sinks as well as omission of bathtub.

18.  Most of the drainage pipes were again embedded in the raised floor slab and connected to the main drainage stack on the external wall in the light well.  It was believed that the drainage pipes embedded in the raised floor slab, which was less than 75mm in diameter and sub-standard.  It is believed that the leakage to Flat 5K was caused by flush water, use of shower and the floor drains.

19.  In April 2008, the BD confirmed that Cheung and Shuk had repeated the unauthorised building works in their flat after they had complied with the previous order for their removal. In the same month, the BD issued another order in respect of the raised floor slab of Flat 6K.

20.  Due to the damage to the light weight canopy outside the external wall of Flat 5K facing the light well, Cheung and Shuk had their contractor rebuilt one for the Lee’s.  However, the new canopy became the subject of a building order issued by the BD on 22 January 2008 against W C Lee, as the owner of Flat 5K, requesting for its demolition.  The Lee’s had the new canopy removed.  Compliance with the order was certified in August 2008.

21.  As to the re-constructed unauthorised building works in Flat 6K, further buildings orders were issued in April 2008 to Cheung and Shuk for the removal of those works.  On the one hand, they had lodged appeal against the orders.  On the other hand, they had indicated their readiness to comply.

22.  The fact was that their appeal was dismissed; and they had never complied with the orders.  Prosecution followed and both were found guilty and fined in May 2009.  Notwithstanding that, Cheung and Shuk had yet to comply with the building orders at least as of late February this year.  Further prosecution has been threatened.

23.  Considering the evidence of witnesses and the contemporaneous documents, including the correspondence of the incorporated owners, the various government authorities and the photographs produced, I find the above to the facts.

The claim

24.  The pleaded items of claim may be grouped into the following heads:

(1)                 cost of repair in Flat 5K and incidental expenses;

(2)                 cost of demolishing the light weight canopy;

(3)                 cost of rebuilding the canopy;

(4)                 medical expenses of H Lee;

(5)                 air ticket charges for the mother;

(6)                 cost of alternative accommodation;

(7)                 cost of the photographs;

(8)                 cost of infra-red examination; and

(9)                 general damages for nuisance, distress, discomfort and inconvenience.

25.  The parties have filed an agreed list of issues.  The quantum was also adjusted and thus the pleading amended during the trial.

Cost of repair and incidental expenses: item (1)

26.  According to H Lee, Flat 5K underwent major renovation in 2003.  In about December 2005, the entire flat was re-painted.  The relevant receipts evidence that.  That means the water leakage happened soon afterwards.

27.  In February 2006, H Lee obtained a quotation from a contractor for the various repairs and incidental works.  The total quoted cost was HK$128,200.

28.  Pursuant to the court’s leave, the Lee’s adduced the expert report of Boris Chi-kin Yung, Registered Architect and Authorised Person, dated 29 June 2010 (“the Expert Report”) in relation to the following issues:

(1)                 the remedial work necessary to make good the damage caused by the water leakage;

(2)                 the cost of such remedial work;

(3)                 whether the cost incurred by the Lee’s for demolishing the canopy is fair and reasonable; and

(4)                 the cost for reinstating the canopy.

29.  The Expert Report recorded the results of the inspection at Flats 5K and 6K attended by the parties and the expert on 15 May 2010.  The internal alteration in Flat 6K remained unchanged since the last inspection by the Architect in January 2008.  The water seepage in Flat 6K had relented.  The damage from seepage in Flat 5K had stopped propagation and the sites affected had dried up.  The necessary remedial works and the incidental cost, which were similar to those items in the quotation obtained in 2006, were itemised in the report.

Recoverability

30.  Mr Fung argued that the Lee’s are not entitled to recover the cost of the repair in Flat 5K because none of it has been incurred up to now.  He submitted that there is no claim for an indemnity for the cost of repair.  In the premises, they are said to be entitled to nominal compensation in the sum of HK$100 only.  Mr Fung referred to Tse Chit Sang & Anor v Ho Mei Ling & Anor, DCCJ 2404/2005 (19 June 2009) at paras.59-61.

31.  I disagree.  Upon proof of the tortuous act causing physical damage to the property, the liability of the defendant to compensate the plaintiff accrues.  Unless there is evidence that the plaintiff never intends to or will not carry out the repair, the fact that the necessary repair is yet to be carried out is no bar to the claim for the cost of it.  Insofar as what the learned Judge (as he then was) intended the short para.59 of Tse Chit Sang to really mean what Mr Fung suggested, I with respect would decline from agreeing.

