TAM WAI CHEUNG ROGER AND ANOTHER v. GOODWELL PROPERTY MANAGEMENT LTD

DCCJ 2262/2013

CIVIL ACTION NO. 2262 OF 2013

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JUDGMENT

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Background

1.  The 2^nd plaintiff is and was the registered owner of Unit 901, Block A, Peninsula Heights (“Peninsula Heights”), 63 Broadcast Drive, Kowloon, Hong Kong (“the Flat”).

2.  Tam Wai Cheung, Roger, the 1^st plaintiff (“Roger Tam”), is and was a director of the 2^nd plaintiff. I accept that he is and was the beneficial owner of the 2^nd plaintiff despite the absence of documentary proof.

3.  Peninsula Heights is a residential estate comprising 2 blocks, namely Block A and Block B. The floor numbering of each block is up to 17^th floor but it does not have 4^th, 13^th and 14^th floors. So, each block has only 14-storeys. There are 6 units on each floor.

4.  The defendant is and was the Manager of Peninsula Heights under the deed of mutual covenant (“DMC’).

5.  Since about 2000, Roger Tam and his deceased wife resided at the Flat. According to Roger Tam, he and his deceased wife heard some disturbing noises allegedly generated outside the Flat during normal sleeping hours for a period of time since about April 2012. Those disturbing noises included noises similar to the pulling of furniture across the floor, objects being dropped, dragged, bumped and/or rolled on the floor, slamming of doors and heavy footsteps similar to running or doing exercise on the floor (collectively “Disturbing Noises”).

6.  Roger Tam lodged complaints to the defendant in relation to the Disturbing Noises from April 2012 to July 2012. In response, the defendant had caused a number of measures to be carried out. Roger Tam opined that the defendant had failed to properly and/or adequately deal with his complaints. In the meantime, Roger Tam and his deceased wife rented and moved to the International House of the Baptist University (“International House”) as an alternative accommodation from 6 July 2012 to 12 August 2012. The deceased wife of Roger Tam stayed for 2 nights and then moved back to the Flat. Roger Tam stayed at the International House until 12 August 2012 and also moved back to the Flat.

7.  Since 4 September 2012, Roger Tam and his deceased wife moved to another residence and did not then return to reside at the Flat.

8.  The plaintiffs are now claiming for damages by reason of the defendant’s breach of DMC, negligence and nuisance.  The plaintiffs also ask for an injunction order that the defendant “does identify the cause of the Disturbing Noises and take such steps to stop the Disturbing Noises”.

9.  There are 4 issues of trial :-

(a) Whether the Disturbing Noises complained about by the plaintiffs amount to “disturbing”?

(b) Whether the defendant owes the plaintiffs duties under the DMC and/or negligence and/or nuisance to take reasonable measures to prevent, investigate, identify and abate the Disturbing Noises?

(c) If the answer to (b) is affirmative, whether the defendant has breached its duties towards the plaintiffs? and

(d) If the answer to (c) is affirmative, what damage the plaintiffs have suffered and whether the defendant should be liable for the plaintiffs’ damage and to what extent?

Issue 1 : Whether the Disturbing Noises complained about by the plaintiffs amount to “disturbing”?

10.  The crux of Roger Tam’s complaint was that there were some “disturbing” noises during the normal sleeping hour. The word “disturbing” comes from clause 12 in the Fourth Schedule to the DMC :

“No Owner shall make or cause or permit any disturbing noise in his Unit or do or cause or permit anything to be done which will interfere with the rights comforts and convenience of other occupants of the Land and the Building.”

11.  There is no definition of the word “disturbing” or the term “disturbing noise” in the DMC itself. Mr Lam, senior counsel for the defendant, submitted that in defining what constitute disturbing noise, the test must be objective rather than subjective. Mr Li, senior counsel for the plaintiffs, did not dispute it.

12.  In Capital Prosperous Ltd & anor v Sheen Cho Kwong[1], a case based on nuisance, Deputy Judge Muttrie held that :

“The courts in deciding what is the permissible limit in inconvenience and annoyance between neighbours and in deciding whether an interference can amount to an actionable nuisance have to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the plaintiff to the undisturbed enjoyment of his property. No precise or universal formula is possible but a useful test is what is reasonable according to the ordinary usages of mankind living in a particular society.” (at 639 G-I)

13.  In Ng Yuen Han v Lam Fei Fui[2], the court of appeal (with Jeremy Poon J giving the judgment), in considering a case involving noise complaint arose from the daily activities of the neighbour, said:

“To decide whether the noise nuisance is substantiated, we will certainly not take account of the plaintiff’s subjective sense of sound.” (at 615)

14.  I agree that the test of considering whether or not the Disturbing Noises were disturbing should be by way of an objective test. A number of factors, including the length of period over which such noises occurred, when did such noises occur and also the nature, frequency and volume of such noises should be considered.

(a) The length of period over which such noises occurred

15.  The first complaint was lodged by Roger Tam on 29 April 2012. Since then, he intermittently lodged further complaints to the defendant. He and his deceased wife moved away from the Flat on 4 September 2012 and did not then return. During that period of time, he and his deceased wife were not in Hong Kong between 6 and 11 May 2012 and moved to the International House from 6 July 2012 to 12 August 2012 (Roger Tam’s deceased wife stayed at the International House for 2 days). Probably, Roger Tam would not make up a story when he lodged the complaints. I accept that he heard some noises during that period of time, ie about 4 months.

(b) The frequency of such noises and when did such noises occur

16.  According to Roger Tam, Disturbing Noises did not occur every night. Sometimes, they happened in 2 or 3 nights in a week and mostly during the period from 11pm to 2am. He did not report each and every occasion to the defendant when he heard such noises. The noises were intermittent in nature which only lasted for 1 to 2 seconds and then reoccurred again at an interval of about 15 to 30 minutes.

