LEE WOON PING v. SMART DRAGON ASIA PACIFIC LTD

DCCJ 844/2020

[2026] HKDC 754

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 844 OF 2020

-------------------------------

-------------------------------

-------------------------------

JUDGMENT

-------------------------------

1.  The plaintiff owns Flat E on 4/F, Oak Mansion, Taikoo Shing (“Flat 4E”). The defendant owns the flat above, ie Flat E on 5/F (“Flat 5E”).

2.  The plaintiff claims that, since some time in 2019, water seepage occurred on the ceiling of the master bathroom, the cloakroom, and the maid’s room in Flat 4E. He says that Flat 5E was the source of the leakage. The defendant denies that Flat 5E was the source.

3.  The parties do not have substantial dispute on the factual occurrence of the water seepage in Flat 4E. I find as facts below the evidence put forward by Madam Kam Ka Wo called by the plaintiff; Madam Leung On Yu Annie, Mr Wong Sai Pui, and Mr Chonwut Nichpornkul (or Roger Lok) called by the defendant. I shall state my finding below on factual disputes that are necessary for me to resolve.

The facts

4.  In 2016, the plaintiff carried out renovation to Flat 4E, and combined it with the adjacent Flat F to make a larger flat[1], after obtaining the approval from the Buildings Department. The original guest bathroom, which sat in between the kitchen and the master bathroom, was converted into a maid’s room and part of the cloakroom. The master bathroom was reduced in size to make room for the cloakroom. The plaintiff, his wife Madam Kam, his son’s family and their maid have been living in Flat 4E.

5.  The defendant has been renting Flat 5E out to tenants; it says Flat 5E was occupied by a family of 4 at the relevant time. It retains its original layout. Therefore, the guest bathroom of Flat 5E sits on the top of the maid’s room and part of the cloakroom of Flat 4E. The master bathroom of Flat 5E sits on top of the remaining part of the cloakroom and the master bathroom of Flat 4E.

6.  It is agreed that Oak Mansion is a multi-storey building with with numerous flats above Flat 4E and 5E.

7.  Madam Kam first noticed water droplets and mould on the ceiling of the cloakroom on 29 May 2019. She made a report to the management office of Taikooshing, and a Mr Chan from the management office went to Flat 4E for an inspection on the same day. Mr Chan’s protimeter showed maximum reading for humidity for the ceiling of the cloakroom. He also used test strips to confirm that the water droplets on the ceiling were saltwater.

8.  The management office then arranged to have the flushwater supply to Flat 5E suspended for 22 hours from 29 May 2019 to 30 May 2019. Madam Kam said the seepage on the ceiling of the cloakroom improved. Her evidence is corroborated by a letter issued by the management office to the owner of Flat 5E on 10 June 2019, which stated that water stopped dripping from the ceiling of the cloakroom of Flat 4E after the suspension of flushwater supply to Flat 5E. The letter ended with an advice to the owner of Flat 5E to carry out inspection or repair as soon as possible.

9.  The management office conveyed Madam Kam’s complaint to Madam Annie Leung, the Defendant’s property manager. Madam Leung then asked Mr Roger Lok to investigate into the complaint. On 4 June 2019, Mr Lok and his assistant, Mr Lui Chi Kong, went to Flat 4E for an inspection. The Defendant accepts that Mr Lok and Mr Lui only carried out visual inspection of Flats 4E and 5E[2]; in any event, they were invited by Madam Kam to leave Flat 4E after around 10 minutes, as only her maid was present in Flat 4E at that time, and no representative from the management office was present. Mr Lok saw no signs of seepage from Flat 5E to Flat 4E.

10.  On 24 June 2019, Mr Lok, Mr Lui, and another assistant Mr Lai Hung Wai went to Flat 4E again for an inspection, as Madam Kam continued to complain about the water seepage. Mr Lok and his assistants again did not find any source from Flat 5E which could account for the seepage seen in Flat 4E. The Defendant accepts that Mr Lok and his assistants only carried out a visual inspection of Flats 4E and 5E[3]. The parties differ as to whether there was any verbal dispute between Madam Kam on one hand, and Mr Lok and his assistants on the other. I do not find it necessary to resolve this difference as it is not relevant to the issues in the present case. I similarly find it unnecessary to decide what actually transpired in the telephone calls allegedly took place in July 2019 between Madam Kam and Mr Lui. It suffices to note that they had different views as to the source of the water seepage seen in Flat 4E.

11.  In the meantime, Madam Kam lodged a complaint with the Joint Office of Buildings Department and the Food and Environmental Hygiene Department (“the Joint Office”) about the water seepage. Pond tests were carried out by the contractors appointed by the Joint Office to test whether the floor, the shower cubicle, and/or the bathtub of the master bathroom and guest bathroom of Flat 5E might be the source of the water seepage in Flat 4E. According to the letter issued by the Joint Office on 8 November 2019, the source of the water seepage could not be determined.

12.  On 16 November 2019, Madam Kam saw that the lights installed on the ceiling of the cloakroom were flickering and emitting strange sounds. She and the plaintiff then decided to engage Hong Kong Survey Limited (“HKSL”) to investigate and identify the source of the water seepage. HKSL sent representatives to inspect Flats 4E and 5E on 22 November 2019 and 9 December 2019, and issued its report on 31 December 2019. As Madam Lau Shan La is called as the plaintiff’s expert at trial, I shall deal with Madam Lau’s evidence below when I analyze the expert evidence.