Ceiling repair and re-painting

32.  According to the Expert Report, the area of the ceiling needing repair and repainting measured up to 275 square feet.  Mr Fung challenged that, saying that the Lee’s should not have carte blanche to re-decorate the whole or its surroundings at the expense of his clients.  He relied on the caveat to such effect made by the learned Master in Chan Fei Lung v Mansion Products Limited [1990] HKC 504.

33.  In principle, Mr Fung is right.  But I am not satisfied that in fact the projected repair to the ceiling exceeds what is reasonably necessary to achieve the resultant effect of the repaired parts blending in with the existing whole.  The extent of damage to the ceiling is quite apparent even by judging from the photographs.  In the absence of contrary expert evidence, I allow the cost of repairing the ceiling in the sum of HK$20,000 and repainting the ceiling in the sum of HK$10,000.

Wall re-painting

34.  A sum of HK$15,000 is claimed.  According to the Expert Report, the work would entail the removal of the old paint on the wall, application of primer and water based moisture resistant paint.  The area covered is 438 square feet.

35.  I have reservation about this item of claim, in view of lack of evidence of significant, if any, damage to the wall of Flat 5K as a result of the water leakage.  I decide not to allow this item of claim.

Wall-mounted cabinet

36.  The cost of replacement of the wall-mounted cabinet in the sum of HK$9,000 is agreed.

Ceiling lightings

37.  It was first pleaded that the cost of replacement of the hanging lightings was HK$6,000.  The amount was increased to HK$7,060 during trial.  Mr Li suggested that the amount consists of the cost of the lightings in the sum of HK$3,060 and the cost of work and labour in the sum of HK$4,000.

38.  According to the quotation H Lee obtained in February 2006, removal and installation of 4 sets of ceiling lightings would cost HK$3,000.  According to the Expert Report, removal of the 4 sets of existing light fittings and replacement and reconnection of new light fittings would cost HK$4,000.  Neither the quotation nor the Expert Report suggests that the quoted amount is for work and labour only. The other items actually suggest quite the contrary.

39.  The quoted HK$3,060 cost of the lightings was obtained in May 2010.  I do not consider the cost of removal of the old lightings and the reconnecting of the new ones should amount to another HK$4,000.  For this item, I allow HK$4,000.

Replacement of the dining table

40.  Mr Fung submitted that it is unreasonable to replace the dining table.  Sheer water, as Mr Fung suggested, is not expected to stain the marble top.

41.  But the evidence is more than that.  The water dripping from the ceiling, according to the Architect, came from flush and water drainage.  Both H Lee and the photographs suggested that the water was nothing but yellowish.  I am satisfied that it is not unreasonable to dispose of the table so stained.  I accept the evidence of the quoted cost of a replacement table at HK$6,950 and allow this sum.

Storage of furniture during repair

42.  The amount claimed was adjusted from HK$12,400 originally pleaded to HK$19,000 for packing, removal and storage (for 1 month) of the furniture items of Flat 5K before and after the repair.  In view of the extent of the repair work, and hence the necessary packing, removal and storage, needed inside the flat, I have reservation about the reasonableness of the amount claimed.  I allow HK$10,000.

Removal of debris and general cleaning

43.  Mr Fung submitted that this item of cost is unnecessary, in view of the limited repair needed to the ceiling.  I do not agree.  He then argued that alternatively, the cost should be lesser than that claimed.  The sum of HK$9,000 quoted does appear to be on the high side.  I allow HK$6,000 instead.  I also allow the HK$6,000 claimed for professional cleaning of the flat after work.

Insurance

44.  The Lee’s obtained a quotation for third party and workmen insurance to cover the repair work needed to be done.  Mr Fung suggested that the quoted amount should be adjusted downwards to reflect the limited area of the flat that needed repair.  Mr Fung could not convince me with evidence of how, and by how much, the insurance premium would necessarily be less because of smaller area of work.  I allow the amount of HK$5,000 claimed.

Alternative accommodation during repair

45.  I do not believe that the cost of alternative accommodation during repair is part of the cost of repair expected to be included in the Expert Report.  Such cost is not within the expertise of the maker of the report.

46.  Both counsel suggested that alternative accommodation could be rented at HK$8,000 per month.  That was indeed the rate at which H Lee and her mother rented the flat that they moved into for 7 months in 2006.  They parties differed in respect of the necessary length of such alternative accommodation during repair.

