CHOY SHOK CHUN v. YU HON KEUNG

DCCJ 5575/2019

[2022] HKDC 671

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5575 OF 2019

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J U D G M E N T

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1.  This is a water seepage case. The parties are unable to resolve the difference between them through some other means and the dispute has to be disposed of by a trial. Fortunately, with the helpful assistance from both counsel, the length of the trial has been significantly reduced and much time have been saved.

2.  In this trial, the plaintiff (“P”)  is represented by Mr Jason Ko of counsel, and the defendant (“D”)  is represented by Mr Brian Fan of counsel.

3.  With leave from the court, the parties have introduced expert evidence in this case.  P’s expert is Ms Lau Shan La of Hong Kong Survey Limited (“Lau”), and D’s expert is Mr Chung Wai Hoi Vincent of Hong Kong Building Inspection & Structural Diagnostic Limited (“Chung”).  In the pre-trial review held on 5 May 2022, after hearing submissions from counsel, I directed that the joint report by the two experts (“the Joint Report”)  and the expert reports prepared by the two experts filed in these proceedings be deemed as evidence in the trial, without calling the makers thereof to give oral evidence in the trial.

4.  At the beginning of the trial, after some exchanges between me and counsel, both counsel agreed that it would not be necessary to hear evidence from the factual witnesses, and the parties would provide me a statement of agreed facts.  Those agreed facts would form the factual basis of this case. On the same date, the parties have provided me a statement of agreed facts (“the Statement of Agreed Facts”).

5.  As a result of the agreement between the parties, no factual witness has been called to give evidence in the trial.  There is no dispute that in the circumstances, the matters in the witness statements filed in these proceedings would not be evidence in the trial.

6.  Mr Ko and Mr Fan are also in agreement as to what reliefs should be given to P if liability is established.  In other words, the only matter in dispute is liability.

A.  THE PARTIES’ REPSECTIVE CASES

7.  Both P and D are the co-owners of Hang Shing Building (“the Building”).  At all material times, P is the registered owner of the 5^th floor (“the 5/F Property”), and D is the registered owner of the 6^th floor (“the 6/F Property”).  The 6/F Property is immediately above the 5/F Property.  Both the 5/F Property and the 6/F Property are at No. 22 Cheung Sha Wan Road, Kowloon, Hong Kong.[1]

8.  The Building is governed by a deem of mutual covenant registered in the Land Registry by Memorial No. UB 458540 (“the DMC”).

9.  Since around December 2016, the 5/F Property has been affected by some water seepage problems.  P’s case is that the source of the water seepage is from the 6/F Property.  This is denied by D.

10.  P has pleaded various causes of action in the statement of claim, i.e. breach of Clause 10 of the DMC, breach of s. 34H of the Building Management Ordinance, negligence and nuisance.  However, both counsel have agreed that it would not be necessary to discuss these causes of action in detail.  Counsel are in agreement that if P can prove that the origin of the water seepage is from the 6/F Property, liability would be established.  If P is unable to discharge this burden, there would be no liability.

B.  THE AGREED FACTS

11.  As per the Statement of Agreed Facts, the factual matters set out in [12] to [55] below are agreed by the parties.

12.  In around June 2014 to March 2015, there was an overall building improvement programme in the Building, and that programme was certified as completed by 2 March 2015.  Thereafter, many co-owners of the Building complained of water seepage from the external wall of the Building (“the External Wall”).

13.  From December 2016 onwards, the 6/F Property was occupied by D’s tenants, ranging from 4-5 in number.  During the final submissions stage, it is agreed that at all times, there was and is only one bathroom (“the 6/F Bathroom”)  inside the 6/F Property.

14.  In around December 2016, P discovered serious water seepage at the ceiling of the bathroom and living room of the 5/F Property.  P complained to D about the water seepage problem in the 5/F Property.  There was notable and severe water drippage from the 5/F Bathroom and the 5/F Living Room’s ceilings from November to March each year (“the Dripping Months”), from November 2016 onwards.

15.  In around March 2017, P reported the water seepage problem to the Joint Office of Food and Environment Hygiene Department and Buildings Department (“Joint Office”).

16.  In around May 2017, the Incorporated Owners of the Building arranged a contractor to effect scaffolding for the entire Building, and to inspect and repair certain areas of the External Wall for specific units.  There is no evidence as to whether or not the areas specifically outside the 5/F Property and the 6/F Property were repaired.

17.  By letters dated 18 May 2017, the Joint Office wrote to P and to D respectively stating that it was unable to identify the source of seepage.  The Joint Office’s letters referred to dye water test carried out from drainage facilities of 6/F Property, but stated that it could not identify the source of seepage.  It would consider engaging professional investigation and would inform parties of the subsequent arrangements and progress.

18.  By letters dated 7 June 2017, the Joint Office wrote to P and to D respectively stating that it would arrange for Prudential Surveyors International Ltd to conduct investigation.