13.  On 15 December 2019, Madam Kam discovered water droplets dripping near the electricity box inside the kitchen of Flat 4E. She arranged a contractor to inspect the kitchen on 18 December 2019. When the contract looked inside the false ceiling above the electricity box, water droplets were found dripping from the ceiling above. The water droplets were found to be saltwater.

14.  Madam Leung claims that, on 18 February 2020, she asked Mr Kwok Tim Yau, a plumber and electrician, to investigate into the water seepage. I have been shown the WhatsApp messages exchanged between Madam Leung and Mr Kwok; Mr Kwok told Madam Leung that the freshwater pipes had no problem. When he was asked what might be the source of the seepage, Mr Kwok sent out 2 photos showing the external wall of Oak Mansion, and said the problem was due to the external wall. I do not think much weight can be placed on the WhatsApp messages to identify the source of water seepage seen in Flat 4E. Apart from the fact that the defendant has not called Mr Kwok to give evidence, what he said in the messages was a matter of opinion. If the defendant wishes to rely on Mr Kwok’s opinion, it must adduce such opinion properly by way of expert evidence; but this has not been done.

15.  Madam Kam claims that the water seepage spread to the master bathroom by May 2020; water stains could be observed on its ceiling. By June 2020, she found water droplets near the lights installed on the false ceiling of the master bathroom. Again, the water droplets were found to be saltwater.

16.  Madam Kam claims that the Joint Office sent representatives to Flat 4E on 30 June 2020. High moisture level was detected for the ceiling of the cloakroom. Water droplets dripping from the ceiling of the kitchen were found to be saltwater.

17.  In July 2020, Madam Kam found out through the management office that works were being carried out in Flat 5E to replace the bathtub of the master bathroom. However, water seepage inside Flat 4E continued; water droplets forming the seepage were found to be saltwater, and Madam Kam also saw white crystals accumulating on the ceiling of the master bathroom and next to the electricity box.

18.  Representatives of the Joint Office visited Flat 4E on 6 November 2020. The moisture level of the ceiling of the master bedroom, the cloakroom, the maid’s room and the kitchen was tested; it is said that the protimeter reading was below 40. Pond tests were done inside Flat 5E. Whilst Madam Kam claims that coloured sediments were collected from the water droplets dripping near the electricity box, I am not shown any test result or conclusion reached by the Joint Office regarding the pond tests it carried out this time round. In my judgment, one cannot give much weight to Madam Kam’s evidence about the presence of coloured sediments in the absence of any details about the pond tests conducted by the Joint Office.

19.  Madam Leung says that, by early December 2021, the Flat 5E tenants moved out. She then engaged Mr Wong Sai Pui to renovate Flat 5E. Mr Wong puts forward 2 quotations in relation to the renovation work. The quotations show that, amongst other works, he:-

19.1.  Replaced the freshwater supply pipes to the kitchen, the master bathroom and the guest bathroom;

19.2.  Replaced the flushwater supply pipes to the 2 bathrooms;

19.3.  Relaid the waterproofing to the floor and the interior walls (up to 1.8m) for the 2 bathrooms; and

19.4.  Replaced the shower cubicle of the guest bathroom, and changed its drainage point.

20.  Under cross examination, Mr Wong confirms that only the supply pipes were replaced.

21.  The plaintiff’s solicitors claim that, by 8 March 2022, Flat 5E remained vacant. But I am not told whether Flat 5E was rented out at any time thereafter.

22.  In the witness box, Madam Kam confirms that there were still water stains on the ceiling of the maid’s room, the cloakroom and the master bedroom inside Flat 4E. Water crystals could still be observed on the ceiling of the cloakroom and the master bedroom. That part of Flat 4E still smells mouldy.

The issues

23.  The parties put in a Joint Statement of Issues in Dispute dated 5 August 2022. I quote below the issues framed therein, using the definitions I adopt in this Judgment:-

“(a) Whether the defendant and/or its servants, agents or occupiers have caused and/or permitted water to seep, discharge, escape, percolate and/or leak from Flat 5E into Flat 4E; and

(b) Whether the defendant is liable for the loss and damage as allegedly suffered by the plaintiff as a result of the alleged seepage/leakage, and to what extent.”

24.  Hence, no different from previous cases similar to the present, this court has to resolve the following disputes:-

24.1.  Whether the water seepage seen in Flat 4E originated from Flat 5E;

24.2.  If the water seepage did originate from Flat 5E, whether the defendant ought to be held liable for the loss and damage caused by the water seepage; and

24.3.  If the defendant ought to be held liable, what ought to be the relief this court should award the plaintiff.

The legal principles

25.  The plaintiff claims that water seepage seen in Flat 4E originated from Flat 5E. The water seepage constituted nuisance created by the defendant. Also, the defendant has been negligent, and in breach of the deed of mutual covenants of Oak Mansion dated 6 January 1984 (“the DMC”), and s 34H of the Building Management Ordinance (Cap 344) (“the BMO”), in permitting the water seepage to continue to date.

