SO YIU WOON AND ANOTHER v. WONG DING HSIANG

HCSA 12/2020

[2020] HKCFI 2104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 12 OF 2020

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM

NO SCTC 41043 OF 2017)

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J U D G M E N T

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I. INTRODUCTION

1.  The 1^st and 2^nd claimants (“C1” and “C2”) (collectively, “Cs”) were the registered owners of Flat A, 12/F, Tanner Court (“Building”), 60 Tanner Road, North Point, Hong Kong (“Flat 12A”). The defendant (“D”) was the registered owner of the flat directly above Flat 12A (“Flat 13A”).

2.  Cs claimed that since 7 July 2017 Flat 12A suffered from water leakage which caused concrete spalling at the toilet (“Toilet”), cracks on the beam of a bedroom (“Bedroom”), water seepage at the ceiling of the living room (“Living Room”), and damage to the false ceiling of the Toilet and Living Room. It was Cs’ case that such water leakage/seepage amounted to nuisance originated from Flat 13A.

3.  On 17 October 2017, Cs commenced SCTC41043/2017 against D (“SCT Action”) to claim for the cost of remedial works ($38,000) and surveyor’s fees ($15,000) being damages for nuisance due to the aforesaid water leakage/seepage. Such claim exceeded the then jurisdictional limit of the Small Claims Tribunal (“Tribunal”) of $50,000, so Cs agreed to waive the excess claim of $3,000.

4.  D denied liability, and claimed Flat 13A was not the source of the water leakage/seepage observed and experienced at Flat 12A.

5.  The aforesaid dispute between Cs and D raised 2 issues, ie (a) whether Flat 13A was the source of the water leakage/seepage found in Flat 12A (“Liability Issue”), and (b) if so, what was the loss and damages suffered by Cs and the quantum thereof (“Quantum Issue”).

6.  The trial of the SCT Action came before Presiding Officer Lung Gwun-ting (“PO”) on 15 January 2019. C1 and Cs’ surveyor expert Lau Shan La of Hong Kong Survey Limited (“CExpert”) gave evidence for Cs whilst D and D’s surveyor expert Hau Tung Ngai of Hong Kong Building Inspection and Structural Diagnostic Limited (“2^nd DExpert”) gave evidence for D. The following expert reports were adduced at trial: (a) reports dated 22 September 2017 and 4 August 2018 by the CExpert (“1^st and 2^nd CReports”), and (b) reports dated 19 March and 2 June 2018 by Chung Wai Hoi Vincent (“1^st DExpert”) of Hong Kong Building Inspection and Structural Diagnostic Limited (“1^st and 2^nd DReports”). At the trial, the PO granted leave for D to substitute the 2^nd DExpert in place and stead of the 1^st DExpert to give oral evidence due to the 1^st DExpert’s illness, and for the 2^nd DExpert to adopt the 1^st and 2^nd DReports.

7.  On 4 February 2019, the PO gave his oral decision dismissing Cs’ claim, and he ordered C1 and C2 to jointly and severally pay D’s costs in the sum of $36,687.90 with interest thereon at judgment rate from the date of judgment to full payment (“1^st Judgment”).

8.  On the same day, Cs filed an application for review of an award/order by a party on the ground that the 1^st Judgment was unreasonable (“Review Application”). In paragraph 18 of the 2^nd Reasons referred to in paragraph 16 below, the PO summarised Cs’ grounds for review as follows (“Review Grounds”):

(a)	according to the results of tests conducted by the CExpert, the source of the water leakage originated not from the external wall but from Flat 13A;
(b)	the Joint Office Reports referred to in paragraph 10 below showed the water source for the water seepage at the ceilings of the Toilet and Bedroom was not from the external wall;
(c)	the 1st and 2nd DReports contained errors and omissions;
(d)	the oral evidence of the 2nd DExpert was inadequate;
(e)	there were issues with the credibility of D’s evidence.

9.  On 14 February 2019, Cs paid the judgment sum of $36,769.20 into the Tribunal.

10.  At the 1^st hearing of the Review Application on 12 April 2019, Cs and D submitted further documents including the 3^rd expert report dated 19 March 2019 by the CExpert (“3^rd CReport”) and the results of the moisture content surveys at Flat 12A on 10 and 25 July 2017 (“Joint Office Reports”) by the Joint Office for investigating water seepage complaints set up by the Building Department and the Food and Environmental Hygiene Department (“Joint Office”). The Joint Office Reports were in addition to the investigation report dated 30 November 2018 (“Consultant Report”) by the Joint Office’s consultant Fujitac Construction & Engineering Consultants Ltd (“Consultant”). The PO adjourned the hearing of the Review Application for D to consult the 1^st DExpert on such new materials and to adduce further expert report. On 11 June 2019, D filed the further expert report dated 5 June 2019 by the 1^st DExpert (“3^rd DReport”).

11.  At the 2^nd hearing of the Review Application on 20 December 2019, the PO indicated a need to investigate some matters raised in the 3^rd DReport, and to obtain clarification by the parties’ surveyor experts, so he adjourned the hearing of the Review Application. Subsequently, Cs filed further expert report dated 8 January 2020 by the CExpert (“4^th CReport”), but the PO declined to admit paragraphs 3.2-3.3 thereof as expert evidence for the trial.

12.  In summary, Cs adduced 4 expert reports by the CExpert (ie the 1^st to 4^th CReports dated 22 September 2017, 4 August 2018, 19 March 2019 and 8 January 2020, collectively “CReports”), and D adduced 3 expert reports by the 1^st DExpert (ie the 1^st to 3^rd DReports dated 19 March, 2 June and 5 June 2018, collectively “DReports”). By the time of the substantive hearing of the Review Application on 28 May 2020, there was also before the PO the Joint Office Reports of July 2017 and the Consultant Report of November 2018. All such reports concerned the Liability Issue.

13.  The above reports were prepared pursuant to inspections of Flat 12A by the CExpert on 7 August 2017 and 16 July 2018, by the 1^st DExpert on 17 January and 5 February 2018, by the Joint Office on 10 and 25 July 2017, and by the Consultant on 9 October, 8 November and 24 November 2018. For the parties’ expert reports, only the 1^st DExpert had access to Flat 13A for inspection on 17 January and 2 May 2018. The Joint Office Reports only referred to moisture content surveys done at Flat 12A and not any test/results at Flat 13A,[1] but the Joint Office’s letter dated 26 July 2017 to C2 (C/33) stated “本處職員遂於同日[10 July 2017]到上址[Flat 12A]樓上單位進行調查, 並在有關排水渠進行色水測試 ……” and its letter of the same date to D (D/10) stated “本處職員於2017年7月10日到貴單位進行調查, 並在有關排水渠進行色水測試 ……”, which suggested that the Joint Office carried out colour dye test at Flat 13A (even though it was unclear such test was done for which drainpipe) on 10 July 2017.[2]

14.  The 3^rd hearing of the Review Application was scheduled to be held on 29 January 2020. But such hearing was vacated upon the general adjournment of cases due to public health considerations announced by the Judiciary, and the hearing of the Review Application was adjourned to 28 May 2020. At the end of such hearing on 28 May 2020, the PO overturned the 1^st Judgment, and varied the judgment as follows (“2^nd Judgment”):

(a)	Cs succeeded in their claim, and D was ordered to pay to Cs the sum of $26,000 and interest thereon at judgment rate from the date of the 2nd Judgment until full payment;
(b)	D shall pay Cs costs of the trial and review hearing in the sum of $52,807.80 and interest thereon at judgment rate from the date of the 2nd Judgment until full payment;
(c)	the sum of $36,769.20 paid into the Tribunal on 14 February 2019 be repaid forthwith to Cs.