19.  In around June to July 2017, P thought that the water seepage problem was resolved and informed Joint Office it was not necessary to follow up.

20.  By letters dated 27 July 2017, the Joint Office wrote to P and to D respectively stating that it would pause any investigation since P indicated that it was not necessary to follow up.

21.  In around August 2017, D carried out renovation works in the 6/F Property.  D arranged for replacements of floor tiles and pipes (converted to conspicuous pipes)  in the 6/F Bathroom.

22.  In around September 2017, P arranged and caused repair works at the 5/F Property.  Old cupboards were replaced by the new ones at the 5/F Property.

23.  In around December 2017, P discovered serious water seepage problem in the 5/F Property again.

24.  In around January 2018, P reported the water seepage to Joint Office again.

25.  In around February to May 2018, the Joint Office conducted investigations in both the 5/F Property and the 6/F Property.

26.  By a letter dated 14 March 2018, the Joint Office wrote to P stating that it has referred the matter to Buildings Department and would stop investigation.  In the letter, the Joint Office mentioned their observation of broken pipes on the External Wall.  The Joint Office would refer the case to the Buildings Department, whilst the Joint Office would itself cease investigation.

27.  On demand of P, the Joint Office sent a new team for launching a new investigation into P’s complaint that 6/F Property caused the water seepage in 5/F Property.  Sometime before 24 July 2018, dye water test was carried out from the drainage facilities of the 6/F Property by the Joint Office, who could not identify the source of seepage. It would consider engaging professional investigation and would inform parties of the subsequent arrangements and progress.

28.  In around June 2018, P engaged Hong Kong Survey Limited to conduct an investigation to identify the source of water seepage.  P liaised with D to seek consent for investigation to be carried out in the 6/F Property.  No agreement was reached on allowing P’s expert, i.e. Lau, to inspect the 6/F Property on 2 June 2018.

29.  On 2 June 2018, Lau attended the 6/F Property, but entry was refused by D’s tenant residing at the 6/F Property.  Lau carried out inspection in the 5/F Property.

30.  By letters dated 24 July 2018, the Joint Office wrote to P and to D respectively stating that it was unable to identify the source of seepage.  The Joint Office’s letters referred to dye water test carried out from drainage facilities of the 6/F Property, but stated that it could not identify the source of seepage.  It would consider to engage professional investigation and would inform the parties of the subsequent arrangements and progress.

31.  On 24 July 2018, Lau complied an investigation report (“Lau’s 1^st Report”).  The report was compiled by Lau without tests being conducted at the 6/F Property, and was based on inspection and tests at the 5/F Property on 2 June 2018.

32.  By letters dated 9 August 2018, the Joint Office wrote to P and to D respectively stating that it would arrange for Pioneer Management Ltd (“Pioneer”)  to conduct investigation.

33.  On 30 August 2018, Pioneer carried out inspections at the 6/F Property.

34.  On 19 August 2018, P’s solicitors wrote to D demanding remedial works and damages, enclosing a copy of Lau’s 1^st Report.

35.  In September 2018, during the period affected by the Typhoon Mangkhut, there was no observable drippage from the ceilings of the 5/F Living Room and the 5/F Bathroom.

36.  On 8 November 2018, Pioneer carried out inspections at the 6/F Property. Pioneer carried out dye water tests (both ponding and spraying the walls of the bathroom above 1.5 m of the 6/F Property), and no dye water was observed in the 5/F Property.

37.  On 19 November 2018, Pioneer carried out inspections at the 6/F Property.

38.  On 22 November 2018, in respect of D’s complaint (not P’s complaint)  on seepage affecting the 6/F Property, Joint Office wrote a letter to D stating that the humidity indicator did not reflect any water seepage problem, and that it would stop investigation.

39.  On 31 January 2019, Pioneer compiled an inspection report.

40.  On 28 February 2019, P’s solicitors sent a further letter to D, demanding D to remedy the situation and pay damages.

41.  On the same date, P wrote an open letter addressed to other co-owners of the Building to complain about the water seepage problem.

42.  On 9 March 2019, D wrote an open letter addressed to other co-owners of the Building to reply to P’s allegations.

43.  On 18 March 2019, D’s solicitors indicated that D disagreed with the conclusion in Lau’s 1^st Report.  D’s solicitors said that:-

(1)  D and D’s tenant had allowed officers of the Joint Office and its contractors to enter 6/F Property for inspections and tests.  There should be no good reason for P to engage her own expert to carry out inspections and tests at 6/F Property, while P had already referred the matter to Joint Office.

(2)  Lau’s 1^st Report was unreliable because P’s expert reached her conclusion without attending the 6/F Property.

(3)  One should not rule out the possibility that the External Wall and/or the waterproofing membrane installed thereat would be a source of seepage.

(4)  D invited P to undertake a joint inspection by the parties’ respective experts.

44.  On 10 April 2019, in respect of D’s complaint (not P’s complaint)  on seepage affecting the 6/F Property, Joint Office’s staff attended the 6/F Property to conduct investigations.