26.  Mr Ernest Ng (with Mr Fergus Tam), counsel for the Plaintiff, and Ms Prisca Cheung, counsel for the Defendant, have little dispute on the applicable legal principles; but they naturally put different emphases on the law. I set out the following summary of legal principles based on their submissions, relying on cases like Hui Ling Ling v Sky Field Development Ltd HCA 35/2007 (Recorder Yuen, SC; 8 May 2012); Wu Hucheng v Tian Jiong & Anr [2024] HKDC 1902 (Deputy Judge Aidan Tam; 19 November 2024); and Tollemache Company Limited & Ors v Raymond Lun Kwok Pao also known as Pao Lun Kwok Raymond [2024] HKDC 2026 (HH Judge Alan Kwong; 6 December 2024),

27.  There is no presumption that water leakage in a multi-storey building necessarily comes from the premises immediately above the affected property.

28.  The burden is on the plaintiff to prove that water seepage originated from the defendant’s premises; the defendant has no responsibility to find the source of the seepage. But a plaintiff does not need to pinpoint the exact leakage points inside the defendant’s premises, especially when the plaintiff or his expert was not given access to the defendant’s premises. The defendant, even not having knowledge of the exact point of leakage, would be found to have constructive knowledge of his premises being the source of water leakage if he would be able to find out by exercising reasonable diligence.

29.  Once a defendant is made aware that there was water leakage, the source of which could reasonably be identified to be from his property, he has a duty to investigate, locate and repair such water leakage in a prompt and reasonable manner. The failure to take reasonable steps to nullify or abate the water leakage within a reasonable time will constitute nuisance created by the defendant, or negligence committed by the defendant. This is so even if there might be other leakage paths concurrently contributing to the seepage seen in a plaintiff’s premises.

30.  The law of nuisance and negligence substantially overlap, in that both impose liability only when the defendant knows or ought to know that his act or omission will cause harm to the plaintiff, yet he fails to act.

31.  Normally speaking, due weight should be accorded to the investigation carried out by the Joint Office, absent evidence of bias. This is based on the fact that the investigation was often done near contemporaneously through neutral agents.

32.  Pond test using dyed water is often a test used by the Joint Office to try to establish the source of water seepage. A negative test from a pond test, however, is not conclusive evidence that there was no water leakage from the defendant’s premises, and it poses no bar to a plaintiff to establish liability on that defendant’s part.

33.  The DMC contains usual provisions requiring individual owners of Oak Mansion to keep the interior of their respective flats to which they have exclusive use and occupation, together with all electrical and sanitary appliances therein, in good repair and condition. The owners have thereby covenanted not to cause loss, damage and nuisance to other owners: see clauses 3 and 5 of the Second Schedule to the DMC.

34.  For the BMO, s 34H requires an owner in a multi-storey building, who has exclusive right to use and occupy any part of the building, to maintain that part in good repair and condition; this obligation is deemed to be a binding obligation under a deed of mutual covenant.

35.  Mr Ng describes the defendant’s obligation imposed by the DMC and/or the BMO as strict, in the sense that it does not depend on the defendant’s knowledge that the water seepage seen in Flat 4E originated from Flat 5E; and irrespective of whether reasonable steps have been taken to try to abate the water seepage. He refers me to Ocean Allied Limited v Hui Sze Kuen & Anr [2022] HKDC 760 (Deputy Judge Tracy Chan; 4 November 2022), and Leung Tak Kwan trading as Wallpaper Warehouse (HK) Co v Gao Meng Fa Limited [2021] HKDC 1540 (HH Judge K C Chan; 9 December 2021).

36.  Ms Cheung, on the other hand, submits that liability imposed by the DMC and/or the BMO is not strict. She takes me to §§33-35 of the judgment in Tollenmache:-

“33. In the context of building management, the authorities suggest that while incorporated owners and managers have duties to maintain common parts of buildings under section 18(1) of [the BMO] and deeds of mutual covenants, such duties are not absolute and they are only required to do what are reasonable and [necessary] in the circumstances: Lau Chun Wing Rod v The Incorporated Owners of Po On Building (CACV 20/2007, I November 2007) at paras 12 to 13 (per Rogers VP); Lo Yuk Chu v Hang Yick Properties Management Ltd [1996] 4 HKC 278 …

34. In Lo Yuk Chu (supra) at paras 7 to 11, Power ACJ expressly rejected the contention that the deed of mutual covenants imposed “absolute or strict duties” on the manager. His Lordship held the mere fact that provisions in the deed of mutual covenants were not qualified by expressions such as “taking reasonable steps” did not support the conclusion that the obligations thereunder were absolute or strict.

35. In my view, the Defendant’s duties to maintain his Property (including the Roof) in good condition and repair under the DMC could not be absolute. Unless the provisions of the DMC provide otherwise (which was not the case), the Defendant was only required to do what were reasonable in the circumstances. In the present case, none of the provisions in the DMC remotely suggested that the Defendant’s duties were absolute or strict. It would be surprising if the individual owners have an absolute duty to maintain his property but incorporated owners and managers are only required to do what are reasonable in the circumstances. This dichotomy does not make sense.”

37.  Ms Cheung also submits that, all the court said in §159 of the judgment in Ocean Allied meant nothing more than identifying that the deed of mutual covenants in that case imposed wide-ranging and exacting obligations on individual owners. This cannot be read to mean that liability imposed by the DMC and/or the BMO is strict.