47.  3 months were suggested in the Expert Report.  In line with the reasonable extent of repair required as discussed above, I agree with Mr Fung that one month should suffice.  Therefore the amount allowed is HK$8,000.

Summary

48.  Cost of the repair in Flat 5K and the incidental expenses allowed are summarised as follows:

Cost of demolishing the light weight canopy: item (2)

49.  The Lee’s incurred HK$5,000 for demolishing the light weight canopy erected by the contractor of Cheung and Shuk after the original one had been damaged.  There is dispute whether they are entitled to recover such cost.

50.  As mentioned above, the new canopy had to be removed pursuant to the building order issued by the BD to W C Lee on 22 January 2008.  According to the terms of that building order, the canopy became subject of enforcement because it was unauthorised building work.

51.  In its letter dated 3 April 2008, BD explained that the building was a target of 2006 “Blitz” operation in which all lightweight canopies projecting more than 500mm from the external wall of the building were actionable unauthorised building works subject to enforcement action.  The newly erected canopy exceeded that size and therefore fell into this category of actionable unauthorised building works.

52.  In effect, any existing light weight canopies, be they old or newly erected, that projected from the external wall of the building for more than 500mm would have had to be removed.  But for that, the new canopy outside Flat 5K would not have had been considered to be caught.

53.  In court, Shuk came up with evidence of how she managed to know that the new canopy was a copy of the original canopy insofar as the size was concerned.  Her evidence in this respect is utterly unbelievable.  It is not proved that the original canopy would have been caught in the “Blitz” operation so that he would have had to incur the cost of removing it in any event.  I find Cheung and Shuk are liable to indemnify the cost of demolishing that canopy erected by their contractor, i.e., HK$5,000.

Cost of rebuilding the canopy: item (3)

54.  The Lee’s also claim for the cost of re-installing a canopy on the external wall outside his flat. Mr Fung submitted that they are not entitled to that.  Counsel exchanged argument on the principle of illegality.

55.  The matter could be viewed in more practical terms.  No owner is in a position to claim the right to build any canopy on the external wall of the building.  It matters not whether the intended canopy would project outside the external wall for more than 500mm or not.  Such measurement could only be the criteria for selecting actionable cases as a matter of executive decision of the BD.  This was more likely than not a matter of setting priority in enforcement, in view of the prevalent unauthorised structures outside buildings in Hong Kong.

56.  Mr Li submitted that it is possible for his client to obtain such authorisation to rebuild the canopy. This perhaps cannot be denied.  But this, in my view, does not suffice for the purpose of substantiating the claim for the cost of it when there is no evidence of even the slightest indication by the BD of its stance about such intended re-building work.

Medical expenses of H Lee: item (4)

57.  H Lee claims to have suffered from depression, anxiety, frustration, poor concentration, insomnia and various other physical conditions as a result of the stressor created by the water leakage episode.  Numerous medical receipts and records were produced, which show that H Lee has sought medical treatment from various practitioners including psychiatrists.

58.  As far as the consultation summaries of the psychiatric treatment can tell, a major complaint made by H Lee was indeed about the water leakage episode.  The memorandum of Dr Lo Chun Wai, psychiatrist, who saw her in March 2006 suspected that she was suffering from adjustment disorder.

59.  H Lee was referred to the Department of Psychiatry of the United Christian Hospital.  After the first consultation, the provisional diagnosis was mild depressive episode. Medication was prescribed and she continued her follow-up attendance until February 2008.  She still complained about noise at night due to the sound of running water pipe upstairs.  But she took medication only when she could not sleep well.  Other than that, her mood had improved.

60.  Despite challenge by Mr Fung, I am satisfied that there was a causal link between the water leakage episode and H Lee’s psychiatric condition.

61.  Various medical receipts and sick leave recorded diagnosis such as allergic rhinitis, gastritis, epigastric pain and discomfort, non-ulcer dyspepsia, low back pain during menstruation, premenstrual syndrome, ovarian cyst and pelvic endometriosis.

62.  In view of the evidence of the bulging and peeling off plaster and dust from the ceiling, which I accept, I am prepared to believe that there was some causal link between that and H Lee’s condition of allergic rhinitis.

63.  However, I would not say the same in respect of the other specific physical conditions.  It was suggested that H Lee did not have any of these physical condition prior to the water leakage episode.  This is not entirely true.  For instance, the medical chit dated 10 January 2006 recorded that H Lee had epigastric pain for months by then.  In any event, in the absence of proper medical opinion evidence, the causal link between those specific physical conditions and the water leakage episode is simply not obvious.