15.  On 2 July 2020, D commenced the present proceedings to apply for leave to appeal against the 2^nd Judgment (“Leave Application”). In Ds’ application for leave to appeal on point of law filed on 2 July 2020 (“Application”), Ds raised 6 intended grounds of appeal (“Intended Grounds”):

(a)	the PO erred in holding that the alleged water leakage/seepage at Flat 12A was caused by alleged problems with the toilet facilities and waterproof membrane/layer of Flat 13A on the basis of the expert evidence of the CExpert, and in so doing the PO:
	(i)	failed to “notice the uncontroverted or indisputable evidence” that:
		(1)	the CExpert in reaching her expert opinion never conducted any test at Flat 13A concerning the alleged water leakage/seepage;
		(2)	the 1st DExpert in reaching his expert opinion had visited Flat 13A and Flat 12A at least twice to conduct various tests concerning the alleged water leakage/seepage and to observe the test results;
		(3)	the 1st DExpert conducted inter alia colour dye test for the toilet facilities of Flat 13A, but no colour dye was found at Flat 12A;
		(4)	the alleged test by the CExpert was carried out on a day where high rainfall volume was recorded, “which reflected the pattern that there were high moisture ratios (namely, over 35%) in the ceiling of [the Toilet] when high rainfall volumes were recorded but there were low moisture ratios in the sunny days”;
		(5)	the moisture ratios of the area near the external wall of the Toilet recorded by the CExpert and the 1st DExpert were similar, which indicated “the alleged water leakage/seepage was caused by water seepage from external wall of the [Building] spreading to the ceiling of [the Toilet]”;
		(6)	pursuant to complaint made by Cs to the Joint Office (which office had no conflict of interest with either Cs or D in rendering any report), the letter by the Joint Office dated 17 July 2018 (D/181) confirmed that test/ inspection was done “in both [Flat 12A] and [Flat 13A] and concluded that the area of the alleged water leakage/seepage was dry with moisture ratios lower than 35%”, and that Cs told the Joint Office there was no need for further follow up;
	(ii)	failed to “appreciate” the 1st DExpert in reaching his expert opinion visited Flat 12A and Flat 13A at least twice to conduct various tests (including colour dye test, electrical conductivity sensing test, infrared scan test, microwave scan test and visual inspection) concerning the alleged water leakage/seepage and to observe the test results, so “the findings by the [1st DExpert] shall be much more complete than the one by the [CExpert]” (“Intended Ground 1”);
(b)	the PO erred in holding that the source of water leakage was from Flat 13A even though the reports by the CExpert, the 1st DExpert, the Joint Office and the Consultant showed low moisture ratios were recorded when low rainfall volumes were recorded, and the CExpert also indicated the alleged water leakage/seepage was caused by rainwater that penetrated from the external wall of the Building (“Intended Ground 2”);
(c)	“[in] adopting the construction as he did”, the PO erred in holding that “the weight in considering both the reports prepared by the [Joint Office] and [the 1st DExpert] were low” (“Intended Ground 3”);
(d)	the PO erred in ignoring the fact that due to illness the 1st DExpert who prepared the DReports did not attend the trial to give oral evidence “and to cross-examine [Cs] and [the CExpert], even though [D] did apply to the Tribunal for adjournment of the trial, but the [PO] only ordered that a substituted expert [the 2nd DExpert] to attend the trial” (“Intended Ground 4”);
(e)	the PO erred in holding that D failed to carry out any remedial action for the alleged water leakage/seepage within reasonable time, and in doing so the PO failed to take into account the following: (i) the Joint Office Reports showed “the water leakage/seepage was dry” and the DReports showed the source of the alleged water leakage/seepage was rainwater from the external wall of the Building, and (ii) at the 2nd hearing of the Review Application D offered in open court to pay for (1) all costs of engaging another expert to conduct another round of test/inspection to identify the water leakage problem (if any) and (2) all repair costs if it were found that the water leakage problem was caused by Flat 13A (“Intended Ground 5”);
(f)	even if D were liable to Cs (which D denied), the PO erred in assessing damages payable to Cs at $26,000 since (i) the PO “had completely ignored the fact that the damages was unassessed by solid evidence”, and (ii) Cs “only produced various so-called quotation with unknown particulars of what had actually be done” (“Intended Ground 6”).

16.  On 28 July 2020, the PO handed down his written reasons for the 1^st and 2^nd Judgments (“1^st and 2^nd Reasons”). The Leave Application came before me for hearing on 13 August 2020 (“Hearing”). D appeared by her counsel Mr Yung at the Hearing.

17.  At the Hearing, Mr Yung confirmed D would abandon the Intended Grounds 4 and 5, but would apply for leave to amend the Application by substituting the Intended Ground 5 with the following intended ground:

“the PO erred in law in finding D had actual knowledge that the source of the water leakage/seepage into Flat 12A originated from the toilet facilities and waterproof membrane of Flat 13A sufficient for D to be held liable for nuisance” (“Intended Ground 7”).

This court granted leave for D to make addresses on the Intended Ground 7 on de bene esse basis. In short, D relied on the Intended Grounds 1-3, 6 and 7 to support and justify the Leave Application.

II.  LEGAL PRINCIPLES

18.  I have set out the relevant legal principles for the Leave Application in Adhoc Media Company Limited v Chan Lai Lun[3] and A Workshop Communications Ltd v Tam Heung Man,[4] and now summarise the same below. Mr Yung cited Ng Koon Fai v Lai Siu Hang Thomas & anor,[5] but such case does not detract from the general principles as referred to in Adhoc Media Company Limited and A Workshop Communications Ltd and/or as summarised below.

19.  Appeal  Section 28 of the Small Claims Tribunal Ordinance Cap 338 (“SCTO”) provides that leave to appeal may be granted by the Court of First Instance (“CFI”) as it thinks fit where the proposed ground of appeal involves a question of law alone or is on the ground that the claim was outside the jurisdiction of the Tribunal. The threshold onus on the applicant is to show that the intended appeal has arguable grounds of appeal.[6]

20.  Findings of fact  Section 29(2) of the SCTO provides that on an appeal for which leave was granted under section 28 of the SCTO, the CFI may (a) draw an inference of fact, and (b) make any such order as to costs and expenses as it thinks fit, but may not (i) reverse or vary any determination made by the Tribunal on questions of fact, or (ii) receive further evidence.

21.  It is trite that findings of fact by the Tribunal are generally immune from challenge as they involve no error of law unless it is perverse or irrational, or where there is no evidence to support the decision, or where the decision was made by reference to irrelevant factors or without regard to relevant factors.[7]

22.  Bokhary PJ in Kwong Mile Services Ltd v Commissioner of Inland Revenue said:[8]

“37. In any appeal on law only the appellate court must bear in mind what scope the circumstances provide for reasonable minds to differ as to the conclusion to be drawn from the primary facts found. If the fact-finding tribunal’s conclusion is a reasonable one, the appellate court cannot disturb that conclusion even if its own preference is for a contrary conclusion. But if the appellate court regards the contrary conclusion is the true and only reasonable one, the appellate court is duty-bound to substitute the contrary conclusion for the one reached by the fact-finding tribunal ……”

23.  In Kaifull Investments Ltd v Commissioner of Inland Revenue, it was held the fact that other inferences might just as plausibly be drawn from the available material was insufficient to establish that the first instance court/tribunal acted unreasonably and had come to a conclusion that no court/tribunal acting judicially could reasonably have made.[9] It is only where the lower court’s/tribunal’s decision exceeds the generous ambit within which reasonable disagreement is possible and is in fact plainly wrong that an appellate court is entitled to interfere.[10]

24.  Further, Order 55 rule 7(7) of the Rules of the High Court provides that the CFI shall not be bound to allow the appeal on the ground merely of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the court substantial wrong or miscarriage has been thereby occasioned.

