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Li Ching Har And Another v Wong Suk Kit

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date28 December 2017
Year2017
Judgement NumberDCCJ4566/2014
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ4566A/2014 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

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BETWEEN
LI CHING HAR 1st Plaintiff
LAU WAI TONG 2nd Plaintiff

and
WONG SUK KIT Defendant

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Before: Deputy District Judge C. Chow in Chambers
Date of Hearing: 14 December 2017
Date of Decision: 28 December 2017

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DECISION

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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...

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