CHOI MEI LING v. GAN FANG

DCCJ 5445/2020

[2026] HKDC 844

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5445 OF 2020

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JUDGMENT

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I.  INTRODUCTION

1.  This is yet another case in an action for relief in respect of water leakage into the property below, which the Plaintiff claims to be or to constitute a nuisance.

II.  BACKGROUND

The Plaintiff’s Complaints

2.  The Plaintiff is the registered legal title owner of 17^th Floor, Fortune Views, No 22 Pau Chung Street, Kowloon (“P’s Property”). The Defendant is the registered legal title owner of 18^th Floor, Fortune Views, No 22 Pau Chung Street, Kowloon (“D’s Property”).

3.  The Plaintiff claims that in or around mid-2017, by water seepage and/or leakage, the Defendant started to create and cause (or allow) interference with, disturbance of or annoyance to the Plaintiff in the exercise or enjoyment of her ownership and occupation of P’s Property.

4.  The Plaintiff claims that by acts and/or omissions, the Defendant: (a) caused physical damage to P’s Property and works upon it by continuous water seepage and/or leakage since mid-2017 to the present; and (b) unduly interfered with the Plaintiff’s comfortable / convenient enjoyment of P’s Property, which constitutes unreasonable user by the Defendant of D’s Property to the detriment of the Plaintiff.

5.  The Plaintiff pleads that: (i) Compliant was made to the Food and Environmental Hygiene Department which sent officer to conduct visit and investigation in or around June 2020; (ii) Despite the complaint, the Defendant still refused and/or failed to rectify the aforesaid problems and allowed water seepage and/or leakage to continue; and (iii) The water seepage and/or leakage from D’s Property to P’s Property continues up till the present day.

6.  The Plaintiff further pleads that: a registered surveyors was engaged to conduct, inter alia, inspection and examination on 12 June 2020, and the result by a report dated 11 July 2020 it was shown: (i) water seepage and/or leakage suffered by P’s Property (specifically in the living room, toilet, rooms, and other parts) originated from D’s Property; (ii) one of the specific causes is the lack of sufficient waterproof facilities and/or materials in D’s Property resulting in inter alia water seeping / leaking into concrete layers in P’s Property; (iii) as a result of the seepage and/or leakage from D’s Property, steel corrosion was found in the concrete of the ceiling in P’s Property which carries the risk of concrete cracking and spalling: (iv) it was estimated that 10-15 working days and HK$119,352.40 maintenance and repairing costs were required for remedial work. For clarity, the registered surveyor is the Plaintiff’s expert Fung Yick Chun in the present proceedings referred to at paragraph 28 below, and the 11 July 2020 report is the Plaintiff’s 1^st Report referred to at paragraph 28(1).

7.  The Plaintiff pleads that the Defendant:- (i) deliberately / recklessly used and uses D’s Property in a way which she knows will cause harm to her neighbours, namely: the Plaintiff; and such harm is unreasonable infringement of the Plaintiff’s interest in P’s Property; therefore, the Defendant is liable for foreseeable consequences of unreasonable user of D’s Property; (ii) knew or ought to have known that in consequence of her conduct and/or omission (of causing and creating or allowing water seepage and/or leakage) harm to the Plaintiff is reasonably foreseeable; hence, the Defendant is under a duty of care to prevent such consequences as are reasonably foreseeable; and (iii) refused and failed to prevent the said consequences.

8.  The Plaintiff claims that as a result of the nuisance, the Plaintiff suffered loss and damage: (i) discomfort, inconvenience and disturbance instances which include but not limited to attending to the problems caused by the seepage and/or leakage from time to time over the past 3 years as well as deterioration of living conditions; (ii) damage to the ceiling, walls, fixtures, furniture, and other works inside P’s Property; and (iii) alternative accommodation in a hotel from 14 June 2020 to 11 September 2020 at the total cost of HK$106,200.

9.  It was pleaded that the Defendant was bound by the Deed of Mutual Covenant dated 17 December 1998 (“DMC”) which provides inter alia: (i) Clause 5 of the Third Schedule “Not to use or permit or suffer any Unit to which he is entitled to the exclusive possession […] nor to cause permit or suffer to be done any act or thing in any such Unit […] which may be or become a nuisance or annoyance to or cause damage to other owners and occupier of the Land and the Estate or adjacent land.”; (ii) Clause 9 of the Third Schedule “To be responsible for and indemnify the manager and all other owners and occupiers against all actions proceedings, claims and demands whatsoever arising out of or in respect of any loss or damage to any person or property caused by or as the result of the act or negligence of any occupier of any Unit or part(s) of the Estate to which he is entitled to the exclusive possession or any person using such Unit or part(s) with his consent express or implied or by, or through, or in any way owing to the defective condition thereof or the overflow of water therefrom.”