25.  Duty to investigate  Hearings at the Tribunal are conducted in an informal manner.[11] The presiding officer may summon any witnesses and require the production of any document, record, book of account or other thing, which is relevant in any proceedings (section 16(2) of the SCTO), and shall inquire into any matter which it may consider relevant to a claim, whether or not it has been raised by a party (section 16(3) of SCTO).

26.  The statutory duty to investigate set out in section 16(3) of the SCTO is akin to a similar duty in section 20(3) of the Labour Tribunal Ordinance Cap 25. The underlying principles that underlie the Labour Tribunal’s statutory duty to investigate as summarised in Chan Suk Bing Angie v Harbour Phoenix Ltd & anor[12] are also applicable to the Tribunal:

“Section 20 of the Ordinance provides that hearings at the tribunal shall be conducted on an informal manner. This is mainly due to the prohibition against legal representation in the tribunal. This in turn, brought about s 20(3) which provides that ‘the Presiding Officer shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party’. ...... Presiding Officers should not allow themselves to derogate from this statutory duty under any circumstances, if a fair and just disposition of the claim is to be ensured. The requirements of justice in a judicial system such as the tribunal is such that, the Presiding Officers are required to assume an active inquisitive role in the proceedings. ......” (my emphasis)

27.  In Chan Yat San v Future Lucky (296) Ltd, Mimmie Chan J said as follows:[13]

“14. Further, the inquisitorial role of the Presiding Officer under s.20 of the Ordinance involves the duty to investigate relevant matters. Incidental to its performance of such a role and its duty to ensure a fair trial, in cases where there are disputes on facts and the credibility of witnesses is essential to the Presiding Officer’s determination, the Presiding Officer has the duty to raise with a party matters that require its clarification or elaboration, on which the Presiding Officer has queries and which may be determined against the party. This is in order to give the party an opportunity to deal with these matters and to call evidence on such matters.”

28.  Lam J (as he then was) in Le Thi Bich Thuy Kitty v Sheraton International (Hong Kong) Ltd trading as Sheraton Hong Kong Hotel & Towers explained that the manner of investigation is a matter of discretion to be exercised by the presiding officer in view of the facts of the case before him. Regard can be taken as to the issues in dispute, the incontrovertible evidence before the Tribunal, and the material placed before the Tribunal by the parties after inquiry by the presiding officer.[14] But the presiding officer is obliged to remain neutral and impartial in carrying out his duty to investigate, and not play the role as advocate for one litigant.[15]

29.  The statutory duty to investigate is not an absolute one. In Chan Suk Bing Angie, it is said that:[16]

“It is obvious that not every failure to investigate a relevant matter will give rise to an appeal for a failure to discharge a statutory duty. The relevant matter forming the subject matter of the complaint must not only be relevant but be of such a nature that the lack of investigation will give rise to injustice, in that, a fair and proper determination of the claim cannot be attained. All the circumstances of the case as well as all other findings must be given all due regard before such a complaint can be upheld. …… To suffice, it must be a clear and obvious case that the inadequacy of the investigation will render an ordinary reasonable man on the tram to Shaukeiwan to conclude that injustice has resulted in that a fair and proper determination of the claim cannot be attained.

...... The insufficiency of evidence to support a finding or the inconsistency of a finding with the evidence, are matters that the appellate court can properly take into account to determine whether there has been a failure to conduct any or any adequate investigation of material facts relevant to such a finding. ...... They are only matters which may give rise to a need for further investigation before a determination should be made. If there has been a proper and adequate investigation of the claim, no complaint can be made against any such findings of fact.” (my emphasis)

30.  In applying the above principles, Lam J (as he then was) in Le Thi Bich Thuy Kitty said:

“11. Hence, the duty to investigate cannot replace a party’s right to cross-examine witnesses called by others and to challenge the case of the others ......

......

13. If the Presiding Officer discerns that there are relevant matters which the parties have not explored, he is obliged to look into it and should invite the parties to comment and guide (and if necessary, direct) them to produce further evidence or documents ......”

31.  Chung J in James Manuel Ho & anor v Grand Pacific Vacation (Hong Kong) Limited adopted the above principles in dealing with an application for leave to appeal against a decision by the Tribunal.[17]

32.  Burden of proof  In Li Jing Jenny v Kingsway Security Limited, I have set out the general principles on the matter of burden of proof as follows:[18]

“64. 一般而言, 民事訴訟的舉證責任 (general persuasive burden of proof in civil cases) 在於「the party who substantially asserts the affirmative of the issue」, 而負上舉證責任的一方需在平衡相對可能性的標準下證明他的主張。Phipson on Evidence一書第18版第 162-163頁第6-7段指出：

「…… If, when all the evidence is adduced by all parties, the party who has this burden has not discharged it, the decision must be against him. …… This rule is adopted principally because it is just that he who invokes the aid of the law should be the first to prove his case; and partly because, in the nature of things, a negative is more difficult to establish than an affirmative. The burden of proof …… remaining unchanged throughout the trial …… never shifting. In deciding which party asserts the affirmative, regard must be had to the substance of the issue and not merely to its grammatical form …… The true meaning of the rule is that where a given allegation …… forms an essential part of a party’s case, the proof of such allegation rests on him. …… In all but the simplest cases, the burden of the issues will be divided, each party having one or more cast upon him. 」

65. 在該案件, 申索人和被告人的證人也有作供及提呈文件證據, 審裁官可從相關證據作出事實裁定, 而實際來說, 舉證責任的法理原則不外是指：

「…… the claimant (on whom the legal burden lies) has an evidential burden to adduce sufficient evidence to raise an issue as to the existence or otherwise of a fact in question whereupon the spotlight switches to the defendant to discharge his evidential burden of raising a prima facie innocent explanation, and if that is satisfied the claimant has to establish on proper standard of proof the defendant’s prima facie innocent explanation is to be rejected. If the defendant chooses to adduce some countervailing evidence such that the 2 sides’ versions are contradictory and mutually exclusive, the burden of proof is practically an assessment of the parties’ relative credibility and cogency of evidence/ inferences. ……」[19]”

III.  DISCUSSION: INTENDED GROUNDS 1-3

33.  It is important to start with the proper characterisation of the nature of the Intended Grounds 1-3. The Intended Ground 1 complained that the PO failed to take into account certain matters as set out in paragraphs 15(a)(i)(1)-(6) and 15(a)(ii) above when he concluded that the source of water leakage/seepage at Flat 12A originated from Flat 13A. The Intended Grounds 2-3 complained against the weight that the PO placed on various pieces of available evidence, eg low or no weight on various reports referred to in paragraph 15(b)-(c) above.

