LEUNG CHIN TO MICHAEL v. WONG SIU CHEUK PING SELINA

DCCJ 492/2020

[2023] HKDC 376

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 492 OF 2020

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JUDGMENT

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Introduction

1.  The plaintiff was and is the owner of Flat A, 12/F, Block A, Fairland Gardens, No 7 Ho Man Tin Hill Road, Kowloon (“the Lower Property”). In August 2014, the defendant became the owner of the roof top and the structure thereat immediately above the Lower Property, which is alternatively known as Flat A on 13/F (“the Upper Property”).

2.  The plaintiff now seeks damages against the defendant for losses allegedly caused to the Lower Property by water seepage originated from the Upper Property, from November 2016 to January 2018.

The properties

3.  Fairland Garden stands within the hilly residential area of Ho Man Tin. The occupation permit for Block A of Fairland Gardens was issued on 5 November 1971.

4.  According to the approved plans, the Lower Property comprises a dining and living room with a balcony, 3 bedrooms (with en-suite bathroom for the master bedroom), a guest bathroom, a kitchen, a utility room, and a servant’s room with a servant’s lavatory. It is around 2,000 sq feet in size. The Upper Property comprises an internal space with open roof areas on 3 sides. The kitchen and 2 of the 3 bedrooms[1] of the Lower Property are immediately below the open roof areas of the Upper Property; whereas the dining and living room of the former is immediately below the internal area of the Upper Property. Within the Lower Property, the master bedroom is next to the living room, and the 2 guest bedrooms are opposite to the master bedroom, but adjacent to the dining room.

5.  Although photos in the trial bundles support an inference that maintenance was carried out to the exterior of Fairland Gardens, there is no evidence showing the details of any inspection, maintenance and/or repair, particularly to any part of Block A.

DCCJ 3319/2014

6.  The plaintiff commenced an action (in DCCJ 3319/2014) against Tan Joycelyn Rivera, the defendant’s predecessor-in-title, on 27 August 2014. The plaintiff claimed that water seeped from the Upper Property to the Lower Property since November 2013. The seepage, which happened as a result of Madam Tan’s fault as the then owner of the Upper Property, allegedly caused damage to the Lower Property. Specifically, the plaintiff claimed that, when Madam Tan removed some unauthorized structures within the Upper Property in November 2013, her workers damaged the waterproofing membrane between the 2 properties, such that water could seep through to the Lower Property.

7.  The plaintiff further relied on the result of an inspection carried out by Intelligent Building Engineering Ltd (“IBEL”), a firm of structural engineers. I have been provided with IBEL’s report dated 30 June 2014. The report stated that it inquired with the management office of Fairland Gardens. The management office said that pneumatic breakers were used by Madam Tan’s workers in the course of removing the unauthorized structures, to break the concrete flooring within the Upper Property. IBEL concluded that the damage seen on the ceiling of the Lower Property was caused by the damage to the waterproofing membrane.

8.  According to IBEL’s inspection report, a visual inspection to the Lower Property was carried out by a Ms Gloria Tang on 13 June 2014. The damage seen was recorded. As to the proposed repair works to be carried out, the inspection report stated that, inter alia, “the condition of water proofing membrane on roof should be checked, and damages [sic], if found, should be properly repaired”. IBEL’s report did not state that it did any test to confirm the integrity (or the lack thereof) of the waterproofing membrane. No representative from IBEL has been called by the parties to give evidence in the present case.

9.  By way of an assignment dated 29 August 2014, Madam Tan sold the Upper Property to the defendant. The plaintiff then amended his claim in DCCJ 3319/2014 on 23 February 2015 to include the defendant as the 2^nd defendant therein.

10.  The plaintiff, Madam Tan and the defendant executed a settlement agreement on 26 May 2016 (“the Settlement Agreement”) to dispose of DCCJ 3319/2014. Clause 4 of the Settlement Agreement provides as follows:-

“… the 2^nd Defendant[2] hereby UNDERTAKES CONFIRMS AND AGREES to the Plaintiff[3] that for as long as the 2^nd Defendant is or shall or remain to be the registered owner of the Upper Property[4], the 2^nd Defendant shall at her own costs and expenses cause works to be done in or for the repair reinstatement and making good any loss and damage (water seepage only) done to or inflicted on the Plaintiff’s Property[5] (collectively “damage”) PROVIDED that it is determined by a qualified engineer whose appointment must be mutually agreed by the Plaintiff and the 2^nd Defendant AND FURTHER PROVIDED that such damage was caused by the negligence and/or breach of duties and/or terms and conditions under the DMC on the part of the 2^nd Defendant. It is hereby agreed that that [sic] the 2^nd Defendant shall not be held responsible for any damage which is determined by the said qualified engineer to be attributable to fair wear and tear of the Plaintiff’s Property.”

