YU SIU HUNG v. YUEN MAN CHIU ROGER

LDBM 292/2009

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 292 OF 2009

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J U D G M E N T

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1. This is the trial to determine whether water seeped to the applicant’s unit, causing extensive damages to its ceiling, was caused by the respondent’s failure to properly maintain his unit which is situated immediately above.

Brief background

2. The parties were former civil servants and had already retired. A residential building known as the Blossom Mansion in Sai Wan Ho was constructed in or about 1975 by a civil servants building society called Blossom Co-operative Building Society Limited. Each of the parties subsequently acquired a unit in Blossom Mansion for his exclusive occupation.

3. The applicant occupied flat A on the 9^th floor together with balcony (“Flat 9A”) of Blossom Mansion as from 2002 while the respondent flat A on the 10^th floor together with balcony immediately above (“Flat 10A”) before 1997.

4. It was later resolved by the said Building Society that it would dissolve. Blossom Mansion would be notionally divided and the respective units assigned to members then occupying the units. Accordingly by respective assignments both parties became the registered owners of their own units in June 2007, subject to and with the benefit of a Deed of Mutual Covenants dated 13^th June 2007 and registered with the Land Registry by memorial no. 07071302800120 (“DMC”). It is not in dispute that both parties are bound by the terms of the DMC.

5. Flat 9A had since 2002 home for the applicant and his family. However, Flat 10A had been left vacant most of the time after the respondent and his family emigrated to Canada in 1997, save for a period between mid-2005 and early 2007 when it was occupied by the respondent’s niece and for some other brief periods of a month or less by the respondent when he returned or his guests. So most of the time after the applicant and his family had moved to Flat 9A, Flat 10A was left vacant.

6. The applicant complained that since 2003, there had been water seepage to the ceiling of Flat 9A. He suspected the water came from Flat 10A above. By this application, the applicant said that since 2006, and for the purpose of the application, since the date of the DMC, i.e. 13^th June 2007, the respondent allowed water to seep through the floor slab between their units into the ceiling of the sitting room (or referred to as the living room at trial and in the evidence) and bedrooms of Flat 9A, causing serious damages to his flat. The applicant found that the seepage became more serious during rainy days, particularly during typhoons. It was so serious that buckets had to be placed below the affected areas to collect dripping water. Towels had to be laid to cover electrical appliances protecting them from water damages. Spalled ceiling concrete also fell down. His family suffered from a lot of inconvenience and discomfort. Lives of the whole family were disrupted. The applicant also said the respondent was not co-operative and refused his entry to Flat 10A to find out the cause of the water leakage.

7. The applicant founded his claims on breach of DMC and/or nuisance and/or negligence. He alleged the respondent had failed and/or refused to properly maintain his own unit, including not keeping the window and balcony door tightly closed, not maintaining the water-proofing membrane and/or floor slab properly or sufficiently, resulting in water escaping from Flat 10A down to Flat 9A. The applicant asks for an injunction to stop such water leakage; a mandatory order to repair so as to eradicate or stop the water seepage; an order to enter Flat 10A to stop the water seepage; and for damages to be assessed.

8. The respondent denied liability. Its defence was basically that rain water came down the cracks and leaks of the roof and external wall and found its way to Flat 9A. The responsibilities to properly maintain those parts rested with the incorporated owners but not the respondent. According to the respondent, Flat 10A was also a victim of such problems. Further, the re-wiring work done by the applicant to the ceiling of Flat 9A prior to but no later than 2005 caused damages to his own ceiling structures. These are points of weakness where water entered from outside travelled to Flat 9A’s ceiling.

9. The complaints that the applicant was not allowed to inspect Flat 10A was also denied. In or about 2007, after at least a prior inspection of Flat 10A by the applicant together with his appointed contractor in 2006 or even 2005, at the applicant’s request the respondent at his own expenses allowed the applicant’s contractor to carry out waterproofing work to Flat 10A’s balcony. Despite such work, water leakage to Flat 9A continued as before, and had become more serious. In addition, by mid-2008, the respondent had caused plastic tapes/sheets to be affixed onto the outside of the balcony doors and on the floor of the living room of Flat 10A so as to ensure no water could enter Flat 10A and escape downward as complained.

10. The hotly disputed issue in this case is liability. In other words, the most important question is what causes the water seepage to Flat 9A. 

The Burden of Proof

11. Water seepage disputes in multi-storey buildings are not uncommon in Hong Kong. However, there is no presumption that whenever water seepage occurs, it is necessarily caused by the unit immediately above, see: Cheung Sau-ling & Ng Bing-hon v Cheng Lai-chong (transliteration)[1].  It is the plaintiff, i.e. the applicant in the present application, who has the burden of proving the source of water leakage coming from the respondent’s unit.

12. Further, expert evidence is usually required to assist the court to find out the source of seepage. It is also very often that the respondent would try to suggest or prove some other causes of water leakage. However, it is to be remembered that he has no obligation to do so for he has no burden of prove to discharge. Accordingly, even if the court decides, on a balance of probability, that the respondent’s expert opinion is not to be accepted, it does not mean that the applicant’s burden has automatically been discharged, or that the applicant’s expert opinion is to be preferred. The burden of proof remains on the applicant. The court is not obliged to choose between the opinions given by the two experts. The court is still entitled to find that the cause of water leakage is left in doubt if on a balance of probability the applicant fails to discharge the burden of proof which lay squarely upon him, see:Rhesa Shipping S.A. v Edmunds[2].

Witnesses and Expert Reports

13. 3 factual witnesses testified at trial. They are:

i) The applicant, who made two witness statements respectively dated 11 September 2012 and 7 December 2012;

ii) Mr. Chan Pui Man (“Chan”), the chairman of the Incorporated Owners of Blossom Mansion between mid-2006 to mid-2010. He gave evidence for the applicant and made two statements respectively of 11 September 2012 and 16 May 2014; and

iii) Mr. Lai Sing Him (“Lai”), who was a friend of the respondent. He was authorized by the respondent to look after Flat 10A after the latter had moved to Canada. He gave evidence on the respondent’s behalf. His statement was dated 3 October 2012.

14. The following three experts attended the tribunal to give evidence. They are:

i) Mr. Wong Kwai Sang of Kays International Property Consultants Co. Ltd (“Wong”). He was instructed by the applicant to find out the source of seepage. He made a number of reports:

a) Survey report dated 18 August 2008 (Wong’s 1^st report). There was enclosed therein a report, probably prepared on 8 August 2008,by Modern Testing Consultants Limited (“Modern”) which carried out a survey of Flat 9A by infrared (“IR”) Thermography using an IR camera (Modern’s 1^st report”);

b) Survey report dated 18 November 2011 (“Wong’s 2^nd report”), enclosing a second report prepared on 8 November 2011 by Modern which had carried out another IR Thermography survey of Flat 9A as well as part of the Mansion. Further, Coloured Water Test (“CWT”) and ponding test were also carried out to drainage inlets of sanitary fitments as well as floors of toilet and balcony of Flat 9A (“Modern’s 2^nd report’);

c) Written Opinion dated 16 June 2012;

d) Review of Experts Opinion dated 6 December 2012 (“Wong’s 3^rd report”); and

e) A report jointly signed with the respondent’s expert Wu (see below) dated 19 June 2013 (“joint report”).

ii) Mr. Yeung Man Wai (“Yeung”) who prepared the aforesaid two reports of Modern;

iii) Mr. Raymond Wu Chi Cheung (“Wu”) of Tru-tight & Associates Limited. He compiled 3 reports, 2 of which on his own respectively dated 3 October 2012 and 13 May 2013 (referred to as “Wu’s 1^st report” and “Wu’s 2^nd report” respectively), and the other jointly with the applicant’s expert Wong dated 19 June 2013, i.e. the aforesaid joint report.

Factual Evidence

15. The applicant gave an account of what he had done to the ceiling when he first moved in and what had happened since the sign of water seepage was first observed in 2003. He produced photographs taken on various dates and several video clips taken after thetyphoons in 2008. The respondent was, however, in no position to rebut what had been said of Flat 9A as he was way from Hong Kong. Neither was Lai able to rebut the applicant’s evidence.  Chan’s evidence was basically unshaken in the cross-examination.

16. Taking into consideration of undisputed or unchallenged facts or contemporaneous documents, subject to matters which this tribunal will refer to below, this tribunal finds the applicant, Chan and Lai generally honest. There are, however, discrepancies in their evidence. In my view they are largely due to long lapse of time and their respective roles played in the dispute giving rise to different perception of the same matter.  In so far as there is discrepancy between the evidence of the applicant and Lai concerning the timing and extent of water seepage, unless otherwise stated, this tribunal will prefer the applicant’s to that of the respondent.

17. Furthermore, Wong was engaged by the applicant as early as August 2008 and Wu in 2012. They also did joint inspection of Flats 9A and 10A in 2012. Upon request of this tribunal the parties did another joint inspection of the 2 flats and the building after the first day of trial. Video recordings were produced in the form of 2 discs exhibited as R-1 and R-2. Their observations shed light on the physical conditions of the 2 flats and the buildings now and then. The findings of facts in this decision are arrived at after taking into consideration the oral testimony of witnesses, their statements, photographs/videos and contemporaneous documents which were less or uncontroversial.