38.  I agree with Ms Cheung’s submissions, and with the passage in Tollemache that she has referred me to. With respect, I am of the view that Mr Ng has read too much into the judgment in Leung Tak Kwan. In that case, the plaintiff’s premises were flooded. The court found that this was caused by a failure in the cistern of the lavatory inside the defendant’s premises; and more importantly, it found that the facilities inside the lavatory were in a general state of serious disrepair prior to the flooding, and the defendant failed to maintain them in good repair and condition: see §§41-42; 87. The defendant did not put forward any evidence on any inspection or repair to the lavatory prior to the flooding. It is clearly implicit in the court’s finding that the defendant ought to know, from the visually obvious state of disrepair, the need to maintain the facilities in the lavatory, but it failed to effect any repair. In my judgment, this decision provides no support to the proposition that liability is strict under the DMC and/or the BMO.

39.  With the above summary, I turn to consider the expert evidence adduced by the parties to see whether the plaintiff can establish that the water seepage seen in Flat 4E did (at least partly) originate from Flat 5E; and if so, whether the defendant ought to be found liable.

The expert evidence

40.  As referred to above, Madam Lau Shan La is appointed as the plaintiff’s expert. Apart from the report issued by HKSL on 31 December 2019 (“Lau’s 1^st report”), HKSL issued another report on 21 June 2022 (“Lau’s 2^nd report”), after inspections that took place on 29 April and 1 June 2022.

41.  The following test results were put forward in Lau’s 1^st report with respect to the water seepage inside Flat 4E:-

41.1.  On visual inspection (i) there were cracks and peeling off of paint on the part of the ceiling of the maid’s room towards the external wall; and (ii) stains were found on the part of the ceiling of the cloakroom towards the external wall, and crystals and stains were found near the ceiling lights.

41.2.  Water samples collected near the ceiling lights of the cloakroom showed high chloride content, which was consistent of it being saltwater. No ammonium could be, however, detected.

41.3.  There were areas of abnormally low temperature on the ceiling of the maid’s room and the cloakroom under infrared scan, indicating presence of water seepage.

41.4.  Pond test was done to the floor drainage, the freshwater drainage system, and the flushwater drainage system of both the master bathroom and guest bathroom of Flat 5E.

41.5.  The freshwater meter for Flat 5E was observed for 30 minutes with the use of water stopped. The meter reading stayed the same.

41.6.  Protimeter reading showed obvious signs of water seepage at part of the ceiling of the maid’s room and the cloakroom. The reading remained similar after the pond test.

41.7.  Microwave scans at 30 mm, 70 mm and 110 mm into the floorslab showed water seepage from top to bottom, and which spread through to the ceiling of the cloakroom and the maid’s room.

41.8.  Rusting could be seen on the pipes on the external wall outside the kitchen of Flat 4E; there were cracks and rust on that part external wall as well. No cracks or rusting could be seen on the external wall and the pipes outside the maid’s room, the cloakroom, and the master bathroom of Flat 4E. Infrared scan of the external wall did not reveal any area with abnormally low temperature.

41.9.  When Madam Lau returned to Flat 4E on 9 December 2019, she discovered that the ceiling of the cloakroom revealed dye used for the pond test for the floor drainage of the master bathroom of Flat 5E.

42.  Madam Lau arrived at the following conclusions in Lau’s 1^st report:-

42.1.  Since there was little rain when the inspections were carried out, but there was water seepage seen on the ceiling of the maid’s room and cloakroom of Flat 4E, and the water samples collected on the ceiling had high chloride content, water did not seep through the external wall.

42.2.  The high chloride content of the water samples also excluded the source as condensation through temperature difference. Rather, water should have originated from the flushwater system of Flat 5E, because the flushwater samples taken from Flat 5E showed similar chloride content as the samples taken from the ceiling of Flat 4E.

42.3.  In addition, since seepage inside Flat 4E stopped after the flushwater supply to Flat 5E was suspended for 22 hours on 29 to 30 May 2019, water should have seeped from the flushwater system of Flat 5E.

42.4.  Based on the results of the pond test and the microwave scan, water should have seeped from the floor drainage of the master bathroom and guest bathroom of Flat 5E.

43.  The following test results were put forward in Lau’s 2^nd report with respect to the water seepage inside Flat 4E:-

43.1.  On visual inspection, the ceiling of the maid’s room towards the external wall was blackened, with cracks and paint peeling off.

43.2.  The ceiling lights of the cloakroom could not be operated normally. There were white crystals and dye stains near them. Moulding could be seen; paint was also peeling off.

43.3.  The ceiling of the master bathroom had efflorescence.

43.4.  Rusting could be seen inside the electricity box in the kitchen.

43.5.  Pond test was done to the floor drainage, the freshwater drainage system, and the flushwater drainage system of both the master bathroom and guest bathroom; and to the freshwater drainage system of the kitchen in Flat 5E. No stains consistent with dyes used in the pond test could be observed on the ceiling of Flat 4E when Madam Lau and her assistants returned on 1 June 2022.

43.6.  Both before and after the pond test, protimeter showed high values for the ceiling of the maid’s room, and the cloakroom towards the external wall; and to a lesser extent, the ceiling of the master bathroom immediately next to the external wall.

43.7.  Infrared scan showed areas of abnormally low temperature on the ceiling of the maid’s room, the cloakroom and the master bathroom both before and after the pond test.

