LI CHING HAR AND ANOTHER v. WONG SUK KIT

DCCJ 4566/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4566 OF 2014

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

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

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

DECISION

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

1.  This is a suspected water seepage case involving two units in a multi-storey building in Block A, Kin Lee Building, 138-146 Jaffe Road, Wan Chai, Hong Kong (“Building”). The plaintiffs are the owners of Room 1 of 13/F of the Building (“Lower Unit”) while the defendant is the owner of Room 1 of 14/F of the Building (“Upper Unit”). The place of the alleged seepage is the ceiling of the bathroom area of the Lower Unit.

2.  The plaintiffs first complained about the seepage to the Joint Office of the Building Department and the Food &Environmental Hygiene Department (“Joint Office”) in February 2009.  A report dated 26 August 2009 commissioned by the Joint Office concluded that the source of water seepage was defective floor slab of the Upper Unit. The defendant took remedial action afterwards and the Joint Office found no sign of water seepage in a later inspection on 10 September 2013.

3.  From November 2014 to January 2015, the plaintiffs renovated the Lower Unit, including the bathroom.  Upon noticing the re-occurrence of the water seepage problem, the plaintiffs appointed Smart Joy Surveying Consultants Limited which produced a report dated 27 November 2015, pointing to the Upper Unit as the main cause of the second water seepage.

4.  The plaintiffs commenced the present action on 28 November 2014.  There is a bit of procedural history that brings the parties to this stage of proceedings.  Expert directions were first given on 8 July 2016, with leave granted for parties to adduce expert evidence on liability and quantum, limited to one water leakage expert for each party.  Mr Stewart Wong (“Wong”) was named as the defendant’s expert.

5.  On 25 August 2016, extension of time was granted for the parties to exchange their respective expert reports by 19 September 2016 and the parties were directed to lodge a joint expert report on or before 6 December 2016.  While the plaintiffs’ expert report was ready by the deadline, the defendant’s expert report was not.

6.  A joint preliminary inspection was carried out by the experts on 23 December 2016.  A without prejudice meeting was held between the experts and it was expressed that certain tests would have to be conducted at the Upper Unit, with the plaintiffs’ expert to prepare a test plan for consideration and agreement by the defendant’s expert for conducting tests.

7.  On 6 January 2017, a letter was sent by the plaintiffs’ solicitors to Messrs. Edmund Cheung & Co. (“ECC”), the then solicitors of the defendant, listing a test plan, including water ponding test and dye test of soil and waste pipes at the bathroom of the Upper Unit.  The request of conducting tests was rejected by the defendant via the letters of ECC dated 10 and 13 January 2017.  The defendant took the view that the tests were not necessary, and the findings and opinions of the experts concerning the source of the alleged water seepage could be stated in the joint report with reasons and to be determined by the Court in trial.

8.  The plaintiffs took out a summons dated 18 January 2017 for an order to enter into the Upper Unit to conduct the test.  The defendant consented to allowing the plaintiffs’ expert access in February 2017 to conduct the tests but later refused to allow the plaintiffs’ expert to enter.  After further rounds of correspondence between the parties, ECC wrote to inform the plaintiffs that the defendant would let the plaintiffs’ expert carry out tests on 30 June 2017. 

9.  On 29 June 2017, Raymond Chan Solicitors (“RCS”), the defendant’s new solicitors, asked to postpone the appointment to conduct test on the basis that they had just been instructed to replace their predecessor.  The plaintiffs’ expert attended the Upper Unit anyway on 30 June 2017 but was refused entry. 

10.  The plaintiffs took out a summons for an unless order to enter into the Upper Unit for carrying out tests.  The unless order was granted on 18 August 2017.  The defendant was ordered to give access to the plaintiffs’ expert within 14 days and to pay costs on an indemnity basis.  The time for exchanging expert reports, conducting without prejudice meetings and lodging a joint expert report was extended to September and October 2017.  The plaintiffs’ expert was finally able to carry out tests at the Upper Unit on 1 September 2017.

11.  The defendant had made an application for change of expert to a Mr Cheng Yan Kee on 15 August 2017.  This summons was withdrawn by the defendant at the hearing on 18 August 2017 with costs to the plaintiffs.

12.  On 13 September 2017, the defendant took out a second summons to replace Wong, this time by Mr Ho Tong Yam (“Ho”) as her expert (“Expert Summons”).  This Expert Summons was dismissed on 29 September 2017 by the Master hearing it.  By a Notice of Appeal filed on 12 October 2017, the defendant appeals against the Order of the Master of 29 September 2017.  This is the hearing of the appeal.