17.  Dr Chan Hon Fai (“Dr Chan”) was engaged by the plaintiffs to conduct a noise survey between about 1800 hour on 28 June 2013 and about 1800 hour on 4 July 2013, ie lasting for 1 week. Noise recording was taken between 2200 hour of each measurement day and 0200 hour of the following day. According to the recording, there was only 1 significant finding, as stated in Dr Chan’s first report dated July 2013:

“However, shortly after midnight at 00:41 hr, 00:46 hr and 01:33 hr on 3^rd July, sound recordings revealed three noise peaks due to impact sound of unknown nature and origin, which produced a sudden increase in the noise levels by about 5dB(A) in terms of L_eq (1-min) and 11-20dB(A) in terms of the maximum noise level, as shown in Table 2. The sound could arise from the closing of a door.” (§3.1)

18.  In other words, during the whole week, there were only 3 sudden increases in the noise level in the small hour (“3 Noise Events”). Although the recording was made after Roger Tam moved away from the Flat for about 10 months, I accept that the 3 Noise Events had probative value for consideration of the frequency, nature and volume of the Disturbing Noises as well as the time of those noises occurred. I also take into account that the recording by Dr Chan was made at a time when the “creator(s)” of the Disturbing Noises, presumably Roger Tam’s neighbour(s), should have known that the defendant had received complaints and might be more considerate.

19.  Taking all the circumstance into account, including particularly the complaints lodged by Roger Tam and the recording by Dr Chan, I accept that frequency of the Disturbing Noises were about 2 to 3 nights per week and about 3 times per night. On each occasion, it lasted about 1 or 2 seconds. It happened at about 11pm to 2am.

(c) The nature and volume of such noises

20.  Dr Chan opined that the 3 Noise Events could arise from the closing of a door.

21.  Roger Tam described that the Disturbing Noises “included noises similar to frequent pulling of furniture across the floor, objects being dropped onto the floor and/or being dragged, bumped and/or rolled along the floor, objects being repeatedly knocking against each other or on the floor, slamming of doors and heavy footsteps similar to running or doing exercise on the floor.” In the circumstance, I accept that the 3 Noise Events were similar, if not identical, in nature to the Disturbing Noises.

22.  Mr Lam SC submitted that the Disturbing Noises were concerned with activities incidental to ordinary usages of domestic premises. I agree.

23.  In Hong Kong, some people love to play mah-jong overnight. Some people select to play piano in the small hour. Some people even carry out renovation work, say to drill a hole on the wall, in the midnight. The sounds created in those circumstances are quite unique.  In fact, Roger Tam lodged complaint on 6 July 2012 regarding some drilling sounds. Upon defendant’s investigation, the drilling sounds related to installation of some lights at Unit A1607. If the Disturbing Noises were similar to drilling sounds, Roger Tam would be able to tell it.

24.  Based upon the description of Roger Tam and the recording by Dr Chan, I am of the view that the Disturbing Noises were not similar to those created during renovation work, playing piano or mah-jong. I agree with Mr Lam SC’s submission and find that the Disturbing Noises were derived from ordinary usages of a domestic premises. The volume of the Disturbing Noises were more or less the same as the 3 Noise Events.

(d) Were the Disturbing Noises “disturbing”?

25.  One way to assess whether the Disturbing Noises were objectively disturbing is to consider if the neighbour(s) of Roger Tam also lodged a similar complaint. In Southern Ever Trading Ltd v The Incorporated Owners of Joy Garden[3], Deputy Judge Wong, in deciding a case concerning a complaint against the continuous and excessive noise created by a lift, said:

“20. Having the benefit of the site visit, I can say that whenever the Lift is moving, there is an audible sound created by the Lift which can be heard inside the Flat. I agree with [counsel for the Applicant] that the test for nuisance is whether a reasonable man could tolerate the noise.

…

22. …If the other owners can bear with the noise or vibration of the Lift, the only logical conclusion is that a reasonable man would be able to bear them too.”

26.  Peninsula Heights is a multi-storey building. Roger Tam and his deceased wife had many neighbours. Presumably, the Disturbing Noises were created by one or even some of them, but certainly not all of them. It is indisputable that Roger Tam (or together with his deceased wife) was at the material time the only person that lodged complaint to the defendant in respect of the Disturbing Noises. None of Roger Tam’s neighbour lodged similar complaint.

27.  Further, soon after Roger Tam lodged complaints to the defendant, a survey on noise nuisance was conducted. According to Chan Koon Ling Philip (“Philip Chan”), senior building supervisor of the defendant, a questionnaire had been sent to Roger Tam’s neighbours in June 2012 including those who resided at the 7^th to 12^th floors. His evidence is supported by contemporaneous records and I have no reason not to believe him. Among the 13 neighbours who replied, all of them stated that they did not hear any special noise in the midnight.

28.  I think all neighbours of Roger Tam in receipt of the questionnaire would make use of that opportunity to report to the defendant if they heard any special noise during midnight. The fact was that no one reported they heard any special noise. Mr Li SC submitted that wordings of the questionnaire were ambiguous. I do not agree. The Chinese version of the questionnaire was to ask if the neighbour heard any “特別聲響/家居活動聲響” (translation : any special noise or domestic activity noise). All neighbours should clearly understand that the defendant was conducting a noise survey. Although only 13 neighbours replied, I think that had anyone of the recipients of the questionnaire heard any noise which they considered to be special, be it strange, intolerable, annoying or disturbing, they would have made use of that opportunity to voice it out to the defendant.