11.  According to the plaintiff, the defendant renovated the Upper Property after she became the owner. But he did not know whether any repair was done to the waterproofing membrane within the floor slab between the 2 properties.

The factual disputes in the present case

12.  The plaintiff claims that, since late October or early November 2016, water seeped from the Upper Property to the Lower Property. The seepage caused cracks and damage to the ceiling of the kitchen, the living room, the master bedroom, and one of the guest bedrooms of the Lower Property. He avers that the defendant was (i) negligent; (ii) in breach of the Deed of Mutual Covenants of Fairland Gardens (“the DMC”); (iii) in breach of s 34H of the Building Management Ordinance (Cap 344); and (iv) in breach of clause 4 of the Settlement Agreement. The seepage only ceased in January 2018.

13.  The defendant denies that water seeped from the Upper Property. She also denies to be at fault as alleged by the plaintiff, or at all.

14.  Therefore, the parties agree that I shall determine the following issues:-

14.1  Whether there was water seepage into the Lower Property from November 2016 to January 2018.

14.2  If there was water seepage into the Lower Property, whether the Upper Property was the source of the seepage.

14.3  Whether the water seepage into the Lower Property was caused by (i) the negligence; (ii) the breach of the DMC; and/or (iii) the breach of the Settlement Agreement by the defendant.

14.4  If liability is established, the amount of damages to be awarded to the plaintiff.

The legal principles

15.  There have been numerous decisions concerning water seepage in multi-storey buildings. The legal principles are trite, and I see no utility in recounting all of them here.

16.  It suffices to stress that there is no presumption that water must necessarily leak from the flat above to the flat below. The burden of proof remains on the plaintiff (as the owner of the flat below in the present case) to demonstrate, on a balance of probabilities, that the water seepage was from the Upper Property to the Lower Property: eg Cosmos Legal Consultant Limited v Skycherry Development Limited & Anr DCCJ 2548/2009 (HH Judge Wilson Chan; 14 May 2013). The defendant does not need to find out identify the correct source of the water seepage, or to prove that its origin did not come from her property: Hui Ling Ling v Sky Field Development Limited HCA 35/2007 (Recorder Yuen, SC; 8 May 2012)[6].

The witnesses

17.  The plaintiff has given evidence in support of his case. The defendant has called Mr Wong Wai Yin Kenneth and Madam Kong Man Ching (Annie) at trial.

18.  Despite the parties’ effort in assisting their respective witnesses to give evidence, and in cross examining the opponent’s witnesses, I am ultimately of the view that the factual witnesses do not provide much probative evidence for resolving the agreed issues.

19.  The plaintiff states that, starting from late October to early November 2016, he saw cracks and damp patches on the ceiling of the Lower Property, with cement and paint falling at times. He then made a complaint to Madam Kong, who worked at the Management Office of Fairland Gardens. He also complained to Mr Wong, who is the defendant’s son and the one residing at the Upper Property at that time. The parties then engaged in protracted correspondence by themselves and or through their respective legal representatives, at times acrimoniously. Despite the protracted correspondence, the matter was not taken any further.

20.  There are a few matters referred to by the witnesses, which I would like to highlight to explain why I do not think any useful purpose is served to exhaustively analyze the credibility of the witnesses and the truthfulness of their respective evidence.

21.  First of all, there appears to be little dispute that there were cracks and fallen cement on the ceiling of the Lower Property. The Management Office documented as such when its officers visited the Lower Property since November 2016.

22.  The parties’ respective evidence also appears to me to be largely consistent in that no active water dripping was noted from the ceiling of the Lower Property. The plaintiff does not say so. The Management Office documented negative results from checking the ceiling with its moisture meter, and concluded that there was no active seepage. When the matter was reported to and investigated by the Food and Environmental Hygiene Department, it did not detect any active seepage at the ceiling as well.