10.  The Plaintiff repeats that the Defendant breached the aforesaid clauses and/or other clause(s) causing loss and damage to the Plaintiff; and despite repeated demands to rectify the Defendant refused and failed to stop the nuisance, and the Plaintiff claims against the Defendant for: (i) costs of maintenance and repairing as pleaded in paragraph 5(e) in the sum of HK$119,352.40 above; (ii) costs in engaging surveyors as pleaded in paragraph 5 above at HK$16,000; (iii) alternative accommodation at HK$106,200; (iv) damages for loss and damage to the ceiling, walls, fixtures, furniture, and other works inside P’s Property as pleaded in paragraph 7(b) of the Statement of Claim; (v) damages for general damage as pleaded for discomfort, inconvenience and disturbance instances; (vi) further or alternatively, damages for breach of DMC; (vii) mandatory injunction that the Defendant by herself, her tenants, licensees, servants, agents or otherwise do forthwith carry out repair and/or maintenance work in D’s Property to stop the water seepage and/or leakage; (viii) injunction to restrain the Defendant by herself, her tenants, licensees, servants, agents or otherwise from allowing the continuance of water seepage and/or leakage from D’s Property to P’s Property thereby causing nuisance or damage of any kind; (ix) interest; (x) costs; and (xi) further or other reliefs.

The Defendant’s Answers

11.  The Defendant avers that she became the registered legal title owner of D’s Property on or about 29 December 2017 by way of an assignment and she did not occupy or exercise any control over D’s The Defendant avers that she first heard of the present incident of alleged water leakage on or about 19 May 2020, when the Defendant came to know that the Plaintiff had earlier made a complaint of water seepage in P’s Property to Mr Yim Ka Lok (嚴家洛) of the management office of the Fortune Views. The Defendant said out of concern about the Plaintiff’s complaint, the Defendant arranged for a builder to check the waterproofing layer of D’s Property and the said builder informed the Defendant that there was no problem with the waterproofing layer of D’s Property.

12.  In relation to Paragraphs 5 and 5(a) to 5(e) of the Statement of Claim: the Defendant admits that the Plaintiff did engage a registered surveyor, Mr Fung Yik Chun (“P’s Surveyor”), to conduct inspection and examination of P’s Property on 12 June 2020 and a report dated 11 July 2020 was subsequently produced by the Surveyor (“P’s Surveyor Report”). The Defendant avers that: (i) P’s Surveyor did not inspect or conduct any test at or from D’s Property, whether on 12 June 2020 or any other day; (ii) the testing methods and the resulting data collected from P’s Property by P’s Surveyor during the inspection on 12 June 2020 are not of sufficient reliability and do not prove the source of the water seepage in P’s Property to be from D’s Property.

13.  In June 2020, the Defendant received a letter dated 12 June 2020 from the Food and Environmental Health Department (“FEHD”), in which the FEHD, inter alia: (i) informed the Defendant of a complaint of water seepage in P’s Property; and (ii) asked the Defendant to coordinate a date and time for FEHD’s authorized officer to enter D’s Property for the purpose of inspection.

14.  On or about 9 July 2020, an officer from the Joint Office (Buildings Department / Food and Environmental Hygiene Department) Kowloon Regional Joint Office (“BD/FEHD Joint Office”) entered D’s Property and conducted colour water test therein on the drainage inlets in the toilet and the kitchen. By a letter dated 23 September 2020, the BD/FEHD Joint Office informed the Defendant that the source of the water seepage in P’s Property had not yet be ascertained, but that the BD/FEHD Joint Office would consider proceeding with further investigations.

15.  A consultant firm, P2H Design Associates Ltd (潘氏建築工程設計有限公司) (“P2H Design”) was subsequently appointed by the BD/FEHD Joint Office to investigate the cause of the water seepage in P’s Property. On or about 16 October 2020, staff from P2H Design conducted further tests in D’s Property including (i) visual inspection of the kitchen, the bathroom, the shower unit and water and drain pipes; (ii) water ponding tests on the floor slab of the kitchen, the bathroom and the shower unit; and (iii) water spray test to the enclosing walls of the shower unit. On both 14 October 2020 and 6 November 2020, staff from P2H Design measured and recorded the moisture content of the ceiling for the areas allegedly affected by water seepage in P’s Property. It is to be noted that (i) there had been rainfall within the two days preceding 14 October 2020 (on 13 October 2020), while there had been no rainfall within the two days preceding, as well as on the day of, 6 November 2020; and (ii) moisture content readings measured and recorded on 14 October 2020 (when there had been rainfall on the preceding day) for all the complained of areas allegedly affected by water seepage were consistently higher than those measured and recorded on 6 November 2020 (when there had been no rainfall on the preceding two days).