29.  I also find it inherently implausible that the Disturbing Noises could only be heard by those inside the Flat, or to be more exact by Roger Tam (and his deceased wife). In fact, even Dr Chan admitted in his report dated 8 August 2014 that “since by nature of the noise which is structurally borne, the noise should have been heard by [Roger Tam’s] neighbours in 02 and 07 units, which share a common wall with [the Flat]”(§5.11). Units A902 and A907 had replied to the questionnaire. They did not hear anything special.

30.  Dr Chan suggested there could be other reasons for the occupants not to the lodge any complaint via the questionnaire :  they might not have memory of the noise, the background noise in their units might be higher than the Disturbing Noises, or they might not sleep at the material time. I find Dr Chan was simply speculating the reasons and I do not agree with him.

31.  In the circumstance, I find that apart from Roger Tam (and his deceased wife), nobody living nearby the Flat heard any noise that could be categorized as “disturbing” at the material time.

32.  Another way to consider if the Disturbing Noises were objectively “disturbing” is to look for an objective standard and/or guideline. In this case, the objective standard mentioned by experts, ie Dr Chan for the plaintiffs and Mr Ho Wai Lun (“Ho”) for the defendant, was theGuidelines for Community Noise issued by the World Health Organisation (“the WHO Guideline”).

33.  According to Roger Tam, the Disturbing Noises would be sufficient to wake him up. But there was no recording available for measurement. I accept that one of the comparables of the Disturbing Noises should be the 3 Noise Events, which were at a level of 50dB(A), 60dB(A) and 42dB(A) respectively. Dr Chan stated his views in his first report as follows:

“The noise environment at [the Flat] was very quiet by urban standard. The sound insulation of the window in the room must be good since the background noise levels were 32~34 dB(A) with light traffic on Lung Cheung Road. Given this setting, if there were sudden increases of noises levels by 10~20 dB(A) during the quiet time of the night, the noise could be annoying if there were repeated occurrences of the noise, even though the absolute noise levels still low by urban standard.” (§4.1)

34.  According to the WHO Guideline:

“For a good sleep, it is believed that indoor sound pressure levels should not exceed approximately 45 dB LAmax more than 10-15 times per night……, and most studies show an increase in the percentage of awakenings at SEL values of 50-60 dBA……” (p46)

35.  There were only 2 among the 3 Noise Events that exceeded 45dB(A). The frequency was substantially below the suggestion in the WHO Guideline. The 3 Noise Events, as well as the Disturbing Noises, were well within the limit set by the WHO Guideline.

36.  Further, the WHO Guideline recommended that the level of the background noise should be 30dB(A). Dr Chan also accepted that in theory, if the background noise is higher than 30dB(A), the acceptable noise level of any sudden increase should be higher than 45dB(A). It follows that the acceptable noise level for any sudden increase in noise could be up to 15dB(A) above the background noise.

37.  In his first report, Dr Chan stated in §3.1 that the background noise of the Flat during the test varied between 28dB(A) and 34dB(A). Dr Chan in his second report dated 8 August 2014, suddenly adopted different standard to interpret the background noise.

38.  He adopted “L₉₀” in his second report, instead of “LAeq” in his first report.  L₉₀ is the sound level in dB(A) which is exceeded for 90% of the time whereas LAeq is the sound pressure level of a steady sound that has, over a given period, the same energy as the fluctuating sound in question. Therefore, by using L₉₀ to measure the sound level, the result must be either equal or lower than by using LAeq. In other words, when Dr Chan adopted L₉₀ in his second report for the measurement of the background noise, it could, and in fact did, highlight the differences between the 3 Noise Events on 3 July 2013 between them and the background noise.

39.  Having heard all the evidence, I am unable to accept Dr Chan’s explanation as to why he changed from using LAeq in his first report to L₉₀ inhis second report for the measurement of background noise. He tried to explain that it is a common practice to use L_90. However, he was simply unable to explain why he did not adopt that common practice in his first report. More importantly, in the WHO Guideline, LAeq, instead of L₉₀, was used to measure the background noise. It is unreasonable that the WHO Guideline would not adopt the common practice. In the circumstance, I do not accept Dr Chan’s explanation for using L₉₀ in his second report.I find that Dr Chan was purposively adopting a different method in trying to highlight the sudden increase in sound level. His conclusion in his second report was not reliable.

40.  During trial, Dr Chan also suggested that the above passage quoted from the WHO Guideline is applicable only to places close to facilities such as airport or railway station. I do not agree with him. First of all, there is no such qualification stated in the WHO Guideline. Furthermore, if the above passage applies only to places as suggested by Dr Chan, the WHO Guideline should have provided other applicable guideline to other places. Obviously, there is no such further guideline. Dr Chan’s view is without reason. I find that the above passage is intended to be applied not only for places close to airports or railway stations but also for domestic premises. In other words, the above passage is applicable in this case.

41.  Having considered all the evidence, I find that Dr Chan was not impartial. On the other hand, Ho persuaded me as an impartial and reliable expert witness.

42.  The joint statement of the experts dated 9 October 2014 summarized the views held by Dr Chan and Ho. In many items in the joint statement, Dr Chan failed to satisfactorily and/or sufficiently explain why he held different views with Ho. For example, in item 2.1, both experts were asked to comment if Roger Tam should have been adapted to the traffic noise but not the Disturbing Noises. Dr Chan agreed.  However, he was unable to cite any authority on the proposition that a person can adopt to one type of noise but not the others. On the contrary, Ho disagreed. He clearly pointed out that Dr Chan’s view was merely based on what Roger Tam said and was a “non-scientific argument”. Another example is in item 2.7. Dr Chan agreed that Roger Tam was sensitive to noise from his performance and behaviour and agreed that “the WHO Guideline admits that some people are more vulnerable to noise and a lower standard should be applied”. Dr Chan gave no explanation. Ho disagreed with Dr Chan and gave 3 reasons. In particular, Ho pointed out that the WHO Guideline does not establish (or propose) any standard for vulnerable groups.

