Wong Hon Hung And Another v Jolly Birds Ltd

CourtDistrict Court (Hong Kong)
Judgement NumberDCCJ5341/2006
Subject MatterCivil Action
DCCJ005341/2006 WONG HON HUNG AND ANOTHER v. JOLLY BIRDS LTD

DCCJ 5341/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5341 OF 2006

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BETWEEN

WONG HON HUNG Plaintiffs
AND
CHEUNG HING MEI
and
JOLLY BIRDS LIMITED Defendant

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Coram: Deputy District Judge J. Ko in Court

Dates of Hearing: 17th to 19th December 2007, 6th, 11th and 14th February 2008, 7th and 10th March 2008, 15th April 2008, 16th and 20th May 2008

Date of Handing down of Judgment: 24th June 2008

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JUDGMENT

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1. The Plaintiffs are the owners of Flat A on 9/F in Tower 14 of Parc Oasis (“Flat 9A”). EastPoint Property Management Limited (“the Property Manager”) is the manager of the building.

2. The Defendant was the owner of Duplex A on 10/F and 11/F of the same building between January 2005 and mid-2007. The Defendant purchased the premises as residence for Yung Choi-Fong and her 3 children. Ms. Yung engaged Chung Kam Wah Hely to design and supervise the renovation of the premises.

3. It is common ground that extensive renovation had been carried out at the Defendant’s premises before Ms. Yung’s family moved in. In particular, the following renovation was done to 10/F of the Defendant’s premises (“Flat 10A”):

(a) According to the original building plan approved by the Building Department, Flat 10A comprised a balcony, a living room, a storeroom, a utility room, a kitchen, and a toilet. The toilet and part of the kitchen were originally located directly above the master bedroom of Flat 9A. The layout of Flat 10A was completely changed after the renovation. Of particular relevance to this case is the fact that the original toilet and part of the original kitchen were converted into an enlarged shower room (“10A Shower Room”). The 10A Shower Room is now directly above the master bedroom of Flat 9A.

(b) A layer of waterproof membrane (“Waterproof Membrane”) was applied to the floor of 10A Shower Room to prevent shower water from leaking from 10A Shower Room down to Flat 9A.

(c) A new drainage pipe (“New Pipe”) was installed to drain waste water from the washing machine placed in the balcony of Flat 10A.

4. It is also common ground that there is a sand trap between the concrete slab forming the floor of Flat 10A and the concrete slab forming the ceiling of Flat 9A (“the Sand Trap”).

5. The revocation of the Defendant’s premises was completed in June 2005, and Ms. Yung’s family moved in shortly thereafter.

Water seepage at Flat 9A

6. It is not disputed that the ceiling lamp inside the master bedroom of Flat 9A began to flicker in mid-July 2005. On 21st July 2005, the Plaintiffs inspected the lamp and discovered water being collected inside the lamp cover.

7. The Plaintiffs suspected water seepage and made complaints to the Property Manager and the Joint Office of the Buildings Department and the Food and Environmental Hygiene Department (“Joint Office”). Despite inspections and investigation done by the Property Manager and the Joint Office, water seepage continued and worsened.

8. Between mid-July and August 2005, the Plaintiffs used aluminum trays to collect water dripping from the ceiling of the master bedroom of their flat. Seepage then intensified and the Plaintiffs used inverted umbrellas and water buckets to collect the dripping water. The situation further deteriorated and the Plaintiffs had to affix large plastic sheets underneath the entire ceiling of the master bedroom to channel the dripping water into water buckets. They, who are husband and wife, were unable to use their master bedroom.

9. The Plaintiffs’ expert inspected Flat 9A on 16th August 2006. He observed:

(a) Serious damp patches, dripping water, loose plaster and rusty stains were evident on the entire ceiling of the master bedroom. The size was approximately 3 m x 2.4 m.

(b) Water spots were also evident on the ceiling of the other bedroom inside Flat 9A.

10. The Defendant’s expert attended Flat 9A on 11th February 2007. He described the situation as follows:

(a) Stain marks and peeled off plaster were noted throughout the ceiling. Mini stalactites were noted in areas near the ceiling lamp. Plastic sheeting was set up underneath the ceiling to collect the dripping water and direct it into a bucket placed on the floor.