16.  By a letter dated 24 November 2020, the BD/FEHD Joint Office informed the Defendant, inter alia, that: (i) the investigation and tests conducted by P2H Design could not ascertain the source of water seepage in P’s Property; (ii) the water stains from the alleged water seepage had dried up; and (iii) by reason of (i) and (ii), the BD/FEHD Joint Office would cease to follow up on the case.

17.  As a result, the Defendant had no actual or constructive knowledge of the source of the water seepage. It is noticed that no nuisance notice had been issued by BD/FEHD against the Defendant.

18.  In the case of Larbons Limited v Kuo You Weaving Factory Ltd, DCCJ 934/2006 (“Larbons”), Judgment of Her Honour Judge Mimmie Chan, it is written at paragraph 20 and 78:

“20. As there is no presumption that water leaking into G/F necessarily comes from 1/F above, the burden is on the Plaintiff to show that the water seepage originated from the Defendant’s flat (Cheung Sau Ling & Ng Ping Hon v Cheng Lai Chong CACV 268/98) (unreported, 9^th April 1999) and Leung Yung Chun & Anor v Chan Wing Sang & Ors [2000] 1 HKLRD 456). It is not for the Defendant to find out the source of the water leakage nor to prove that the seepage did not come from 1/F (Hui Ling Chun v Shiu Mak Ying & Anr DCCJ 10294 OF 2001 (unreported, 3 March 2004)). …”

“78. … Since the onus is on the Plaintiff to prove that water seepage originated from the Defendant’s flat, the Defendant can wait for the Plaintiff to produce the necessary evidence as to the cause of the water seepage. The Defendant is not bound to carry out investigations to prove that the water seepage did not originate from its premises …”

The Issues

19.  By an Agreed Joint Statement of Issues in Dispute filed on 14 September 2023 (TB1/A/Item 1/pp 1-2/§§1-3), the parties have agreed that in relation to liability, the main issue is the following: whether D has committed nuisance and/or breach of DMC by way of water seepage and/or leakage? If so, did D cause the loss and damage to P?

19.1.  In particular, there are four sub-issues:

(a)  Whether result of rapid infrared thermographic scans and/or protimeter test show the water leakage / seepage originated from D’s Property to P’s Property? If so, from which part(s) of D’s Property, and what is the length / duration?

(b)  Whether the water flushing and/or water ponding test support the conclusion that the water leakage / seepage originated from D’s property, and what is the length / duration?

(c)  Whether any other tests and/or methods adopted by experts support P’s claim? If so, to what extent?

(d)  Whether the waterproof membrane and/or waterproof system in D’s Property (or any parts) are responsible for the water seepage / leakage?

19.2.  There are two issues in relation to quantum:

(a)  What are the reasonable damages and/or reliefs arising from such water leakage / seepage?

(b)  Whether D had carried out remedial work in relation to the alleged water leakage / seepage; if so, to what extent should D be held liable for P’s loss and damage.

Fact Witnesses

20.  The Plaintiff had 1 factual witness, namely Choi Mei Ling (“Ms Choi”) and she filed 2 witness statements: -

(1)  《蔡美玲的證人陳述書》dated 17 August 2022 (“P’s WS”); and

(2)  《蔡美玲的證人補充陳述書》dated 21 August 2025 (“P’s SWS”).

21.  The Defendant had 2 factual witnesses: -

(1)  The Defendant Gan Fang and Mr TAM Nok Ting, the Defendant’s husband.

(2)  They filed the Witness Statement of GAN Fang undated and filed on 4 August 2022 (“D’s WS”);

(3)  The Witness Statement of TAM Nok Ting dated 26 July 2022 (“Husband’s WS”); and

(4)  The Supplemental Witness Statement of TAM Nok Ting dated 17 July 2025 (“Husband’s SWS”).