43.  Adducing expert evidence in court is not a battle of qualifications. The soundness of his opinion is more important. I find that Ho was able to give his opinion with reasons. Having heard their evidence in court and taking all the circumstance into account, for the different views held by Dr Chan and Ho, I prefer Ho’s. In particular, I accept Ho’s opinion as stated in item 2.7 of the joint statement :

“1. Individual sensitive people may not be treated as vulnerable groups, such as elderly house.

2. Practicality of a lower level standard for vulnerable groups is unclear, therefore WHO Guidelines does not establish (or propose) any standard for vulnerable groups.

3. For the current case, there were only 3 events identified not from the road traffic noise for a period of 7 days. Anyway it would achieve the good-sleep criteria “not exceed approx. 45 LAmax more than 10-15 times per night.””

44.  Before deciding if the Disturbing Noises were disturbing, I shall deal with one submission by Mr Li SC. Mr Li SC submitted that Mr Lam SC did not put the defence’s case to the plaintiffs’ witnesses and also did not apply to adopt the “deemed put” procedure, which is in any event a procedure fraught with difficulty and dangers. In particular, Mr Lam SC did not put forward a positive case that the Disturbing Noises were not disturbing. I do not agree with Mr Li SC’s submission.  The rule in Browne v Dunn[4] is that if it is intended to suggest that a witness is not speaking the truth, his attention must be directed to it by cross-examination so that he has a chance to explain. In Pacific Electric Wire & Cable Co Ltd v Texan Management Ltd[5]¸Kwan JA (with Lam VP and Fok JA agreed), said,

“The rule in Browne v Dunn, as noted in Phipson on Evidence (17^th ed) at §12-12, is not an inflexible one. It is not broken even if a material matter is not put to a witness, if the witness can fairly and objectively be said to be on notice of it or where the point is so apparent (Flower & Hart v White Industries (Qld) Pty Ltd (1999)163 ALR 744 at §§51 to 52; Fong Ka Yeung v Medical Council of Hong Kong¸ CACV 157/2007, §30(1)).” (§124)

45.  The most important disputes in this case are whether the Disturbing Noises were disturbing and/or whether the defendant had acted reasonably in the circumstance. Mr Lam SC never suggests that Roger Tam did not hear anything at all. The real question in this case should be : did what Roger Tam heard amounted to “disturbing” by an objective standard? I do not think that Mr Lam SC needed to put that question to the witnesses because it is a question for the court. Further, even if Mr Lam SC did not explicitly “put” the defendant’s case to the plaintiffs’ witnesses, they should understand the defendant’s case clearly.  I find no unfairness to the plaintiffs’ witnesses no matter the defendant’s case was specifically put or not. Therefore, even if Mr Lam SC did not specifically put to the plaintiffs’ witnesses that “the Disturbing Noises were in fact not disturbing by an objective standard”, that could not stop me from making such a finding.

46.  To conclude, nobody but Roger Tam (or at most, with his deceased wife) lodged complaints about hearing any “disturbing” noise. The Disturbing Noises were well within the permissible limit as suggested in the WHO Guideline. Applying an objective test and taking all the circumstance into account, I find that the Disturbing Noises were not disturbing. I shall therefore dismiss the plaintiffs’ claims. But for the sake of completeness, it is not necessary for me to consider other issues.

(e) Was Roger Tam particularly sensitive to sound?

47.  It is indisputable that Roger Tam’s deceased wife decided to return to the Flat just 2 days after moving to the International House. I was once tempted to take that into account because on the face of it, she selected to bear with the Disturbing Noises. Her decision was not consistent with the allegation that the Disturbing Noises were disturbing. She could have continued to stay at the International House to avoid those noises at no extra costs. In fact, she did not lodge any complaint of hearing any Disturbing Noises when presumably at that time she was on her own in the Flat during bedtime. Roger Tam explained that his deceased wife had to take a 15 minutes walk from the International House to the Flat because there was only few and infrequent public transport and no parking space for his car at the International House. At that time, his deceased wife suffered from serious back pain and felt very painful after having a long walk to return to the Flat. However, Mr Lam SC did not make any submission on this point and even, in my view very fair, asked me not to take that into account. Obviously, Mr Lam SC did not intend to take advantage on that because the wife of Roger Tam had passed away and could not testify and explain the situation. I agree with Mr Lam SC and will not take that into account.

48.  In fact, whether Roger Tam was sensitive to sound or noise is neither here nor there. But I do find that there was some sounds emitted somewhere in the small hour intermittently. Such sounds, by an objective standard, were not disturbing. During trial, Roger Tam denied he was sensitive. However, Dr Chan, who personally visited the Flat, had to mention in his second report that :

“I have reasons to believe by looking at the setting of the Plaintiff bedroom and my conversation with him the Plaintiff is sensitive to noise. I have seen a set of wooden shutters next to the window glazing and a thick fabric curtain drawn to the floor between his bedroom window and his bed… The Plaintiff told me that the wooden shutters and the fabric curtain were to reduce the road traffic noise from Lung Cheung Road in spite of the thick glazing of his window. From my experience with many other residences, this practice is not common. I think his sensitivity to noise makes the alleged “disturbing” noise even more disturbing to him.” (§4.12)

49.  Taking all the circumstances, especially the descriptions by Dr Chan and the fact that nobody but Roger Tam (or with his deceased wife) lodged any complaint about the Disturbing Noises, I find that Roger Tam was particularly sensitive to sound and that was the reason of the whole complaint.

Issue 2 : Whether the defendant owes the plaintiffs duties under the DMC and/or negligence and/or nuisance to take reasonable measures to prevent, investigate, identify and abate the Disturbing Noises?