23.  The above evidence certainly does not show that water seeped from the Upper Property to the Lower Property. But in my judgment, it does not exclude such possibility as well, because all the checks and inspections were done to the surface of the ceiling of the Lower Property only.

24.  Secondly, parties appeared unwilling to be fully co-operative with each other because of the previous litigation. In short, no one took any practical first move to resolve the matter. The mechanism set out in clause 4 of the Settlement Agreement was not workable, because parties never sought to agree on the appointment on a qualified engineer to carry out any meaningful investigation; nor was there any alternative mechanism in the absence of any agreement. In my judgment, the communication between parties remained to be finger-pointing exercises, which sheds no light on the issues I have to decide now.

25.  But insofar as the plaintiff submits that the factual evidence supports an inference that water seeped from the Upper Property to the Lower Property through the damaged waterproofing membrane within the floor slab, I disagree with him.

25.1  DCCJ 3319/2014 was disposed of by way of the Settlement Agreement without any factual finding by the court. The defendant did not make any concession as to the existence of water seepage, and/or her liability, in the Settlement Agreement.

25.2  As such, it only remains to be the plaintiff’s assertion that the waterproofing membrane of the floor slab was damaged. The plaintiff may have formed his view because of IBEL’s report. However, I agree with Mr Isaac Yung, counsel for the defendant, that I should not give much weight to that report. Apart from the fact that the author of the report (or indeed, anyone from IBEL) was not made available for cross examination at trial, the report itself made no definitive conclusion on the integrity of the waterproofing membrane.

25.3  As I state above, the investigation by the Management Office or the government agencies remained superficial. In my judgment, the investigation result cannot be used to support any inference of water seepage.

25.4  The plaintiff says he was told by officers of the Management Office that the Upper Property was renovated in in January 2018, and he noticed that the water seepage problem became abated since then. Mr Wong confirms that, in January 2018, an additional layer was applied to the floor surface of the open roof areas of the Upper Property. The plaintiff may say that this was more than just co-incidence; but in the absence of proof that the waterproofing membrane between the 2 properties was indeed damaged, I do not think one can derive much mileage from this piece of fact alone. The lack of expert investigation in around that time certainly does not help the plaintiff to take his case further.

26.  In summary, I find the factual evidence inadequate to allow me to make any finding as to whether water seeped from the Upper Property to the Lower Property between November 2016 and January 2018.

27.  Before I leave the factual evidence, I must refer to a matter raised by Mr Robin D’Souza, counsel for the plaintiff, with respect to the examination-in-chief of the plaintiff. Mr D’Souza planned to ask the plaintiff to elaborate on matters raised in the witness statements filed by the defendant. When the court inquired with Mr D’Souza as to why this should be allowed, particularly when the court and the defendant had not been notified of the scope of such elaboration, Mr D’Souza submitted that the rules of the court allowed him to do so. He referred me to paragraph 38/2A/12 of Hong Kong Civil Procedure 2022:-

“Supplementary witness statements - Although there is no express provision to this effect, the court has power, if it thinks fit to do so, to direct that a further witness statement of a witness be served supplementary to that already served. The better practice is that the evidence dealing with or contradicting any statements made by witnesses of the opposite party should be given orally rather than be dealt with by way of a supplementary statement. The same applies with respect to a witness who may not be compellable (eg is overseas) and who changes his evidence: Commerzbank Aktiengesellshaft (Hong Kong) v Peregrine Fixed Income Ltd [2002] 3 HKLRD I4 …”

28.  With respect, I have the misfortune of disagreeing with Mr D’Souza. The court’s power to decide whether the plaintiff should be allowed to give his response to the defendant’s evidence for the first time by way of oral examination-in-chief must stem from the rules themselves, which can be found in Order 38 Rule 2A(7)(b) and (7A) of the Rules of the District Court:-

“(7) Subject to paragraph (9), where the party serving the statement does call such a witness at the trial -

…

(b) the witness may with the leave of the Court -

(i) amplify his witness statement …

(7A) The Court may grant leave under paragraph (7)(b) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.”