45.  By letters dated 12 April 2019, the Joint Office wrote to P and to D respectively stating that it was unable to identify the source of seepage.

46.  On 25 April 2019, D’s solicitors wrote to P’s solicitors seeking arrangement of joint inspection of the 5/F Property and 6/F Property by Lau and Chung.

47.  By a letter dated 29 April 2019, in respect of D’s complaint on seepage affecting the 6/F Property, the Joint Office wrote to D stating that the water stain had dried up and that it would stop investigation.

48.  On 17 May 2019, P’s solicitors replied to D’s solicitors on the letter dated 25 April 2019.  In the reply, P’s solicitors said that P’s expert already formed her opinion that water seepage originated from the 6/F Property, and that the proposed joint inspection might not be necessary at that stage.

49.  In around June 2019, D engaged Chung to carry out investigation.  Chung inspected the 5/F Property and the 6/F Property on 4 June 2019, carrying out inter alia dye water test.  According to the Hong Kong Observatory, there was rainfall on 4 June 2019 (exact time of the rainfall not specified).

50.  On 24 July 2019, Chung compiled an investigation report (“Chung’s 1^st Report”).

51.  On 16 October 2019, P commenced these proceedings.

52.  On 10 January 2020, P attended the 6/F Property and had a discussion with D’s tenant about the water seepage problem. P had recorded the conversation (“the Recorded Conversation”)  without obtaining prior consent of D’s tenant.

53.  On 6 March 2020, D visited the 9/F of the Building and discovered a leaking pipe connected to bathroom of Flat No. 22 of 9/F.

54.  The seepage affecting the 5/F Property continued after 6 March 2020.

55.  Pursuant to a court order dated 21 May 2020, Lau and Chung jointly inspected the 5/F Property and 6/F Property on 8 June 2020 (carrying out, inter alia, dye water test)  and 14 July 2020 (no dye water test was performed). On 8 June 2020, according to the Hong Kong Observatory, there was substantial rainfall around the Building from 13:00 to 14:00.

C.  THE PRINCIPLES

56.  There is no dispute that in water seepage cases, there is no presumption that the source of seepage would necessarily come from the flat above.  The plaintiff bears the burden to prove that the source of the water seepage is from the defendant’s property.[2]

57.  For the purpose of identifying the source of water seepage, the parties would often introduce expert evidence to try to prove or disprove that a particular place is the origin of the water seepage.  It has to be borne in mind that experts are merely providing assistance to the court and their evidence is not binding upon the court.  The court can and should make its own judgment by considering all the materials available. See Grand Wayfair Investment Company Limited v Chan Yung Kan.[3]

58.  Expert opinion is only part of the evidence to be weighed against the preponderance of the factual evidence, inherent improbabilities such as how the opinion squares with normal usage of the suspected source should be considered.  See Hui Ling Ling v Sky Field Development Ltd[4], Hui Ling Chun v Shiu Mak Ying[5]. In these cases, the court gave weight to the improbabilities of defendant’s flat being used in such ways as to give rise to the seepage so alleged, in rejecting the plaintiff’s case.

D.   THE EXPERT EVDIENCE

59.  The expert reports filed by the parties in these proceedings are as follows:-

(1)  Lau’s 1^st Report dated 24 July 2018

(2)  Lau’s 2^nd Report dated 27 August 2020

(3)  Chung’s 1^st Report dated 24 July 2019

(4)  Chung’s 2^nd Report dated 27 August 2020

(5)  Joint Report dated 7 October 2020

60.  Neither the expertise of Lau nor the expertise of Chung has been challenged.  I accept that both experts have the necessary expertise to give the opinion as set out in the aforesaid expert reports.

61.  As per the Joint Report, both experts agree that:-

(1)  The ceiling areas of the bathroom, living room and dining room of the 5/F Property are affected by water seepage.

(2)  The seepage problem is not caused by the fresh water pipes of the 6/F Property.

(3)  The seepage problem is not caused by salted water pipes of the 6/F Property.

62.  However, the two experts disagree with each other on the real source of the water seepage:-

(1)  Lau opined that it was caused by defective bathroom drainage and waterproof system on 6/F Property.

(2)  Chung opined that there were other possible sources, i.e. notably:

(a)  rainwater attack via the External Wall; and/or

(b)  water seepage from higher floors above the 6/F Property.  Chung opined that even without inspecting the higher floors, an expert could still ascertain the source of seepage being from flats above by conducting some tests.

D1. Lau’s opinion

63.  Lau inspected the 5/F Property on 2 June 2018.  Lau was unable to enter the 6/F Property on that date.  The methodologies adopted by Lau are visual inspection, infra-red scan, Electrical Conductivity Sensing (“ECS”), and microwave scan.  As a result of those tests, Lau’s findings and opinion are as follows:-

(1)  By conducting ECS on the ceiling of 5/F Bathroom, Lau found that almost the entire ceiling area was affected by serious water seepage (i.e. showing a moisture degree of 35 or above).  Excessive moisture readings were also found on the ceiling of 5/F Living Room, and on the wall adjacent to the 5/F Bathroom.