50.  It is an academic discussion as to the cause of action in this case and I shall deal with that concisely. Mr Li SC submitted that the defendant was in breach of its duty in 3 aspects: breach of the DMC, negligence and nuisance.

51.  The defendant agrees that it owed a contractual duty to the 2^nd plaintiff under DMC. Mr Lam SC submitted that Roger Tam was not a party to the DMC and the defendant therefore owed no contractual duty to him.

52.  In this regard, I agree with the submission of Mr Li SC, who pointed out the defendant did not plead that issue. Had that issue been pleaded, the plaintiffs might refer to and rely on the relevant provisions in the DMC on the duty and powers of the defendant with respect to the occupiers of Peninsula Heights. Obviously, Roger Tam was an occupier and could rely upon the DMC to sue the defendant. So, for the purpose of this trial, the defendant cannot argue that it owed no contractual duty to Roger Tam.

53.  In any event, Mr Lam SC submitted that the claim in negligence and/or nuisance add nothing further to the claim in breach of DMC. I agree with Mr Lam SC. Lo Yuk Chu v Hang Yick Properties Management Ltd[6] was a case about whether or not the building manager had breached its contractual duties under the deed of mutual covenant. In Ma Chung Lam and another v Citybase Property Management Ltd[7], the court of appeal held that :

“In any event, the duties of the manager at common law could not be wider than as stated in Lo Yuk Chu” (§24)

54.  It is trite law that an unreasonable interference with the enjoyment of land due to noise can amount to a common law nuisance (see Murdoch and Murdoch v Glacier Metal Company Ltd[8]). Roger Tam was not complaining that the Disturbing Noises were derived from any common parts, say a lift, of the building. There is no evidence that the defendant created the Disturbing Noises. The defendant was alleged to be guilty of permitting or failing to abate the Disturbing Noises. As succinctly and clearly stated in Clerk & Lindsell on Torts (21^st  edn, 2014):

“It is clear that in cases where liability is sought to be imposed upon a defendant, not on the ground that he created the nuisance but on the ground that he permitted it to continue, proof of negligence at least is essential.” (§20-42)

55.  I therefore accept Mr Lam SC’s submission that the cause of action based upon negligence and/or nuisance add nothing further to the claim based upon the DMC.

Issue 3 : Whether the defendant has breached its duties towards the plaintiffs?

56.  Assuming that the Disturbing Noises were “disturbing”, the next important question is whether or not the defendant breached its duties.

57.  Before any discussion on that issue, I shall deal with a preliminary matter. Mr Li SC submitted that the defendant has failed to plead any terms of the DMC that it relies on to fend off the plaintiffs’ claims.

58.  There is only a general plead of the defendant’s intention to refer to the “intents, effects and purports and all the said clauses as well as other conditions, warranties, and terms of the DMC in the trial of the action.” Mr Li SC referred me to Hummingbird Music Ltd v Acconci[9]and the Hong Kong Civil Procedure 2015, Vol 1, §§ 18/8/1 and 18/12/3 and submitted that it is not open to the defendant to rely on clause 40 of the DMC which provides, inter alia, that the defendant shall not be liable for breach of DMC unless the “act or omission involving criminal liability or dishonesty or negligence”. Having read the case and authority cited to me, I agree with Mr Li SC’s submission.

59.  Still, the contractual duty imposed upon the defendant is not absolute. The defendant was only required to act reasonably in the circumstances. In Lo Yuk Chu, the court of appeal held that:

“The overall duty imposed on the respondent by the Deed of Mutual Covenant is one of ‘proper’ management. Such management entails doing all that is reasonably required of a manager in the circumstances.” (at 282D)

60.  Almost all the measures carried out by the defendant were documented. Philip Chan, Luk Siu Fai Raymond (“Luk”), the assistance building supervisor and Lam Hung Chung (“Lam”), senior building attendant, gave evidence in court to substantiate what had been done. Mr Li SC commented that the witness statements of Lam and Luk came almost at the last minute before trial and that cast doubt on the veracity of their evidence. I do not agree. Obviously, it was not the original intention of the defendant to call all of its staffs to testify. It was not until the plaintiffs asked for leave to cross examine the staffs who complied with the documents (particularly the log books records and the patrol records) produced by the defendant, Lam and Luk were required to make witness statements and testify in court. In fact, evidence of Philip Chan, Luk and Lam were well supported by documents. They were not well educated, but very honest. Their evidence were consistent with the documentary record and I find all of them reliable. I have no reason not to believe them.

61.  Mr Li SC also commented the defendant had failed to call other staffs of the defendant, including Clive Wong, Li Chi Tak (“Johnny Li”) and Jennifer Shing to testify in court. Mr Li SC submitted that adverse inference could be drawn when the defendant failed to call these witnesses to testify in court. I do not agree. There are many situations that adverse inference should not be drawn despite a party failed to call a witness (see the recent court of appeal decision in Tjang Siu Thu v Profield Construction Engineering Ltd[10]). In fact, all of them left the employment with the defendant and that was the reason why the defendant did not call them. I accept that explanation. Among them, Clive Wong and Johnny Li gave a statement. As they did not testify in court and their evidence were not subject to cross examination, I will not attach weight to their witness statements.

62.  Also, the occupant of A1001 gave a statement but did not attend the court to testify. She was merely a neighbour of Roger Tam and I accept that in that circumstance, no adverse inference could be drawn. Likewise, I will not attach weight to her witness statement.

63.  The crux of this issue is not “why” some measures were carried out but “what” had actually been done (or had not been done). At best, Jennifer Shing, the more senior staff who did not station at Peninsula Heights, could explain what instructions she gave to the staffs in handling Roger Tam’s complaint and why she gave those instructions. As I need to consider what the defendant had actually done (or not done), the reasons behind were not important. In this case, all measures carried out were well documented. Further, from the emails, I am able to find when and how did Jennifer Shing replied to Roger Tam. So, even though Jennifer Shing did not give evidence, it would not affect the defendant’s case.