34.  Paragraphs 15(a)(i)(1)-(2) and 15(a)(ii) above  In my view, the PO clearly knew the 1^st DExpert visited Flat 13A at least twice and the CExpert had not inspected Flat 13A at all.[20] In paragraph 20 of the 2^nd Reasons, the PO confirmed his approach to the Review Application was to re-consider all evidence previously adduced by the parties and to consider the new evidence he allowed.[21] I note in paragraph 14(1) of the 1^st Reasons the PO clearly stated the relevant evidence as follows:

“14. [The 1^st DExpert]於2018年1月17日及2018年2月5日到[Flat 13A]及[Flat 12A]進行檢查，主要意見如下:-

……

(二)  進行色粉測試後, [Flat 12A]沒有發現任何色粉測試相關的顏色(文件 D87-90), [Cs]聲稱發現的螢光色水並非是[the 1st Dexpert]所用的顏色(文件D123-127)。”

35.  In my view, the PO in coming to his conclusion in paragraph 46 in the 2^nd Reasons was clearly alive to the above matters and had taken them into account:

“46. 所以, 雖然[the CExpert]未曾到[Flat 13A]作檢測，可是從多個測試中, [the Bedroom]及[the Toilet]中間位置部份的比較濕的情況低下, 本席亦考慮了[the 1^st DExpert]作色粉測試的結果(以下覆核理據(四)會提及本席的分析), 本席就重新考慮下, 認為在相對的可能性下, [the CExpert]能夠舉證[Flat 13A]廁所用水設施(C19, 5.4.5段), 或防水層破損有關, 這個[the CExpert]庭上作供都有提及的。雖然[the CExpert]未能直接指出[Flat 13A]的喉管爆裂定是防水層的問題, 本席認為[the CExpert]在報告能清楚指出[D]的廁所單位內的設施是有問題的。” (my emphasis)

In my view, there was no merit to the contention that the PO failed to “notice” or take into account the matters in paragraphs 15(a)(i)(1)-(2) and 15(a)(ii) above.

36.  Paragraphs 15(a)(i)(2) and 15(a)(ii) above Mr Yung noted the 1^st DExpert conducted various tests at both Flat 12A and Flat 13A, and suggested “[it] would be fair to say that the methodology of the [1^st DExpert] is more comprehensive and more liable”. This echoed the suggestion in the Intended Ground 1 that the findings by the 1^st DExpert “shall be much more complete than the [findings] by [the CExpert]” (see paragraph 15(a)(ii) above). I am unable to see how such complaint would amount to an error of law. What weight the PO placed on different pieces of relevant evidence that he had properly taken into account is a finding of fact and/or a drawing of inference of fact within the province of the PO, and not a matter of law. There is no merit in this argument as D had not shown any arguable case that such findings/inferences were perverse, irrational or plainly wrong.

37.  Paragraph 15(a)(i)(3) above  It was next suggested that the PO failed to “notice” the 1^st DExpert carried out colour dye test for the toilet facilities of Flat 13A with no colour dye found in Flat 12A. I disagree. The PO was aware that the 1^st DExpert carried out colour dye test because he stated in paragraph 19 of the 2^nd Reasons that “[the 1^st DExpert]亦進行了色粉測試”. Paragraph 45 of the 2^nd Reasons showed the PO had given consideration to the results of such colour dye test:

“45. 就著色水測試的結果, 本席接納[the 3^rd CReport]中提出，根據香港測量師學會, 滲水位置沒有發現色水, 不等於受影響單位是完全沒有滲水的情況, 因為色水測試結果會受多方面因素影響(C154 – 第一段; C160-162）。若然本席接納[D’s]個色水測試結果, 即使沒有色水, 本席仍要看看其他測試結果, 而本席就住其他測試結果亦都在以上進行了分析, 亦認為[Flat 12A]漏水與[Flat 13A]有關。[Flat 12A]天花是否有色水, 亦都不是本席考慮13A單位是否漏水的唯一測試, 而究竟[the 1^st DExpert]落什麽色粉呢, 亦都不再是重點。” (my emphasis)

38.  Plainly, the PO had taken the results of the colour dye test into account, and weighed such evidence against other available evidence and test results before coming to his conclusion. This was also made clear in paragraph 46 of the 2^nd Reasons that: “本席亦考慮了[the 1^st DExpert]作色粉測試的結果(以下覆核理據(四)會提及本席的分析) ……” (see paragraph 35 above), and in paragraphs 55-56 of the 2^nd Reasons that:

“55. 就著覆核理據四, [D]出庭作供專家[the 2^nd DExpert]的不足，例如, [Cs]稱[the 1^st/2^nd DExpert]在導電測試得出來的結果不合理, 即是測試之後的濕度結果,反而比落色水之前低。

56. 本席已在以上作出詳細分析不接納[DReports]的主要原因。本席亦在此澄清本席不接納[DReports]不是因為原審時[D]製作報告的專家[the 1^st DExpert]因病委派了另一名同事作供。”

I am of the view it could not arguably be said the PO failed to “notice” or take into account the matters in paragraph 15(a)(i)(3) above.

39.  Paragraphs 15(a)(i)(4) and 15(b) above  D also complained the PO failed to “notice” or, as Mr Yung put it, failed to “adequately appreciate” the tests done by the CExpert were on days with high rainfall volume, which therefore led to high moisture ratios of over 35% at the ceiling of the Toilet, “but there was low moisture ratios on sunny days”. But in my view, the PO was plainly aware and took into account that the CExpert carried out tests on rainy days as seen in paragraph 33 of the 2^nd Reasons which stated inter alia that “本席亦都留意, 在原審裁決[1^st Reasons]裡面亦都將下雨這個因素及近外牆部份的濕度考慮之內”, and this was set out in paragraph 20(1) of the 1^st Reasons, ie “本席留意到[CExpert]進行兩次檢查前都有下大雨的情況(文件C29-30, C101) – 例如2017年8月3日(第一次撿查4天前)曾有下雨達 64.9亳米; 2018年7月13-15日(第二次檢查前1-3天)每天總雨量也高於50毫米; 可是[the 1st DExpert]進行檢查前數天也沒有下雨的情況 (文件D98-101) ……”

40.  In paragraph 20 of the 2^nd Reasons, the PO confirmed that for the Review Application he would re-consider all previous evidence adduced by the parties and would consider the new evidence that he allowed to be adduced. This was echoed in paragraph 33 of the 2^nd Reasons in which the PO said “本席當重新處理及衡量這兩部份證據的時候有以下的觀察 ……”:

“(a)  本席同意, 雖然[the CExpert]的測試是因天雨關係濕度相對性係較[the 1^st DExpert]高，但是本席留意到雙方專家報告中亦都有指向[the Bedroom]向[the Toilet]方向, 及[the Toilet]內向[the Bedroom]的方向濕度是較高, 亦不靠近外牆的;

(b)  而外牆部份, 本席再細心留意測試紀錄, 外牆部份亦有位置是有不濕的紀錄。[The PO then set out the reference pages for the test results by electrical conductive sensing and microwave scan in the 1^st/2^nd CReports and the 1^st DReport.]

(c) 本席亦都考慮了, 外牆亦都有一些部份有較高濕度的測試, 但是綜合來説, 當本席重新考慮外牆對比[the Bedroom]及[the Toilet]中間的位置, 本席認為[the Bedroom]及[the Toilet]中間位置是比較濕的。”(my emphasis)

Having made such observations, the PO took them into account (notwithstanding that the CExpert carried out her tests on rainy days, which fact the PO also took into account) when he came to his view in paragraph 46 of the 2^nd Reasons that “所以, 雖然[CExpert]未曾到[Flat 13A]作檢測, 可是從多個測試中, [the Bedroom]及[the Toilet]中間位置部份的比較濕的情況低下, …… 本席就重新考慮下, 認為在相對的可能性下, [the CExpert]能夠舉證[Flat 13A]廁所用水設施(C19, 5.4.5段), 或防水層破損有關, 這個[the CExpert]庭上作供都有提及的 ……” (my emphasis).