18. The following layout of the building and Flats 9A and 10A are not in dispute:

i) Blossom Mansion was a 12-storey building (from ground floor to the 11^th floor plus a roof floor) constructed in 1975. Except the roof floor, each floor comprises three units, namely, flat A, B and C, sharing a common lift lobby located in the middle. The flats on each floor do not share any common wall. For Flat A, all its enclosing walls, except that of its kitchen, form part of the building’s enclosing wall. All Flat As are South-west facing.

ii) All Flat As are 3-bedroom units and are of identical layout. There are 3 bedrooms, a kitchen with a toilet, a bathroom, a dining room and a living room connected to a balcony. The balcony and two of the bedrooms are on the same side of the building facade. The other bedroom[3] and the adjacent bathroom are on the opposite side of a corridor separating the said two bedrooms, and are facing the light well. The balcony and the living room are not separated by any concrete wall but by 4 aluminium framed glass sliding doors. Originally all doors were iron-framed but they were later replaced by aluminium ones. Flat 10A also had the same replacement. On one side of the balcony there is a L-shaped concrete planter box of about 2 feet wide extending from the external wall of the bedroom adjoining the living room and enclosing the balcony for about one third along its front. The outer rim of the planter box is of the same height as the balcony wall (about 3 feet from the balcony floor) whiles its inner rim is about 2 feet from balcony floor. The planter box has an inner edge of about 2 inches high and thus can hold water if its drainage is blocked.

iii) For Flat 10A it is not in dispute that originally there was a trough-like depression on the balcony floor leading to a floor drainage inlet near the side wall. This depression was later levelled and the inlet re-positioned to the foot of the balcony side wall. The drainage inlet for Flat 10A’s planter box has been modified to rectangular in shape having a width of 1½ to 2 inches directing water to fall onto the balcony. This tribunal does not accept the applicant’s evidence that the drainage of the planter box of Flat 10A has been sealed. It is not in dispute that in its original design, the planter box drainage opens onto the balcony. Water then escaped through the floor drainage. That of Flat 10A remains of this design but that of Flat 9A has been modified to direct water from planter box to the street.

19. After hearing and reading evidence, the following facts are either unchallenged or  accepted by this tribunal on a balance:

i) In 2002, the applicant refurbished Flat 9A before moving in. Electrical wires in the ceiling of living and dining rooms were re-laid.

ii) In June 2003, water was found dripping down from ceiling of living room in Flat 9A after heavy rainfall. Chan as chairman of Blossom Mansion was notified. With Chan’s assistance, water supplied to Flat 10A was turned off but the seepage persisted after heavy rainfall.

iii) The applicant wrote a letter dated 22 September 2003 to the respondent complaining water dripping down the ceiling on 11 June 2003. The applicant indicated in Exhibit A-1 that in 2003, water dripping took place in the living room between the side wall and the ceiling lamp as well as in the dining room near its ceiling lamp. According to the Hong Kong Observatory’s record, yellow rainstorm signals were hoisted for an aggregate of about 26 hours between 9 and 11 June 2003[4]. 

iv) After receipt of the aforesaid complaint in 2003, Lai went to Flat 9A but not Flat 10A. He found water leakage in the living room. The applicant did not say to him there was water leakage in dining room. This tribunal accepted there was also water seepage in the dinner room ceiling in 2003.

v) In 2003, as observed by the applicant through the window next to the main door of Flat 10A, the ventilation window near the main door was lifted open with a gap of about 2 inches. On one occasion a water patch was found on the doorway floor, which was laid with ceramic tiles instead of wooden flooring. This tribunal did not consider this patch of water would have any bearing or significant bearing on the water leakage problem now complained of by the applicant.

vi) By latter part of 2003, it was considered by the management committee of Blossom Mansion that repair to the external wall was necessary as surface concrete of the building was flaking off, posing danger to pedestrians. The repair involved hammering off the loosened surface mosaic tiles of the building. Judging from the quotation in bundles[5], intact mosaic tiles would not be chipped away. Water-proofing membranes were to be applied on the existing wall surfaces and roof-top after certain treatments were done. 

vii) In January 2004, the proposed renovation was resolved to go ahead as planned.

viii) In April 2004, repair work started. According to photographs taken by Lai around that time and exhibited to his statement[6], it was showed that the building was then surrounded by scaffoldings and was obviously undergoing renovation. Repair works to external walls of Flat 11C and 6B were also carried out[7].

ix) Between mid-2005 and early 2007, Flat 10A was occupied by the respondent’s niece. As a matter of fact this tribunal accepted during her stay, no overflowing of water into the living room of Flat 10A from the balcony had ever happened[8].

x) In 2005, the applicant entered Flat 10A together with one Mr. Yeung to inspect its internal condition. He took no action and explained that it was because there was not much rainfall around that time.

xi) This tribunal accepted the applicant’s evidence that after 2006 peeled off plasters together with ashes fell off from the ceiling of Flat 9A. Since then the applicant and his family had not invited friends and relatives back home because of the falling plasters and concrete from the ceiling. 

xii) In December 2006, Chan wrote a letter to the respondent requesting him to rectify the water leakage. The areas affected were the ceiling of living room[9] as well as dining room. According to Exhibit A-1, the affected area included the area between living room ceiling lamp and its side wall the external of which forms part of the building’s outer envelope.

xiii) By end of December 2006, Chan visited Flat 10A together with one Mr. Chu of Top Waterproofing. It was not in dispute the flooring of Flat 10A was made of teak wood units laid in simple crisscross parquetry, i.e. square on square pattern at right angle to each other. Each square unit is composed of 6 small teak wood boards each of about 2 inches x 12 inches in size.  Chan said he could see wood boards in living room 5 to 6 feet from the balcony were darkened (but not blackened) (see: Chan’s drawing at A-3). The boards also cupped with the two long sides edging up a bit such that one could feel the edging up when sweeping the floors with hands. He said the edge-up was also apparent with naked eyes under day light. He said he estimated there might be 10 of such edge-up floor boards. During cross-examination, he accepted some of the flooring boards were of darker colour but some were of lighter colour. Mr. Chu suspected that the waterproofing membrane of Flat 10A’s balcony might have been damaged when the respondent replaced the aluminium sliding doors frame. Mr. Chu advised turning off the incoming water supply to Flat 10A. Chan said he believed Mr. Chu had visually inspected the external wall and the cupped flooring of Flat 10A before giving his advice.

xiv) In January 2007, at the applicant’s request, the respondent carried out water-proofing work to the balcony of Flat 10A at his own expenses of $9,856[10]. It was done by Top Waterproofing. A new waterproofing membrane was put in place. This Top Waterproofing was found by Chan from the internet. Mr. Chu of Top Waterproofing ruled out the possibility of leakage from outer wall. The applicant admitted that Mr. Chu only carried out visual inspection and surface tapping before coming to his conclusion. This tribunal does not accept Mr. Chu’s views on the possible source of leakage as no scientific test had ever been done by him. There is also no evidence to suggest that he possesses any qualification making him an expert in the particular area of identifying water leakage.

xv) After the aforesaid work to Flat 10A’s balcony, CWT was carried out by Mr. Chu who confirmed that there was no water leakage from Flat 10A’s balcony to Flat 9A.

xvi) In May 2007 the respondent returned to Hong Kong and stayed at Flat 10A for a brief period. He met the applicant at an owners’ meeting. According to Lai, the applicant said to the respondent leakage had stopped.

xvii) On 23 June 2008, typhoon Fengshen (風神) struck Hong Kong. Typhoon signal No. 8 was hoisted from around 11 pm on 24 June until 11 am on 25 June 2008. All typhoon signals were lowered by around 10 pm on 25 June. According to the video taken by the applicant exhibited to the applicant’s 2^nd witness statement and played at the 1^st day of trial, when Fengshen was attacking Hong Kong water was found dripping from ceiling of living room.

xviii) From the photographs exhibited[11], the water seepage became serious during this typhoon. Dripping of water occurred on the ceiling of the living room, areas along the beam in the living room[12], dining room[13] and all the three bedrooms[14].

xix) On 12 July 2008, the applicant took video of Flat 10A from outside the balcony by holding up his video camera from his own balcony. The video showed that in one of the 4 framed doors, the foot had been sealed with tape.

xx) On 16 July 2008, Chan together with 2 other members of the management committee of the incorporated owners inspected Flat 9A to see the extent of water damage. A letter was written on 23 July 2008 to the respondent requesting urgent repair.

xxi) In or about mid-July 2008 Lai affixed plastic sheet to the sliding doors of Flat 10A with a view to block water from being blown into Flat 10A. Plastic sheet was also laid on the floor of Flat 10A’s sitting room[15]. According to letter from Lai to Chan dated 31 July 2008 with photographs enclosed, it was showed that the two sliding doors near the walls were sealed with tapes on all sides while the two in the middle were either sealed with waterproof tapes or covered with plastic sheet[16]. The sealing remained there according to Lai’s evidence, which this tribunal accepted, until September 2011 when the CWT (see below for details) was carried out[17]. After the CWT only the sealing tape in respect of one door left.

xxii) During 4 to 7 August 2008, Typhoon Kammuri (北冕) attacked Hong Kong. Typhoon signal No. 8 was hoisted between 5:40 am until 5:15 pm on 6 August 2008. It is the evidence of the applicant, which this tribunal accepted, that water dripping in Flat 9A occurred again and was serious[18].