64.  The defendant also produced a document known as “A901 單位投訴噪音跟進記錄表” (“purported Summary”). I find that the purported Summary could not be relied upon after comparing its contents with other evidence. The remarks column in the purported Summary seems to suggest that on each occasion when Roger Tam lodged a complaint, the security guard would request for entry to the Flat to investigate and Roger Tam would refuse. That is not supported by other evidence. I will not take that purported Summary into consideration.

65.  Taking into account all the viva voce evidence and the documentary evidence, particularly the log book, incident report and the special patrol records, I find that :-

(1) The first complaint lodged by Roger Tam was at 2340 on 29 April 2012 that A1001 created noises by knocking and moving sofa. In response, a security guard went to enquire with the occupants of A1001, who denied creating any noise. The security guard then replied to Roger Tam what he was being told.

(2) On 30 April 2012, the defendant issued a notice to all occupants reminding them not to emit noise in the midnight. Such notice was posted up at all entrances to the building until 11 May 2012.

(3) At 2300 on 5 May 2012, Roger Tam lodged complaint that he heard some disturbing noise. A security guard then went to A1001 and A801 for investigation but unable to hear any noise. From looking outside the window, occupants at A1001 were sleeping. The security guard then went to enquire with the occupants at A801, who said that she heard nothing.

(4) At 2355 on 19 May 2012, Roger Tam lodged similar complaint. A security guard enquired with the occupant at A1001, who said that she did not create any noise.

(5) At 2230 on 21 May 2012, Roger Tam lodged similar complaint. A security guard then went up to the Flat and asked for permission to enter into the Flat so as to locate the source of the noise. Roger Tam refused. The security guard then enquired with occupant of A1001 who said that he did not hear, nor create, any noise.

(6) At 2340 on 29 May 2012, Roger Tam lodged similar complaint. A security guard enquired with occupants of A1001 who said that they were surfing on the internet or writing documents and could not have created any noise. Then, the security guard informed Roger Tam the result of the investigation.

(7) On 30 May 2012, the defendant posted up another notice to remind occupants not to emit any noise in the midnight. That notice was posted until 6 June 2012.

(8) At 2350 on 9 June 2012, Roger Tam lodged similar complaint. Security guard carried out investigation outside A1001 and A1101. Apart from sounds like running water and piling up bowls, nothing special could be heard.

(9) On 11 June 2012, the defendant caused a notice to be posted up in order to remind the occupants not to emit noise in the midnight. That was the 3^rd notice. Philip Chan said that usually such notice would be posted up for 2 weeks. There is no evidence to rebut what he said. I accept that the notice was posted for about 2 weeks.

(10) From 14 June 2012 to 17 June 2012, the defendant carried out a special patrol between 2300 and 2400 at an interval of 15 minutes at the corridor of 10^th floor.

(11) At 1445 on 17 June 2012, Roger Tam lodged complaint that he heard some noise. Security guard conducted investigation on the 8^th, 9^th, 10^th and 11^th floors. Without hearing any noise, the security guard reported the result to the Roger Tam.

(12) On 19 June 2012, defendant’s staffs including Clive Wong, Johnny Li and Luk carried out a test in the Flat and A1001. Among them, Johnny Li was an engineer but there is no evidence as to his exact qualification. They tried to perform some activities at A1001 and then to record the changes of the sound level at the Flat. According to the report, the background noise level was 40dB. When one slammed the door or walked with heavy footsteps in A1001, the sound level at the Flat would increase to 41dB or 42dB. Other activities, including moving the chair or dropping books on the floor, would not change the sound level at the Flat. Dr Chan criticized that the test was not done professionally. Mr Li SC submitted that result of the test was therefore unreliable and of no probative value. He pointed out that the sound level meter was set at the SLOW mode, which was wrong. Also, there was no calibration of the equipment used and it was a standard procedure and a stringent requirement as suggested by the Technical Memorandum. I do not accept Dr Chan’s criticism because he had not even asked what equipment the defendant used at the material time. Dr Chan was simply suspecting that the result was wrong. On the other hand, Ho had examined the equipment actually used. He testified that it was wrong for the defendant to set the equipment at SLOW mode, which would scale down the maximum noise level by almost 9dB. He also pointed out that without calibration to the equipment, the reading about the level background noise might not be accurate. Still, he opined that the measurement of the changes in the noise level caused by different activities in A1001 should be reliable. He confirmed that although he would calibrate the sound meter, his 20-year experience told him that such calibration was not necessary. Therefore, although the sound test might not be perfect (ie without calibration and was in the SLOW mode), I accept Ho’s reasoning and accept the test had a probative value. I find that some activities in A1001 would caused a sound level changes in the Flat. That had a bearing as to the possible cause of the Disturbing Noises. In fact, the defendant was at that juncture of the view that the Disturbing Noises derived from A1001 and therefore continued to remind occupants of A1001 not to create noises.

(13) Since about 2020 on 18 June 2012, the defendant increased the special patrol at the 9^th and 10^th floors. A security guard would go up these 2 floors and then stayed for about 2 minutes on each floor, at an interval of once an hour. Obviously, the defendant was intending to locate the source of the Disturbing Noises by increasing the patrol. Mr Li SC had cross examined the security guards extensively and seems to suggest that the defendant did not performed their duties as stated in the records. However, I find no reason not to accept those records. The security guard might not spend precisely 2 minutes on each floor. However, I accept that the security guards had actually increased the frequency of particularly patrolling at those floors, as instructed by the defendant, for the purpose of locating the sources of the Disturbing Noises. According to the available records for which I accept, special patrol lasted until 7 August 2012. Still, nothing peculiar was heard.