(2)  By way of microwave scan at 3 different depths (30 mm, 70 mm and 110 mm, counting from the ceiling of 5/F Bathroom and moving upward)  of the ceiling of 5/F Bathroom, Lau found that a water path leaking from the 6/F Property to the ceiling of the 5/F Bathroom.  Water was spotted at the bottom-right corner at the 110 mm level (nearest to the 6/F floor), permeating into other parts of the ceiling of the 5/F Living Room at the 70 mm level and 30 mm level.

(3)  According to the Hong Kong Observatory, the level of rainfall on 2 June 2018 was “trace”.  Rainfall was also minimal in the fortnight prior to the date of inspection.  Despite the lack of rainfall, there was demonstrable water seepage at the ceiling of the 5/F Bathroom.

(4)  By infra-red scan of the External Wall, Lau did not find any area with abnormally low temperature.  There was also no visible vegetation at the External Wall.

(5)  Based upon these findings, Lau opined that the water seepage had nothing to do with External Wall, and the water seepage was from the 6/F Bathroom drainage facilities.

64.  Lau and Chung jointly inspected both the 5/F Property and 6/F Property on 8 June 2020 and 14 July 2020.  In these inspections, the methodologies adopted by Lau are visual inspection, infra-red scan, ECS, microwave scan, fluorescent dye test, and flow meter test.

65.  As a result of the inspection on 8 June 2020, Lau made the following findings:-

(1)  By visual inspection of the 6/F Bathroom, Lau observed mold and cracks around the lower part of its walls, tiles and door.  The bottom part of the internal wall between the 6/F Bathroom and another room inside the 6/F Property (i.e. Room A)  revealed dampness.  There were also signs of repairs of that internal wall.  Lau opined that the general condition of the 6/F Bathroom was poor.

(2)  Findings by ECS:

(a)  Excessive moisture readings were found on most ceiling areas of the 5/F Bathroom.  Comparing the moisture readings before and after the dye water test, two spots nearest to the External Wall showed a decline in moisture level, whilst most spots further away from the External Wall showed an increase in moisture level.

(b)  Excessive moisture readings were found on the entirety of the ceiling of 5/F Living Room.  The moisture level at every spot increased after the dye water test.  Notably, the spots nearest to the External Wall were not the ones with the highest readings.  However, several spots further away from the External Wall reached a very high reading.

(c)  Excessive moisture readings were also found on the ceiling next to the beam at the 5/F Living Room, and on the ceiling of 5/F Dining Room (showing higher moisture level in areas nearer to the 5/F Bathroom).

(d)  ECS was conducted on the internal wall dividing 6/F Bathroom and Room A. Excessive moisture readings were found at the bottom part of the internal wall (i.e. nearer to 5/F ceiling), but not at the top part of the internal wall (i.e. nearer to 7/F floor).

(3)  By microwave scan at 3 different depths (30mm, 70mm and 110mm, counting from the ceiling of 5/F Bathroom and moving upward)  of the ceiling of 5/F Bathroom, 5/F Living Room, and 5/F Dining Room, Lau found water paths leaking from the 6/F Property to the ceiling of the 5/F Property.  According to Lau, the dye water test reveals:

(a)  for 5/F Bathroom, significant dampness of a large area was spotted at the 110 mm level (nearest to the 6/F floor), gradually moving towards the bottom-left corner at the 70 mm level and 30 mm level (nearest to the 5/F ceiling);

(b)  for 5/F Living Room, water was spotted near the top right corner at the 110 mm level (nearest to the 6/F floor), gradually permeating downwards as shown at the 70 mm level and 30 mm level (nearest to the 5/F ceiling);

(c)  for 5/F Dining Room, water was spotted at the bottom left corner at the 110 mm level (nearest to the 6/F floor), gradually permeating downwards as shown at the 70 mm level and 30 mm level (nearest to the 5/F ceiling).

66.  On 8 June 2020, there was rainfall of 40.9 mm.  The rainfall was heavy.

67.  On 14 July 2020, after conducting the inspection, Lau made the following findings:-

(1)  By visual inspection of both the 5/F Property and the 6/F Property, Lau maintained the same observations as those she made during the inspection on 8 June 2020.  There were also no broken pipes observed outside the External Wall.

(2)  By infra-red scan, Lau did not find any area with abnormally low temperature on the External Wall.

(3)  By ECS:

(a)  Excessive moisture readings were found on the ceiling of the 5/F Bathroom.

(b)  Excessive moisture readings were found on almost the entirety of the ceiling of the 5/F Living room.  Two spots further away from the External Wall but nearer to the bathroom had high moisture level.