xxiii) In 2009, 2010 and 2011, there was no more dripping of water even after heavy rainfall. It is the applicant’s evidence that after the 2 typhoons in 2008, the water seepage problem “did not worsen”[19]. As revealed from photographs taken by the applicant, as at 6 July 2008, at least the ventilation window in the bedroom next to balcony was opened[20] and the one near the bathroom also opened as at 23 August 2008[21]. This tribunal accepted the applicant’s evidence that when water seepage first started in 2003, the living room ceiling was more seriously affected than that of the dining room. The situation continued until 2006 when the dining area had become serious as well. The most serious and impressive water seepage took place in 2008 during the 2 typhoons[22].

xxiv) In September 2009, some respondent’s relatives stayed in Flat 10A for about a month[23].

xxv) As revealed from the photographs, at least since March 2010, concrete on the ceiling of the dining room cracked and spalled concrete fell down, exposing the embedded rusting steel bars.

xxvi) In 2011, renovation to building, including applying a layer waterproofing paint to the roof top, the parapet walls and the exposed floor drainage, was carried out. Repairs to crack on ceiling of Flat 9A balcony near the place where the retractable canvas awning was installed[24], and the underside of Flat 10A planter box[25] were carried out. The works involved breaking off the concrete; applying anti-rusting paint to the steel bar and re-embedding the same by concrete. It was paid by the incorporated owners.

xxvii)In April 2014, there is no water dripping in Flat 9A even during and after heavy downpour when the black rainstorm signal was hoisted. The applicant’s evidence was that after 2008, there was no deterioration to the water leakage on Flat 9A’s ceiling. There have been no more dripping and the affected areas appeared to have all dried up at the date of trial[26]. It is the finding of this tribunal, after reading all Wong’s reports and the video exhibited, that the Flat 9A ceiling has become dried up since the two typhoons incidents aforesaid in 2008.

20. During cross-examination, the applicant admitted during typhoon, water would be found seeping through the gaps between sliding door and rails in Flat 9A but he would dry his place before it was too late. Despite heavy rainfall started on 9 June 2003, he only found water dripping on 11 June 2003. He admitted that water started to seep down about 3 days after raining. This phenomenon also occurred in 2008 when water was found dripping down the ceiling after heavy rainfall[27].

21. The applicant produced several video clips taken of his unit and also Flat 10A in 2008 in the form of a DVD in his written statement. They showed:

i) 30 June and 9 July 2008: water was seen dripping from ceiling around the living room ceiling lamp area and from the top of the living room/bedroom partition wall where there was a beam. Plaster peeled off from swollen wall surface. A basin was placed on TV cabinet to hold water. The Floor was wet with dripped water. Dining room ceiling also suffered from water leakage. The bedroom adjoining the bathroom was also suffering from water seepage;

ii) 10 July 2008: water was seen dripping down the ceiling on the TV cabinet. Buckets were used to hold water, dripping down at rate of about 1 min a drop;

iii) 12 July 2008: the applicant took video of Flat 10A’s balcony by holding up video camera from outside his balcony. He gave conflicting evidence as to when this video clip was taken. It was suggested at the caption of this video file that it was taken on 12 July 2008 and modified on 2 August 2008. He said with hesitation at trial the video was taken on 2 August 2008. On a balance this tribunal accepts it was taken on 12 July 2008 instead of 2 August 2008. It could be seen that one of the 4 doors was sealed with tapes at the foot but not the other three;

iv) 7 August 2008: it was shown the ventilation window of one of the bedrooms which the applicant said to be the master bedroom (in fact it was the room next to the living room)was opened with a gap of about 2 inches facing downward. The ventilation window of the toilet was also open with a gap, though it was shown to be held in position by a metal bar; and

v) 8 August 2008: it was a video of 10A balcony shot from rooftop after the attack of Typhoon Kammuri (北冕)[28]. It could be seen that Flat 10A’s planter box was filled up with water and a bottle was floating on it. It can be seen that the balcony was with a thin layer of water along its wall but was dry further in.

22. After trial on the first day of trial, i.e. 13^th May 2014, Wong and Wu did a joint inspection of Flats 9A and 10A. Video clips taken during this inspection were burnt into two DVD and exhibited as R-1 and R-2 respectively.

Exhibit R-1

23. R-1 was taken by Wu in the evening of 13^th May 2014 of the common part of the building and Flat 9A. It comprised quite a no of clips. In some clips, serious peeling off of certain surface building membrane outside Flat 11A and 10A near the light well area could be seen. Some water pockets were also found on the walls of the roof staircase housing.

24. Inside Flat 9A, spalled concrete and rust steel bars near dining room could be seen. The entire living room ceiling was plagued with peeled off plasters but no spalled concrete could be seen. It is obvious that the living room ceiling was less seriously affected than that of the dining room. The area between the living room and the dining room seemed not much affected, except the part along the partition wall and beam between the bedroom and living room. In one video clip, it was shown that the foot of the living room wall near the balcony had been affected by water damage. The part between the ceiling and foot of this wall was, however, not affected. The entire bathroom ceiling was with spalled concrete but the surface appeared dry. In is noted that the foot of the bathroom walls along the corridor were affected by water damage with plaster peeling off. The upper parts of the same walls near the ceiling, however, were not affected. The ceiling of the bedroom near the bathroom was seriously affected with spalled concrete exposing rusting steel bars. Lots of ceiling plasters fell and trapped at the back of the hifi cabinet in the living room.

Exhibit R-2

25. R-2, comprising 6 clips, was about Flat 10A and the building’s roof top. In some clips, it was shown that there were patches of water on the building roof top and the water tower tops. It was shown that the walls and ceiling of Flat 10A were covered with wallpaper. In one clip, blisters were found on the outside of the building façadefacing Flat 10A’s planter box (cracks of about 6 inches can be seen).

26. Inside Flat 10A, the floor was covered with dirts. From what have been videoed, it would be, in my view, difficult to come to any conclusion that the wooden flooring has been subjected to any flood as suggested, though as revealed from the peeling off of wall paper near the wall skirting particularly near the balcony side, the suggestion that the walls have been subjected to a moist/wet environment could not be ruled out. There were dirts in-between flooring pieces. The wood pieces of the flooring were seen not in a twisted/deformed manner. In one of the 6 clips, it could be seen there was peeling off of wall paper in the living room at the foot of partition wall between the living room and the adjoining bedroom. A cartoon with slight water mark could be seen on the floor. A paper note which was dry was also found trapped between wall cabinet and the wall. This was exhibited as R-4.

27. It could be seen that in the toilet of Flat 10A there was quite a lot of concrete flakes fallen on the floor with one of them as big as human fist. Like Flat 9A, its toilet ceiling was with spalled concrete and exposed rusting steel bar, occupying an area of over 1 foot long and 1 foot wide. In the bedroom next to it, there were minor ceiling wallpaper swellings but they appeared dry. The floor skirting seemed dry. Corridor with very minor leakage from above as can be seen from the swellings in some ceiling wallpaper. The bedroom next to the living room was basically intact.

28. Wu was seen pulling out stuffs from gaps between the bunk bed and the wall in a bedroom in Flat 10A. These stuffs were dry and there was no evidence of flood or water stained found. The wallpaper was not taping off.

Discussion of Wong’s 1^st Report dated 18 August 2008

29. There is no challenge from the respondent of Wong’s expert status. From his resume, Wong obtained a M. Sc. (Construction Project Management) from the Hong Kong University and is a Chartered Surveyor. He is also members of various professional bodies such as corporate member of Hong Kong Institute of Surveyors[29]. He has some 30 years relevant experience and has acted as expert witness in two previous court cases. He was assisted by Modern which carried out scanning of Flat 9A and certain part of the building’s external wall with an IR camera on the same date he inspected Flat 9A. It was Wong who directed Modern the areas to be scanned.

30. Although there were attacks by Miss Wong, counsel for the respondent, as to whether the IR camera has been properly calibrated or operated, after hearing evidence from Yeung who wrote Modern’s reports, this tribunal is satisfied that the IR camera is properly calibrated and operated. Though this tribunal considers, and in fact is surprised, that Wong knew rather little about the theoretical basis of IR technology in detecting moisture, after hearing Yeung this tribunal accepts such technology a reliable way to detect moisture contents represented by the temperature difference shown in an IR thermogram.

31. At trial, Wong said the purpose of investigation was to find out the areas of dampness, the cause of the seepage problem, and the route of water flow. The report was prepared after his only inspection of Flat 9A in the morning of 2 August 2008. He did not inspect Flat 10A as he said he was not allowed to enter. He adopted basically the visual and “handy”[30] inspection methodology and IR scanning.

32. In Modern’s report, 9 sets of photographs of different parts of Flat 9A’s ceiling and the external wall together with the corresponding IR thermograms taken of the same parts were enclosed. The thermograms showed objects with different colours due to their temperature difference, which in turn, are indicative of their moisture contents. Out of the 9 sets of thermograms, 3 of them were marked with arrows with corresponding comments “Localized moisture penetration indicated by blue colour in the thermogram” under the description “Possible Defect”. The rest were with indication “Nil”, meaning there was no water leakage. From the areas surveyed by IR camera and Wong’s descriptions, it is noted dampness marks are mainly found at the following areas:

i) the ceiling surrounding the ceiling light of the living room;

ii) the parts of the ceiling of the living and dining rooms along the beam which formed the upper part of the partition wall of the living room and the adjoining bedroom;  and

iii) the ceiling near the window and the aforesaid beam in the bedroom adjacent to the living room.