43.8.  The freshwater meter for Flat 5E was observed with the use of water stopped. The meter reading showed a flow of 500 mL for a 10- minute period in the morning, and for another 30-minute period in the afternoon of 29 April 2022.

44.  I note that Madam Lau did not collect any water sample on the ceiling of Flat 4E to test its chloride content.

45.  Madam Lau arrived at the following conclusions in Lau’s 2^nd report:-

45.1.  Based on the readings of the freshwater meter of Flat 5E, there was seepage through the freshwater supply system of Flat 5E. This caused the water seepage seen on the ceiling of Flat 4E.

45.2.  The protimeter readings increased after the pond test, showing that the water seepage seen on the ceiling of Flat 4E was caused by the floor drainage of the master bathroom and the guest bathroom of Flat 5E.

46.  The defendant has appointed Mr Yu Lik Sang of Hong Kong Survey and Consultants Associates Ltd as its expert. Mr Yu inspected Flat 4E and 5E on 7 July 2023, and signed off his report on 17 July 2023 (“Yu’s report”).

47.  In the Yu’s report, the following test results and conclusions were put forward:-

47.1.  Protimeter readings did not show any major water dampness on the ceiling of Flat 4E.

47.2.  The freshwater meter of Flat 5E did not record any change during the 15-minute when usage stopped.

47.3.  Mr Yu concluded that any previous source of water leaking to the ceiling of Flat 4E had stopped; this allowed the surface of the ceiling to start drying.

47.4.  Mr Yu disagreed with the Madam Lau’s conclusion that water leaked from Flat 5E to Flat 4E, and made the following comments on Lau’s 2^nd report:-

47.4.1.  It was wrong to test the dampness of the ceiling of Flat 4E using a protimeter before and after the pond test. In any event, many points on the ceiling returned with a reading below 35, so it did not exceed the threshold of dampness.

47.4.2.  Infrared scan should not be used indoors, because the room ambiance temperature and water temperature were too close in Southern Asia.

47.4.3.  In the absence of any positive result from the pond test, it was wrong for Madam Lau to conclude that water leaked from Flat 5E to Flat 4E.

48.  Madam Lau and Mr Yu were cross examined at trial. I have considered their respective reports and their evidence at trial, and I come to the following findings.

49.  For the protimeter test carried out by Mr Yu inside Flat 4E, Yu’s report does not give any summary of the readings of the protimer at the corresponding points on the ceiling. One is left to read the protimeter from the photos included in Yu’s report, but those photos are hardly readable. More importantly, Yu’s report is silent as to which points on the ceiling inside Flat 4E were readings taken. All the court can rely on is Mr Yu’s own evidence (as expressed in Yu’s report) that none of the points tested had a reading larger than 35, which was the usual threshold indicating abnormal dampness, and in turn, active water seepage.

50.  I agree with Mr Ng that Mr Yu’s evidence instills little confidence with this court, such that his evidence cannot be safely relied upon. For example, as Mr Ng points out:-

50.1.  Yu’s report appears to have been compiled in a haphazard manner: the Code of Conduct for experts was wrongly described as “Appendix D” instead of Appendix E to the Rules of the District Court (Cap 336H); nor was Mr Yu’s qualification set out in Yu’s Report as required by Appendix E.

50.2.  Yu’s report comments that many protimeter readings recorded in Lau’s 2^nd report were in single digits only, indicating that the ceiling was not damp overall. But as demonstrated under cross examination, Mr Yu confused the numbering of the points Madam Lau marked on the ceiling with actual protimeter readings; in fact, none of the protimer readings was in single digit.

50.3.  Mr Yu claimed that he did not need to investigate the source of water leakage, because the ceiling of Flat 4E was dry. But in p 7 of Yu’s report, it was stated that Mr Yu went to Flat 5E after inspecting Flat 4E, to try to “find out the source of water seepage”. His evidence as to whether there was in fact water seepage appears contradictory.

50.4.  When Mr Yu was shown that the scale for the infrared scan in Lau’s 2^nd report was at 0.2 °C intervals, he explained that there were a lot of light rays indoors which could affect the scan and it was a misuse of infrared scan, without actually explaining why he thought the sensitivity of the infrared scan used by Madam Lau could not differentiate the presence of water seepage. I agree with Mr Ng that Mr Yu was evading the question posed to him.

51.  Based on the above reasons, I refuse to accept Mr Yu’s evidence, and I place no weight on Yu’s report.

52.  I also refuse to accept the conclusions made by Madam Lau in Lau’s 2^nd report for the following reasons:-

52.1.  There is no evidence showing where the freshwater meter of Flat 5E was located. Common knowledge dictates that such a meter is often installed in a particular compartment within the common areas of a multi-storey building. This may or may not be the case for Oak Mansion. Hence, I do not accept there is sufficient evidence to infer that, once the meter for Flat 5E recorded any flow of freshwater through it despite usage was stopped, water must have escaped from the pipes of Flat 5E and down to the ceiling of Flat 4E. It might well be the case that water might simply have seeped out of the pipes laid within the common areas.

52.2.  I disagree with Madam Lau that there was marked increase in the protimeter readings before and after the pond test. One must remember that high readings were already recorded before the pond test. There were only 4 points on the ceiling of the cloakroom (points 17-20) with readings increased from below 35 to above 35 after the pond test. I do not find Madam Lau to have given any convincing explanation as to the significance of such changes.