WONG’S REPORT

13.  After the joint inspection by the experts on 23 December 2016, Wong prepared a report dated 22 March 2017 (“Wong’s Report”).  In the Wong’s Report, the findings that Wong had from the joint inspection were recorded.  Wong specifically commented in paragraph (7) that water ponding tests at two locations would be necessary to conclude the origins and cause of water seepage that led to dampening and damage of the ceiling of the Lower Unit.  The need for such tests is repeated in the “Concluding Remarks” of Wong’s Report. 

14.  The affirmation in support of the Expert Summons was made by Lau Pok Man (“Lau”), son of the defendant and dated 14 September 2017 (“Lau Affirmation”).  Paragraphs 5-10 of the Lau Affirmation are set forth below:-

5. 本人於被告人專家證人視察該單位期間，曾向被告人專家證人表示該單位廁所內之外露形式水喉、水渠、坐廁等排水系統皆完好無缺，並要求被告人專家證人檢查後於被告人專家證人之報告內陳述。

6. 大約於2017年3月23日左右，本人收到由被告人專家證人所撰寫之報告。本人發現，被告人專家證人在報告內並未有紀錄該單位廁所內外露形式水喉、水渠、坐廁等排水系統之狀況。

7. 本人於2017年3月23日閲覽被告人專家證人報告後，即時致電被告人專家證人，要求加入對該單位廁所內外露形式水喉、水渠、坐廁等排水系統狀況之陳述。

8. 被告人專家證人接獲本人來電後，並未有對報告內關於外露形式水喉、水渠、坐廁等排水系統健全操作狀況作出客觀描述。

9. 本人隨後曾多次致電聯絡被告人專家證人，惟被告人專家證人堅持拒絕對外露形式水喉、水渠、坐廁等排水系統健全操作狀況作出客觀描述。

10. 本人認為被告人專家證人漠視外露形式水喉、水渠、坐廁等排水系統等無滲漏的重大事實，於專家報告內魯莽地遺漏本案中無滲漏水源的重要證據。”

LEGAL PRINCIPLES

15.  Both sides rely on the legal principles stated by Lam J (as he then was) in the case of Chinachem Charitable Foundation Ltd v Chan Chun Chuen [2009] 5 HKC 190 (“Chinachem Case”):-

“20. I wholly agree that expert shopping is undesirable and the court should discourage such practice. When the court detects any abuse in this regard, it has the power to prevent it. In this connection, I only need to quote from para.29 of the judgment of Dyson LJ in Vasiliou v Hajigeorgiou [2005] 1 WLR 2195 at p.2205

‘The principle established in Beck v Ministry of Defence (Note) [2005] 1 WLR 2206 is important. It is an example of the way in which the court will control the conduct of litigation in general, and the giving of expert evidence in particular. Expert shopping is undesirable and, whenever possible, the court will use its powers to prevent it. It needs to be emphasized that, if a party needs the permission of the court to rely on expert witness B in place of expert witness A, the court has the power to give permission on condition that A’s report is disclosed to the other party or parties, and that such a condition will usually be imposed. In imposing such a condition, the court is not abrogating or emasculating legal professional privilege; it is merely saying that, if a party seeks the court’s permission to rely on a substitute expert, it will be required to waive privilege in the first expert’s report as a condition of being permitted to do so.’

…

23. Ultimately, it is a matter of case management and one must have regard to the underlying objectives set out in Order 1A Rule1, see Order 1A Rule 2(1). Expert shopping, if unchecked, will not be conducive to cost-effectiveness of the proceedings nor the expeditious disposal of a case. It can also lead to potential unfairness between those who can afford to shop around for the opinions of more than one expert and those who cannot. If the practice prevails, it would compromise the impartiality of expert evidence, which is of great importance in the fair resolution of dispute by the court.

24. Further, the court must recognize that the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties, Order 1A Rule 2(2).

25. Hence, if the court is satisfied that the just resolution of a dispute requires leave to be granted for a substitutes expert to be called, it should not refuse leave simply because the opinion of the substitutes expert is more favourable than that of the original expert engaged by the same party. But I must emphasize the following: the just resolution of a dispute does not mean that whenever a party is able to obtain a more favourable opinion he should be permitted to adduce is as evidence. Such an approach flies in the face of the court’s disapproval of expert shopping.