41.  Mr Yung suggested it was neither here nor there that the test results showed some parts of the external wall were not moist because there were points of moisture near the external wall.[22] But in my view the PO plainly knew and took into account the fact that the test results showed certain points of moisture near the external wall because he said at paragraph 33(c) of the 2^nd Reasons that “本席亦都考慮了, 外牆亦都有一些部份有較高濕度的測試 ……” (see paragraph 40 above).

42.  But Mr Yung went on to submit these points of moisture along the external wall “[evince] that there was water ingress from the external wall”. In my view, such submissions wholly ignored the PO’s discussion/analysis of the evidence in this respect in paragraph 33 of the 2^nd Reasons (see paragraph 40 above) and the PO’s consequent finding that “…… 綜合來説, 當本席重新考慮外牆對比[the Bedroom]及[Toilet]中間的位置, 本席認為[the Bedroom]及[the Toilet]中間位置是比較濕的”. In fact, the PO concluded from the test results that the core points of moisture with higher moisture ratios were more to the centre of the ceilings of the Toilet and the Bedroom than along the external wall. When viewed against the objective test results in the 1^st CReport and 1^st DReport (see footnote 23 above), I am unable to say the PO’s findings was perverse, irrational, unsupported by evidence and/or plainly wrong. I detect no arguable error of law on the part of the PO in coming to the factual findings/inferences as he did, and in not finding that the spread of moisture from the core points with high moisture ratios found near to the centre of the ceilings of the Toilet and the Bedroom was due to water ingress from the external wall.

43.  In the circumstances, the suggestion that the PO failed to “notice” or take into account the matters in paragraph 15(a)(i)(4) above and/or that the PO erred in holding the source of water leakage was from Flat 13A in paragraph 15(b) above was not arguable.

44.  Paragraph 15(a)(i)(5) above  As for D’s complaint that the PO failed to take into account that the moisture ratios of the ceiling of the Toilet near to the external wall as recorded by the CExpert and the 1^st DExpert were similar, Mr Yung referred to the microwave scan results at page 19 of the 1^st DReport (D/66) and those at pages 19-20 of the 1^st CReport (C/16-16A).

45.  Taking the last point first, the PO plainly took into account the microwave scan results in the 1^st CReport because paragraph 33(b) of the 2^nd Reasons particularly cited the electrical conductivity sensing test results and microwave scan results (at 30mm, 70mm and 110mm depth) of the ceilings of the Toilet and the Bedroom in the 1^st CReport (C14-15 and C16-18), and similar electricity conductivity sensing test results in the 2^nd CReport (C/57-61), but as the PO noted in the same paragraph, such results showed the core areas with high moisture ratios at the ceiling of the Bedroom were near to the Toilet and the core areas with high moisture ratios at the ceiling of the Toilet were near to the Bedroom rather than near to the external wall.

46.  As regards the 1^st DReport, although moisture ratios were recorded in respect of the microwave scan results for the ceilings of the Toilet and the Bedroom at 30mm, 70mm and 110mm depth, Mr Yung only referred to the results for the ceiling of the Toilet at 30mm depth (see paragraph 6.1.4.1 at page 19 of the 1^st DReport (D/66)). But the scan results for all 3 depths showed moisture ratios at other parts of the ceiling of the Toilet, and the scan results at 110mm depth at paragraph 6.1.4.3 at page 21 of the 1^st DReport (D/68) clearly showed wider areas of higher moisture ratios near to the centre of the ceiling of the Toilet and at parts of the ceiling near to the Living Room and the Bedroom rather than near to the external wall. In paragraph 33(b) of the 2^nd Reasons, the PO also took into account the microwave scan results for the ceiling of the Bedroom (see also D/77-78) which also showed separate core points with high moisture ratios separate or away from the external wall.

47.  These findings by the CExpert and the 1^st DExpert in the 1^st CReport and 1^st DReport led the PO (upon re-consideration of all the evidence for the Review Application) to his views set out in paragraph 33(c) of the 2^nd Reasons (see paragraph 40 above), ie “外牆亦都有一些部份有較高濕度的測試, 但是綜合來説, 當本席重新考慮外牆對比[the Bedroom]及[the Toilet]中間的位置, 本席認為[the Bedroom]及[the Toilet]中間位置是比較濕的”. The PO brought this into account in his conclusion in paragraph 46 of the 2^nd Reasons that “所以, 雖然[the CExpert]未曾到[Flat 13A]作檢測, 可是從多個測試中, [the Bedroom]及[the Toilet]中間位置部份的比較濕的情況低下, …… 本席就重新考慮下, 認為在相對的可能性下, [the CExpert]能夠舉證[Flat 13A]廁所用水設施(C19, 5.4.5段), 或防水層破損有關, 這個[the CExpert]庭上作供都有提及的” (my emphasis). In my view, such factual finding/ inference was supported by evidence, and it was within the province of the PO to come to such view upon assessing and weighing the available evidence.

48.  I see no arguable basis for the suggestion that the PO failed to take into account the matters in paragraph 15(a)(i)(5) above, and I also do not detect any arguable error of law on the part of the PO in coming to the aforesaid conclusion on the available evidence and in not concluding on such evidence, as D suggested, “that the alleged water leakage/seepage was caused by water seepage from external wall of the [Building] spreading to the ceiling of [the Toilet]”.

49.  Paragraph 15(a)(i)(6) above  D also complained the PO failed to “notice” or take into account the letter dated 17 July 2018 by the Joint Office (D/181) that (a) recorded tests done at Flat 12A and Flat 13A and (b) concluded the area of alleged water leakage/seepage was dry with moisture ratios lower than 35%.

50.  The letter dated 17 July 2018 by the Joint Office stated that “因應一宗滲水舉報, 本署於合約顧問黃錦球工程顧間有限公司職員曾到受滲水影響單位視察及調查, 發現滲水位置的水源已經乾涸, 濕度數值低於35%, 顯示滲水的情況已經停止”, so the informant told the staff of the Joint Office “無須跟進本個案”. Plainly, the inspection of Flat 12A referred to in such letter was not carried out by the Joint Office and/or by the Consultant. The description of “本署於合約顧問黃錦球工程顧問有限公司” (“Other Consultant”) did not refer to the Consultant (富士達建築及工程顧問有限公司). It was unknown when the Other Consultant carried out its inspection of Flat 12A, what tests/inspection were done by the Other Consultant at Flat 12A, and what the results of those tests/inspection were. No report by the Other Consultant was produced at the hearing of the Review Application (in contra-distinction to the production of the Joint Office Reports made by the Joint Office in July 2017 and the Consultant Report made by the Consultant in November 2018 in relation to inspections in October/November 2018, ie after the aforesaid letter dated 17 July 2018 by the Joint Office).

51.  There was another letter dated 27 July 2018 by the Joint Office (C/120), but that letter obviously referred to the Joint Office Reports of July 2017 as it set out the inspection results of the Joint Office’s inspections of Flat 12A on 10 and 25 July 2007. Although the aforesaid letter dated 27 July 2018 by the Joint Office only made a broad reference to the moisture content of the ceiling of the Toilet on 10 July 2017 (14-38%) and on 25 July 2017 (21-42%) and that of the ceiling of the Bedroom on 10 July 2017 (17-56%) and on 25 July 2017 (23-44%), the Joint Office Reports contained detailed records of the moisture content survey for each marked point on the ceiling of the Toilet (CP1-14 and CP1-15 on 10 and 25 July 2017 respectively) as well as the ceiling (CP1-12 and CP1-13 on 10 and 25 July 2017 respectively) and the window frame (CP1-5 on 10 July 2017) of the Bedroom as measured by the Joint Office (C/177-183). These measurements showed that in July 2017 the moisture content of parts of the ceilings of the Toilet and the Bedroom exceeded 35%. In paragraph 47 of the 2^nd Reasons, the PO took into account the measurements of moisture content in the Joint Office Reports, and concluded that “[the Joint Office]於2017年7月10日及7月25日所作的濕度記錄測試結果與[the CExpert]的報告吻合，濕度較高的地方是[the Bedroom] ([the Joint Office Reports]寫的是“Bedroom 2”)較近[the Toilet]位置 …… 本席留意到[D]就[Cs]在覆核提供的[the Joint Office Reports], 是沒有作出具體的回應。而這份新增的報告亦對比之前[the Joint Office]於2018年7月27日所發出(C120)及在2018年7月17日所發出的信件(D181)比較全面, 本席認為新增的C177至C184是有力度及應被本席接納的文件”.