(14) At 2300 on 22 June 2012, Roger Tam lodged similar complaint. Security guard went outside A1001 and stayed for 3 minutes. Nothing special was found.

(15) At 1834 on 24 June 2012, Roger Tam lodged complaint of hearing noises. Security guard went to investigate but no noise was found at A1001.

(16) At 1730 on 27 June 2012, Roger Tam lodged complaint of hearing noises. Upon investigation at 9^th and 10^th floors and enquiries with occupants at A1002 and A902, nothing special was found.

(17) At 2253 on 28 June 2012, Roger Tam lodged similar complaint. Security guard listened outside the Flat. Nothing special was heard. Then, security guard listened outside A1001 and heard only some TV noise. The security guard also asked for permission to enter the Flat for investigation but Roger Tam refused.

66.  As stated above, Roger Tam complained for a drilling incident on 6 July 2012, which was not an incident which occurred in the midnight, ie, not part of the Disturbing Noises. In any event, security guard went to investigate the matter upon receiving Roger Tam’s complaint.

67.  I also find that some of the plaintiffs’ demands were unreasonable. On 12 June 2012, solicitors acting for the 2^nd plaintiff issued a letter to the defendant and made the following demand:

“.. unless [the defendant] confirm to us in writing that the Disturbing Noises will be stopped as from 16^th June 2012…” (my emphasis)

68.  The same demand was repeated in Roger Tam’s emails dated 13 and 14 June 2012. I cannot understand how the defendant, or Jennifer Shing, could have acceded to such a confirmation. The defendant, unless it was the one who created the sound, was simply unable to guarantee when the Disturbing Noises would be stopped. In any event, by a letter dated 15 June 2012, Jennifer Shing politely replied to Roger Tam in details what the defendant had done:-

“Upon receiving your complaint about the noise in April 2012, we issued notices to remind residents about the noise nuisance on 30 April 2012, 30 May 2012 and 11 June 2012 respectively. Residents were reminded to contact us if there is any noise nuisance. Besides, we arranged lift maintenance contractor to carry out thorough inspection for the lifts on 31 May 2012 to ensure they are in good operation condition. Inspections and visits to your neighbour had been conducted in order to achieve a harmonious living environment.”

69.  I find that the defendant had sufficiently replied to Roger Tam in time.

70.  On divers date (eg 22, 23, 26, 27 and 28 June 2012), Roger Tam lodged further complaints via emails to Jennifer Shing. On 29 June 2012, Jennifer Shing replied as follows:-

“Further to our calling for assistance, we had immediately looked into the matter and taken appropriate follow up action. Should you require further assistance, please feel free to contact the Service Centre … or the security room … Our staffs will offer our help to you.”

71.  Jennifer Shing was not a security guard stationed at Peninsula Heights and could not investigate Roger Tam’s complaints herself. I find that her reply to Roger Tam’s complaint was well within a reasonable time.

72.  Roger Tam sent further emails to Jennifer Shing complaining for the Disturbing Noises on divers date in July 2012. On 6 July 2012, solicitors then acting for the plaintiffs also sent a letter to the defendant stating that legal action would be commenced unless the defendant acceded to various demands, including particularly that the defendant would confirm by letter the date on which the Disturbing Noises would cease. The solicitors for the defendant replied to plaintiffs’ then solicitors by a letter dated 13 July 2012 and specifically stated that the defendant had no intention to ignore the plaintiffs’ complaint by repeating what the defendant had done. On 17 July 2012, the 2^nd plaintiff commenced legal proceedings. I find that the defendant did not refuse and/or ignore to reply to the plaintiffs’ complaint.

73.  From the evidence available in this court, I cannot say who was the creator(s) of the Disturbing Noises. It was once believed, or at least suspected, by the defendant that occupants in A1001 were the creator of the Disturbing Noises. Based upon such a belief (or suspicion), the staffs of the defendant did not only urged those occupants to be more considerate but also put foam materials at the door in that unit intending to reduce the noise due to door closing.

74.  Mr Li SC submitted that the defendant could have done a lot more than what had been done. In this regard, he basically relied upon the various suggestions by Dr Chan. In essence, Dr Chan suggested to do more, namely more frequent patrol, more notice to be posted up, more noise survey to be done. I disagree because I think the defendant had already carried out all reasonable measures to identify the source. Even if all measures suggested by Dr Chan had been done, there is no guarantee that the sources of the Disturbing Noises could be identified.

75.  Mr Li SC also submitted that as the defendant is an associated company of the Cheung Kong group, it should have more resources to handle the matter. I disagree. Obviously, each limited company is a separate legal entity. It would be wrong to take into account the financial background of the Cheung Kong group in this case. I am not persuaded by Mr Li SC’s submission.

76.  To sum up, I find that on each occasion when complaint was lodged by Roger Tam (not those through email), security guard would go upstairs to investigate the matter. The responses were instant. The security guard never disregard Roger Tam’s complaint. On each occasion when Roger Tam lodged complaint through email addressing to Jennifer Shing, a response within reasonable time would be given, though not immediately on each occasion. Notices had been posted up to remind the occupants. A test was conducted at A1001. When it was once believed by the defendant that the noise was derived from A1001, the defendant had spoken to the occupants in that unit and urged them to be considerate. Foam materials had been put to the door of A1001. Special patrol had been carried out. A noise survey had been done. These measures were not “cosmetic work”.

77.  Common sense should be applied in consideration of whether the defendant had acted reasonably in this case. Taking all the circumstance into account, I find that the defendant had already acted reasonably in response to the complaints lodged by Roger Tam. So, even if I found that the Disturbing Noises were disturbing by an objective standard (which is not my finding), I will also dismiss the plaintiffs’ claims.

Issue 4 : what damage the plaintiffs have suffered and whether the defendant should be liable for the plaintiff’s damage and to what extent?

