TSOY LAI CHUN (IN BOTH HER PERSONAL CAPACITY AND IN HER CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CHAN CHI HOI, DECEASED) v. JOANNE MANAGEMENT SERVICES LTD

DCCJ 3858/2022

[2026] HKDC 1324

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3858 OF 2022

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JUDGMENT

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A. Introduction and Background

1.  This is the hearing of the appeal brought by the plaintiff (“P”) against the Order of Master Vivian Lee dated 27 February 2026 (“Master’s Order”) granting directions for additional expert evidence.

2.  The underlying dispute is a water seepage case. P is the owner of Flat 6A, Block 2, Beacon Heights Phase IV, No 2 Lung Ping Road, Kowloon (“Flat 6A”), and the Defendant (“D”) is the owner of the flat directly above, Flat 7A (“Flat 7A”).

3.  P’s case is that water seepage and leakage originating from Flat 7A have caused extensive damage to Flat 6A.

4.  Pursuant to an earlier Order of Madam Registrar Soong dated 31 August 2023, the parties jointly appointed a professional surveyor, Mr Jacob Tsang of Smart Joy Surveying Consultants Limited (“Mr Tsang”), as a single joint expert (“SJE”) to investigate various issues on liability and quantum.

5.  In Mr Tsang’s report dated 9 April 2025, he concluded that defective potable water pipes serving Flat 7A were the major cause of the ongoing seepage and widespread damage at Flat 6A.

6.  Regarding remedial works (quantum), Mr Tsang recommended two cost scenarios depending on whether a subsequent structural assessment of Flat 6A—to be conducted by a registered structural engineer—revealed “satisfactory” or “unsatisfactory” structural concrete conditions.

7.  Back on 2 April 2025, and before Mr Tsang’s report was issued, the Building Authority issued a Building Order declaring Flat 6A “dangerous” due to structural defects, namely: (i) loose/cracked/defective concrete and exposed rusty steel bars; and (ii) loose/defective rendering.

8.  Consequently, P applied by summons dated 10 October 2025 for leave to adduce additional expert evidence from a registered structural engineer acting as an additional single joint expert (“Additional SJE”).

9.  While D agreed in principle to the appointment of an Additional SJE, the parties disagreed on the specific candidate and the precise scope of the instructions to him.

10.  Following a hearing on 27 February 2026, Master Vivian Lee ordered the appointment of D’s nominee, Mr Ng Ka Wai (“Mr Ng”) in preference to P’s nominee, Mr Fan Kam On (“Mr Fan”), and finalized the issues on which the Additional SJE is to provide an opinion (“Master’s Order”).

11.  P now appeals against §1 (including §1.1 and §1.3) and §2 of the Master’s Order, effectively seeking to revert to the terms set out in her summons.

B. Principles on Appeals from a Master to a Judge

12.  An appeal from a master to a judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the Master; but he is in no way bound by it. That being said, a judge hearing an appeal from a master is entitled, if he thinks fit, to adopt the master’s reasoning in his own judgment without setting out the reasoning himself; by so doing the judge does not fail to exercise the discretion conferred on him. See: Hong Kong Civil Procedure (2026) Vol 1, p 1253, §58/1/2.

C. The Issues

13.  The three central issues in this appeal are:

(1)  Are the bracketed wording “(if the registered structural engineer considers such issue is within the scope of expertise to give opinion)” in §1.1 and §1.3 of the Master’s Order appropriate? (“First Issue”)

(2)  Was it appropriate for the Master to direct the expert to state whether the structural assessment results are “satisfactory” or “unsatisfactory” under §1.3 of the Master’s Order? (“Second Issue”)

(3)  Should Mr Ng or Mr Fan be appointed as the Additional SJE? (“Third Issue”)

D. Analysis

D1. Issue 1 – Was the bracketed wording appropriate?

14.  On the first issue, P argues that the Master was wrong by adding the bracketed wording, effectively leaving it to the expert to decide whether the issues fall within his expertise, which is a threshold legal question that the Court must determine before giving expert directions.

15.  In particular, P is concerned that the inclusion of the bracketed wording provides the expert with a convenient loophole to avoid answering the questions regarding the Building Order and the structural assessment.

16.  On the other hand, D contends that P’s objection is unfounded and insults the expert’s professionalism, integrity, and overriding duties owed to the Court.

17.  D emphasizes that under O 38 r 35A(1) and (2) of the RDC and the Code of Conduct for Expert Witnesses, an expert is legally bound to assist the Court only on matters within his actual expertise, meaning the Master’s bracketed wording is entirely consistent with the expert’s statutory duties.

18.  I agree with P on this issue.

19.  While D is correct to emphasize that an expert witness owes an overriding duty to the Court to limit their opinion to matters within his actual expertise, the inclusion of the bracketed qualification in the Master’s Order is in my view incongruous in principle.

20.  Where the Court has already determined that a registered structural engineer possesses the requisite discipline to assist on specific structural engineering questions, it is contradictory to condition the expert issues simultaneously upon the expert’s own subjective assessment of their competence to answer.

21.  Such an approach adds unnecessary ambiguity into the expert’s terms of reference and detracts from the Court’s role in defining the scope of expert evidence. In my view, the bracketed wording should not be added.

D2. Issue 2 – Is §1.3 of the Master’s Order appropriate?

22.  On Issue 2, P argues that explicitly adding a separate direction to the Additional SJE for a “satisfactory” or “unsatisfactory” finding is redundant and adds nothing to the scope of the expert evidence.

23.  P adds that this issue is naturally subsumed within the broader assessment required under §1.1 and §1.2 of the Master’s Order, and that D is improperly trying to force the expert to choose a binary, pre-packaged conclusion.

