TAM SHING ON by his friend HO CHUI LIN v. WONG CHOW WAH AND ANOTHER

DCCJ 6961/2019

[2022] HKDC 1051

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6961 OF 2019

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BETWEEN

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DECISION

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Introduction

1.  By a summons filed on 11 May 2022, the defendants applied to vary the expert directions of Master Jocelyn Leung dated 12 January 2022 (“the Order”).

2.  In gist, the defendants are asking that the parties’ experts be allowed to conduct their own inspection, tests and examinations and compiling their own reports.

Legal principle

3.  Order 38 rule 44 of the Rules of the District Court provides:-

“Any direction given under this Part of the Order may on sufficient cause being shown be revoked or varied by a subsequent direction given at or before the trial of the cause or matter.”

4.  In Wong Man Kin v Secretary for Justice [2017] 4 HKLRD 412, Bharwaney J has this to say on Order 38 rule 44:-

“15 . … This rule enables a court to review an earlier case management decision relating to expert evidence. Although the rule existed even before Civil Justice Reform (CJR), the exercise of discretion under this rule should be guided by the objectives of the CJR. The rule may be invoked irrespective of whether the previous order was a consent order or an order made by the court. The circumstances pertaining when the previous order was made would be a relevant consideration in deciding how the discretion under the rule ought to be exercised. Given this rule, it is unnecessary to resort to the traditional ways to challenge a previous consent order that has been made relating to expert evidence. The rule may be invoked by a party or on the court’s own motion.

16. The critical factor, which is clearly fact-sensitive and requires further consideration in an appropriate case, is what constitutes “sufficient cause” to revoke or vary a previous order made or direction given in relation to expert evidence.”

The defendants’ submission

5.  The parties’ experts are in disagreement as to the scope of the tests. The defendants’ expert opined that it is necessary to conduct investigation to the external walls, drainage systems and windows of the light well adjoining the parties’ flats; the flat adjoining the plaintiff’s flat and the flat adjoining the defendants’ flat in order to identify some possible sources of water seepage. On the other hand, however, the plaintiff’s expert opined that it is unnecessary to do so.

6.  The parties’ experts are also in disagreement as to the way the ponding tests are to be done in the defendants’ flat. The plaintiff’s expert opined that ponding tests have to be done to the kitchen, toilet and balcony of the defendants’ flat for at least 24 hours. The defendants’ expert, however, opined that there is no sufficient information justifying the same.

7.  Miss Emma Wong, counsel for the defendants, submitted that as the parties’ experts could not reach agreements on the scope of tests and also the tests to be conducted, the directions for joint inspection and joint report have become unworkable. In such circumstances, the insistence on having an agreement on the joint inspection and report would not only cause delay and wasting costs in attempting to resolve the disagreements, but would also prevent the experts from exercising their professional judgment in deciding what tests are necessary in order to identify the sources of the water seepage.

8.  Miss Wong, relying on 皇河實業有限公司 v Wan Chiu Yuen, DCCJ 4448/2011, 18/1/2013, unreported, submitted that the court should not be asked to adjudicate the differences and decide on the appropriateness of the tests and the methodology to be adopted. In the words of Miss Wong, “it will not serve the interests of justice if the experts are forced to conduct tests and examinations which in their professional judgment, are considered not justifiable or impropriate, or not to conduct tests and examinations which they consider necessary in investigating the source of water seepage”.

The plaintiff’s submission

9.  Mr Ng Man Kin, who appeared for the plaintiff, submitted that the scope of the tests suggested by the defendants is too wide. It is also too vague and uncertain as to the exact areas to be inspected. Mr Ng pointed out that it is not the defendants’ pleaded case that the source of water seepage was from other areas such as external walls, other flats or the common areas. Therefore, whether those areas are the source of water seepage is irrelevant to the issues in dispute.

10.  Citing Leung Wan Ming v Lie Mey Fong, HCA 1267/2011, 10/12/2012, unreported, Mr Ng submitted that there are competing authorities on whether the court should adjudicate the difference between the experts on the test and methodology to be conducted.

Discussion

11.  The order was given with the consent of the parties. Obviously, when the parties agreed the expert directions, they had not discussed the scope of the tests and also the methodology to be adopted.

12.  It appears that the disagreement between the experts is due to the different in stance taken by them. Mr Raymond Wu, the defendants’ expert, is of the view that the external walls in the light well and the neighbouring flats of the plaintiff’s flat could be the water sources and routes for causing the seepage. He also opined that a 24-hour ponding test would cause a significant inconvenience to the tenants of the defendants’ flat and that “the plaintiff’s expert should give reasons why it is warranted to carry out ponding test at defendant’s flat but not carry out water test to the adjoining flat”. On the other hand, however, Mr Denny Yeung, the plaintiff’s expert, is certain that water seepage was caused by the defendants’ flat. He also took the view that the extent of water seepage in the plaintiff’s flat is so severe that the external walls in the light well and the adjacent flats could not be the sources.

13.  Cressell J in National Justice Cia Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd’s Rep 68 at 81 remarked that:-

“An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise … An expert witness in the High Court should never assume the role of an advocate.”

14.  His duty to assist the court overrides any obligation to the person from whom the expert has received instructions or by whom he is paid.

15.  Such duties are mirrored in Order 38 rule 35A of the Rules of District Court and paragraphs 2 to 4 of the code of conduct for expert witnesses in Appendix E, which provides that:-

“General duty to Court

2. An expert witness has an overriding duty to help the Court impartially and independently on matters relevant to the expert’s area of expertise.