22.  The Plaintiff’s WS and SWS were admitted as her evidence in-Chief and she was cross-examined. Her evidence is that water leakage occurred around mid 2017. She alleges that she notified the management office a number of times, but received no practical assistance. She said she only notified the Respondent around 2018-2019 of water leakage and she complained to BD/FEHD Joint Office May 2020 of water leakage. By a letter dated 24 November 2020, she was informed that BD/FEHD Joint Office’s investigation and tests conducted could not ascertain the source of water seepage in P’s Property. Concurrent with the BD/FEHD investigation, the Plaintiff engaged Silver Consultants Engineering Limited that produced a Report dated 11 July 2020 that is identified below as P’s 1^st Report by Mr Fung, P’s Expert. The aforesaid Report was prepared without entering the Defendant’s flat. More will be said about this Report below under Expert Evidence and the Plaintiff thereafter commenced the present proceedings 9 October 2020. It is also her evidence in P’s SWS that the compressor of the split aircon was and is located in the Kitchen with aircon drainage pipe there. She rebutted Mr Tam’s suggestion that water leakage may have been from the aircon installations. She alleges that due to water seepage, she was forced to stay in a hotel from June to December 2020. On November 2020, she engaged a workman to repaint the flat at the price of HK$14,000.00. Unless there was no continuing leakage, it is inconceivable how a repaint of the interior of the Plaintiff’s flat could have been directed and thereafter, the Plaintiff moved back to reside at the 17/F Flat. At C15 of the Plaintiff’s Closing, it is recorded the plaintiff by her oral evidence admits that water seepage inside his premises ceased no later than March 2023, when it was rented out to tenant. It was her evidence there had been no complaints from her tenant. In fact, the alleged seepage inside 17/F must have ceased by the time the Plaintiff moved back to her premises end of 2020. Yet the Plaintiff not only pressed on with the case, but argues for injunctive relief citing the case Lam Ting Kwan and Ors v Teamwell Corporation Limited [2019] HKDC 1593, per HH Judge Andrew SY Li, this is misconceived. That case dealt with water leakage in subdivided flats at D’s premises, being rented out to different tenants, very different from the circumstance of this case. Closer to the present, the Plaintiff alleges that on 8 and 10 September 2021 about 4-5 pm there were serious seepages at the living room and she took video clips of the incidents. This must have been another separate leakage from another source, and it occurred at the AC that was located in front of the kitchen at the living room. The Plaintiff gave length of arguments to justify the Plaintiff’s stay in Hotel Between 16 June 2020 to 11 December 2020 while being observed to have been using the 17/F. Even though it is not necessary for me to make a factual finding as will be apparent from my later findings, I find the Plaintiff’s evidence given during cross examination to be not believable. I do not find the Plaintiff to be a credible witness. She said according to the observation of her husband and herself, there appeared to be renovation work at the Defendant’s flat, this is denied by Mr Tam at Court. In Court, for the first time, the Plaintiff revealed and alleges that there had been plastic injection (epoxy injection) by the previous owner. But the Plaintiff has not identified the locations on the ceiling of 17/F where epoxy injections had been made. End of the day, for the resolution of this dispute, what matters is whether the experts find there is conclusive evidence that leakage at 17/F can be attributed to have originated from the Defendant’s flat at 18/F.

23.  Ms Gan’s witness statement, D’s WS, was admitted as her evidence in-Chief. She worked as a teacher and she was cross-examined It is her evidence that the 18/F flat was purchased in her name in December 2017, but she did not move in until she was married, after 2 December 2018. Her evidence is that she was first informed on 19 May 2020 of the alleged water leakage by Mr Yim of the management company. On 22 May 2020, Mr Luo Da Wei (Mr Luo), husband of the plaintiff, approached the Defendant and alleged leakage from the Defendant’s flat and her husband went with Mr Luo downstairs. When the Defendant went downstairs, she noticed two spots where paint and plaster peeled off: one in ceiling the living room and another one above the master bedroom. The Defendant said Mr Luo alleged that it was due to workmen of the previous owner who hammered and punctured waterproof layer on the floor. The Defendant then engaged (i) Massmeric Design Company to inspect on 25 May 2020; and (ii) Mr Liu of Wing Fat Engineering (Hong Kong) Co Ltd to inspect on 17/F and 18/F on 27 May 2020. But Mr Liu did not have access to 17/F as the Plaintiff was somehow late for the appointment. It is the evidence of both of them that they did not find apparent signs of water seepage. I consider that conclusion arising out of visual inspection to be superficial as they had not gained access to 17/F to inspect. On another occasion 2 years later, on 2 March 2022 the Plaintiff invited the Defendant to inspect leakage: beads of water were seen dripping from the one side of the air vent of the aircon at the living room. But the previous two spots have by now been patched up. It was Ms Gan’s evidence that the 18/F flat was in good condition when she bought it, without any sign of dampness on the floor and she did not change the location of bathroom fixture, washbasin, shower tray nor removed the floor and wall tiles at the bathroom. She gave evidence in Court she had a layer of waterproofing applied to bathroom areas to prevent any leakage after the Plaintiff’s complaint, even though the source of leakage to 17/F ceiling was only alleged and the location of leakage not identified.