(c)  Excessive moisture readings were also found on the ceiling next to the beam at the 5/F Living Room (the further away from the External Wall, the higher the degree of moisture), and on the ceiling of 5/F Dining Room (showing higher moisture level in areas nearer to the 5/F Bathroom).

68.  Lau opined there was no evidence showing any relationship between the water seepage and the External Wall.  Lau concluded there was evidence showing that the water seepage was due to defective bathroom drainage and waterproof membrane of the 6/F Property.

69.  On 14 July 2020, no trace of dye used on 8 June 2020 was discovered at the ceiling areas of the 5/F Property.  As to this, Lau is of the view that the negative result of fluorescent dye test may be due to the absorption or filtration of the dye solutions along the slab, which could result in the dye being unable to reach the damp zone.

D2. Chung’s opinion

70.  Chung inspected both the 5/F Property and the 6/F Property on 4 June 2019 and 21 June 2019.  Chung has carried out inspections with respect to the ceiling areas of 5/F Property, the External Wall, the 6/F Bathroom and the 6/F Kitchen.  The methodologies adopted by Chung are visual inspection, infra-red scan, ECS, microwave scan, dye tracing test and water sampling test.  Chung did not inspect other rooms inside the 6/F Property, including Room A.  No test was done with respect to the ceiling areas of the 6/F Property.

71.  Chung is of the view that the 6/F Property is not the source of the water seepage.  He relies upon the different internal configurations of 5/F Property and the 6/F Property.  As a matter of fact, only a part of the 6/F Bathroom is located above the 5/F Bathroom.  Chung’s view is that if the 6/F Bathroom is the real source, there should be water seepage at the ceiling areas of other parts of 5/F Property (e.g. the 5/F Kitchen)  too.  However, the ceiling of 5/F Kitchen has not been affected by any water seepage.

72.  Chung is further of the view that the source of the water seepage may come from the higher floors above the 6/F Property.

(1)  By visual inspection on 4 June 2019, Chung noted that there were traces of water on the External Wall.  There was also visible vegetation growing on the External Wall outside 6/F, beneath the window of the 6/F Property.

(2)  By infra-red scan of the External Wall on 4 June 2019, Chung found an area with abnormally low temperature from higher floors via 6/F Flat, all the way to 5/F Flat.

73.  On 4 June 2019, the rainfall was 13.0 mm.

74.  On 8 June 2020 and 14 July 2020, there were joint inspections of the 5/F Property and the 6/F Property by Lau and Chung.  The methodologies adopted by Chung in the joint inspections are visual inspection, ECS, infra-red scan, microwave scan, fluorescent dye test, and flow meter test.

75.  After these joint inspections, Chung is of the view that the water seepage problem affecting the 5/F Property is unrelated to the 6/F Property. The water seepage was caused by rainwater attack via the External Wall, and/or water seepage from even higher floors above the 6/F Property.

76.  In support of his view that the water seepage problem in the 5/F Property is unrelated to the 6/F Property, Chung relies upon the following:-

(1)  the different internal configurations of the two units;

(2)  the negative dye test results;

(3)  the change in moisture readings in ECS tests on 8 June 2020 was attributable to the rainfall on that day;

(4)  the waterproof capabilities of 6/F Kitchen and Bathroom are good.

77.  In support of his view that rainwater attack via the External Wall as a source of water seepage, Chung relies upon the following:-

(1)  vegetation on the External Wall;

(2)  the triangular shape of water seepage as observed from the ceiling of the 5/F Living Room, starting from the External Wall and narrowing down as it moves towards the 5/F Bathroom;

(3)  the correlation between the change of ECS moisture readings and rainfall on 8 June 2020.

78.  Chung is of the view that the water seepage may come from higher floors, and the water seepage is caused by usage of hot water in winter by the higher floors occupants.  Chung relied upon the following in support of this proposition:-

(1)  infra-red scan of the External Wall on 4 June 2019, showing an area with abnormally low temperature from higher floors via the 6/F Property, all the way to the 5/F Property;

(2)  the dampness surrounding the window of the 6/F Room A.

E.  ANALYSIS

79.  P’s case is that:[6]-

(1)  Water originates from the 6/F Bathroom to attack the 5/F Property, specifically damaging the ceiling area of the 5/F Bathroom and the 5/F Living Room.

(2)  Water seeps through the floor slab and the walls of the 6/F Bathroom due to defective drainage.

80.  P is running a case that poor bathwater drainage and waterproof system of the 6/F Bathroom caused the damage in the 5/F Property (“the Alleged Seepage Path”).  On P’s case, the water seepage is still continuing.

81.  The issue to be resolved in this trial is whether P can prove the Alleged Seepage Path.  The burden of proof is on P.  Even if the evidence adduced by D is not accepted or not entirely accepted by this court, that does not mean that P has succeeded in establishing liability.  P would only succeed if she could adduce clear and cogent evidence to prove her case on the balance of probabilities.  For the reasons set out below, I am of the view that P has failed to discharge this burden.

