LEUNG WING KEUNG NENE v. HONG KONG HOUSING SOCIETY

HCSA 11/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 11 OF 2011

(On appeal from Small Claims Tribunal Claim No. SCTC 24066/2009)

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BETWEEN

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D E C I S I O N

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Introduction

1.  The Claimant is the son of the registered tenant of a public housing estate unit in Cho Yiu Chuen in Kwai Chung.  He moved into the unit in 1977 and installed PVC tiles on the floor of the unit.  In 1999, the Hong Kong Housing Society (the Defendant) replaced the bathtub and tiles inside the unit.  In July 2008, he found water leaking from the bathroom into the sitting room and damaged nine PVC tiles immediately outside the bathroom door.  The Defendant replaced the damaged door, door frame and wall tiles in the bathroom but refused to replace the nine damaged PVC tiles which were installed by the Claimant.  The Claimant filed a claim against the Defendant in the Small Claims Tribunal.  His claim was dismissed by the Deputy Adjudicator and he now seeks leave to appeal against the decision of the Deputy Adjudicator.

2.  The hearing before the Deputy Adjudicator was conducted in Chinese.  However, as the Claimant’s grounds of appeal, submission, letters of complaint and expert report were all written in English, I deliver my decision in English.

Proposed grounds of appeal

3.  The Claimant advanced five proposed grounds of appeal:

(1) wrong application of law;

(2) error of judgment;

(3) conflicting statements;

(4) failure to observe procedural rules;

(5) bias and unfair treatment; and

(6) other misconduct and incompetence.

The proposed grounds of appeal consist of 23 typed pages and supplemented by additional bundles. 

The approach

4.  In an application of this nature, it is impracticable for the Court to deal with each and every ground in the way the Claimant raised them, provided that each and every ground has been considered, which indeed      I have.  I shall also cut down those arguments on the law which are not necessary for the Deputy Adjudicator’s decision and limit the proposed grounds of appeal to the issues which are necessary for the Deputy Adjudicator’s decision.

Discussion

5.  The basis of the Deputy Adjudicator’s decision is to be found in paragraph 28 of his Reasons for Decision, in which he wrote:

「綜觀以上各點，本席接納被告人的專家證供，不接納申索人的專家證供。因此，申索人未能證明本案的第一個議題，即案件中的九塊膠地板，受水浸而引致拱起，源於浴缸底部的水滲到地底，向大廳流出，再上回地面，引致九塊膠地板滲水，繼而拱起。申索人的案件建基於這議題上，這議題未能被申索人證明，這已是足夠理據，判申索人敗訴。」

Thus, the Deputy Adjudicator accepted the expert evidence of the Defendant and rejected the expert evidence of the Claimant and reached  the conclusion that the Claimant failed to prove that the nine PVC tiles were damaged by water originating from the bottom of the bathtub which was collected there as a result of various leakages.  This is a finding of credibility of witnesses and finding of fact which the appellate court will not interfere. 

6.  As a matter of law, the plaintiff in civil proceedings, i.e. the Claimant, has the burden of proving his case on a balance of probability.  The Defendant does not have to prove anything.  Even if the Defendant’s expert evidence is to be excluded, the burden still remains on the Claimant to prove his case, which he failed. 

7.  On the evidence, the Claimant’s expert’s evidence was that the water leaked from the holes in the walls and concrete curbs on both sides of the bathtub into the void underneath the bathtub and water also flowed along the rear concrete curb to the floor of the bathroom.  Then this water was sucked by capillary action to the nine PVC tiles immediately outside the bathroom. The Defendant’s expert did not dispute leakage but said that it was not a problem.  He relied on the Claimant’s expert’s evidence of coloured water test which showed that no coloured water was found on the ceiling of the unit immediately below and in the area of the nine damaged PVC tiles. The Claimant’s expert explained that he did not wait that long for the coloured water to sip through to the area of the PVC tiles.  That was his problem and the Claimant’s problem in discharging the burden of proof. The Defendant also relied on the evidence of the tenant of the unit immediately below who confirmed that there was no leakage from the Claimant’s floor above since he moved into his unit in 1992.  That evidence was incontrovertible.  It was common ground that the Claimant had not installed any shower curtain over the bathtub to prevent water from the shower dripping onto the floor of the bathroom. There was also evidence from the Claimant’s expert that the Claimant admitted that he found a pond of water over the nine PVC tiles after he had taken a shower. It was therefore open to the Deputy Adjudicator to reject the Claimant’s expert’s evidence and to conclude that the Claimant failed to discharge his burden of proof. The likelihood is that the nine PVC tiles were damaged by the cumulative effect of water coming from the showers during the course of the thirty odd years since their installation.