26. In my view, the court should examine the grounds put forward by the substitute expert and make a preliminary assessment of the cogency of those grounds as compared with those set out in the report of the original expert and the report of the expert engaged by the other side.  If the court is satisfied, after reading all these materials, that there are relevant matters canvassed by the substitute expert which may be important to the just resolution of the dispute that had apparently been omitted from the reports of the other experts, that would present a prima facie case for the admission of the substitute expert report in the interest of just resolution of dispute.  Even so, the court must also have regard to other relevant circumstances like the potential disruption to the trial, the prejudice to the other parties, the explanation offered by the applicant for change of expert etc.”

16.  It is common ground that the court should only allow change of expert where there are very good reasons. The following observations of Master Leong in Tanag Padam Raj v Shek Chi You and Wong Ching Yi trading as Pak Tsun Company and Others HCPI 613/2011, unreported, 26 April 2013 are also relevant:-

“36. It is trite law, especially with the CJU which aims to minimize litigation costs and time, that “expert shopping” should be discouraged. The “default position” for case management must be that any change of experts, especially at such a late state, should be refused unless there are very good reasons.

37. Of course, there were cases when very good reasons had been advanced, for example when substantial disputes emerged late in the proceedings in an area in which one expert had limited expertise (as in the case of Lam Chung Fai v Lam Ming Kuen HCPI 96/2008). I can also envisage other circumstances when the court may grant such indulgence, e.g. when an expert refused reasonable requests for clarifications of his opinion or perhaps when an expert opinion is so unreasonable and unsatisfactory that it raises question on the credibility or at least the competence of the expert.

38. However, when the alleged “defects” can be remedied by further communications with the expert (e.g. by providing additional evidence, seeking clarifications on matters not understood, seeking opinion on points not addressed in the original report, or, in general, by commissioning supplemental reports), then there is no good reason to seek to change the expert, especially in circumstances when the party has made no attempt to (or, as in this case, did not agree to) communicate with the experts after the original report.”

17.  In addition, Mr Chong referred to what Mr Justice Foskett said in Adams & Ors v Allen & Overy [2013] EWHC 4735:-

“…But the strength of the reason can itself be judged to some extent by reference to the consequences of rejecting the application for a change of expert. I am of the view that there is a threshold for a party to cross before the court will enable a change of expert to take place, but the height of the threshold varies according to the circumstances…”

18.  Mr Chong also asked me to note the following passage from what Hughes LJ said in Edwards-Tubb v JD Wetherspoon Plc [2011] 1 WLR 1373, at paragraph 30:-

“… I certainly accept that there may be perfectly good reasons for a party to wish to instruct a second expert. Those reasons may not always be that the report of the first expert is disappointingly favourable to the other side, and even when that is the reason the first expert is not necessarily right. That means that it will often, perhaps normally, be proper to allow a party the option, at his own expense, of seeking a second opinion. It would not usually be right simply to deny him permission to rely on expert B and thus force him to rely on expert A, in whom he has, for whatever reason lost confidence…”

DISCUSSIONS

19.  Mr Chong put forward the following reasons in support of the application to appoint Ho as the substitute expert of the defendant:-

(1)Wong is unable to assist the court to determine the relevant issue; he failed to make any comment or findings on material items and refused the reasonable requests of the defendant for clarifications;

(2)Wong failed to draft the report in a proper and professional manner;

(3)Wong was reluctant to continue to act for the defendant and it is difficult to remedy the defects;

(4)The application is necessary and not expert shopping; and

(5)No milestone date has been fixed and the prejudice to the plaintiffs, if any, is minimal and can be compensated by costs.

20.  On the alleged inability of Wong to assist the court, the defendant has pointed to the lack of relevant qualification of Wong and the adverse judicial comments of him in various cases, including the recent decision of Deputy District Judge Lawrence Ng in Lam Kit Yee v Lam Shuk Lam DCCJ 3115/2011, 10 March 2017.  On the plaintiffs’ side, Mr Law stressed that judicial comments in previous cases were confined to Wong’s performance in those cases only.  He in turn referred me to cases where Wong was accepted as an expert testifying in different levels of court in water seepage disputes.  Mr Law also pointed out that the proposed expert Ho is not a member of the Hong Kong Institute of Surveyors either, but an engineer like Wong.

21.  In the first place, I agree with the observations of the Master that the professional qualifications and background of Wong is a matter for the defendant to consider before choosing her expert.  It is not open to the defendant to simply say “I should not have chosen him, so I want to change”.