82.  Mr Fan submits that there are various difficulties in P’s theory.  In my view, some of the points made by Mr Fan are valid.

E1. Lau’s inspection in 2018 being of limited value

83.  Mr Fan submits that the inspection conducted by Lau on 2 June 2018 was done only upon inspecting the 5/F Property visually, and readings were taken at the affected areas inside the 5/F Property.  Lau did not inspect the 6/F Property at all in 2018.  From that inspection, what has been found out is that the 5/F Property had dampness at the ceilings.  However, it does not follow that the water came from the 6/F Property.

84.  I agree with Mr Fan.  In my judgment, the inspection conducted by Lau in 2018 is of limited value. 

E2. Water seepage occurred only during the Dripping Months

85.  Mr Fan submits, and I agree, that P’s theory does not sit well with the agreed fact that from December 2016 onwards, the 6/F Property was occupied by D’s tenants, ranging from 4-5 in number.  It is common sense that while the 6/F Property is occupied, the 6/F Bathroom would be regularly used by the occupants therein throughout all the months in a year.  However, there was notable and severe water drippage from the 5/F Bathroom and the 5/F Living Room’s ceilings only during the Dripping Months each year.  That being the case, it is inherently improbable that the 6/F Bathroom is the source of the water seepage.

86.  Mr Ko submits that there is no evidence showing the pattern or the use of bathwater in the 6/F Property.  Further, Chung has adopted double standards in his assessment.  On the one hand, Chung assumes (without evidence)  that the water usage in the 6/F Property would remain constant throughout the year.  On the other hand, Chung speculates (also without evidence)  that a particular pattern of water usage at the higher floors above the 6/F Property could account for the water seepage during the Dripping Months.

87.  I accept that Mr Ko has made a valid criticism against Chung’s theory that the source of the water seepage is from the higher floors.  However, with respect, Mr Ko is unable to offer a satisfactory answer to the point made by Mr Fan as summarized in [85] above.  While the 6/F Property has been continuously occupied by tenants since December 2016 onwards and has never been left vacant, it is really common sense that the 6/F Bathroom would be continuously used by the occupants in the 6/F Property.  Notwithstanding Mr Ko’s submissions, Mr Fan’s point remains unanswered.

E3. Dye water tests – all negative

88.  Mr Fan submits that the results of all the dye water tests (conducted by the Joint Office, by Pioneer, and by the two experts respectively)  are negative.  Not only was dye water not spotted anywhere in the 5/F Property, it was not even spotted in places of the 6/F Property which Lau asserted to be along the chain of the Alleged Seepage Path.  I agree that these negative results have a bearing on the outcome of this case.

89.  As a general proposition, a dye water test returned negative does not necessarily preclude establishment of the seepage path.  However, a series of negative dye water tests may well be evidence against the seepage path as alleged by the claimant.  See Polysoon Investments Ltd v Lau Mo Kun.[7] In that case, HHJ Au-Yeung, in relying on the series of negative dye water tests, reasoned that if the alleged seepage was penetrating so readily, one would have expected that the cracks within the floor slab to be unable to absorb all of the dye to the extent that none is observable at the affected area.  The learned judge said at [128]:-

“What I should supplement here is that fluorescent dye tests had been conducted not only once, but many times in all these years. In my view, it cannot be a coincidence that fluorescent dye was nowhere to be found in the Lower Bathroom on all those occasions. The consistent test results show that the water at the ceiling of the Lower Bathroom did not come from the Upper Bathroom. It is because of this unique feature in the present case that I hold the view that the case authorities referred to by Ms Lam (such as Lam Ting Kwan & Another v Teamwell Corporation Limited [2019] HKDC 1593)  to the effect that “negative dye test results are not definite evidence against the suspected source” should be distinguished.”

90.  I accept Mr Fan’s submission that the situation here is the same.  If the water seepage is so serious as alleged by P, one would reasonably suppose that the cracks of the floor slab/walls of 6/F Bathroom (that led to the seepage)  would have been quite glaring, or at least that some coloured-water droplets must have been able to reach the 5/F Property ceiling.  However, this is not the case.

91.  Mr Ko has tried to answer this point by relying upon the general proposition that a dye water test returned negative is not conclusive.[8] For the reasons set out in the above, I do not think that Mr Fan’s point can be answered by this general proposition.