64.  Considering the above, I allow a lump sum of HK$3,500 for the medical expenses.

Air ticket charges for the mother: item (5)

65.  According to H Lee, her mother was in her late 70s when she was distressed by what the water leakage did to the condition of the family home.  As a relief, and to save the cost of moving out, her mother went to stay with another daughter in the US during the period between March and August 2006.  In the meantime, H Lee moved out to stay with her elder sister in Hong Kong.

66.  During the trial, it transpired that for that trip to the US in March 2006, the mother made use of the return trip of the round-trip ticket previously purchased well before the water leakage episode by her daughter in the US. Notwithstanding H Lee’s explanation in court, I find that the mother was expected to make use of that ticket to visit her daughter in the US.  As that was expected, it cannot fairly be said that the cost of that return trip to the US was incurred as a result of the water leakage episode.

67.  For the mother’s return to Hong Kong in August 2006, it was again her daughter there who purchased another round-trip ticket for the mother.  As the mother would have visited the US (by using the previous return trip ticket in hands), I doubt whether the burden of paying for the following trip back to Hong Kong should fairly be the liability of Cheung and Shuk.

68.  The water leakage episode might have affected the timing of that trip to the US.  But I am not satisfied that in principle and the fact, such cost was indeed caused by the tort committed by Cheung and Shuk.

Cost of alternative accommodation: item (6)

69.  H Lee and her mother moved out of Flat 5K during the period between 24 February and 23 September 2007.  According to H Lee, her mother was diagnosed with a serious disease in late 2006 to early 2007.  With a view to alleviate the possible effect of the then disturbing and uncomfortable condition of the flat on her condition and recovery, H Lee decided to move out to rented accommodation on a temporary basis.  Through property agent, H Lee rented a flat at the monthly rent of HK$8,000.  According to H Lee, that was a studio flat with a size of about 300 square feet.  The relevant tenancy agreement evidences that.

70.  The flat was located at the Western District.  As H Lee explained in court, this was convenient for her mother to visit the Queen Mary Hospital for treatment.  Mr Fung then questioned that proximity to the hospital was the real reason behind the decision to move there, rather than the condition of Flat 5K.  He also suggested that notwithstanding the condition of the living-dining area, the other parts of the flat could still have been used.

71.  Mr Fung’s suggestion is not fair.  I accept on the evidence that H Lee was quite entitled to take the view that the condition of Flat 5K was not beneficial to the health condition and recovery of her mother.  This did not have to be the only reason. According to the medical report from the United Christian Hospital dated 9 August 2010, this was also how H Lee explained to the psychiatrist her decision to move out.  The concern about proximity of the alternative accommodation to the hospital might have influenced the choice of the location, but not the decision to move out.

72.  Considering the evidence, I am satisfied that both the rental expenses (in the sum of HK$56,000) and the incidental estate agency commission (in the sum of HK$4,000) are reasonable and should be allowed.

Cost of the photographs: item (7)

73.  The amount claimed in the sum of HK$368 is agreed.

Cost of infra-red examination: item (8)

74.  The amount claimed in the sum of HK$2,500 is agreed.

Nuisance, distress, discomfort and inconvenience: item (9)

75.  There is no dispute that H Lee is entitled to claim general damages for the nuisance, distress, discomfort and inconvenience caused by the water leakage episode.  The parties differ as to the quantum.

Duration and severity of the damage

76.  The water leakage was discovered in January 2006.  In court, she recounted the experience of being awakened by her mother in the small hours of one day in January 2006 because of the water dripping from the ceiling of the living-dining area.  Utensils had to be placed on various spots to contain the water.  The utensils filled with water had to be emptied 2 times that day.

77.  In its letter dated 14 January 2006, the incorporated owners recorded the result of the joint inspection of Flat 6K.  Water was found dripping at the rate of 1 drop every 5 seconds.  The letter from the incorporated owners 2 weeks later recorded that the problem got worse.  The joint inspection by the consultant contractor of BD confirmed the increased severity of the damage caused by the water leakage.

78.  According to H Lee, affected by the dripping water, the television set in the living-dining area was left un-used.  Spark came out when the light switch was turned on.  The marble top of the dining table was stained.  As mentioned above, the Architect confirmed that the water leakage came from the flush and water drainage pipes embedded in the raised floor slab upstairs.  The photographs show that the water dripping and staining the dining table was not clear water.  The evidence also shows that the leakage had caused bulging of the ceiling plaster and peeling off of paint.  Mould grew.