24.  On the other hand, D argues that this specific direction is necessary and directly derived from §7(b) of Mr Tsang’s report – where he formulated two different quantum and repair scenarios based on whether the subsequent structural assessment yields a “satisfactory” or “unsatisfactory” result.

25.  Hence, D contends that an explicit finding using this exact terminology is vital to enable the Court to determine the correct measure of damages.

26.  I am inclined to agree with P on this as well.

27.  While D’s argument—that this direction corresponds to the dual-scenario framework set out in §7(b) of Mr Tsang’s report—is seemingly attractive, forcing the Additional SJE to adopt a rigid “satisfactory” or “unsatisfactory” dichotomy is methodologically problematic.

28.  There is no guarantee that what the Additional SJE views as “satisfactory” or “unsatisfactory” would align with Mr Tsang’s subjective understanding of those terms, particularly when this binary distinction is unsupported by any objective definition or industry standard, as the parties confirmed. Therefore, it is in my view conceptually hazardous to compel a structural engineer to shoehorn their professional findings into a non-standardized classification.

29.  If D’s concern is that, absent such an explicit classification, it would be difficult to ascertain which of Mr Tsang’s quantum scenarios should apply, the proper recourse is not to constrain the structural expert’s mandate.

30.  Rather, once the Additional SJE has provided his structural findings, Mr Tsang, as the primary SJE, can simply be instructed to provide a brief, updated opinion on quantum in light of those objective findings.

31.  There can be little dispute over this, since what Mr Tsang said at §7(b) of his report is that “[t]he severity of concrete spalling may necessitate structural assessment resulting in different approach in repair works.”

32.  §1.3 of the Master’s Order is thus inappropriate and should not be added.

D3. Issue 3 – Should Mr Ng or Mr Fan be appointed as the Additional SJE?

33.  On the last issue, P argues that her nominee, Mr Fan, is the superior candidate because (i) he has 39 years of experience compared to Mr Ng’s 21 years; (ii) he holds more professional qualifications relating to engineering; and (iii) he has specific experience in 21 water seepage projects whereas there is no information that Mr Ng has been involved in any such projects.

34.  P further notes that Mr Fan’s lump-sum quote is HK$5,000 cheaper and offers a more transparent fee structure for potential additional work.

35.  D submits that the Master’s selection of Mr Ng was an entirely proper exercise of discretion based on an agreed framework where both sides submitted nominees.

36.  In particular, D points out that Mr Ng is highly qualified as a registered structural engineer with extensive practice since 2008, that the cost difference is negligible, and that Mr Ng’s hourly rate for extra work (HK$3,500 is actually much cheaper than Mr Fan’s (HK$5,000).

37.  D also adds that Mr Fan’s water seepage experience is irrelevant and risks causing conflicting evidence with the primary SJE, Mr Tsang.

38.  There is no dispute that both Mr Ng and Mr Fan are qualified registered structural engineers, and I consider the marginal differences in their respective fee structures to be immaterial to this determination.

39.  In my view, the key distinguishing factor lies in their respective professional experience, particularly experience relevant to the present context.

40.  Having carefully considered the parties’ submissions, I am persuaded that Mr Fan is the more suitable candidate to be appointed as the Additional SJE.

41.  While D properly points out that Mr Fan spent a significant portion of his career with a single employer, The Hongkong Electric Co, Limited, primarily dealing with industrial power transmission infrastructure, his recent practice since 2020 demonstrates experience relevant to the present context.

42.  Specifically, the evidence shows that Mr Fan has prepared five structural assessment reports, 3 of which are currently in progress. Although these reports were prepared in the context of compulsory sale applications under the Land (Compulsory Sale for Redevelopment) Ordinance (Cap 545), they are of relevance since Cap 545 proceedings typically involves issues on the age and state of repair of a building, which seems to me to be precisely the type of structural degradation the Additional SJE is required to assess in light of the Building Order in this case. Furthermore, P’s evidence—in the table at Exhibit CLSP-4-8—confirms that Mr Fan has been actively involved in numerous water seepage investigation projects since 2020.

43.  Conversely, while Mr Ng undoubtedly possesses rich and diverse track record across various private developments, there is no evidence before the Court indicating that any of Mr Ng’s past projects specifically involved water seepage matters. This is something fairly conceded by D.

44.  While the selection of a single joint expert remains a matter of broad judicial discretion, the balance in this specific case tips in favor of Mr Fan’s combined recent experience in both structural building matters and in the context of water seepage investigations. In the exercise of that discretion, I would therefore substitute Mr Fan as the Additional SJE.

E. Conclusion and Order

45.  Accordingly, P’s appeal is allowed on all 3 issues.

46.  I therefore order that the Master’s Order be varied as follows:-

(1)  The name “Mr Ng Ka Wai” in §1 (preamble) and §2 thereof be changed to “Mr Fan Kam On”;

(2)  The phrase “(if the registered structural engineer considers such issue is within his scope of expertise to give opinion)” in §1.1 thereof be deleted; and

(3)  §1.3 be deleted in its entirety.

47.  Save as aforesaid, the Master’s Order stands.

(Submissions on costs)

48.  On costs, Mr Law has highlighted various procedural conduct of P in seeking to appeal despite having committed to certain proposed directions before the Master, and as a result of this appeal these proceedings have now been prolonged. But as I pointed out to Mr Law, there was no agreement that the parties would be bound by the nominee picked by the Master, and there is no dispute that the parties do have the right to appeal.

49.  In my judgment, there is no reason why costs should not follow the event. I therefore order that D shall pay the costs of and incidental to this appeal to be summarily assessed on the papers. To avoid doubt, the costs order under §4 of the Master’s Order do stand.

50.  It remains for me to thank Mr Lam and Mr Law for their assistance.