52.  I add here that the PO was aware of and at paragraph 49 of the 2^nd Reasons took into account the Consultant Report that stated “[no] water seepage was noted at the time of inspection” on 9 October, 8 November and 24 November 2018 (C/144). But the PO noted the Consultant Report “沒有提及顧問進行了什麽測試而作出這個結論”, and came to the view that “這份報告的考量性是較低”.

53.  Mr Yung argued even though the PO placed little weight on the Consultation Report because it did not mention the test method, the PO did not adopt his own reasoning in relation to Joint Office Reports because such report on its face also did not mention the test method for measuring the moisture content. The relevant staff of the Consultant or the Joint Office were not called to give oral evidence at the trial, and their evidence was not tested under cross-examination. Mr Yung submitted there was no good reason for the PO to conclude the Joint Office Reports were more comprehensive than the views stated in the Joint Office’s letters dated 17 and 27 July 2018, and it was erroneous for the PO to place any weight on the Joint Office Reports.

54.  I disagree. First, the matters discussed in paragraph 51 above clearly showed the Joint Office Reports were more comprehensive than the summarised account in the letter dated 27 July 2018 by the Joint Office. Nevertheless, the Joint Office Reports and the letter dated 27 July 2018 by the Joint Office were consistent as the latter was a summarised account of the former. Secondly, the Joint Office Reports clearly set out the test methodology, ie test spots were marked on the ceilings of the Toilet and the Bedroom and on the window frame, and the moisture content was measured for each of the marked spots to result in individual reading of the moisture content (which appeared to be similar to the electrical conductivity sensing test in the 1^st CReport and 1^st DReport). But from the Consultant Report, I am unable to discern any test carried out (let alone any methodology adopted) other than visual inspection (see photographs taken and the observations of blistered paint at the ceiling of the Toilet and the Bedroom as well as hairline crack at the beam of another bedroom made in such report). There was significant difference between the approach adopted by the Joint Office and the Consultant. Thirdly, as explained in paragraph 50 above, in the absence of the detailed inspection report by the Other Consultant and/or information as to the date of inspection and nature of test/inspection done by the Other Consultant, the Joint Office Reports were necessarily more comprehensive than the summarised account in the letter dated 17 July 2018 by the Joint Office that was not backed up by any primary data. There was simply no primary record of any moisture content survey to show the measurements were below 35%.

55.  I see no error in law by the PO in paragraph 47 of the 2^nd Reasons by preferring to place weight on the Joint Office Reports, and in paragraph 49 of the 2^nd Reasons by concluding that the Consultant Report “考量性是較低”. More importantly, even if the water leakage/seepage had ceased and the water seepage area had dried up (as noted in the letter dated 17 July 2018 by the Joint Office and in the Consultant Report) it would not necessarily mean there had not been any previous water leakage/seepage at all (see eg the Joint Office Report of July 2017 which noted moisture content exceeding 35% in some parts of the ceilings of the Toilet and the Bedroom, and the 1^st CReport of September 2017 which recorded active water leakage/seepage).

56.  New argument  Mr Yung in his written submissions raised a new point that was not in the Application, but D’s application to amend the Application did not seek to raise this point. In the circumstances, there was in fact no need for this court to deal with the new point raised merely in Mr Yung’s submissions. However, for completeness, I will briefly deal with this fresh point being D’s complaint that the PO “inadvertently reversed the burden by requiring [D] to prove the toilet facilities and waterproof membrane were completely problem-free”.

57.  Mr Yung relied on paragraph 51 of the 2^nd Reasons, and I find it useful to set out such paragraph in full:

“51. [D]承認在2011年[Flat 13A]作出改動, 由於本席認為[CExpert]能夠成功舉證[Flat 13A]的廁所的設施及地台有問題導致漏水, 舉證責任就落在[D]身上, 去證明[Flat 13A] 廁所的設施、防水層是沒有破損。[D]在原審的時候作供的專家[2^nd DExpert]稱根據目測[Flat 13A]的木板, 即D121、122中是沒有霉爛。[The 1^st DReport](D88 – 7.4.5段)亦稱根據目測法, [Flat 13 A]浴室內企缸、洗手盆及座廁, 其地台表面沒有明顯破損, 故認為未必是[Flat 13A]廁所及設施或防水層出現問題。可是, [the 1^st DExpert]在這部份亦都是目測, 亦都沒有提出證據去證明[Flat 13A]的廁所設施及防水層是完全沒有問題。”

58.  It is useful to note that (a) the PO in paragraph 26 of the 2^nd Reasons stated that “簡單來説, 本席認為[Cs]要在相對的可能性下向本席證明某部份滲水來源是來自上層的物業 ……”, and (b) after discussing all 5 Review Grounds in paragraphs 28-57 of the 2^nd Reasons, the PO in paragraph 58(a) of the 2^nd Reasons stated that “所以總結, 就住責任上, 本席認為:- (a) [Cs]能夠舉證成功, 指出[Flat 13A]廁所設施及防水層出現問題, 導致在關鍵時刻[Flat 12A]位有漏水的情況 ……”

59.  I have no doubt Cs as claimants carried the legal burden to prove on the balance of probabilities the source of the water leakage.[23] But I am not persuaded the PO committed any error in reversing the burden of proof. I refer to the general principles on burden of proof in Li Jing Jenny discussed in paragraph 32 above. In line with those principles, the PO analysed the expert evidence by the CExpert and 1^st/2^nd DExperts, the Joint Office Reports and the Consultant Report in paragraphs 28-50 of the 2^nd Reasons, and concluded Cs had satisfied the “evidential burden to adduce sufficient evidence to raise an issue as to the existence or otherwise of a fact in question” (ie “由於本席認為[the CExpert]能夠成功舉證[Flat 13A]的廁所的設施及地台有問題導致漏水” – see paragraphs 46 and 51 of the 2^nd Reasons), it fell on D to satisfy the “evidential burden of raising a prima facie innocent explanation” (ie “舉證責任就落在[D]身上, 去證明[Flat 13A]廁所的設施、防水層是沒有破損” – see paragraph 51 of the 2^nd Reasons). This was made abundantly clear in paragraph 22 of the 2^nd Reasons in which the PO stated that “若[Cs]能夠成功舉證, 而[D]亦未能夠指出滲水係從其他地方, 或事實上可能存在有其他漏水路徑, 上層物業都不會因此毋須為從上層物業滲到下層的物業作出任何的負責”. There was no reversal of the burden of proof.