79.  In April 2006, the 2-inch hole on the ceiling of her bedroom was discovered.  The hole remained through and through for a few days before the other side of the hole in Flat 6K was sort of covered up.  Though short-lived, the embarrassment and surprise caused to H Lee on top of the persistent water leakage should not be under-estimated.

80.  The Lee’s say that since discovered, the water leakage lasted until late 2008.  By letter in early September 2008, the solicitors for Lee’s indeed put on record the persistent water leakage.  However Cheung and Shuk contend that the leakage ceased in late 2007.

81.  Whether the water leakage in fact persisted during the period between late 2007 and late 2008, the evidence does not show significant aggravation of the condition of Flat 5K over that period.  Even according to H Lee in court, what was discovered in about September 2007 was very small patch of water on top of the refrigerator on 2 occasions.

82.  Nevertheless, the concern in the present case is not merely the duration of actual water leakage but that of the entire episode.  It is significant to note that the Lee’s were made to put up with the situation as a result of the lack of responsible response of Cheung and Shuk to the repeated complaint and intervention of the management office, the incorporated owners and the government departments.

83.  Worse still, soon after securing the confirmation of the BD for complying with the order to remove the unauthorised drainage installation by raising the floor slab, Cheung and Shuk had them reinstalled.  This was contrary to the reminder against further unauthorised building works when their compliance was certified in April 2006.

84.  Whether the repetition of the unauthorised building works in fact caused any further water leakage, the uncertain situation simply did not facilitate the commencement of repair work at Flat 5K.  The Expert Report made clear that any proposed repair works would be futile if the seepage continues.

85.  The conduct of Cheung and Shuk was clearly irresponsible use of their property for financial gain entirely without regard to the well being of the other owners.  Seeing Shuk testify and considering what she said in court, I find her evidence to be incredible.  I have no doubt that she chose to do what she did blatantly with her eyes shut to the obvious.

H Lee’s condition

86.  Details of the physical and mental condition of H Lee as a result of the episode were discussed above. I accept the evidence of H Lee that the water leakage and the resultant condition of their family home had caused H Lee and her mother distress, discomfort and inconvenience.  If H Lee happened to be mentally more vulnerable to the situation, Cheung and Shuk would have take their victim as she is.

Quantum

87.  In Lau Ting Hang & Anor v Leung Chi Wing, DCCJ 6539/2005 (18 February 2008), I said (at para.34) that for such intangible loss, there is no real formula of mathematical assessment (referring to Clerk & Lindsell on Torts). Cases are decided on their own facts.  But I do take into account the following other cases cited by counsel:

(1)    John So v Lam Hon Man [1993] 2 HKC 356;

(2)    Chan Fei Lung (above);

(3)    Leung Yung Chun v Chan Wing Sang [2000] 1 HKLRD 456;

(4)    Ngan Ping Chi & Anor v Lam Chi Hao Louis & Anor, DCCJ 462/2003 (31 December 2003)

(5)    Lau Lai Tan Wah & Anor v Cheng Mei Fong & Anor, DCCJ 4976/2004 (15 June 2006);

(6)    Chung Che Sum v Dong Sai Ming Fernando, DCCJ 21504/2001 (15 February 2007);

(7)    Wong Hon Yung & Anor v Jolly Birds, DCCJ 5341/2006 (24 June 2008); and (8) Tse Chit Sang (above).

88.  The amount originally claimed under this head was HK$150,000.  That would not have had any support by reference to the above comparables.  During the trial, Mr Li adjusted the claim downwards to HK$80,000.  Mr Fung suggested HK$50,000.  Considering the circumstances of the present case discussed above, I award HK$50,000.

Conclusion

89.  In summary, damages are assessed as follows:

90.  The action somehow went dormant after Cheung and Shuk filed their acknowledgement of service of the writ on 6 July 2006.  The notice of intention to proceed was filed on 6 August 2007.  It is not fair to allow the interest on the judgment sum during that period.

Order

91.  Cheung and Shuk shall pay to the Lee’s damages in the sum of HK$206,318 with interest thereon at the judgment rate from the date of writ until payment but excluding the period between 7 July 2006 and 5 August 2007.  The Lee’s shall have the costs of this action, including those of defending the counterclaim and those occasioned by the assessment proceedings as well as any costs reserved.  Costs shall be taxed, if not agreed, with certificate for counsel.  In the absence of any application within 14 days to vary, the costs order shall become absolute.