52.3.  Also, the chloride content of the water accumulated on the ceiling of Flat 4E was not tested in Lau’s 2^nd report. Therefore, I do not think it can be safely concluded that it was freshwater rather than flushwater. Madam Lau has not put forward any reasonable justification as to why the chloride content was not tested during the 2022 inspections. Hence, I am of the view that Lau’s 2^nd report could not exclude the source as somewhere other than the freshwater supply system of Flat 5E.

53.  The remaining consideration is whether this court can place weight on Madam Lau’s evidence as expressed in Lau’s 1^st report; and if so, to what extent.

54.  Ms Cheung first attacks Madam Lau’s evidence on the protimeter readings. Based on her calculations from the readings set out in Lau’s 1^st report, she submits that in fact the protimeter readings before and after the pond test only showed natural variation in humidity fluctuation, rather than any seepage from Flat 5E to Flat 4E.

55.  With respect, I have much reservation about the calculation attempted by Ms Cheung:-

55.1.  As in other water seepage cases that frequented the District Court, a protimeter indicates abnormal dampness in a qualitative sense if the reading in above 35. There is no evidence to suggest that there is any quantitative correlation between the level of dampness and the absolute value of the reading above 35. Therefore, any quantitative analysis of the readings does not appear to me to be useful.

55.2.  Even if there were any quantitative correlation between the relative dampness of any test point and the absolute value of the protimeter reading above 35, there were a few test points which showed maximum protimeter reading (99.9) even before the pond test. The reading stayed the same after the pond test. In Ms Cheung’s calculations, these points were treated as if there was no change in dampness. However, this overlooked the possible change of dampness in those points which was beyond the sensitivity of the protimeter.

56.  In short, I refuse to accept Ms Cheung’s attack on Madam Lau’s evidence regarding the protimeter readings. I do not think her submissions on transient condensation that might have been caused by the pond test persuasive.

57.  Nevertheless, I do not think one can derive much out of the protimeter readings before and after the pond test. The extent of the ceiling of Flat 4E that returned abnormal protimeter readings remained the same before and after the pond test. As such, one cannot deduce whether water was actively seeping from Flat 5E to Flat 4E when water was left accumulating during the pond test.

58.  In my judgment, the same can be said regarding the microwave scan. All it showed was the presence of water within the floor slab between Flat 4E and Flat 5E. It showed little as to the source of the water, as it was not shown that there was significant accumulation of water after the pond test but not before.

59.  It is my view that, pared to the bones, Madam Lau’s opinion in Lau’s 1^st report came down to the following:-

59.1.  The water seepage in Flat 4E was caused by a leak in the flushwater system of Flat 5E, because seepage was abated with the suspension of flushwater supply to Flat 5E on 29 to 30 May 2019; and

59.2.  The seepage on the ceiling of the cloakroom was caused by the leakage of the floor drainage of the master bathroom and guest bathroom of Flat 5E, because of the positive result of the pond test.

60.  I accept Madam Lau’s opinion that water was seeped from the flushwater system of Flat 5E down to the ceiling of Flat 4E. The defendant does not challenge the accuracy of the letter issued by the management office recording the results of the suspension of flushwater supply to Flat 5E on 29 to 30 May 2019, and Madam Kam’s evidence as to the abatement of seepage during that period. In my judgment, the evidence supports an inference that water leaked from the flushwater system, and is not contradicted by any other test carried out by Madam Lau or Mr Yu.

61.  In addition, the result from suspending the flushwater supply is consistent with the high chloride content of the water samples collected from the ceiling of Flat 4E, and the formation of crystals near the ceiling lights. It is also consistent with the fact that, despite extensive renovation work, the flushwater drainage pipes in Flat 5E have not been replaced. This explains why the seepage has not been abated to date.

62.  I do not think the negative result of the pond test for the flushwater system of Flat 5E defeats Madam Lau’s opinion. Contrasting to the pond test done to the floor drainage, common sense dictates that any pond test done to the flushing system is limited by the flushing action of dyed water down the drainage pipes. Dyed water might not have been allowed the same time to seep through any leaks within the flushwater system. As such, the result of the pond test for the flushwater system and the freshwater system might be different.

63.  I further accept Madam Lau’s opinion that the 2019 inspection showed water leaked from the floor drainage of the master bathroom of Flat 5E, but not that of the guest bathroom. In Lau’s 1^st report, fluorescein sodium was used to colour the water drained through the floor drainage of the master bathroom; whereas pyranine was used to colour the water drained through the floor drainage of the guest bathroom in Flat 5E. Subsequently, only fluorescein sodium was observed on the ceiling of Flat 4E. I accept this established a causal link between the floor drainage in the master bathroom and the seepage seen in Flat 4E. However, in my view, Madam Lau has provided no reasonable explanation to also link the floor drainage of the guest bathroom to the seepage.

64.  In my judgment, the defendant has not put forward any evidence to contradict the presence of fluorescein sodium on the ceiling of Flat 4E after the pond test done during the 2019 inspection. Certainly, Mr Yu has no contrary opinion, as Yu’s report does not see fit to comment on Lau’s 1^st report. I also do not find Madam Lau shaken in this aspect of her opinion during cross examination. I do not find it incredible for Madam Lau to opine that, with respect to the maid’s room in Flat 4E, there might have been insufficient time for dyed water to travel to the ceiling there, or an insufficient amount of dye was used. As common in water seepage cases like the present, the water trails within a floor slab is often unpredictable. It is not against logic for water to travel down faster to the ceiling of the cloakroom than to the ceiling of the maid’s room.