3. An expert witness’s paramount duty is to the Court and not to the person from whom the expert has received instructions or by whom he is paid.

4. An expert witness is not an advocate for a party.”

16.  Viewed in that light, it is clear that the experts’ mind should be directed to the issues in dispute in the present case, rather than arguing from the perspective of the party who engaged them.

17.  In this respect, the parties’ legal representatives are in the best position to render their advice instead of letting the experts to engage in a fight as an advocate for their respective clients.

18.  Turning to the issues in dispute in the present case, they are to be found from the pleadings.

19.  By the amended statement of claim, the plaintiff say that water seepage was discovered in about March 2016, which has been continuing. The colour water test conducted by the Joint Office concluded that the water seepage originated from the defendants’ flat. The surveyor report compiled by Mr Denny Yeung dated 25 June 2019 also concluded that the water leakages are from the defendants’ flat.

20.  By the defence, the defendants say that only the floor drain of the bathroom in Room 1 of the defendants’ flat was found by the Joint Office to have water leakage. Repair of the entire bathroom of Room 1 was done in November 2016, after which, there was no further water leakage. The defendants therefore put the plaintiffs to strict proof. The defendants have not put up a positive case that the water seepage in the plaintiff’s flat was caused by sources other than the defendants’ flat.

21.  The issue to be determined by the trial judge, therefore, is whether the water seepage originated from the defendants’ flat. Unless the defendants’ say in their defence that the water seepage was caused by the faults of external walls and/or the adjoining flats, they are irrelevant in the present case as pleaded.

22.  At the hearing, Miss Wong submitted that the presence of other sources of water seepage would serve as rebuttal evidence. With respect, I do not agree that the finding of other sources of water seepage has the effect of rebutting or negating the defendants’ flat (if proven) as one of the sources. In my view, the attempt to find other sources is a superfluous exercise. Such exercise will inevitably incur extra costs on experts and will cloud the issues at the trial, not to mention the prolongation of the trial unnecessarily.

23.  Accordingly, the issue which the experts’ opinion is required is whether the defendants’ flat is the source of the water seepage in the plaintiff’s flat.

24.  For that purpose, the parties’ experts should be allowed to conduct investigation both in the defendants’ flat and the plaintiff’s flat. I do not think the experts should do the inspection separately for 2 reasons. First, separate inspection would inevitably cause more inconvenience and disturbance to the parties. Secondly and more importantly, they may do completely different tests on different spots the results of which are not directly comparable. This would result in proliferation of issues and adding unnecessary confusion to the trial as envisaged by the Court of Appeal in Shenzhen Futaihong Precision Industry Co Ltd and others v BYD Co Ltd and others [2018] HKCA 408.

25.  Regarding the methodology of the inspection and the tests to be done, they are within the expertise of the experts. With the question that I have identified in mind, they should be able to come to an agreement. Indeed, they are reminded of their overriding duty to assist the court rather than advocating on behalf of the party engaging them.

26.  The experts hold different opinion as to the duration of the ponding test.

27.  The Professional Guide to Water Seepage Investigation, Diagnosis, Testing & Reporting in Residential Buildings issued by The Hong Kong Institute of Surveyors, 1^st edition (2014) (“the Guide”), at page 23 stated that sufficient time should be allowed for the fluorescent dye to seep through the alleged leak path and that it may last for over a day or even a week.

28.  On the other hand, the specification of water seepage investigation as adopted by the Joint Office (before 2019) (“the Specification”) at section 3.3B(b) stated that the colour water should be kept for 1-2 hours.

29.  When the learned judge in Leung Wan Ming (supra) granted 3 hours for the duration of the dye water test, he was making a choice between 3 hours and 1-2 hours as suggested by the parties. He was not referred to either the Guide or the Specification.

30.  In my view, the Guide has clearly stated that sufficient time should be allowed for the fluorescent dye to seep through the leak path, which may last for over a day or even a week. 24 hours seems to be the minimum duration for the test. I see no reason to depart from the advice in the Guide. Thus, 24 hours should be allowed for the ponding test.

31.  In line with the learned Judge’s view in Leung Wan Ming (supra), the plaintiff should indemnify the defendants for any damage caused by the test.

Conclusion and order

32.  By reasons of the aforesaid, the Order is varied in the following terms:-

Paragraph 3(1)

“3. (1) On liability, whether the defendants’ flat is the source of the water seepage in the plaintiff’s flat;”

New paragraphs 4 & 5

“4. The parties’ experts do endeavour to agree on the methodology to be adopted in the joint inspection and the tests to be conducted. Failing which, the parties shall seek further directions from the Master by way of joint written application not less than 28 days from the date of this decision;

5. Upon the plaintiff’s giving an undertaking as to damage caused by the joint inspection and tests to be done in the defendants’ flat, the defendants shall allow entry into the defendants’ flat for the purpose of joint inspection and tests to be done therein;”

33.  There will be no change to the old paragraphs 4 to 8 except that the time limits shall be extended by agreement of the parties. Failing which, they may seek further directions from the Master.

Costs

34.  The present application has arisen due to the inadequacy of the agreed directions, of which both parties have contribution. I make an order nisi that the costs of this application with certificate for counsel be costs in the cause.

35.  Unless an application for variation by letter is made within 14 days from the date of this decision, the order nisi shall become absolute.

36.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.