60.  In my view, the PO had in mind the legal burden of proof rested on Cs (see paragraphs 22, 26 and 58(a) of the 2^nd Reasons), but since both Cs and D adduced factual and expert evidence on the Liability Issue which were “contradictory and mutually exclusive, the burden of proof is practically an assessment of the parties’ relative credibility and cogency of evidence/inferences ……” The PO carefully weighed up the evidence on the 1^st and 2^nd Review Grounds (including analysis of the expert evidence in paragraphs 28-46 of the 2^nd Reasons, the Joint Office Reports in paragraph 47-48 of the 2^nd Reasons, the Consultant Report in paragraph 49 of the 2^nd Reasons, the countervailing evidence by the 2^nd DExpert at trial in paragraph 51 of the 2^nd Reasons, and the effect of the renovation of the Building in paragraph 52 of the Reasons) and the 3^rd to 5^th Review Grounds in paragraphs 54-57 of the Reasons before concluding in paragraph 58(a) of the 2^nd Reasons that “[Cs]能夠舉證成功, 指出[Flat 13A]廁所設施及防水層出現問題, 導致在關鍵時刻[Flat 12A]有漏水的情況”. In my view, there was no error in law by the PO as to the burden of proof.

61.  Mr Yung submitted Cs only suggested in a broad-brush manner that Flat 13A’s toilet facilities were leaking, and even the PO acknowledged the CExpert (who at most excluded freshwater pipes as a source of water leakage) could not directly identify the specific source of water seepage. He argued that (i) in the absence of specific identification of which toilet facility (eg handwash basin, toilet bowl pipe/drain, floor waterproof membrane/layer and drainpipe, and shower cubicle waterproof membrane/layer and drainpipe) as the source of water seepage, but (ii) with the 2^nd DExpert’s evidence of visual inspection showing absence of rotting wooden frames in the toilet of Flat 13A, the PO’s rejection of the following evidence as showing Flat 13A to be “seepage-free” demonstrated he failed to recognise D’s difficulty in proving a negative:

(a)	the 2nd DExpert’s evidence that Flat 13A “…… 的木板, 即D121、122中是沒有霉爛” (paragraph 51 of the 2nd Reasons);
(b)	the visual inspection recorded in the 1st DReport (D88) that “[Flat 13A]浴室內企缸、洗手盆及座廁, 其地台表面沒有明顯破損, 故認為未必是[Flat 13A]廁所及設施或防水層出現問題” (paragraph 51 of the 2nd Reasons);
(c)	the absence of colour dye found in Flat 12A after the colour dye test was carried out in Flat 13A (paragraph 45 of the 2nd Reasons);
(d)	the letter dated 17 July 2018 by the Joint Office (D/181) stating that the Other Consultant found the areas of water seepage at Flat 12A had dried up (with moisture ratios lower than 35%) such that Cs did not require further follow up (see paragraph 50 of the 2nd Reasons).

62.  In my view, Mr Yung’s argument in the above paragraph was essentially a complaint on the weight the PO placed on various pieces of evidence on the Liability Issue and on the factual inferences he drew from the findings. But the PO was entitled to make findings of fact and to draw inferences from the findings, which matters were generally immune from challenge as they would not involve any error of law unless they were perverse or irrational, or there was no evidence to support the decision, or the decision was made by reference to irrelevant factors or without regard to relevant factors. The fact other findings/inferences might just as plausibly be drawn from the available material was insufficient to establish that the PO acted unreasonably and had come to a perverse conclusion that was plainly wrong.

63.  Here, the PO found that “…… 於2017年7月26號開始, [D]多次拒絕[the CExpert]及[the Consultant]到13 A作出進一步檢查” (see paragraph 58(b) of the Reasons). In the Leave Application, D did not seek to challenge such finding of fact. Since Cs, the CExpert and the Consultant had no access to Flat 13A, it was small wonder they could not actually pinpoint the precise toilet facility at Flat 13A that caused the water leakage/seepage. But this would not have prevented the PO from drawing inferences of fact from the available evidence. In my view, the PO had considered the parties’ expert evidence before drawing the conclusions in paragraph 46 of the 2^nd Reasons: “本席就重新考慮下, 認為在相對的可能性下, [the CExpert]能夠舉證[Flat 13A]廁所用水設施(C19, 005.4.5段), 或防水層破損有關, 這個[the CExpert]庭上作供都有提及的。雖然[the CExpert]未能直接指出[Flat 13A]的喉管爆裂定是防水層的問題, 本席認為[the CExpert]在報告能清楚指出[Ds’]的廁所單位內的設施是有問題的” (my emphasis), and had taken into account the parties’ expert evidence (paragraphs 28-46 of the 2^nd Reasons), the Joint Office Reports (paragraph 47-48 of the 2^nd Reasons) and the Consultant Report (paragraph 49 of the 2^nd Reasons), which included the matters in paragraph 61(c)-(d) above, to draw further inferences of fact that “綜合以上分析, 本席認為[Cs]已經能夠舉證成功某部份的滲水是從[Flat 13A]而出, [D]也不可以因可能有其他漏水個路徑而推卻其責任” (paragraph 50 of the 2^nd Reasons). Still further, the PO took into account, weighed and assessed the countervailing evidence that D adduced, including the matters in paragraph 61(a)-(b) above and the effect of the renovation of the Building (paragraph 52 of the 2^nd Reasons) before concluding that the water leakage/seepage at the ceilings of the Toilet and the Bedroom was caused by Flat 13A and not seepage via the external wall (see paragraph 53 of the 2^nd Reasons). I discern no error in law in the approach adopted by the PO, and I am unable to say that there was no evidence to support his findings/inferences of fact and/or that his conclusion was plainly wrong in that no tribunal acting judicially could have come to such conclusion. Even if another inference might plausibly be drawn (upon which I express no view), it would be insufficient to establish that the PO erred in law.

64.  Intended Grounds 1-3  Given the aforesaid analysis and conclusion, I am not persuaded that the Intended Grounds 1-3 were arguable. The Intended Grounds 2-3 were essentially a challenge as to the weight the PO placed on different pieces of available evidence on the Liability Issue, and his findings/inferences of fact made upon assessment of the evidence. This was not an argument on point of law for which leave to appeal could be granted.

IV.  DISCUSSION: INTENDED GROUND 7

65.  There was no dispute that for D to be liable in nuisance Cs had to show D had knowledge or presumed knowledge of the existence of the nuisance that emanated from Flat 13A. The leading authority is 張秀玲及吳炳漢對鄭禮莊,[24] which was referred to in paragraph 57 of my judgment Loke Yuen Jean Tak Alice v Wong Kit Ying & anor[25] that the PO cited in paragraph 24 of the 2^nd Reasons. So the PO was alive to the relevant legal principles.