65.  When she cross examined Madam Lau, Ms Cheung sought to put forward alternative sources of water seepage other than Flat 5E.

66.  First, Ms Cheung suggested to Madam Lau that, since Oak Mansion was close to the harbour, saltwater vapour would be blown through the cracks on the external wall of Oak Mansion, causing the water seepage on the ceiling of Flat 4E.

67.  I accept Madam Lau’s evidence that this could not be possible in the circumstances of the present case. Whilst there is no direct evidence on this point, but one can see from various photos exhibited in Lau’s 1^st report that the external wall outside the maid’s room and the cloakroom of Flat 4E faces the inner street of Taikooshing instead of the harbour. It seems unlikely that the moist air blown from the harbour would cause seepage on the street facing side of Flat 4E but not otherwise. In any event, there is no evidence to show that any visible crack on the external wall indeed led to crevices within the floor slab between Flat 4E and Flat 5E, such that water could seep down to the ceiling of Flat 4E.

68.  Secondly, Ms Cheung postulated that, if leakage indeed originated from Flat 5E, one would have been able to detect a discernable spatial gradient of dampness; but this was not found in the present case. This shows the dampness was more likely to have been caused by condensation created by the pond test. It was put to Madam Lau that water vapour accumulated over the water used in the pond test might disperse through the cavities of the building, and caused irregular spikes in the dampness detected on the ceiling.

69.  I am afraid I cannot agree with Ms Cheung. I have already set out above why I do not think her calculations of the protimeter readings helpful. This also renders her submissions on this point much less persuasive. Further, it seems to me to be defying common sense for  sufficient water vapour to form out of the water used in the pond test, travel through the alleged cavities of the building, and condense to cause a significant change in the protimeter readings during the hour or so when water was accumulated within Flat 5E as part of the pond test.

The defendant’s liability

70.  Based on the factual findings I have made above, I am of the view that the defendant has created nuisance which has interfered with the plaintiff’s reasonable enjoyment of Flat 4E. It was also negligent in causing water seepage to Flat 4E.

71.  In my judgment, by the complaint lodged by Madam Kam on 29 May 2019, and the result of suspending the flushwater supply to Flat 5E on 29 to 30 May 2019, the defendant knew, or it at least ought to have known that water might have been seeping from Flat 5E to Flat 4E.

72.  Whilst the renovation done to Flat 5E by the end of 2021 might have fixed any leakage from the floor drainage of the master bathroom, the leakage from the flushwater system remained unrepaired. This caused the water seepage to Flat 4E to continue to date.

73.  In my judgment, the defendant has failed to effect reasonable repair and maintenance to the pipes and drainage of Flat 5E. Hence, it is liable in nuisance and/or negligence.

74.  Given my conclusion above, I find it unnecessary to consider the plaintiff’s cause of action under the DMC and/or the BMO.

Relief and quantum

75.  The plaintiff asks for an injunction restraining the defendant from causing and/or permitting water seepage to continue from Flat 5E to Flat 4E; and mandating the defendant to effect repair or rectification to stop the water seepage.

76.  Since it is my finding that water seepage seen in Flat 4E starting 29 May 2019 originated from Flat 5E and it is still continuing, I agree with the plaintiff that it is reasonable and necessary to issue an injunction against the defendant to abate the water seepage.

77.  I note that, in the Statement of Claim dated 16 March 2020, apart from asking for an injunction mandating the defendant to abate the water seepage, the plaintiff particularized his loss and damage as follows:-

77.1.  Interim repair work at HK$2,750.00;

77.2.  Cost of repair: HK$53,050.00;

77.3.  Cost of alternative accommodation when Flat 4E is under repair: HK$53,060.00;

77.4.  Cost for investigating the water leakage: HK$25,000.00; and

77.5.  Damages for inconvenience and mental stress to be assessed.

78.  In the plaintiff’s written opening, Mr Ng itemized the damages sought as follows:-

78.1.  Interim repair work at HK$9,148.00;

78.2.  Cost of repair at HK$169,430.60;

78.3.  Cost of alternative accommodation at HK$65,398.67;

78.4.  Cost of investigating the water leakage at HK$25,000.00; and

78.5.  Damages for inconvenience and mental stress at no less than HK$130,000.00.

79.  Ms Cheung did not appear to take issue with the upward adjustment of the damages sought by the plaintiff. I shall thus consider the figures set out in Mr Ng’s opening.

80.  In essence, Ms Cheung submits that:-

80.1.  The plaintiff and his family will not need any alternative accommodation when repairs are carried out at Flat 4E; and

80.2.  The damages for inconvenience and mental stress sought are excessive.

81.  I find it reasonable for the plaintiff and his family to move to alternative accommodation whilst repair is carried out (which is estimated by the plaintiff’s contractors to last 20 working days). I do not agree with Ms Cheung that the plaintiff’s family will still be able to use the rest of Flat 4E whilst the cloakroom, the maid’s room and the master bathroom are being repaired. I do not find it right for Ms Cheung to suggest that the plaintiff’s family can continue to use the living and dining areas and the other bathrooms in Flat 4E, so that their principal living space can remain intact whilst repair is carried out. The plaintiff is entitled to damages that will put him back in a position as near as the one he enjoyed prior to the occurrence of the defendant’s breach. As such, the plaintiff is entitled to insist on having living space in the absence of repair workers.