33. Basically, no moisture or little traces of dampness was found in other parts of the ceiling, though damages of various degree or dried stained marks, e.g. on the ceiling of bathroom and the adjoining bedroom, probably caused by previous seepage, were revealed. According to photograph and IR thermograms No. 6, quite large stained marks were shown in the ceiling of the bedroom adjoining the bathroom. Yeung’s remarks were there were localized damp patches. However, Wong said in the description that the damped marks in the bedroom next to the bathroom were relatively dried up[31]. Since Wong was present at the inspection and had presumably inspected the affected area by touching as well but Yeung was not. Wong said that the dampness as revealed by IR thermogram revealed little traces of dampness. This tribunal believes despite the survey was carried out after Typhoon Fengshen in June and the heavy rainfall in July 2008[32] when water dripping was most serious, save and except the major areas set out in the preceding paragraph, other ceiling of Flat 9A were not much affected.

34. Wong then interpreted these thermograms. He also made reference to what he was told and shown by the applicant, including the DVD exhibited to the applicant’s statement, and the allegation that the bathroom of Flat 10A had been altered. He then expressed his opinions in §8 of his 1^st report. He came to a firm view that the cause of water seepage was Flat 10A.

35. The parts of his opinions suggesting the source of water leakage coming from Flat 10A were mainly contained in §§8.1 and 8.3. He excluded the possibility of seepage from the external wall of the building in §8.4. In order to do fairness to Wong the main parts of his opinions were repeated below before this tribunal comments on the same:

“8.1 The water dirty marks and dampness in various areas as indicated and as exposed from concrete slab were clearly caused by the continuous leakage from the upper floor. The constant storage of water in the flower pot planter and serious water ponding on the left side of the terrace [probably he was referring to the balcony] (facing street) will lead to overflowing of water towards the living room of Flat 10A. Therefore, the long strip of white plastic sheet along the railing of the slide door as viewed from video is a good proof as the means of material to prevent the water over-flowing to the living room of the defective premises. Thus, it is the major cause of water seepage to the lower floor. …

…

8.3 … as we cannot access to the bath room of Unit A on the 10^th floor, it is difficult to ascertain the specific sources of water leakage to Room 2 from the defective premises. However, the problems are very likely due to defective drainage system, or defective workmanship for the water-proofing works or a combination of various factors. As the seepage problem was happened after the heavy rainy storm in July this year and the seepage was stopped after the storm, in view of the serious of the dampness and its locations, it is reasonable to suspect that the major source of water seepage is due to the defective pipe system from the 10A Unit.[33]

…

8.4 Having checked through the thermography survey (Photo No.9) from the external wall, there was no trace of defective tiles and leakage pipes observed. Therefore, it is unlikely that the water leakage problem is caused from external wall problem.” (Emphasis added)

36. Wong’s conclusion set out in §9 of his report is no more than a repeat of his aforesaid opinions. In addition, Wong said:

“9.3 …To conclude, it is obvious that the water seepage at the living room, Room 1 and at the various spots beneath the upper floor slab are caused by some defective building material and/or water-proofing membrane along the sliding doors of the terrace [probably referring to balcony] adjoining the living room of 10A. The Room 2’s seepage problems are caused by the defective services systems of defective building portions inside the bath room of the 10A Unit. Unless the leaked building materials are replaced, water-proofing membrane strengthened, and the defective drain pipes have been repaired or refurbished, it will create continuous nuisance and raise potential structural danger …”

37. It has to be born in mind what is said by an expert will not automatically be accepted by the tribunal simply because he is an expert. The worth of an expert opinion lies in the bases upon which he founded his opinion, the logics and reasoning of his analysis in applying a theory or his professional knowledge. With respect, Wong’s opinions expressed above are no more than his subjective belief or guesswork. What Wong has concluded in §8.1 above was that water came from Flat 10A, and was caused by water overflowing into its living room from the balcony which in turn was attributed by water overflowing from the blocked planter box. This in fact is the “flood theory” all along put forward by the applicant. Wong did not explain his opinion or why he considered this theory more probable than not on a balance.

38. It appears Wong formed his view in §8.1 after watching the video taken by the applicant[34]. The fact that water accumulated in the planter box does not necessarily follow that it would cause a flood in the balcony with the consequence of overflowing into the living room. Is it not the case when the planter box is blocked water will be withheld, thus reducing instead of increasing the chance of water filling up the balcony[35]. His view in this paragraph is not understood. Wong did no test to verify this theory. Neither was there any theoretical basis for such conclusion. Further, no test had ever been done to see whether or not the balcony drainage worked well. This flood theory will not become more believable simply because it is uttered by Wong.  His opinion is of very little probative value, if any.

39. It was possible that plastic sheet or tapes were affixed to prevent overflowing from occurring again. However, it is only one of the many reasonable inferences that can be drawn and therefore not conclusive. It is equally likely that they were there simply as a preventive measure and as a double safeguard. In fact it is now exactly the respondent’s case that they were there to eliminate the applicant’s alleged possibility. In my view, it would be wrong and illogical to rely on these facts as “good proof” of his overflowing or flood theory unless the hypothesis is tested, e.g. by a spraying test (see further discussion below).

40. Wong’s opinion expressed in §8.3 is, in my view, unsubstantiated and no more than his speculation. Some part appears illogical. How can he forms the views that water leakage to the bedroom adjoining the bathroom[36] or surrounding areas were due to defective drainage system or defective workmanship of waterproofing works or other unspecified grounds of Flat 10A without even inspecting the said premises, not to mention doing any test to verify the same. It has to be born in mind that as at the time of writing Wong’s 1^st report no CWT was carried out. In fact his opinion concerning defective drainage system was proven to be wrong because the CWT administered to Flat 10A’s drainage system on 20 September 2011 showed a negative result[37]. The shower tray of Flat 10A was shown to be waterproofed. Only coloured water applied onto the floor slab of the bathroom in 2011 eventually found its way in the ceiling of Flat 9A bathroom and the adjoining bedroom. Accordingly, if water is to come down from Flat 10A to Flat 9A, the only verified pathway is from Flat 10A’s bathroom floor (not the drainage system or the shower tray as suggested in Wong’s 1^st report). In the circumstances of this case, it would be logical to expect water seepage would become more serious after each shower or washing taking place at the bathroom floor, not in the shower tray. However, Flat 10A had been unoccupied basically since 1997. There were little human activities there. The fact that water seepage was particularly serious after each rainfall did not sit in well with the undisputed fact there was basically no human activities upstairs when the applicant complained that the seepage was most serious, i.e. in 2008 during the typhoons. His opinion that since seepage became serious after heavy rainfall and therefore it related to “defective drainage system” is totally incomprehensible and illogical.

41. Concerning his conclusion to exclude the cause being from the outer wall, it appears he only relied on the 3 thermograms of the building envelop on page 9 of the bundles of photographs enclosed in Modern’s report as well as his visual inspection of Flat 9A. Wong confirmed at trial that the external walls shown in the 3 thermograms at page 9 were the only parts of the external wall scanned by Modern. Wong testified that if water seeped through the outer wall, the inner part of the wall would be wet as well. Further, due to the direction of spread, the part of the ceiling near the outer wall would be more serious than the central part. It was not the case at time of his inspection. The part near the ceiling light appeared most seriously affected.

42. It is noted that thermograms of the external wall of Flat A’s living room has not been taken. Further, without inspection of Flat 10A or 11A, the possibility of water coming down to Flat 9A through external wall of upper floors cannot possibly be ruled out. Wong’s opinion/conclusion as expressed in §8.4 (§9.2 for conclusion) of his report is, in my view, unsafe.

43. Without even inspecting Flat 10A and conducting any scientific test, one wondered how Wong could form the view that the leakage was caused by “defective building materials and/or water-proofing membrane along the sliding door of the balcony…” Neither was he in any position to know there being “defective building portions inside the bath room of 10A”. It is a mere guess. The negative result of the CWT administered to the balcony and drainage system after he wrote his 2^nd report (see below) proves Wong is basically wrong. He was merely speculating.

44. In my opinion, Wong’s 1^st report serves only limited purpose of showing that as at 2 August 2008, certain parts of the ceiling of Flat 9A were still suffering from water seepage and certain parts had become dry. The IR thermographs only help identify the dampness areas but not where the water comes from. The cause of the water leakage remains unidentified. Wong’s 1^st report is totally unhelpful and is of no probative value in identifying the cause of water leakage.

Discussion of Wong’s 2^nd Report dated 28 November 2011[38]

45. Wong prepared a second report on 28 November 2011. The purpose of the report, again, was to find out the sources of water seepage to Flat 9A[39]. This time Wong and staffs of Modern could gain access to Flat 10A in the presence of, inter alia, Lai and Wu. The following methodologies were used:

i) Scanning Flat 9A ceiling using IR camera on 20 September 2011;

ii) Conducting coloured water test (“CWT”) to various spots by Modern at Wong’s direction on 20 September 2011. Colour dyes or florescent solution were applied to:

(a) drainage inlets of various sanitary fitments, balcony and planter box (“drainage test”) on Flat 10A;

(b) ponds built on floor slabs of bathroom and balcony, (“ponding test”) of Flat 10A; and

iii) Visual and physical (i.e. touch by hands) inspection of the water seepage areas by Wong on 28^th February 2011, 20 September and & 7 November 2011. Modern inspected both flats on 20 September 2011 and Flat 9A again on 10 October and 7 November 2011, to follow up on the CWT results.