66.  The PO’s ruling in this respect can be found in paragraph 58(b) of the 2^nd Reasons, which I set out below:

“至於[D]是否實質上或在通常及合理謹慎下應可知道漏水已經發生,本席認為[Cs]在2017年10月17日入稟前, 本席認為[Cs]在2017年7月之後及在2017年10月17日向本審裁處入稟前, 多次通知[D][Flat 12A]的狀況並指出已經聘請了專家預備報告, 包括2017年9月27日或10月5日(C46/D12)及2017年10月13日(C47); [the CExpert]亦於2017年9月22日撰寫了報告; [the Joint Office]亦都曾向[Flat 13A]於2017年7月作出了視察, 故[D]是有多次被通知[Flat 12A]的情況。可是本席留意到於2017年7月26號開始, [D]多次拒絕[the CExpert]家及[the Consultant]到[Flat 13A]作出進一步檢查。”

67.  Mr Yung suggested the PO erred in law to find D was liable for nuisance in that he had “actual knowledge” (and the PO did not seek to analyse that D had any presumed knowledge) that the source of the water leakage/speepage into Flat 12A originated from the toilet facilities and the waterproof membrane/layer of Flat 13A based on Cs’ letters dated 27 September, 5 October and 13 October 2017 (C/46-47 and D/12), and the inspections by the Joint Office in July 2017 (C/33). Mr Yung’s reasons for such contention were as follows:

(a)	Cs’ letters only described Flat 12A suffered from water seepage, and did not definitively confirm the source of seepage originated from Flat 13A.
(b)	It was not known what was said during the inspection by the Joint Office on 10 July 2017, and the letter dated 26 July 2017 by the Joint Office (D/10) referred to such inspection but stated that “直至目前, 仍未能確定引致滲水的源頭。由於受影響單位的滲水問題持續, 本處會考慮於貴單位進行專業調查 ……”
(c)	The Joint Office had not issued any nuisance notice or nuisance order to D, which suggested D did not know Flat 13A was the source of water seepage into Flat 12A.
(d)	D engaged the 1st DExpert to investigate and “multiple” DReports stated Flat 13A was not responsible for the water seepage into Unit 12A which source should be seepage from the external wall.
(e)	At most it could only be said D had knowledge that the condition of Flat 12A was a consequence of water seepage, but not that such water seepage originated from Flat 13A, and the PO in paragraph 58(b) of the Reasons found D was only informed of the condition of Flat 12A.

68.  I agree that mere knowledge of the claimed damage was not good enough, and it must be shown that D had actual/presumed knowledge of the source of the water leakage/seepage. But I do not agree that in paragraph 58(b) of the 2^nd Reasons the PO was merely focused on actual knowledge. The PO was well aware that Cs had to establish either actual or presumed knowledge of the source of the water leakages on the part of D (see paragraph 65 above). Given the PO’s finding that D refused access by the CExpert and the Consultant to Flat 13A since 26 July 2017 (and D did not seek leave to appeal against such finding), Cs could hardly have actual knowledge themselves to specifically bring to the attention of D the particular toilet facilities and/or the waterproof membrane/layer of Flat 13A as the specific source of water leakage for D to gain such actual knowledge. Since this was a matter of D’s own making, she could hardly complain. In my view, what the PO was saying was that Cs’ letters to D and the inspections by the Joint Office served to bring knowledge (whether actual or presumed) to D.

69.  I disagree that Cs’ letters to D were silent on the source of the water leakage. Cs’ letters dated 27 July and 5 October 2017 specifically informed D that “今報告已出, 敝宅天花倒塌, 似為府上滲水所致”, and urged D to meet to discuss repairs. In my view, Cs clearly told D they believed the source of the water leakage was from Flat 13A. It would be too onerous to require Cs to pinpoint the exact leakage points inside Flat 13A, especially when here the CExpert and the Consultant were not given access to Flat 13A. I have in Loke Yuen Jean Tak Alice explained why such approach would be too onerous, and the PO had referred to the relevant parts of my judgment in paragraph 24 of the 2^nd Reasons. In any event, once Cs (who had no access to Flat 13A) brought to the attention of D that Flat 13A was the suspected source of the water leakage (which was reinforced by the fact that the Joint Office conducted inspections and colour dye test in July 2017), then 張秀玲及另一人 explained that even though D did not have exact knowledge, “……. 他也不能藉此推卸責任。他身為戶主, 對自己使用的地方要負法律責任。若在通常的情況下戶主應可知道有關使用地方的情況, 在法律上他就被當作知情。作為地方的戶主, 他應對該地方作出合理謹慎的處理。故此, 對該地方的情況而言, 一切他應在合理謹慎下可知道的, 法律也當他知道” (see paragraph 24 of the 2^nd Reasons).

70.  I do not think Mr Yung’s reference to (a) the absence of colour dye from the colour dye test, (b) the Joint Office’s letter dated 26 July 2017 stating “直至目前, 仍未能確定引致滲水的源頭”, and (c) the DReports that suggested the source of water leakage was seepage via the external wall would add anything further. As pointed out by the PO, the absence of colour dye from a colour dye test was not conclusive (see paragraph 37 above). Further, the fact there was countervailing evidence on the source of water leakage would be pertinent to the question whether or not Cs could establish their case on the Liability Issue, but not to the issue of whether D had actual/presumed knowledge that Flat 13A was accused of being the source of the water leakage downstairs. If it were otherwise, it would mean that in any contested water leakage case where the defendant disputes the water source and obtains supporting expert evidence, he will be able to say he does not have the requisite knowledge. That cannot be right. It must be remembered that Flat 13A was wholly within D’s control and legal responsibility, and the requisite knowledge was to enable D being the owner of Flat 13A who “應可知道有關使用地方的情況” to (if she thought fit) take steps to abate the nuisance, rather than to enter into a debate over countervailing views on the water source.

71.  In the circumstances, I detect no error of law in the PO’s approach, and I am not satisfied that the Intended Ground 7 was arguable. That being the case, D’s application to amend the Application must be dismissed.

V.  DISCUSSION: INTENDED GROUND 6

72.  Although Cs put forward 2 quotations for remedial works at Flat 12A from Bo Win Construction Limited (“Bo Win”) dated 13 October 2017 for $38,000 (C/43) and from Full Man Engineering dated 28 November 2017 for $42,000 (C/44), Cs eventually engaged Power Construction & Engineering Ltd (“Power”) to carry out the remedial works, and they produced a receipt dated 13 August 2018 issued by Power in the sum of $45,700 (C/123).

73.  Although Cs’ incurred expenditure was $45,700, the PO eventually awarded damages in the sum of $26,000 by adopting Bo Win’s quotation ($38,000) less the 5^th and 6^th items of work in Bo Win’s quotation for the Living Room ($12,000). The remaining items of Bo Win’s quotation were for the cost of repairs to the ceilings of the Toilet and the Bedroom and the cost for insurance cover of the remedial works, which was significantly less than the incurred cost.

74.  Mr Yung complained that the PO erred in awarding damages in the sum of $26,000 because (a) “there was no evidence to suggest that this was reasonable, or that such works necessary”, and (b) a proper assessment on the costs of the actual remedial works done should have been conducted.

75.  In my view, such argument was without merit. As the PO explained in paragraph 62 of the 2^nd Reasons, by the time Cs commissioned the repair works in 2018, Bo Win was no longer willing to carry out the remedial works, and Cs considered Full Man Engineering were not quite professional. I bear in mind that Cs were only required to take reasonable and not absolute steps to mitigate loss. In the above circumstances, I could not see how Cs could be faulted for engaging Power to carry out the remedial works. Nevertheless, the PO took a conservative approach and still considered the lowest quotation amount of $38,000 by Bo Win out of the 3 contractors (albeit outdated) as the basis for assessment of damages. On such basis, and there being no countervailing evidence to show any lower sum as reasonable cost of the remedial works, I cannot see how the reasonableness of the PO’s approach could be faulted. Further, the PO took into account the expert evidence from the CExpert to confine the notional cost of remedial works to the works at the Toilet and the Bathroom and excluded the notional cost of remedial works for the Living Room. I also cannot see how it could be said there was no proper evidence-based assessment as to the permissible scope of the remedial works.

76.  In my view, there was no error of law, and indeed no basis at all to challenge the PO’s award of damages.

VI.  CONCLUSION

77.  In my view, none of the Intended Grounds was arguable, and I find I cannot grant leave for D to appeal against the 2^nd Judgment. In the circumstances, the Leave Application is dismissed. I also dismiss D’s application for leave to amend the Application. I also grant a costs order nisi that there be no order as to costs of and occasioned by the Application and by D’s application for leave to amend the Application.