82.  I find it reasonable for at least the plaintiff and Madam Kam to move out of Flat 4E whilst repair is carried out. I accept that the plaintiff’s son and his family can continue to live in the part of Flat 4E which was originally Flat 4F.

83.  Madam Kam has made inquiries with EAST Hong Kong, a hotel in Taikooshing, and Kornhill Apartments, a block of serviced apartments in the neighbourhood as well. East Hong Kong has quoted HK$49,049.00 to HK$57,173.00 for 42 to 45-night stay in a room with a queen-sized bed. Kornhill Apartments quoted HK$48,000.00 per month for a 1-bedroom apartment or HK$55,000.00 per month for a 2-bedroom apartment.

84.  In my view, it is sufficient for the plaintiff and Madam Kam to rent a 1-bedroom apartment at Kornhill Apartments for a month. Thus, I award HK$48,000.00 as damages for alternative accommodation.

85.  Next, Mr Ng and Ms Cheung have cited various authorities to me on the reasonable amount of damages that this court shall award for the inconvenience and mental stress that the water seepage brought the plaintiff. It is trite that no 2 cases are identical, and the authorities serve as a rough guide as to the reasonable range of damages.

86.  Amongst the cases cited to me, I think the following are the most relevant:-

86.1.  Chung Yin Ha v Tse Shui Sam [2019] HKDC 139 (Deputy Judge Zabrina Lau; 22 February 2019): the plaintiff’s family dared not switch on the air-conditioners in her premises for 4 years, fearing that the water seepage might cause short-circuiting. Pulverized paint fallen off the ceiling made items below dirty, and also induced nasal allergy more easily. Damages for distress and inconvenience were awarded at $100,000.00.

86.2.  Lee Tsz Yeung & Anr v Ho Chung Yan Joanne [2024] HKDC 998 (Master Melinda Chiang; 19 June 2024): water seepage from the defendant’s premises caused peeling off and pulverization of the paint on the ceiling of the balcony, bathroom and kitchen of the plaintiff’s premises. Rust stains and cracks were seen. A cabinet turned mouldy and black. The seepage lasted for 3 years and 4 months. Damages for distress and inconvenience were assessed at HK$80,000.00.

87.  There is no dispute that the awards made in the above cases should be inflation adjusted to make them comparable to the present case.

88.  I take into account (i) the length of time of the water seepage; (ii) the extent of the affected area vis-à-vis the size of Flat 4E; (iii) the fact that lights installed on the ceiling of the cloakroom and the master bedroom were affected by the water seepage; and (iv) the extent of the damage to the ceiling as shown in various photos include in the trial bundles. In my judgment, HK$110,000.00 shall be awarded as damages for inconvenience and mental stress brought to the plaintiff and his family.

89.  The plaintiff’s claim for the cost of interim repair work is supported by 3 invoices issued by his contractor on 15 January 2020, 9 July 2020 and 23 October 2020. In the absence of any serious challenge from the defendant to this claim, I allow HK$9,148.00 in full.

90.  The plaintiff’s claim for the cost of repair is supported by the quotation supplied by his contractor on 21 August 2020, showing that the repair to the master bathroom, the cloakroom, the maid’s room and the kitchen will cost HK$139,100.00; insurance, cleaning, replacement wallpaper and replacement appliance will cost HK$30,333.60. I have considered the quotation, and I find the items listed therein are all reasonably necessary. In the absence of any serious challenge from the defendant on the reasonableness of this claim, I allow HK$169,430.60 in full.

91.  The cost of investigating the water leakage is in fact the cost of HKSL in preparing Lau’s 1^st report. Since Madam Lau has been called as the plaintiff’s expert, the cost of HKSL shall form part of the plaintiff’s costs in the present case. Hence, I do not award any damages separately.

92.  The total damages I award to the plaintiff come to HK$336,578.60.

Conclusion

93.  I give judgment in favour of the plaintiff. There shall be an injunction against the defendant on the following terms:-

93.1.  The defendant, by itself, its servant or agents or otherwise howsoever shall restrain from continuing, causing and/or allowing the water seepage from Flat 5E to Flat 4E; and

93.2.  The defendant, by itself, its servants or agents or otherwise shall forthwith carry out all necessary rectification, repair and/or remedial works to stop the water seepage from Flat 5E to Flat 4E.

94.  I also award damages to the plaintiff in the sum of HK$336,578.60. Interest shall run on special damages (HK$9,148.00) at half judgment rate from 29 May 2019 to the date of this Judgment; and at 2% per annum on general damages (HK$110,000.00) from the date of the service of the Writ to the date of this Judgment; for interest after the date of this Judgment up to payment, it shall accrue at the judgment rate.

95.  I grant a costs order nisi that the defendant shall pay the plaintiff’s costs (including all costs reserved, if any), with certificate for 1 counsel, to be taxed if not agreed. Unless there is any application to vary the costs order nisi, it shall be made absolute in 14 days.

96.  It remains for me to thank counsel for their assistance.