22.  Further, whilst the learned judge in the Lam Kit Yee case went through a number of cases where adverse observations on the evidence of Wong had been noted, he stated clearly that each case must be decided on its own facts and that he was not in any way bound by those observations.  He made his own assessment of Wong’s evidence based on the testimony given in that case, emphasizing that the principles which guided him in assessing expert evidence are the duties of an expert witness specified in the Code of Conduct for Expert Witness (Appendix E to the Rules of District Court), the common law duties of an expert witness as elaborated in the relevant case law and the principles stated in paragraphs 483-493, 498 and 500 in the case of Chinachem Charitable Foundation Ltd v Chan Chun Chung, HCAP 8/2010, unreported, 2 February 2010. 

23.  I find the following observations of HHJ M. Wong in Lee Ming Yueh v Broadway-Nassau Investments Limited LDBM 452/2007, unreported, 15 August 2008 to be apt here as well –

“…Suffice to say is that an expert does not acquire his expertise by academic or professional qualifications alone. Someone can simply become an expert by experience and through self-studies…”

24.  The expert whose qualification was challenged in the Lee Ming Yueh case was Wong.  The court was nonetheless satisfied with his background and found him to have a sound knowledge of the causes for water leakage.  At the end of the day, it is up to the trial judge to decide whether he or she is satisfied that the experience of Wong is relevant to the study that he is asked to carry out.  I do not find it safe to come to a view that a particular expert is not competent simply on the basis of his or her professional qualifications.

25.  More importantly, in considering whether a substitute expert will be able to assist the court, the grounds canvassed by the substitute expert should be put forward.  It is clearly noted in paragraph 26 of the judgment in the Chinachem Case that the court has to consider and compare the grounds put forward by the proposed substitute expert with those set out in the original expert report as well as those in the report of the expert engaged by the other side and make a preliminary assessment of the cogency of those grounds.  The court would only be presented with a prima facie case for the admission of the substitute expert report in the interest of the just resolution of dispute if it is so satisfied after having done such a comparison.

26.  Information on the methodology or reasoning that Ho will adopt or the grounds put forward by him is glaringly missing.  Thus handicapped, the court is in no position to make the comparison expected of it.  Further, given that there is no explanation for the absence of such information and the lack of any intention to provide such an explanation, the Expert Summons verges more on being a delaying tactic rather than a genuine attempt to appoint someone to assist the court.

27.  The allegations of Wong failing to make any comment or findings on materials terms, his refusal of the defendant’s reasonable requests for clarifications and his failure to draft the report in a proper and professional manner should be considered together.  It is important to bear in mind that the Wong’s Report is preliminary in nature. Both Wong and the plaintiff’s expert expected further tests to be conducted before any conclusion on the cause of the water seepage can be drawn.

28.  The defendant has levied a number of criticisms on the inspection, including in particular the lack of elaboration on the condition of the hoses, drains, bowl or the plumbing of the bathroom of the Upper Unit.   It is also the defendant’s case that Wong did not adhere to the terms of reference.  The defects identified include failure to conclude on the origin or cause of the water seepage and there being no mention of his consideration of previous materials.

29.  I do not find those attacks on Wong’s Report to be fair, when all the alleged defects can be addressed by proper requests for clarifications, and can be dealt with by Wong in his final report.  The defendant’s case is that Lau had made reasonable requests already but they were turned down by Wong.

30.  Both sides have different interpretations on what the requests referred to in paragraphs 5-10 of the Lau Affirmation amounted to.  I am prepared to accept the defendant’s case that Lau was only asking for an objective statement as to the condition of the water pipes system to be included.  However, I do not share Lau’s view that Wong was reckless in omitting such description.  That Wong’s Report envisages further tests to be done means that it is not a final report.  There is nothing to prevent Wong to give the full and complete picture only in the final report. In so doing, Wong may be able to give a more comprehensive analysis of the source of the water seepage in the final report.

31.  I also have reservations in characterizing Wong’s Report as not being drafted in a proper and professional manner.  The cause of the water seepage was indicated as inconclusive in Wong’s Report.  A proper assessment of the evidence of Wong can only be carried out after his full report is out.

32.  It is important to bear in mind that experts are engaged for their professionalism and impartiality.  What to include or not to include in their reports should be left to the experts. Their analysis and opinions should not be dictated or influenced by the parties engaging them.  