Visual and IR Inspection

46. There is no dispute that the ceiling of Flat 9A was then suffering from different degree of damages caused by water seepage. Ceiling paint was flaking off and plasters falling off. It was plagued with stained marks. In the ceiling of the dining area concrete had spalled and some had even fallen off, exposing rusting steel bars. Modern used IR camera while Wong by visual inspection and by physical touch. In the report, it is noted that there is a slight discrepancies in the descriptions of whether certain part of the ceiling of Flat 9A were still moist.

47. The findings/comments of Wong and Modern of Flat 9A’s ceiling immediately before the CWT on 20 September 2011 are summarized as follows:

	Part of Flat 9A’s ceiling  surveyed	Findings recorded in Modern’s Report	Wong’s comments
i)	Living room	No recordable moisture penetration	No presence of water dampness
ii)	The two bedrooms adjoining the balcony	No recordable moisture penetration	No penetration was observed. No dampness was found
iii)	Bathroom (part)	No recordable moisture penetration	-
iv)	Toilet inside kitchen	No recordable moisture penetration	No trace of water seepage
v)	Balcony	No recordable moisture penetration	Repair has just been done and therefore mo sign of water seepage
vi)	Bedroom next to bathroom	Insignificant moisture penetration shown by arrow	Dampness was (sic) persisted along the ceiling near partition wall just below the areas of the upper floor bathroom
vii)	Bathroom (part),	Insignificant moisture penetration shown by arrow	Moisture was persisted in the ceiling areas near the master bedroom, [i.e. bedroom next to bathroom] prior to the ponding test in the above floor
viii)	External wall outside living room of Flat As from 9/F to 10/F[40]	Localized de-bonded finished indicated by arrow	There was no dampness as recorded in the living room[41]

48. The above finding tallied with the evidence of the applicant that there was no more water leakage in recent years after the two serious dripping events in 2008. Wong acknowledged this in his 3^rd report dated 6 December 2012, e.g.:

“… As there had been no further water seepage since 2008, the external wall should not relate to 9A’s problem at the moment.”[42]

49. Presumably Wong was informed by the applicant of the above. Wong said all ceiling areas had become dry despite heavy rainfall. When discussing the effect of the debonded external wall surface, Wong had this to say[43]:

“Moreover, the owner of 9A also confirmed that there was no further seepage nor dripping of water in the last few months despite heavy rainfall were recorded in Hong Kong.”

50. It can therefore be inferred that the ceiling of the bathroom and the bedroom adjacent to it was basically dry or in the course of drying as the IR images showed an “insignificant moisture level”. At trial, Yeung explained the moisture contents difference represented by temperature of these spots revealed by the IR thermograms was about 0.1°C or less, which was even less than the resolution of the camera of between 0.5 to 1°C. That was why he said “insignificant moisture level”. In §7.4 of Wong’s 2^nd report, he agreed the IR photographs clearly showed “… many areas had already been dried up except slight dampness still existed in the areas of the bathroom and the master bedroom[44]”. Taking into account of Yeung’s view on IR camera’s resolution, this tribunal considered Wong’s description that moisture/dampness in these ceiling persist requires qualification and not exactly accurate. The tribunal believes the seepage problems have somehow stopped and the ceiling surface was in the course of drying, and is basically not detectable by IR camera.

51. At trial, Wong explained that debonding of the external wall meant that the water-proofing paint on the outside of the external wall had separated itself from the wall surface. He further explained that it did not mean there was water seepage through the debonded area. It was because the area most seriously affected by water seepage should be around the source of water. In the present case, he said, it was the centre of Flat 9A’s ceiling that was most seriously affected by water seepage, he therefore ruled out the possibility of seepage from the external wall. With no disrespect to him, this tribunal had found and stated in §30 above that he had little knowledge about the theoretical basis about IR thermography. Further, since the report was written by Yeung, in light of what he had said (see the following paragraph), Wong’s views on “debonded finish” were not accepted. Yeung’s view should be preferred.

52. Yeung had at least 20 years experience operating IR camera and analyzing thermograms. He was also an Associate Member of Institution of Quarry & Concrete (“AMI Quarry & Concrete”) and Associate Members of the Hong Kong Institute of Construction Engineer (“AMHKI Const. Engineer”). He joined both bodies on recommendation of fellows of these bodies on ground of his vast experience in the trades. Although he did not personally attend the premises for the purpose of scanning, all data collected were passed to him for analysis. The 2 Modern’s reports were written by him. This tribunal accepted that he had received proper training in operating IR camera and had extensive experience since 1990 in operating IR camera and analysing the thermograms taken by it. This tribunal also considers his explanation about the theory of the IR camera convincing and therefore accepted his opinions expressed on the IR thermograms.

53. Yeung was asked what “debonded finish” meant. His reply was that the surface tiles (as against waterproofing paint said by Wong) of the external wall had detached from the concrete surface, though it had not yet fallen off. He added that there were no visible cracks and it could not be said it would lead to water seepage. However, he would strongly recommended further investigation of that part of the debonded area[45]. His aforesaid opinion suggested that the debonding may pose a serious threat of water leakage.

CWT

54. A total of 6 colour dyes were used in the CWT in Flat 10A, 2 in the drainage test 4 the ponding test.

55. For drainage test, water of different colour was applied to:

i) drainage inlets of bathroom shower tray, bathroom floor, bathroom basin,  balcony and planter box; and

ii) Water closets of the bathroom and toilet in the kitchen.

56. For ponding test, coloured or fluorescent-dye water was used to flood the following areas:

i) Bathroom shower tray and enclosing wall;

ii) Bathroom floor;

iii) Balcony floor; and

iv) Planter box.

57. Using IR scanning and visual inspection, Modern did not find any changes to Flat 9A’s ceiling immediately after administering the CWT. However, a dye called Fluorescein Sodium (“FS”), detected using UV lamp, was found in the bathroom ceiling and the adjoining bedroom on 11 October 2011. FS was a dye applied to flood bathroom floor of Flat 10A in the ponding test. Results for other CWT were negative. A further follow-up visit was carried out on 7 November 2011. No dye could be found in the ceiling of balcony, living room and even the bathroom[46].

58. Although at trial Wong was queried as to whether he was present on the 2 follow-up visits on 11 October and 7 November 2011, this tribunal accepted he was present and FS did appear as recorded in his report. In any event the above result clearly showed that FS, carried by water, seeped through the bathroom floor slab of Flat 10A to the ceiling of Flat 9A’s bathroom and the adjoining bedroom.

59. It is worthwhile to repeat the material parts of Wong’s opinions  set out in paragraph 7 of his report:

“7.1 The water dirty marks and the obvious dampness marks spreading around the ceiling of the living and dining room, together with the dampness inside both the bathroom and the master bedroom as well as the bedroom 1 and bedroom 2[47] are obviously caused by the immediate upper floor (i.e. 10A) as shown in Attachment 2 Appendix B Page 1.

…

7.3 In reference to Attachment 1 Photo1.27, 1.28 and 1.29 taken on 28-2-2011, the living room conditions of 10A seemed still messy. The wall paper was loosened and the dampness marks of the flooring could still be detected. In Photo 1.29, the skirting of the wall showed clearly the marks left by water damages. Further, it was observed that water marks were left along the floor frame of the bathroom along with darkish flooring in the corridor. Similarly, Photos 1.30, 1.31 and 1.32 taken on 20-9-2011 showed that the sides of many pieces of parquet floor were found with dirt, mould, darkened and even deformed. This phenomenon was likely arisen due to the flooding of floor happened sometimes ago.

7.4 … the persistence of dampness observed in some areas implied that the moisture was still trapped inside the slab. Thus it was reasonable to assume that the defective flooring in 10A would allow water to seep into the lower floor from weak points of the slab. …

…

7.7 In the ponding and drainage tests of the planter on 10A, there was no sign of leakage. However, the overflow of water and blockage of drain in the terrace[48] during heavy rainfall might divert the water into the living and dining room. Alternatively, rainwater during typhoons would blow into the living areas if the sliding doors were not closed tightly or defective especially no one would live in the defective premises [Flat 10A]. The placing of plastic sheets on both sides of the sliding door as shown in Attachment 1 Photo 1.28 were (sic) the evidence of preventive measures of water penetration.”

60. The conclusion of Wong in §8 of his report follows his opinions expressed in §7.

61. CWT is a simple and direct test and not subject to conditions that require stringent monitoring. Although Miss Wong has attempted to attack the reliability of the CWT because it was only administered by a technician of Modern, not by Wong or Yeung, this tribunal considers that despite her attempts the results are still reliable. The fact that FS was found in the ceiling of bathroom and the adjacent bedroom in Flat 9A demonstrated conclusively there was a water pathway through which water can seep to certain part of Flat 9A’s ceiling. There is no dispute that for bathroom floor, there should be a water-proofing membrane installed. The CWT demonstrated that this membrane beneath bathroom of Flat 10A has been damaged.

62. However, FS was not found in other part of the ceiling of Flat 9A. Neither could any other dye be found in any part of 9A’s ceiling. There is no evidence supporting the water seeped through Flat 10A’s bathroom had spread to other parts of Flat 9A’s ceiling except that of its bathroom and the adjacent bedroom. Such assertion is not supported by the CWT result. This tribunal therefore cannot follow the logic and reasoning of Wong’s opinion expressed in §7.1 of his 2^nd report that the “dampness marks” in the ceiling of other areas are caused by the water leaked from the bathroom floor of Flat 10A. Since water seepage became serious during rainy days, the factual circumstances of this case seem to suggest rainwater, rather than water from human activities, being the source of water for the seepage.