8.  As the Claimant failed to discharge his burden of proof, that must be the end of his claim.  The Deputy Adjudicator then went on to consider other areas of the law, such as exemption clause and privity of contract etc. That provoked the Claimant’s arguments about the Deputy Adjudicator’s wrong application of law. I do not find it necessary to deal with that proposed ground of appeal.

9.  As for the Claimant’s proposed grounds of appeal based on the Deputy Adjudicator’s error of judgment and conflicting statements of witness, these are just appeals against the Deputy Adjudicator’s finding of fact, which the appellate court will not interfere.

10.  The Claimant alleged that the Deputy Adjudicator failed to observe procedural rules.  One of those breaches was directed at the Deputy Adjudicator persuading the Defendant not to call certain defence witnesses. What witnesses to call was a matter for the Defendant.  If the Deputy Adjudicator considered a witness unnecessary, it is of course his case management function to advise the party not to call that witness.  On the fact, other than the Defendant’s expert and the tenant from the unit immediately below, I am unable to find there were any other necessary witnesses.  There is no substance in this complaint.

11.  Another breach related to the Deputy Adjudicator’s refusal to hear the Claimant’s fresh evidence. Presumably that was directed at the Deputy Adjudicator’s refusal at the review hearing to hear new evidence.  The Deputy Adjudicator relied on the principle as stated in Ladd v. Marshall [1954] 1 WLR 1489.  That is a well established authority.  The Deputy Adjudicator could not be said to have erred in law or failed to observe procedural rules.

12.  Lastly, the Claimant complained against the Deputy Adjudicator’s refusal to provide him with an audio recording of the proceedings.  The Deputy Adjudicator refused to provide him with the audio recording but made arrangement for him to listen to the recording in the Small Claims Tribunal. The Claimant suffered some inconvenience but no prejudice.  I do not understand the reasons for the Deputy Adjudicator’s refusal to provide the audio recording.  I would have thought it is as much  a party’s right to be provided with a written transcript as with an audio recording, provided it is for the purpose of appeal or some other purposes considered by the court as appropriate.  Perhaps the Deputy Adjudicator was unduly concerned that the audio recording may be used for purposes other than appeal.  Anyway, the important point is that the Claimant suffered no prejudice as he had the transcripts and the opportunity to listen to the audio recording.

13.  The Claimant set out his proposed ground of bias and unfair treatment in three pages supported by another two pages of submission. In brief, his complaints were about the Deputy Adjudicator persuading the Defendant not to call witnesses and about the Deputy Adjudicator’s tolerance to the Defendant’s witnesses sleeping in the court on repeated occasions. I have dealt with the first issue already.  As for the sleeping witnesses, it is a matter of the Deputy Adjudicator’s courtroom management.  It is not any evidence of bias or prejudice. The test of bias as laid down in R. v. Yeung Mau Lam [1991] 2 HKLR 468 is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a  fair trial.  This test was applied in a criminal case.  But in my view, the principle is equally applicable to a civil case.  Having applied the informed bystander test, I am of the view that the Claimant’s complaint did not even make out a prima facie case of bias.

Conclusion

14.  For the above reasons, the Claimant’s application for leave to appeal is refused. 

15.  I must also draw the Claimant’s attention to section 28 of the Small Claims Tribunal Ordinance which provides that the decision of the Court of First Instance in refusing leave to appeal is final.  The Claimant may not appeal against my decision to the Court of Appeal.