33.  The defendant also submitted that Wong was reluctant to continue to act and that the defendant has lost her confidence in Wong.  There is actually no evidence of the unwillingness of Wong to continue to act.  The termination of his appointment was initiated by the defendant herself.  There is nothing to suggest that Wong would refuse to act if the defendant re-engages him.

34.  Mr Chong stressed that the court should follow the approach in the Adams v Allen & Overy case, supra by considering the consequences of rejecting the application for change of expert.  It is his submission that the trial judge will not have assistance on the role that the pipes may or may not have played in the water seepage, when there is no mention of this matter in the report of the plaintiffs’ expert as well. 

35.  This concern of Mr Chong can and should be addressed by raising questions for clarifications with the experts. There is no indication of any reluctance of the plaintiffs’ expert to assist. As for Wong, the significance of the clarifications, as the defendant sees it, should be duly explained to him in writing, to avoid any misunderstanding of improper influence on his impartiality.  There is of course the opportunity for further elaboration and clarification when Wong is called as a witness at trial.

36.  Mr Law pointed out that, after having finally been allowed access to the Upper Unit on 1 September 2017, the plaintiff’s expert came out with another report, which concluded that the source of water is the Upper Unit.  He also submitted that the defendant has been served with this latest report pursuant to the Order of Master D. Ho. Although the defendant denied ever having received this latest report, she was legally represented at the hearing before Master D. Ho and she has only herself to blame if she does not bother to find out if that Order has been complied with.  Nonetheless, not having had sight of the latest report of the plaintiffs’ expert, I will not rely on this submission about its contents.

37.  Mr Chong put it to me that in the absence of a joint report, no reliance can be placed on the report of the plaintiff’s expert.  I do not see how this argument would work.  As pointed out in the above, Wong can still be asked to resume as the defendant’s expert.  Joint expert report is not a given and parties sometimes agree on having one single expert only to give evidence.   

38.  Another consequence of dismissing the appeal will be the challenge of the qualifications of Wong when he is called as witness of the defendant.  That, Mr Chong submitted, will not be in the interest of determining the substantive rights of the parties.

39.  The qualifications of every expert are open to challenge by the other side.  Even where a surveyor has been appointed, he or she may not have the relevant experience.  As shown in the discussions above, the trial judge will have to make his or her own assessment in each case based on the relevant circumstances.  The concern is no more than what is a natural occurrence in litigation.    

40.  On the point of delay, Mr Chong pointed to the defendant becoming aware of the lack of qualification of Wong in March 2017 and the publication of the judgment of the Lam Kit Yee case also in March 2017.  I do not see how the defendant could suggest that she was justified in making the application only after her becoming aware of that decision.  As mentioned in the above, the court in the Lam Kit Yee case went through a number of cases where critical comments on the evidence of Wong can be found.  The learned judge quoted in length from Hui Ling Chun v Shiu Mak Ying and Choi Chun Hoi DCCJ 10294/2001, 3 March 2004, Hui Ling Ling v Sky Field Development Limited HCA 35/2007, 8 May 2012 and Wong Ping Chun v Giant King Corporation Limited, DCCJ 4020/2012, 16 March 2016.  The nature of the comments made by the court in those cases was similar and there is no reason for the defendant to have to rely on four instead of three cases on the point she wants to make.

41.  Even if time is to count from the discovery of the deficiency in Wong’s qualification, there is still a period of about 6 months’ delay that remains unexplained.  Not only is there no explanation, as pointed out by Mr Law, the defendant had been blocking the progress of the expert report by repeatedly refusing to allow access to the Upper Unit by the plaintiff’s expert from March to September 2017.    

42.  In a water seepage case where the plaintiffs’ family is residing at the affected premises, any delay would affect their daily living and prolong the suffering they have to endure.  The possibility of the water seepage proliferating is there as well.  The continuous stress and discomfort caused mean tremendous prejudice to the plaintiffs.

43.  The delay in the present case has been substantial and the repeated refusals of the defendant to let the experts have access to the Upper Unit for conducting the tests have made progress unduly difficult.  The earlier application for switch of Wong to a Mr Cheng was withdrawn without any explanation.  Although no milestone date will be affected, there is no justification for further delay.     

44.  Having taking into account all relevant considerations, including the CJR objectives, in particular the just resolution of the dispute of the parties, I decline to grant leave for the appointment of Ho in place of Wong.  The appeal is dismissed. 

45.  On a nisi basis, I order the costs of the appeal, with certificate for counsel, be to the plaintiffs, to be taxed if not agreed.