24.  Mr Tam’s WS and SWS were admitted as his evidence in Chief and he was cross-examined. Mr Tam is a barrister and husband of the Defendant. Events that are in the Defendant’s WS and SWS would not be repeated here. Mr Tam says that Mr Luo called him and nominated a loss adjuster to inspect 18/F on 12 June 2020, as Mr Luo was insistent that the seepage / leakage must have come from 18/F. Mr Tam told the Court he tried to propose the joint appointment of a survey expert, to which Mr Luo refused. It is Mr Tam’s evidence that he had suggested to Mr Luo an investigation by BD/FEHD. To avoid escalation and incurring costs, Mr Tam drafted a letter to the Plaintiff’s solicitors on 4 July 2020. There was no rely until the endorsed writ for the present proceedings was received. At Mr Tam’s SWS, he gave evidence that he suspects that the leakage could have been AC related, as the air conditioner inverter (“AC”) was installed in the living room with the drain line connected to a vertical drain pipe shared amongst different floors and concealed in a wall adjoining the living room. Further, there could have been condensation out of the AC unit. Mr Tam gave evidence that he had the management company arrange an AC test for 17-19/F on 24 March 2023, to which the Plaintiff refused. Eventually, through the intervention of Ms Shirley Ip, mother of the Plaintiff’s tenant of 17/F, an AC test was carried out on 4-5 July 2023, and it is Mr Tam’s evidence he understood that water beads began to drip after the 17/F aircon was turned on in the same manner as shown in the video clips in Court. A recording was also made of the 14 September 2023 IO Management Committee meeting in which Mr Luo was heard to say that since 2019 he had been asking the management company to fix the clogged common drain-pipe connecting 17/F AC drain line and the management refused to mend the defect. This recording is attached as “TNT -17”. In fact, at the screen capture of Mr Yim’s report, Trial Bundle page 545, Tab No 41, the management staff explained that 90% chance dripping water was due to AC at 17/F living room. It is also Tam’s evidence that the Plaintiff approached him about December 2017 when he came to the flat to inspect. On that occasion, the Plaintiff proposed to them to jointly arrange for remedial work to external wall tiles. This is hotly denied by the Plaintiff. On the matter of external wall, again this is a matter for the Plaintiff to investigate whether water leakage came from the external wall and the Defendant did not have an obligation to make such an investigation. In fact, the expert direction of 19 November 2021, made by consent of the parties, only directed the experts to investigate whether water leakage in the Plaintiff’s premises originated from the Defendant’s premises. The expert investigation was not about leakage from the external wall. In respect of Tam’s evidence, it is undesirable that he had not mention his application of water proofing to the 18/F bathroom in his WS. But it is a fact which the Plaintiff’s expert observed and evidence was given in Court.

Expert Reports

25.  By an expert direction dated 19 November 2021 of Master Jocelyn Leung, issued by way of a Consent Summons, leave was given for the parties to produce expert evidence on liability limited to one surveyor for each party on the issue of (i) whether water leakage in the Plaintiff’s premises originated from the Defendant’s premises, and (ii) if so, how?

26.  The Plaintiff’s expert is Mr FUNG Yik Chun (“Mr FUNG” or “P’s Expert”), who: -

(1)  Prepared a report dated 11 July 2020 (“P’s 1^st Report”), based on the examination over the P’s Premises on 12 June 2020, not prepared pursuant to the expert direction of 19 November 2021; and

(2)  Prepared a further report dated 25 September 2022 (“P’s 2^nd Report”), based on the joint examination over the parties’ premises on 19 August 2022.

27.  P’s Expert Mr Fung is (i) A Registered Professional Surveyor; (ii) A member of the Hong Kong Institute of Surveyors; and (iii) A member of Royal Institute of Chartered Surveyors.