29.  I note that Order 38 Rule 2A(7)(b)(i) was amended in 2009 as part of the Civil Justice Reform, and Rule 2A(7A) was added afresh at the same time. These were implemented pursuant to Recommendation 100 of the final report of the Civil Justice Reform. In its final report, the Working Party stated that the court could be expected to disallow any amplification of evidence if it would take the other side by surprise, unless there was good reason to do so: see §589. In my judgment, Rule 2A(7) and (7A) do not intend to give general blessing to the practice of reserving matters in response to the opponent’s evidence to oral examination-in-chief. The interplay of prejudice and good reasons must vary from case to case.

30.  On the other hand, the marginal notes under paragraph 38/2A/12 of the White Book remain unchanged through the Civil Justice Reform - for example, the same marginal notes could be found as paragraph 38/2A/10 of the 2008 version of the White Book.

31.  The learned authors of the White Book must have in their mind the general rule that prolix witness statements should be avoided when they set out what they termed as the better practice. The niceties aside as to whether the learned authors are correct about “the better practice”, it is my judgment that parties cannot expect the court to generally allow witnesses to reserve their responses to the opponent’s evidence to the oral examination-in-chief. Such practice runs contrary to the spirit of the Civil Justice Reform. Of course, I am not suggesting that a witness must file a supplemental witness statement to generally traverse against the opponent’s evidence. But if the witness has particular factual matters he could speak of to show that the opponent’s evidence should not be preferred by the court, I find it reasonable and fair for such specific factual matters to be put in a supplemental witness statement well in advance of the trial.

32.  At the trial of the present case, I took note that any matter the plaintiff might wish to respond to the defendant’s evidence could have been raised by him well in advance of the trial. Given my view that the plaintiff’s possible responses would likely be peripheral to the issues I am asked to decide in the present case, I could not see any good ground to allow the plaintiff to detail his disagreement with the defendant’s factual evidence orally.

33.  It was with the above matters in mind that I declined to give leave to the plaintiff under Order 38 Rule 2A(7) to amplify his evidence by responding to the matters raised in the witness statements filed by the defendant.

34.  One must then turn to the expert evidence to see whether the plaintiff can prove his case against the defendant.

The expert evidence

35.  The plaintiff has appointed Mr Leung Ka Chun of Silver Consultants Engineering Limited as his expert; and the defendant has appointed Mr Patrick Lau of Trusty Surveyors (HK) Ltd as her expert.

36.  Mr Leung inspected the Lower Property on 14 November 2019. He observed water marks and hairline cracks at the ceiling of the kitchen, the living room, and the master bedroom of the Lower Property. By way of thermal scanning, Mr Leung discovered signs of water trappings in those areas. This was deduced from the fact that those areas were coloured blue in the scan results, indicating an abnormally low temperature. Mr Leung concluded that water from the previous seepage incident was still trapped inside the ceiling of the Lower Property, causing damage to the ceiling.

37.  Mr Lau issued his report on 22 April 2021. He did not gain access to the Lower Property, so he only made comments based on the documents given to him, including Mr Leung’s report. Mr Lau concluded that:-

37.1  Mr Leung did not provide sufficient evidence to show the existence of water leakage at the Lower Property between 2016 and 2018, and at the time when Mr Leung inspected the Lower Property;

37.2  Even if there was water leakage, there was insufficient evidence linking it to the Upper Property. The thermal scan carried out by Mr Leung was of no value because of a lack of calibration and reference by control. There was no other test done to trace the route of any water seepage.

38.  After considering the expert reports, and listening to the experts at trial, I have no hesitation agreeing with Mr Lau’s evidence.

39.  First, I agree with the defendant that the thermal scanning result obtained by Mr Leung provides no probative value on both the presence of water seepage, and the source of such seepage (if any). The scan records annexed to Mr Leung’s expert report do not contain any scale from which one can work out the temperature difference the different colours in the records seek to represent. In other words, even though Mr Leung pointed out that the areas coloured blue at various parts of the ceiling of the Lower Property were of a lower temperature to those areas coloured green, one cannot ascertain the extent of such temperature difference. Indeed, Mr Leung never gave evidence on the extent in terms of, say, degree Celsius. Without knowing the extent of the temperature difference, it is in my judgment impossible to decide whether the scan records contain any significant finding on any accumulation of water.