78.  The special damage claimed by the plaintiffs was $14,860, ie, the costs of renting the alternative accommodation in the International House from 6 July to 12 August 2012. Mr Lam SC did not seek to argue that such sum was not spent but submitted that the plaintiffs had failed to prove causation.

79.  Mr Lam SC’s submission was that in order to recover this sum, the plaintiffs must prove that but for the defendant’s breach of duty, the Disturbing Noises would have, more likely than not, stopped during the relevant period so that they would not have to move out of the Flat or would not have to stay there for the said whole period, and so that they needed not incur such expenses.

80.  I accept Mr Lam SC’s submission. Even if the defendant had breached its duty (which is not my finding), what could and should have done? Assuming that the defendant was able to identify the source of the Disturbing Noises, it was highly unlikely that the defendant could have immediately stopped the same. Obviously, the defendant needed time to deal with the matter, say to seek an injunction order from the court based upon the relevant section(s) in the DMC. Counting from 29 April 2012 (the first complaint) to July or August 2012 (Roger Tam stayed at the International House), it was about 4 months. I accept that it is more unlikely than not, if ever possible, for the defendant to identify the source and then to take action to abate the Disturbing Noises within 4 months. The plaintiffs, therefore, fail to prove causation between the alleged breach of DMC / negligence / nuisance and the cost of renting the International House.

81.  I therefore agree with Mr Lam SC’s submission that the claim for special damage should be dismissed in any event.

82.  It is not disputed that the 2^nd plaintiff, in the capacity of a limited company, cannot claim for general damages for discomfort and inconvenience.

83.  Mr Li SC submitted that Roger Tam suffered discomfort and inconvenience and claimed for the general damages for 86 days.

84.  In Well Force Company Limited v Boomway[11], Stone J awarded $35,000 as general damages for a nuisance claim for a period of some 10 days to 2 weeks due to the excessive noise accompany renovation of an adjacent flat.

85.  In Ng Yuen Han v Lam Fei Fui[12], the court of appeal awarded $60,000 as damages to the plaintiff who suffered from noise nuisance for 5 years with a persistent volume at a level of 60 to 80 dB.

86.  In Hu Wei Hsin v Ma Hung Wing & ors[13], HH Judge Lok (as he then was), in dealing with a case concerning nuisance from burning of incenses, awarded $75,000 as damages for distress and inconvenience suffered by the plaintiff for 9 months. In that case, one special feature was “the psychological stress caused to the Plaintiff by the Defendant’ nuisance and hostile behaviour during the difficult time of her pregnancy.” (§53)

87.  The present case is about the absence of good sleep for 86 days and in my view the reasonable amount of damages should be $30,000.

88.  The plaintiffs also ask for an injunction order as follows:-

“Defendant does identify the cause of the Disturbing Noises and take such steps to stop the Disturbing Noises”

89.  Needless to say, the plaintiffs are seeking a mandatory injunction order. They demand the defendant, as a DMC manager, to firstly “identify the causes”. I think that is unreasonable. The defendant can continue to investigate, to patrol and to remind the occupants. But even if everything were done, the defendant might still not be able to identify the causes of the Disturbing Noises, assuming it still exists. In particular, Roger Tam admitted in court that the Flat had been rented out and there is no evidence that the new tenant complains for any disturbing noise.

90.  The plaintiffs produced a document known as “Measures that the D should take to identify the Disturbing Noise complained of by [Roger Tam] and steps to be undertaken by D to stop the Disturbing Noise.” In a gist, the plaintiffs suggest more patrol, further questionnaire to be issued, regular notices to residents and instant response upon receiving complaint by security guard to enquire and remind those residents who had not yet sleep at the material time.

91.  Mr Lam SC submitted that the said document could not be transformed into an injunction order as the measures proposed contain numerous uncertainties. For example, Mr Lam SC doubted how regular and till when should the defendant issued notice to warn occupants of 7^th to 12^th floors of Block A. I agree with Mr Lam SC’s submission. If the Disturbing Noises continued, I wonder how could further notice help to identify and to stop such noises.

92.  To conclude, the injunction order sought is unrealistic and unreasonable. In Tech Focus Ltd v Austria Property Management Ltd[14], Rogers VP said:

“It is very important when mandatory injunctions are framed that they are framed in precise terms so that everybody, including in particular the defendant, must know exactly what he must do and what steps he must take.” (at 345A-C)

93.  I will not grant an injunction order in any event.

Orders

94.  The plaintiffs’ claims are dismissed. Costs should follow event. Both parties engaged 2 counsels in this case. I make an order nisi that the plaintiffs do pay costs to the defendant (include all reserved costs, if any), with certificate for 2 counsels, to be taxed if not agreed. The said costs order nisi shall become absolute after 14 days from the date hereof in the absence of application to vary by summons.

95.  Lastly, I thank Mr Li SC and Mr Lam SC, and their junior counsels, for their assistance.

[1] [1999] 1 HKLRD 633

[2] [2013] 3 HKLRD 608

[3] LDBM 8/2003 (unreported, 12 August 2005)

[4] (1894) 6 R67 HL

[5] CACV 90/2012, CACV 91/2012, CACV 93/2012, CACV 94/2012, CACV 95/2012 and CACV 96/2012 (unreported, 17 September 2013)

[6] [1996] 4 HKC 278

[7] CACV 248/2005 (unreported, 25 May 2006)

[8] [1998] Env 732

[9] [2010] 1 HKLRD 587

[10] CACV 156/2012 (unreported, 27 May 2015)

[11] HCA 4480/1994 (unreported, 7 July 1998)

[12] [2013] 3 HKLRD 608

[13] DCCJ 273/2011 (unreported, 3 June 2011)

[14] [2004] 1 HKC 343