63. It is common ground that concrete slabs between floors are permeable to water, and water-proofing membranes were only installed between the part of slab where water is expected to be accumulated or used, such as that of a toilet/bathroom. It is fair to say from what Wong had observed when he had an opportunity to inspect the inside of Flat 10A, he came to the conclusion expressed in the last part of §7.3. This tribunal would do the weighing exercise in the later part of the decision taking into consideration of all the evidence as a whole.

64. Wong supplemented his 2^nd report by producing a photograph (exhibit A-6) which was the same as Photo 1.29 of Attachment 1 of Wong’s 2^nd report. He said, and this tribunal accepted, it was taken by him on 28 February 2011. It was shown that certain parts at the foot of the floor skirting were of lighter colour, wall papers above the skirting peeled off and plaster powdered off and fell on the floor. Wong said at trial that wood skirting ever soaked in water would appear to be of lighter colour because surface paint would peel off, exposing the original colour of wood which was lighter in colour. However, if the soaking had taken place long enough, it would become darker instead. He was of the view the soaking in the present case might have lasted for about 1 to 2 days and taken place about a year ago before this kind of damage could be produced. He added capillary action pulling water up the skirting could not produce the sort of damage shown in exhibit A-6[49].

65. This tribunal has reservation to accept Wong’s “top-up” opinions expressed in the preceding paragraph. Exhibit A-6 does not show signs of paint peeling off from the wooden skirting. Neither had these opinions been mentioned in any part of his reports. This tribunal tends to believe that the part of Flat 10A shown in exhibits A-6 and in fact the 2 walls of the living room[50] were or had been affected by a moist environment; and the lower part of the walls more seriously affected than the upper. The flooring near the balcony as revealed in Photos 1.27 and 1.28 appear to be of darker colour, thus may lend support to the applicant’s flood theory. However, this tribunal is unable to accept it having been flooded or ever soaked/covered by water on a balance. It is because logically, if the living room of Flat 10A had ever been flooded/soaked/covered by water, the wooden floor near the balcony where flood had occurred was likely to be affected most. In addition, all wooden boards of the affected area are expected to be affected to the same extent. They would therefore be of the same or more-or-less the same dark colour. However, judging from video R-2 and Photos 1.30, 1.31 and 1.32 in the 2^nd report which shows co-existence of both dark and light-coloured flooring boards following the parquet pattern, without more this tribunal cannot on a balance accept there having been flood(s) to any extent in Flat 10A as suggested. The dark colour skirting, powdering plaster may be caused by a moist environment as a result of water penetrating from the outside wall rather than water flooding the inside flooring. It is because in order to cause the serious damage now suffered by the applicant, the amount of water entering Flat 10A would be significant. It will therefore very likely than not that Flat 10A’s wooden flooring would be affected in a significant way, which is not the case here. It is to be remembered that if water leaks through the external wall which is a common part, any resulting damage caused will not be the respondent’s responsibility.

66. Wong also referred to Photos 1.31 and 1.32 taken on 20 September 2011 of Flat 10A floor. He said teak pieces within a pattern of the parquet flooring had started to separate. Further, he said the powder-like substances on the flooring surface were in fact sand and cement which were originally beneath the wooden flooring but were brought up from the bottom by water. He said it was evidence of there having been a flood.

67. First of all, this tribunal do not find from the video and the photographs that wooden boards have separated. Secondly, with respect, this tribunal find Wong’s theory not convincing as common sense suggests that sand, cement or like substances, which are heavier than water, will sink instead of float on water. Wong could not give a satisfactory explanation on this point at trial. Further, during cross-examination he agreed that the teak pieces were interlocked by grooves and tongues. With such mechanism in place it would be difficult for substances originally situated beneath to be brought up to the flooring surface. Sand and cements on the surface being good evidence of flood has never been mentioned in his 2^nd report when he referred to the photos. If it were good and important clue of a flood one wonders why Wong had left it out in his report. This tribunal finds Wong’s opinions about sand and cement floating as evidence of flood difficult to accept.

68. Wong also referred to Photo 1.16 which showed darkened parquet floor near the door sill of Flat 10A bathroom. The foot of the wooden door frame of the said bathroom also showed slight signs of water damage. This tribunal accepts that certain wooden boards near to the door sill are of darker colour indicative of having been affected by water. However, the spot in question is the bathroom entrance which is naturally a moist or wet area. Taking into consideration the overall conditions of the surrounding teakwood flooring, this tribunal does not consider the signs indicative of any flood as alleged.

69. §7.7 of Wong’s 2^nd report again, relates to the applicant’s flood theory. However, as said above, to what extent the blockage of the planter box and floor drainage, if there really was, can cause overflow of water into the living area of Flat 10A has never been investigated. It remains the applicant’s unverified suspected cause. In fact CWT had applied to the balcony and planter box drainage[51]. Neither Modern nor Wong had ever reported that the drainage had been blocked or there was a flow problem. In the tribunal’s judgment, for reasons elaborated in §§93-94 below, the cause of overflowing into the balcony because of blockage of its drainage or that of the planter box is unsubstantiated.

70. Further, no simulating test has ever been conducted by Wong, such as spraying the balcony doors and the gaps in-between from outside with water, in order to confirm one of his suspicions that water is forced through gaps between balcony doors during typhoon. This tribunal considers connecting to water supply from Flat 9A below for the purpose of the test not a real problem. Wong, though held out as expert, did nothing to verify his theories and suspicions. Accordingly, his suspicions and theories are no different from those held by an ordinary man in the street. Except the part prepared by Modern on IR scanning and the CWT, I do not find Wong’s 2^nd report useful.

Discussion of Wong’s 3^rd Report dated 6 December 2012

71. Wong’s 3^rd report was prepared, according to him, to review his two previous reports in light of Wu’s report dated 3 October 2012 which suggested a different cause of water seepage. Wu was of the view rain water came down from building roof and external wall because of the defective water-proofing membrane, and seeped down to Flat 9A’s ceiling. After perusal of Wong’s 3^rd report, this tribunal considers it no more than a repeat of his previous views set out in a different format.

72. Wong basically repeated his conclusion as discussed above, save and except in §7.2, where he suggested for the first time that there were more than one source of  seepage, probably with the benefit of the CWT, and they changed with time:

“As a whole, it seems that the causes of water seepage to Flat 9A is (sic) varied at different times and sources. The initial seepage area at the dining room is likely due to the seepage from the bathroom area and aggravated by the further water flooding in summer of 2008.”

73. This tribunal does not wish to repeat its analysis and observation in the preceding paragraphs. However, the conclusion that water in the dining room of Flat 9A is sourced from the bathroom of Flat 10A is not supported by CWT. Only FS, which was applied to the bathroom floor of Flat 10A, was found in the ceiling of the bathroom and the adjoining bedroom of Flat 9A. None of the 6 dyes used in the CWT found their ways to the dining room. His aforesaid conclusion is totally unsupported by the CWT result.

74. In light of Wong’s revised opinion suggesting the causes of seepage changed with time, Wong was heavily cross-examined at trial. It is understandable as Flat 10A had been left vacant since 1997 save and except for a short period between mid-2005 and early 2007. Wong said at trial that initially, water leaked from the toilet cistern onto the bathroom of Flat 10A. Flooding in 2008 aggravated the seepage.

Seepage from the Bathroom

75. During cross-examination, Wong particularly referred to Photo 1.12 annexed to his 2^nd report which he took on 28 February 2011 during his inspection of Flat 10A. He said he found the incoming flush water pipe to the toilet cistern wet and dripping. There was water and rust stain marks on the floor and wall. The screws fastening the toilet bowl to the wall was rusty. He was of the views the marks between the wall tiles, which was of about a few inches above the bathroom floor, were evidence of flood in the bathroom.  

76. After hearing Wong’s evidence in the cross-examination concerning source being flush water dripping on the floor, this tribunal was unable to accept his evidence on a balance:

i) He took the view that the stain marks at the foot of the wall tiles in the bathroom was good evidence of there having a flood in the bathroom. With a view to demonstrate his views, he particularly drew the tribunal’s attention to Photo 1.13 annexed to his 2^nd report taken on 20 September 2011 prior to the CWT. He added that in order for the stains to develop to the extent as shown in the photo, the flood would be as high as up to 1 to 2 cm above the washroom floor. He was of the view that the flood was caused by seawater normally used in Hong Kong for toilet flushing. He said although the bathroom floor drainage was found not blocked in the CWT, the flow of the drain in fact was not good. However, he had made a mistake which he later admitted. Photo 1.13 does not show the bathroom floor. It is a photo of the shower tray. He wrongly identified the drainage inlet of the shower tray shown in Photo 1.13 to be that of the bathroom! The tile stains in Photo 1.13 are therefore caused by use of the shower, and has nothing to do with flush water. He based on a wrong photo and developed his theory for the first time as the trial went along. His opinion of flood of 1 to 2 cm by flush water leaked from the cistern or the incoming pipe causing the stain marks he particularly referred to, and confirmed to be a wrong identification, is unconvincing and unsafe.