92.  Mr Ko has also referred me to Lau May Ming Mamie v Zhao Wei[9], in which G Lam JA (sitting as an additional judge of the Court of First Instance)  said at [24]:-

“The defendant also relies on the negative result of the pond test with fluorescent dye water carried out by DAA as evidence against seepage from 36D. I am however not impressed by this argument. In a letter dated 18 May 2017, the Joint Office pointed out that they could not reach a conclusion as no pond test could be carried out on 36D’s bathroom floor around the shower tray. They also stated that the dye water could take a relatively long route and time to show up as seepage rather than during the time frame of their investigation. Separately, they also told the plaintiff that in their experience, some owners whose flats were the suspected source of seepage would take temporary stop-gap measures such as replacing old defective sealant before the Joint Office’s investigation, which however would not address the root cause such as defective waterproofing in the floor slab. There is no evidence in this case whether or not such temporary measures had been taken in 36D. The Professional Guide to Water Seepage published by the Hong Kong Institute of Surveyors also explains that negative results may be due to inadequate flushing water, incomplete dye powder dissolution, insufficient time allowed between the addition of the dye and its sampling in the damp zone, or absorption or filtration of dye solutions along the cracks. The courts have also recognised in previous cases that negative results of a dye water test do not conclusively show that there is no seepage: see e.g. Lam Ting Kwan v Teamwell Corporation Ltd [2019] HKDC 1593, §115.”

93.  With respect, P may not be able to derive any assistance from the aforesaid case.  There is no allegation, let alone evidence, saying that D has adopted some temporary stop-gap measures, and hence the results of all the dye water tests are negative.  One must not ignore the fact that the dye water test in this case are performed by different professionals at different times, and the results of all these tests are negative.  The cumulative effect of all these negative results is loud and clear.  In my judgment, P has not adduced any satisfactory evidence to show that why the cumulative effect of all these negative results should not be given weight.

E4. Renovation of the 6/F Bathroom

94.  Mr Fan submits that the history of repairs of the 6/F Property is also at odds with the Alleged Seepage Path.  It is an agreed fact that the floor tiles of the 6/F Bathroom were replaced with completion of work in about August 2017.  However, this did not stop the water seepage from continuing in December 2017.  Hence, the water seepage has nothing to do with the 6/F Bathroom.

95.  Mr Ko submits that there is no evidence showing any repair or replacement of the waterproof membrane of the 6/F Bathroom.  Further, P does not accept that the craftsmanship of the renovation of the 6/F Bathroom in about August 2017 is satisfactory.

96.  Here, I am of the view that Mr Fan’s point has been answered by Mr Ko. However, having answered this point does not mean that P has proved her case.

E5. Room A being the “middle step” in the Alleged Water Path

97.  In P’s theory, Room A inside the 6/F Property is the “middle step” in the Alleged Water Path.  Mr Fan submits that Room A being the “middle step” is contradicted by the test results performed by both experts.  It is common ground between the two experts that for Room A, all areas where readings were taken (including the wall adjourning the 6/F Bathroom)  did not show any noticeable increase or change – be it ECS, microwave scanning or infrared scanning - before and after the dye water test.

98.  Mr Ko has tried to answer this point by referring to the following:-

(1)  Lau observed demonstrable dampness at the bottom part of Room A.

(2)  In P’s open letter dated 9 March 2019, P said that D’s tenant has admitted that the floor of the 6/F Room A was always wet.

(3)  In the Recorded Conversation, D’s tenant admitted that the floor slab of 6/F Room A was completely wet.

99.  Mr Ko submits that the above evidence is consistent with Lau’s view that water seepage escaped via 6/F Room A.

100.  With respect, I am unable to agree with Mr Ko.  Mr Fan’s point is that if the 6/F Room A is really the “middle step” in the Alleged Water Path, there should be noticeable differences between the readings of the tests conducted in Room A before and after the dye water test.  However, this is not the case.  I do not see how the evidence relied upon by Mr Ko can provide an answer to the point made by Mr Fan.

E6. No satisfactory evidence showing that the source of the water seepage is the 6/F Bathroom

101.  During the final submissions stage, much time has been spent on discussing the evidence showing that the water seepage affecting the 5/F Property is from the 6/F Property.  Mr Ko submits that the evidence on this point is as follows:

(1)  the evidence given by Lau is the microwave scanning tests mentioned in the above; and

(2)  the dampness of the bottom part of the 6/F Room A.

102.  Mr Fan submits that there is no evidence showing the thickness of the concrete slab between the 6/F Property and the 5/F Property.   In the absence of any evidence on this point, we do not know whether 110 mm would be how far away from the 6/F Property. Suppose that 110 mm would still be a point far away from the 6/F Property, it would be difficult to conclude that the water seepage affecting the 5/F Property would be from the 6/F Property.  With respect, I do not see any valid answer to Mr Fan’s submission from Mr Ko.

103.  As to whether the 6/F Room A really has a role in the Alleged Water Path, for the reasons set out in [97] to [100] above, I do not accept P’s theory.

104.  In my judgment, there is no satisfactory evidence showing that the water seepage affecting the 5/F Property is from the 6/F Property.

E7.  External Wall probably being a source of the water seepage?

105.  Mr Fan submits that the External Wall probably be the source of the water seepage.  Mr Fan relies upon the following:-

(1)  The External Wall has been the subject of complaint of seepage of many units in the Building, both the units above and the units below 5/F Property and 6/F Property.

(2)  The presence of vegetation on the External Wall indicates that there are cracks and moisture present in the areas where the vegetation is present.