28.  The Defendant’s expert is Mr YEUNG Tak Wah Denny (“Mr YEUNG” or “D’s Expert”), who: -

(1)  Prepared a report dated 2 December 2021 (“D’s 1^st Report”), based on the examination over both parties’ premises on 8 September 2021; and

(2)  Prepared a further report dated 29 August 2022 (“D’s 2^nd Report”), based on the on the joint examination over the parties’ premises on 19 August 2022.

29.  The D’s Expert is (i) A Past Chairman of CIOB, Chartered Institute of Building (HK Branch); (ii) A follow member of CIOB; (iii) A full member of RICS, Royal Institute of Chartered Surveyor; (iv) A full member of HKIS, Hong Kong Institute of Surveyor; (v) A Registered Professional Surveyor-Building Surveyor; (vi) A full member of HKIE, Hong Kong Institute of Engineers; (vi) A Registered Professional Engineer-Building; and (vii) A full member of Institute of Civil Engineering Surveyor, ICES.

30.  Both experts conducted a joint examination over parties’ premises on 19 August 2022 and prepared a joint report dated 15 May 2023 (“Joint Report”).

Expert Evidence

31.  P’s 1^st Report of 11 July 2020 was made by Silver Consultants Engineering Limited (“Silver Consultants”), signed off by Mr Fung Yick Chun with an expert declaration, but the declaration is undated. It is noted that Mr Fung graduated from the Poly University in 2011 and had worked since vetting cases of water leakage at BD/FEHD, desktop work, for two years. Mr Fung then worked for a consultant until now to approve drawings, project manage and give advice on building management. Pursuant to the BD’s Mandatory Inspection Scheme, he obtained BD registration as approved inspector end of 2023. Mr Fung did not participate and carried out the tests. Tests were carried out by staff pursuant to an examination on 12 June 2020, a day with temperature between 27.8 – 35 degrees centigrade and relative humidity of 61-85%. The unreliability of this report is that staff of Silver Consultants was made only upon an examination of 17/F and not 18/F, the floor above. The tests that were conducted were (i) infrared scanning for temperature variation; (ii) protimeter test for moisture; (iii) water sample test for ammonia; (iv) visual inspection. Infrared scanning is also known as Rapid Infra-red Thermographic Survey (“RITS”) is the process if converting heat emitted from an object into a visible light spectrum. Firstly, it depends on the proper calibration of the scanning equipment which could be manually altered. Secondly, it’s function may be limited identify locations of possible water penetration for further investigation. It could not identify, just by the scans, conclusively as to the location of leakage. As there was no access to 18/F, all that Silver Consultants could do was to scan the 17/F ceiling and the external walls. Further during cross-examination, it appears that there had not been calibration of the equipment before the scans and the scanning was carried out by untrained staff, not Mr Fung. At para 2.1.5, it was written that staff (unidentified) did not find water accumulation at external wall, with this water seepage at external wall was eliminated. Such an elimination may be not justified and premature, for a scan on a hot day on the external wall will mean scanning a dry hot tiled surface. At para 2.1.6, the scanning returned with a result that the entire ceiling of 17/F had water accumulation (the blue coloured areas) and it covered the entire ceiling of the living room, 1^st and 2^nd bed rooms and the bath room of 17/F. This result is surprising. P’s 1^st Report concludes that it can be inferred that water seepage at 17/F was due to water related facilities at 18/F (上層水利設施欠妥導致勘察單位出現滲). Such a conclusion should and could not be reached just on the infrared scan. It was pointed out to Mr Fung that one cannot tell the temperature difference by just looking at the colour spectrum, he agreed. Further, it is usual for water spray or ponding to be carried out for a second scan to the concerned areas. It was not done. As to the protimeter test, at para 2.2 of the report of Silver Consultants, moisture tests returned with the following: points 1-8, 9-13, 15-18, 21-24, 29-32, 35 36-51, 52, 55-67 all with moisture that appeared to be high (偏高). Again, this covered most of the testing points of 17/F ceiling with the same conclusion as the infrared tests that it can be inferred that water seepage at 17/F was due to water related facilities at 18/F. As to water sample test for ammonia, sample of dried out spot on 17/F ceiling was taken, and it was reported at para 2.3 that ammonia was detected and again the report returned with a conclusion that it can be inferred that water seepage at 17/F was due to water related facilities at 18/F. The same goes for visual inspection of areas with detached paint (油漆剝落). This report concluded with a repair suggestion to 17/F at a price of HK$119,352.4. Upon the content of the report, the methodology and how the tests were carried out, I reject the inference and the conclusions of P’s 1^st Report. Paragraph C 95 of the Plaintiffs Closing records Mr Fung’s admission when cross-examined that a single test could not form the basis of opinion. I have been reminded the principles for adjudging an expert’s independence. The principles on expert evidence are set out in the case of paragraph 45 of Lam Kit Yee v Lam Suk Lam DCCJ 3115/2011, citing the principles in Chinachem Charitable Foundation Ltd v Chan Chun Chung paras 483-493, 498 and 500 per Lam J (as he then was). I agree that one of the most important criteria in testing the reliability of expert evidence is his impartiality and due observance of his overriding duty to the court. In the P’s 1^st Report, Mr Fung concluded with respect to each of the tests that 上層水利設施欠妥導致勘察單位出現滲. I find that the conclusions in respect of each of the tests could not have been due to poor drafting or semantic faults as suggested by the Plaintiff’s counsel. I find the conclusions of P’s 1^st Report to be unreliable and Mr Fung’s impartiality questionable.