ii) Wong insisted when he took Photos 1.11 and 1.12 of his 2^nd report while inspecting Flat 10A’s bathroom on 28 February 2011, the floor was wet and the pipe dripping. He took the view the two photos showed there was water on the floor. Since the photos are not of superb quality, one could argue water being shown on the bathroom floor in the photos. If there were, it would be a very important piece of evidence in support of the applicant’s case. This important piece of evidence should have been disclosed in his 2^nd report the sole purpose of which is to find out the causes of water leakage. He was commissioned to look for exactly evidence of this sort. However, nothing was said by him about his said observation relating to the said photos in his 2^nd and 3^rd reports. Even when he was describing the said two photos he said nothing of this sort in the captions. Quite the contrary, when he discussed the possible causes of water seepage in his 2^nd report, he had this to say in §6.3 under the head of “Defective Water Supply”:

[52]“… When inspected before ponding tests, all the surface of the pipes, wall and the floor were dry inside the bathroom of 10A except mould, dirt and water marks discovered as shown in Attachment 1 Photo 1.13. It is unlikely that the seepage problem was due to defective water supply.” (Emphasis added)

His explanation at trial, in a nutshell, was that he had made a mistake. He added that in his 2^nd report he was only referring to fresh water supply and not flush water pipe. To do Wong justice, one may say that when writing the above he was referring to the bathroom condition as at 20 September 2011. However, it would be difficult to understand why he left out his important observation about dripping cistern and its pipe in all his reports, and only broke out the same for the first time at trial. Although this tribunal accepts that the bathroom condition of Flat 10A as at Wong’s visit on 28 February 2011 quite messy, on an overall assessment of his evidence this tribunal does not accept there were dripping of flushing pipe/cistern and the floor being wet during that visit.

The Joint Report of Wong and Wu dated 19 June 2013

77. This joint report was made to assess the hypothesis of Wu that the source of water in Flat 9A was from the roof. Wong’s view, after inspection of the roof, was that Wu’s opinion was unsubstantiated by any objective test. The parties simply repeated their polarized views in the joint report. I do not find this report helpful in shedding any light on the cause of water seepage.

Wu’s Reports and his Opinion

78. Wu’s expert status was not challenged. He had appeared once as expert in the small claims tribunal, district court and this tribunal as expert witness in water leakage claims. However, as stated above, the worth of his opinion lies entirely in his reasoning and analysis. As such, the fact that his status not being challenged does not mean his theory and opinion will be automatically accepted by the tribunal.

79. Wu’s theory that water seeped through the outer wall, the parapet walls and the roof, and eventually found its way to the roof of Flat 9A was not tested. Basically he came to his theory by visual inspection of the building’s condition. After reading documents and statements of evidence he said he came to his hypothesis by applying his “building surveying professional knowledge”. Although his hypothesis is possible as a matter of theory, it is an unverified one and remains one of the many possibilities. He even did not see fit to inspect other upper floor units to find out whether there might be circumstantial evidence supporting his theory. Furthermore, according to him, even if extensive water ponding tests were to be carried out, a negative result did not mean his theory unsubstantiated. It is because, he said, a waterproofing membrane was applied in 2011 to the building’s roof and outer walls which might have remedied the defects attributed to the leakage took place in 2003, 2006 and 2008.

80. He accepted he had no idea as to whether there had been defects on the outer wall of Flat 9A. He accepted that during his first visit on 30^th May 2012, he could see no sign of water leakage from the outside of Flat 9A into its inside.

81. There are two areas of Wu’s evidence which are worth mentioning. Firstly, he said pre-fabricated timber flooring, such as that of Flat 10A’s flooring, comprised of pieces that were interlocked by grooves and tongues. They were of low moisture content when manufactured. If they had been soaked in water because of a flood as suggested by the applicant, individual member would contract and twist after drying up. Since there was an interlocking mechanism in place, the whole flooring would bulge up. This was an irreversible change and would persist once onset. However, he said this did not occur to the timber flooring in Flat 10A during his 2 visits on 30^th May and 26^th September 2012. He said a yellow rain signal was hoisted on 24^th September 2012 and he deliberately asked for an inspection 2 days later in order to find out if there was anything unusual. He noted everything remained the same for the two visits.

82. I accept what he had seen on the 2 visits as facts. I also accept his explanation on the effect of water damage on timber flooring in this respect.

83. The second issue is this. He was of the view that the moisture meter test method was to be preferred to IR thermography. After hearing his and Mr. Yeung’s explanation, I do not accept his opinion in this respect. Firstly, he did not appear to me to have much knowledge about the theory based on which IR thermography could help detect moisture. He had never received any training nor had any experience operating any IR camera. The “equilibrium thermal theory” explained by him when cross-examined was totally unconvincing. Secondly, in moisture meter test the concrete surface would be touched by two electrodes. A reading indicative of the moisture contents would be shown. However, the limitation is that a rather tiny spot was tested. Accordingly, the fact that reading fell within the dry scale is not conclusive of there being no water leakage in other part of a large concrete slab unless a very extensive investigation of the entire slab was carried out, and readings joined by contours.

84. Subject to what this tribunal has expressly accepted aforesaid, with the greatest respect to Wu, I do not find his reports, though lengthy and voluminous, useful and helpful at all in ascertaining the source of water seepage to Flat 9A.

Discussion of the Overall Evidence

85. As analysed above save as aforesaid, I do not consider the opinions expressed by Wong, Yeung and Wu helpful in identifying the cause and source of water leakage.

86. The CWT established a pathway through which water can travel from the floor of Flat 10A’s bathroom (not its shower tray or drainage pipes) to the ceiling of Flat 9A’s bathroom and the adjoining bedroom. No coloured water applied to other part of Flat 10A was found in Flat A except aforesaid. Accordingly, water found in other part of Flat 9A’s ceiling, e.g. that of the living and dining room cannot be said to be connected with this pathway. However, given the undisputed fact that Flat 10A has basically been unoccupied since 1997 and the bathroom was not used most of the time; that leakage in Flat 9A first started in the sitting room and dining room in or about 2003 but not the bathroom and the adjoining bedroom; and that the problem has become more serious after heavy rainfall, this tribunal cannot, on a balance of probability, accept that the damages now suffered by Flat 9A was caused by water leaked through this pathway.

87. Given the fact that water seepage first occurred in the living room and dining room which apparently had no connection with the pathway found by the CWT, Wong’s views that the initial water seepage was caused by seepage through the bathroom floor was neither supported by any scientific test nor sitting in well with evidence[53].

88. Further there was no compliant of any water seepage in the bathroom and the adjoining bedroom in 2005 when Flat 10A was occupied for a short while by the defendant’s niece[54]. Presumably she would be using the bathroom upstairs. It can therefore be inferred that either the use was in such a manner water did not accumulate on the bathroom floor where the waterproofing membrane had already been damaged, or that the membrane was then still intact.

89. The applicant had shown photographs that the ventilation window of the bathroom was always lifted open. It was a window opened downward. It can be seen that the window was protected outside with a concrete slab protruding out for a few inches purposely built to stop rain from entering. Further, it is not in dispute that the ventilation window was next to the shower tray which together with its drainage inlet have been shown to be leak-proof. Any rain water entering the bathroom would fall on the tray and be drained away. In the circumstances, I do not believe rainwater can enter the washroom as alleged, or can enter in sufficient amount as to causing any damage, not to mention the extensive damage now suffered by the applicant.

90. The applicant had repeated time and again, no matter in his written statement, video and oral testimony in court that the water seepage in his flat was caused by flooding of Flat 10A due to (i) overflowing of water from the balcony caused by overflowing of water from its planter box; and/or (ii) rainwater entering Flat 10A through the gaps of the balcony doors because they were not properly closed as a result of the lack of attention on the part of the respondent.

91. Both the applicant and Wong had tried to assert that judging from the condition of wooden flooring of Flat 10A together with the surrounding walls, it could be inferred that there must have been flooding taken place. Wong has gone so far as suggesting that at least there had been a flood taken place about 1 year before the date of the photo in 2011 lasting for 1 to 2 days[55]. This tribunal has taken the opportunity to discuss the probability of flooding as revealed by the conditions of the wooden flooring and the walls of Flat 10A in §§64 to 68 above and does not wish to repeat the same here save and except to add the following:

i) If there were a flood one year before 2011 February, i.e. in early 2010 or 2009 the latest, lasting for 1 to 2 days, presumably Flat 9A should have been seriously affected in 2009 or 2010. However, as a matter of evidence, after the 2008 typhoons when the applicant said the water seepage was most serious, there had been no reported water dripping thereafter. According to the applicant’s and Wong’s evidence, the affected areas have basically dried up. Wong’s suggestion of flood in 2009 or 2010 is not supported by the applicant’s own evidence;

ii) This tribunal has accepted Wu’s evidence that for wooden flooring comprised of small boards interlocked by the grooves and tongues like that of Flat 10A, once it has been soaked with water, the flooring will twist and turn when drying up, resulting in the flooring as a whole bulging up and deforms. In the present case, although this tribunal heard evidence of Chan that there had been cupping of the teak boards when he visited Flat 10A[56] in 2006, as neither bulging up nor twisting/deforming of the wooden flooring can be observed in the video R-2[57], on a balance this tribunal does not accept there has been flooding of any extent in Flat 10A causing seepage through the floor slab onto Flat 9A’s ceiling. As observed in preceding paragraphs, this tribunal accepts the flooring near the balcony may have been subject to a moist environment. In the tribunal’s judgment, there is nothing unusual, and in fact quite natural, as the living room, which was only separated from outside by the 4 sliding doors, are expected to be more susceptible to weather condition. Further, if the ceiling of 9A was wet, the wooden flooring above would inevitably be affected to certain extent; and

iii) The applicant has suggested that the opening up of the ventilation window in the bedroom may cause rain entering Flat 10A. I have seen the photos and the video. The ventilation windows are located at the top of the window opened downward. Like the windows in the bathroom, all are protected outside with a concrete projection of a few inches designed to stop rain from entering. I do not believe opening of the ventilation windows to the extent as shown will cause any or large amount of rain entering the window, causing the alleged flood to Flat 10A resulting in seepage to Flat 9A.