40.  In my judgment, it is equally unsatisfactory that Mr Leung’s report does not contain any thermal scans for any part of the ceiling which the plaintiff accepted to be completely free from water seepage. The problem is the same as above: without a “reference” or a “control” to judge against, one cannot decide whether the thermal scans now included in Mr Leung’s report provides any significant information; and if so, what conclusion can be deduced from them.

41.  A similar criticism can be levied against the lack of calibration record of the scanner used by Mr Leung during his inspection. Under cross examination, he accepted that there were more than 1 brand of scanning machine. I find the defendant fair to say that, without any calibration record, one cannot tell the sensitivity of a particular brand of scanner. Again, without the scale, one cannot deduce any useful information from the thermal scans.

42.  Secondly, I find Mr Leung’s inspection of the Lower Property incomplete. In his oral evidence, he accepted that the thermal scans he carried out to the ceiling of the Lower Property did not provide a 3-dimensional image of any accumulation of water. As such, even if he were right that water did accumulate at various parts of the ceiling of the Lower Property, the scan results would not be able to tell the source of such water.

43.  In the joint statement of experts, Mr Leung supplemented his opinion by stating that, since there was no other source observable other than from the Upper Property, and the accumulated water was not close to the external wall or the bathrooms, the water on the ceiling must have come from the Upper Property.

44.  With respect, I find Mr Leung’s reasoning defective. Mr Leung did not carry out any test or inspection on the external walls of the Lower Property and/or the Upper Property. In short, water seepage through any cracks on the external wall has never been excluded. Given the age of the building (and a lack of evidence as to how well the external walls outside the 2 properties in question were maintained), I do not think one can simply ignore the possibility that cracks (visible or otherwise) exist on the external walls of the building. Similarly, given there was no inspection or scan of the floor slab between the 2 properties in question, I do not think one can safely conclude that water could not have travelled from the external wall to various parts of the ceiling of the Lower Property. Although Mr Leung claimed, under cross examination, to have considered whether the external walls of the building could be a potential source of the water seepage, he did not set out how he considered but rejected it as the source in his expert report or in the joint statement. In my judgment, Mr Leung’s conclusions are his own assertions rather than the most probable deductions based on objective evidence.

45.  I should not be taken to mean that a plaintiff can only successfully prove water seepage coming from the defendant property if his/her expert is allowed to also inspect the defendant property. The circumstances of each case are different. The ultimate question is whether, on a balance of probabilities, a plaintiff can prove that water seepage originates from the defendant property. This can be proved by way of direct evidence, or by way of elimination of other possibilities. For the present case, I do not think the plaintiff has shown direct evidence of water seepage from the Upper Property; nor has he eliminated other potential source of water seepage for which the defendant should not be liable.

46.  On the other hand, applying the relevant legal principles, I do not find Mr Lau’s opinion problematic in the circumstances. Since the defendant carries no burden to prove that water did not leak from the Upper Property, it does not undermine her defence when Mr Lau concentrated on attacking the premises of Mr Leung’s opinion. I do not find it significant that Mr Lau did not seek to carry out any test to the floor slab between the 2 properties in questions, or to the external walls of the building.

47.  As a concluding remark on the expert evidence, when Mr D’Souza called Mr Leung to give evidence on Day 2 of the trial, he also applied to adduce 3 documents that Mr Leung would like to supplement his expert report: (i) Mr Leung’s updated CV; (ii) a record of the weather in Hong Kong in October 2019; and (iii) calibration result of his thermal scanning machine. The defendant agreed to allow Mr Leung to update his CV, but objected to the discovery of the other 2 documents. Mr D’Souza submitted that the weather record was public information; although he was only provided with the calibration result on Day 2 of the trial, he suggested that the document must have been in existence contemporaneous to Mr Leung’s inspection of the Lower Property. The defendant would not be seriously prejudiced by the addition of these documents.

48.  I refused the plaintiff’s request to adduce the objected documents as additional materials to Mr Leung’s expert report. As indicated during the trial, I now provide my reasons. As acknowledged by Mr D’Souza, they must have existed at the time when Mr Leung prepared his expert report. No reasonable explanation was offered as to why they were not included in the expert report when it was compiled, if Mr Leung thought these documents were important to the opinions he expressed in his report. The lack of calibration was clearly highlighted in Mr Lau’s report, but Mr Leung did not seek to provide the calibration result at any

time prior to trial. The defendant was plainly taken by surprise, and her defence would be prejudiced if I allowed the objected documents to be adduced as part of Mr Leung’s evidence.