32.  P’s 2^nd Report of 25 September 2022 was made pursuant to tests and inspection on 19 August 2022 to 17/F and 18/F. Tests were carried out to the bathroom, 1^st and 2^nd bed rooms, living room and kitchen of 17/F and only to the bathroom of 18/F. Again the 7 tests were (i) test 1 – potable water pipe test; (ii) test 2 – salt water pipe test; (iii) test 3 – water proofing membrane test over the toilet; (iv) test 4 – water closet discharge pipe test; (v) test 5 – wash basin waste pipe test; (vi) test 6 – bathroom floor drain pipe test; (vii) test 6 – water sample tests over the P’s premises with (a) salinity meter test; and (b) the ammonia test. The finding was negative in respect of the potable and salt water pipes, meaning there had not been leakage. P’s expert also told the Court he had sight of the piping drawings before the tests were conducted. In the circumstance there could not have been leakage from pipes in the floor slab of 18/F. As for (i) infrared scanning; (ii) protimeter test; (iii) visual; (iv) colored water test and ultra violet torch tests (i) RITS and protimeter tests were conducted to 17/F locations with the potable water pipe and salt water pipes turned off and then turned back on; colored water tests to bathroom and shower tray, toilet, wash basin floor drain of 18/F. Two points, first, the colored water test did not come back with conclusive identification of leakage from any of the bathroom locations at 18/F; second, no significant difference in RITS, protimeter results before or after ponding and pressured water tests. In this report, the maker notes that temporary remedial measures may have been taken by 18/F and it is argued this does not mean there had not previously been water leakage. This report ends with remedial suggestion and a quotation of HK$46,717.20. This quotation is outside of the expert direction. Significantly, P’s 2^nd Report did not identify any location of 18/F as the source of leakage for remedial work.

33.  There is also the survey reports of Building Diagnostic Consultants Ltd of 3 December 2021 (D’s 1^st Report signed off by Sr Ir Yeung Tak Wah) and the 29 August 2022 (D’s 2^nd Report) both commissioned by Huen & Partners. RITS, Florescent Dye and protimeter tests were conducted. D’s 2^nd Report concludes at 5.8 that “From the above tests results, we believe that the tested waterproof membrane & waterproof system at shower tray and tested drain points and drain pipes are in good condition and no water leakage occurred”. To this report is attached with the Professional Guide to Water Seepage – Investigation, Diagnosis, Testing & Reporting in Residential Buildings prepared by Building Surveying Division of Hong Kong Institute of Surveyors (HKIS) as attachment 5.

34.  As to D’s 1^st Report, the survey result is at Hearing Bundle page 110:-

“4. Survey Result

A Sketch floor plan is attached in Appendix A. Thermographic Scans and corresponding conventional photos are illustrated in Appendix B. The Appendix C is the Site Photos (Effect of fluorescent dye colour). The Append D is the Site Photos and Protimeter Data.

Summary of the Findings

Thermographic Scanning

Scan Location	Findings	Scan Number
The ceiling of 17/F	No sign of enlargement of water seepage after water test.	B32-33

Colour/Fluorescent Dye Test

Scan Location	Findings	Scan Number
The ceiling of 17/F	No sign of colour/‌fluorescent dye was visible after water test.	-

Protimeter Test

Scan Location	Findings	Scan Number
The ceiling of 17/F	No significant change after water test.	-

In thermographic scans, the affected areas were indicated, with comments and discussions where appropriate.”