92. Suffice it to say that judging from the walls and flooring condition of Flat 10A, this tribunal cannot come to a conclusion on a balance that water has ever entered into it, leading to the water seepage now being complained of by the applicant.

93. The applicant suggested that water overflows into the living room of Flat 10A from its balcony because water in the planter box overflows. In the tribunal’s judgment, it is the applicant’s mere speculation. The only evidence relied on by the applicant seemed to be his video showing the planter box being filled up with water with a bottle floating. However, it was shown in the same video that the balcony was not filled up. In fact, the balcony appeared dry except the part near its surrounding wall where a thin film of water can be seen. No water was found accumulating in the balcony. It shows the balcony drainage is working well. As discussed above, there has been no investigation of the Flat 10A’s balcony drainage. Since CWT has been administered to its drainage inlet in 2011 and there had been no adverse comments by Wong in his report, presumably the balcony drainage is working. If it is working, whether or not the planter box drainage was blocked or sealed is immaterial. Any water falling onto the balcony from the planter box will be drained away. In fact, as discussed above, the keeping of certain water in the planter box will result in less water falling onto the balcony, thus reducing instead of increasing the chance of overflowing into the balcony. The overflowing or flood theory is, on a balance, not supported by evidence.

94. It has to be remembered that despite the re-making of the water-proofing membrane in Flat 10A’s balcony in January 2007, water seepage continued and had become more serious in 2008. CWT in 2011 showed that neither the planter box, the balcony nor their respective drainage were the source of water leakage. Accordingly, even if water were to accumulate in the planter box or balcony, they are not the causes of the water seepage in Flat 9A.

95. The sealing of balcony doors gaps and covering the doors with large plastic sheets in 2008 may lead one to associate the measures to the subsequent stoppage of leakage. According to evidence, the sealing might have started on or about 12 July 2008[58]. It is the finding of the tribunal that by end of July 2008 the latest, all doors were sealed and covered with plastic sheets[59]. If, as a matter of fact, water seepage had since stopped, it could be inferred there being causation between the measures taken and the stoppage of water seepage. One the other hand, once the sealing is removed, seepage is expected to recur again.

96. However, the facts of this case do not support the hypothesis. According to the applicant’s own evidence, there were serious water drippings in Flat 9A between 4 and 7 August 2008 when Typhoon Kammuri struck Hong Kong[60]. This happened after the heavy sealing of doors by end of July 2008. If the sealing could help stop subsequent seepage, it would have been effective in stopping the Kammuri attack as well. It did not.

97. It is accepted by this tribunal that the sealing was basically removed in September 2011 after the CWT[61]. It is shown in the video taken by Wu on the first day of trial that basically there was no sealing of balcony doors by tapes. However, according to the information of the Hong Kong Observatory annexed to Wu’s report[62], between January and October 2012, yellow and red rainstorm signals were hoisted for respectively 19 and 2 times. Further, during the same period Hong Kong was struck by 5 typhoons, with signals No. 3 hoisted in 2 attacks and No. 8 or above for the 3 other attacks. During the attack of one typhoon in July 2012, typhoon signal Nos. 8, 9 and 10 were hoisted. All the above took place at a time when the sealing affixed to Flat 10A’s balcony doors had been removed. There have been no reported drippings or water seepage to Flat 9A as a matter of evidence. Quite the contrary, the evidence suggests that the previously affected areas are in the course of drying. The phenomena are difficult to be explained by the absence or presence of the plastic sealing.

98. Further, a few days before trial Hong Kong was struck with heavy downpour with black storm signal hoisted, resulting in serious water damage and flooding in some of our large shopping arcades. The applicant was particularly asked whether there was any water seepage in Flat 9A. His answer was in the negative[63]. The above suggested water seepage in Flat 9A had nothing to do with the sealing of the doors. Despite their sealing by latest July 2008, there was still serious water seepage the following month. On the other hand, even the sealing was removed, Flat 9A appears unaffected despite heavy downpours and typhoons. 

99. By reasons of the aforesaid, on a balance this tribunal cannot come to a conclusion that the water seepage in Flat 9A is caused by water entering Flat 10A because the balcony doors not closed or not properly closed.

100. Further, by reasons of my analyses in §§75, 76, 86 to 89 above, this tribunal does not believe that the water seepage problem in Flat 9A was caused in any way by water going through the aforesaid proven pathway from Flat 10A’s bathroom floor to the ceiling of bathroom and the adjoining bedroom in Flat 9A. It is because this tribunal did not believe there having been any leakage from the cistern or flushing pipe. Neither was anyone living in Flat 10A for the past 17 years, save and except for the brief periods aforementioned, during which occasional wettings of the washroom floor (as against the shower tray) with an intact and working floor drainage is expected to have no or minimal effect on the damages now happened to Flat 9A.

101. In coming to the conclusion in the preceding paragraph, the tribunal also note the following facts found by Wong as recorded in his 1^st report in August 2008[64]:

“5.9 After opening the false ceiling of the bath room of the subject premises [Flat 9A], it was observed that the surface of the ceiling was relatively dry and there was no sign of dampness. It is also confirmed by the thermography scanning at Photo 8.”

102. The aforesaid shows at the time of inspection by Wong on 2 August 2008, the ceiling of the bathroom of Flat 9A was basically unaffected. Had there been water going through the established pathway at the time of inspection, the washroom ceiling would have been stained or affected to a certain extent then.

103. It is the respondent’s evidence that between mid-2005 and early 2007 Flat 10A was occupied by his niece. It can be said that his niece, when using the bathroom during her stay, might inevitably cause water spilling on the bathroom floor, flowing downstairs through the said pathway and caused damage to Flat 9A’s bathroom and the adjoining bedroom. The applicant’s own evidence, however, does not appear to support this. Although he complained water damage continued in the living room and bedroom (as to which one he did not specify), he made no mention of any damage to the bathroom ceiling[65]. Presumably the bathroom was not affected. Had water then travelled through the said pathway to the bedroom adjoining the bathroom, it would have very likely affected the washroom ceiling as well because they appeared to be along the same water pathway. Further, his evidence was that the seepage became more serious after rainfall. The seepage complained of therefore is unlikely to be originated from water arising from daily use of the bathroom. Although the applicant tried to exhibit a number of photographs to support his water damage claims in 2006, from the marking/dating on these pictures, they were all taken between 2008 and 2011. Neither of them were taken in 2006 nor related to the bathroom. In the circumstances, it will be unlikely that the water damages now suffered by the applicant, even though fluorescent dye could be found at 2 spots, are caused by water from use of the bathroom in Flat 10A during the niece’s stay.

104. From the available evidence, it is quite likely the source of water is rainwater because Flat 9A particularly suffered seriously after rainfall and typhoon. However, there is no evidence suggesting on a balance of probability that rainwater goes to Flat 9A through Flat 10A because the respondent has breached its duties under the law or DMC. Although I have sympathy with the applicant whose flat has been seriously damaged by water leakage, he has failed to discharge his burden of proving that water originated from Flat 10A or seeped into Flat 10A because of the respondent’s negligence or breach of duties as claimed. 

105. There is also no evidence on whether the damage to the waterproofing membrane of Flat 10A’s bathroom was a natural deteriorating process for which the respondent is obviously liable for its maintenance, or it was caused by some other external factors associated with Flat 9A’s damages making the respondent a victim as well. However, the DMC provides:

“13. Each Owner shall maintain in good repair and condition of his Unit to the satisfaction of the Management Committee and in such a manner as to avoid any loss damage nuisance or annoyance to the Owners or occupiers of any other part or parts of the Building.

14. No Owner shall use or permit or suffer his Unit to be used for any illegal or immoral purpose nor will he do cause or permit of suffer to be done any act or thing which may be or become a nuisance or annoyance to or cause damage to the other Owners or occupiers for the time being.”

106. Accordingly, no matter who has caused damage to the waterproofing membrane in Flat 10A’s washroom, the respondent has a duty under the DMC to repair it in order to avoid any loss damage nuisance or annoyance to the applicant or other owners if Flat 10A may be occupied again in future. Although all other claims of the applicant will be dismissed, this tribunal will make an order against the respondent to repair the waterproofing membrane of washroom of Flat 10A pursuant to the aforesaid provisions of the DMC.

Conclusion and Orders

107. By reasons of what has been discussed in the preceding paragraphs, this tribunal makes the following orders:

i) The respondent do reinstate a waterproofing membrane Flat 10A’s bathroom so as to prevent any water seepage from it to Flat 9A; and

ii) All other claims of the applicant are dismissed.

108. In the present application, apparently all the applicant’s claims are basically unsuccessful and evidence not accepted. In view a seepage pathway has in any event been found and it is the respondent who has the responsibility to repair, this tribunal considers, and do make an order nisi now that the applicant do bear 80% of the respondent’s costs of the application on the District Court scale, including all costs reserved, with certificate for counsel, such order be made absolute in 14 days if no application is made to have this costs order varied.