(3)  In the Recorded Conversation, D’s tenant described that the drippage affecting the 6/F Room A was from the External Wall side of Room A (i.e. the windows).  In the same conversation, P also admitted hearing “water on the outside”.

(4)  In his expert evidence, Chung mentioned that:

(a)  On 4 June 2019, infrared scanning of the External Wall showed substantially lower temperature in the areas above the 5/F Property and the 6/F Property.

(b)  The visual inspection of the damaged ceiling area of 5/F Living Room showed a triangular shape: One side extending from the External Wall, with another perpendicular side extending to the wall between the 5/F Living Room and the 5/F Bathroom, indicating that the moisture may have radiated from the point of External Wall where the two sides converged.

106.  Mr Ko submits that there is no evidence showing the source(s)  of the water seepage affecting the other units in the Building.  The water seepage in the other units in the Building should have no bearing in assessing P’s claim in this case.  As to the correlation between the ECS moisture readings and rainfall on 8 June 2020, Mr Ko submits:-

(1)  As shown by the ECS moisture readings, the spots nearest to the External Wall are not the ones with the highest moisture readings.  To the contrary, the highest moisture readings are found at spots far away from the External Wall. The moisture should be a result of the dye water test conducted in the 6/F Property, instead of a result of rainwater attack via External Wall.

(2)  In any event, rainwater could be conclusively ruled out as a potential source of water seepage.  On 14 July 2020, in the absence of rain, there were still excessive moisture readings.

107.  In my view, there is force in Mr Ko’s submissions.  Further, I observe that the Dripping Months are not the rainy season in Hong Kong.  According to D’s theory, rain water seeps into the 5/F Property through the External Wall. However, there is only notable water seepage in the 5/F Property during the Dripping Months, not in the other months (particularly, not during the rainy season)  in the year.  This is another problem in D’s theory.

108.  However, I have to say that P’s theory (i.e. the 6/F Bathroom being the source of water seepage)  also cannot explain why there is notable water seepage in the 5/F Property only during the Dripping Months.

E8.  No damage to the 5/F Kitchen

109.  Mr Fan submits that according to Chung’s findings, there is a lack of any damage to the 5/F Kitchen immediately below the 6/F Bathroom.   This is at odds with P’s theory.

110.  Mr Ko submits that visual observation of the ceiling is not a scientific and reliable test of determining the source of water seepage.

111.  It is an indisputable fact that Lau has not offered any explanation as to why there would be no damage to the 5/F Kitchen, notwithstanding the fact that the 5/F Kitchen is immediately below the 6/F Bathroom.   This unexplained phenomenon also weakens P’s theory.

112.  In my view, if D is relying upon this point alone, D may not be able to make out a forceful argument.  However, coupling with the points accepted by the court as set out in the above, D has raised sufficient doubts on the correctness of P’s theory.

E9.  P’s case not proved

113.  Lau is of the view that the water seepage is due to the defective bathroom drainage and waterproof membrane of the 6/F Property.  Chung is of the view that the water seepage is due to (a)  rainwater attack via the External Wall; and/or (b)  water seepage from the usage of hot water in winter by the higher floor occupants.

114.  As set out in the above, I accept that some of the criticisms made by Mr Fan concerning Lau’s opinion are valid criticisms.  For those reasons, I do not accept the conclusion reached by Lau.

115.  As to Chung’s opinion, for the reasons as set out in the above, there are also problems in Chung’s suggestion that the water seepage is due to rainwater attack via the External Wall.

116.  With regard to Chung’s opinion that the origin of the water seepage is the usage of hot water in winter by the higher floor occupants, I am of the view that there is insufficient evidence in support of this view.

117.  Chung takes the view that the notable water seepage during the Dripping Months is consistent with water supply pipe leakage (a pressurized source).  The high volume and quick penetration of water is consistent with it originating from a pressurized source.  Chung therefore opines that the water seepage is caused by the usage of hot water in winter by the higher floor occupants.

118.  While I appreciate that Chung has tried to suggest a theory to explain why there is noticeable water seepage in the 5/F Property only during the Dripping Months, with respect, this theory is not supported by sufficient evidence.

(1)  No test has been conducted in the higher floors to see whether the usage of hot water in these floors would cause water seepage in the 5^th Floor.

(2)  No evidence to show that the high floor occupants would only use hot water during the Dripping Months, but not in the other months in a year.

119.  To conclude, neither Lau’s opinion nor Chung’s opinion is accepted by this court.  As the burden of proof is on P, in my judgment, P’s case is not proved.  As a result, P’s claim must be dismissed.

F.  DEPOSITION

120.  In my judgment, P has failed to prove that the source of the water seepage is from the 6/F Property.  I dismiss P’s claim.

121.  Costs should follow the event.  There be a cost order nisi that costs of these proceedings (including all costs reserved)  be to D, with a certificate for counsel, to be taxed if not agreed.

122.  Lastly, it remains for me to express my gratitude to counsel for the very helpful assistance rendered to the court.