The court’s findings

49.  I find as a fact that the plaintiff fails to prove that water did accumulate on the various parts of the ceiling of the Lower Property as averred, either between November 2016 and January 2018, or when Mr Leung carried out his inspection.

50.  I further conclude that the plaintiff fails to show that the damage on various parts of the ceiling of the Lower Property as averred was caused by water escaped from the Upper Property.

51.  With the above factual findings, no issue arises as to whether the defendant was in breach of her duties.

52.  Despite the valiant efforts by Mr D’Souza to persuade me otherwise, I must dismiss the plaintiff’s claim.

Quantum

53.  In case my judgment on liability turns out to be wrong, I set out my brief views on quantum after hearing the evidence.

54.  Mr Leung for the plaintiff assessed the cost of remedying the damaged ceiling to be $138,832.40. The plaintiff also obtained a quotation stating the cost to be $138,500.00.

55.  On the other hand, Mr Lau estimated the cost to be $24,000.00.

56.  In light of the extent of the damage, I tend to agree with the defendant that the plaintiff’s quotations are on the high side, because they included the cost of replacing the wallpaper for the whole flat, and repainting the entire living and dining room and the corridors of the Lower Property. On the other hand, I also take into account the standard and size of the Lower Property, such that it seems to me appropriate for remedial works to be carried out for an area larger than just the damaged parts of the ceiling to ensure consistency of the renovation. On a broad brush approach, I find the cost of remedying the damage to be $90,000.00.

57.  For general damages compensating the plaintiff’s distress, discomfort and inconvenience, after considering the authorities submitted by counsel, I agree with Mr D’Souza that $50,000.00 would be an appropriate award.

58.  I would have awarded interest on the damages at half judgment rate from the date of the issue of the Writ to the date of judgment; and at judgment rate thereafter.

Conclusion and orders

59.  I dismiss the plaintiff’s claim. I grant an order nisi that the plaintiff is to pay the defendant’s costs, including all costs reserved (if any), to be taxed if not agreed, with a certificate for counsel.

60.  However, I also make an order nisi that the solicitors respectively for the plaintiff and the defendant shall not recover costs of and occasioned by the preparation and production of the trial bundles from their respective clients or the opposite party.

61.  The agreed trial bundles run up to 1,392 pages. On my counting, 46% of them can actually be excluded. Mr Lau, the defendant’s expert, reproduced in his report all of the documents sent to him for the preparation of his solo report. Both experts reproduced their respective solo reports as appendices to the joint report. This means that the documents sent to Mr Lau, which are essentially the pleadings and documents discovered in the present case, appear thrice in the trial bundle. The respective solo reports by the experts appear twice. Leaving aside whether this is a correct practice by the experts themselves (and I should not be taken to be condoning it at all), solicitors respectively acting for the plaintiff and the defendant had plenty of opportunities to exercise their good senses to exclude duplicate documents from the trial bundle. A short description or explanation in the trial bundle index would have ensured that there would be no confusion as to what was taken out.

62.  In a similar vein, despite an agreement on pleadings about the ownership of the properties, and the terms and effect of the DMC, parties have included the conveyancing documents and a copy of the DMC in the trial bundles. Experience tells us that these documents are much more than

a few pages; they again take up considerable space in the trial bundles. With respect, I do not see how including these documents in their entirety in the trial bundles helps resolving the agreed issues.

63.  There can simply be no reasonable justification by either set of solicitors for the failure to trim down the trial bundles. Irrespective of whose document it is, the duty to assist the court to ensure reasonable proportion and procedural economy in the conduct of proceedings under Order 1A rule 1(c) of the Rules of the District Court remains the same. Both sets of solicitors are not proactive enough to further the underlying objectives of the rules. I think this is plainly a situation to invoke the power under Order 62 rule 8 to ask the solicitors to bear the costs of preparation and production of the trial bundles personally.

64.  Last but not least, I thank counsel for their assistance.