35.  The Conclusion at Hearing Bundle at page 111 reads:-

“5. CONCLUSION

5.1 This is a very comprehensive and details water tests for the captioned flat units at 17/F & 18/F Fortune Views, 22 Pau Chung Street, Kowloon.

(Hereinafter referred to as called “17/F” and “18/F” respectively.)

5.2 Water ponding test with colour/fluorescent dye at the shower tray at 18/F; no sign of water leakage was observed from 18/F to 17/F unit

5.3 Water spraying test at the internal wall of shower tray at 18/F; no sign of water leakage was observed from 18/F to 17/F unit

5.4 Water colour/fluorescent flushing test to the drainage points of

a) Kitchen basin

b) Bathroom basin

c) Bathroom floor drain

d) Water closet (WC Pan)

with different colour water.

No sign of water leakage was observed from 18/F to 17/F unit.

5.5 Both the infrared thermograph scans and protimeter test showed that no sign of water leakage was observed from 18/F to 17/F unit

6. These test methods fulfil the standard of Joint Office (FEHD & BD) in respect of water leakage investigation.

7. From the above test results, we believe the tested waterproof membrane & waterproof system at shower tray and tested drain points & drain pipes are in good condition and no water leakage occurred.

Results of other test method should be read in conjunction with the findings of this report. It should be noted that the test could have been carried out under some inevitable site constraints, e.g. side angle and shadows that would affect the test results.”

36.  In the Joint Report dated 22 May 2023, mandated by the expert direction, Mr Fung’s opinions are at A1, 1.1, 1.2, 1.3 and 1.4 and Mr Yeung’s opinions are at B1, B2 and B3. What the experts disagree are recorded at 3.4 A in which Mr Fung maintains his suspicion/ inference of leakage from 18/F without identification of any particular location of leakage.

Findings

37.  On a balance of probabilities, after considering all the evidence before the Court, I prefer to accept the evidence of D’s expert with regard to its findings. I place importance on the colored water test which could identify the location of leakage if emanating from the fresh or salt water pipes and/or the bathroom locations of 18/F. The colored water test whether conducted by P’s or D’s expert or BD/FEHD came back negative, showing that water did not leak from the tested locations. The Plaintiff’s expert also agreed that any single test cannot prove source of leakage. The point here is that the results of the infrared scan and the protimeter tests need the corroboration of supporting results of the colour water tests. I have also seen the video of water dripping continuously from the AC location at the living room ceiling in front of the kitchen, which is different from leakage from bathroom fixture or drainage which would not be continuous.

38.  On nuisance claim, in the case of Larbons cited above, at paragraph 76, it is written:

“76.  Applying the test set out in the judgment of Woo, JA in the case Cheung Sau Ling and Ng Bing Hon v Cheng Lai Chong CACV 268/98 (unreported, 9^th April 1999), for seepage of water to constitute nuisance at common law, the defendant must be shown to have actual or constructive knowledge that the leakage of water originated from the Defendant’s property. Under this test, “knowledge” can be what the Defendant actually knew, or what the Defendant should have known with normal and reasonable diligence. If the Defendant can be shown to have actual or constructive knowledge that the water seepage originated from the Defendant’s premises, the Defendant will be liable unless remedial action is taken without unreasonable delay.”

39.  In this case, I find that the Defendant did not have actual or constructive knowledge that the leakage of water originated from the Defendant’s property. Even after the Expert Reports and investigation, the source of leakage was not identified, and nuisance based on common law is not proved. Evidence in Court shown that upon the complaint, the Defendant had engaged on two occasions persons to investigate and leakage from 18/F was not found. Importantly, the Defendant also had a layer of waterproofing applied to the bathroom areas, on a good neighbor basis, even though the location of leakage was not identified by the BD/FEHD tests. This waterproofing layer was noticed by the Plaintiff’s expert in his report. The Defendant’s lack of actual or constructive notice is bolstered by the negative result of the colour water tests of two BD/FEHD investigations, the Plaintiff’s 2^nd Report and the Defendant’s 1^st and 2^nd Reports.

40.  As liability is not proved, it is unnecessary for me to deal separately with the agreed issues and subsidiary issues on liability or the quantum issues if liability is found.

III.  CONCLUSION

(1)  The Plaintiff’s claims at the prayer (i) to (xi) of the Statement of Claim are dismissed;

(2)  Following the above, I find in this case that costs should follow the event with the Plaintiff being liable to the Defendant for costs, on party to party basis, to be taxed if not agreed.