(b) One stain mark and a bulge on the wallpaper were noted in the bedroom of Flat 9A.

11. At the trial, the Defendant does not dispute the fact of water seepage at Flat 9A. Rather, it disputeswhether the source of such water seepage originated from Flat 10A.

12. The main issues in this case are therefore:

(a) What was the cause of the water seepage at Flat 9A?

(b) Whether the Defendant should be liable for the water seepage?

(c) If the Defendantis liable, what isthe loss and damage suffered by the Plaintiffs as a result of the water seepage?

What was the cause of the water seepage at Flat 9A?

13. It is not uncommon for water seepage to occur in multi-storey buildings in Hong Kong. There can be many different causes of water seepage. There is no presumption that water must necessarily leak from the flat above to the flat below.

14. In the present case, it is for the Plaintiffs to prove that water leaked from the Defendant’s flat (i.e. Flat 10A) in order to succeed in their claim against the Defendant. In particular, there is no burden on the Defendant to prove that water leaked from a source other than its flat.

15. Both parties have engaged expert for the purpose of this action. However, they offer very different theories as to the source of water seepage at the master bedroom of Flat 9A.

16. According to the Plaintiffs’ expert Wong Man- Hong:

(a) The water that seeped into Flat 9A was waste water originating from Flat 10A.

(b) The Waterproof Membrane in 10A Shower Room was substandard. Shower water seeped through the Sand Trap and eventually got into Flat 9A below with considerable time lag.

(c) The New Pipe was substandard and this was also one of the sources of the water seepage.

17. On the other hand, the Defendant’s expert Ip Man-Ching holds the view that:

(a) Water penetrated into the building via the external wall at a point above the floor level of 10A Shower Room.

(b) After traveling downward along the concrete wall, the penetrated water entered into and formed water pond within the Sand Trap.

(c) Such penetrated water induced symptoms of water seepage to the ceiling of the master bedroom of Flat 9A.

18. Both experts agree that the seepage problem was not caused by leakage of the supply pipes or the drainage pipes atFlat 10A. They also agree that water seeped from the ceiling of the master bedroom in Flat 9A and to the ceiling of the other bedroom causing the damage there.

(a) The Defendant’s theory

19. I shall begin by discussing the theory offered by Defendant’s expert.

(a1) Challenge to the Defendant’s expert’s qualification

20. In his closing submission, the Plaintiffs’ counsel challenges the expert qualification of the Defendant’s expert. He submits that:

“Mr. Ip is not qualified to be an expert for identification of cause of water leakage since he had no actual relevant experience in identifying cause of water leakage in residential properties. Accordingly, Mr. Ip is not entitled to draw any inference or give his opinion to this Honourable Court.”

21. I disagree.

22. The starting point is s.58(1) of the Evidence Ordinance, which provides that:

"Subject to any rules, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence".

23. An expert may acquire sufficient knowledge of the subject matter by study or experience so as to render his opinion of value in resolving the issue before the court: see para.33-46 in Phipson on Evidence, 16th Edition (2005).

24. The Defendant’s expert has fully set out his qualifications and background in his first report.

25. He obtained his bachelor degree in building surveying from the Thames Polytechnic in the UK. He then obtained a master degree in building rehabilitation studies from Greenwich University in the UK. He received professional training in the UK whilst he was studying for his master degree.

26. He has been a Chartered Building Surveyor since 1992. He is also an Authorized Person under the Buildings Ordinance, a Registered Surveyor (Building Surveying Division) under the Surveyors Registration Ordinance, a Member of the Royal Institution of Chartered Surveyors (Building Surveying Division), a Member of the Hong Kong Institute of Surveyors (Property and Facility Management Division), a Member of the Association for Project Manager and a Fellow Member of the Hong Kong Institute of Facility Management.

27. Since 2001, he has been acting as an assessor for the Hong Kong Institute of Surveyors to examine candidates to see if they can meet the requisite level of knowledge and expertise to become a qualified building surveyor. Since 2005, he has been the Registered Assessor (Senior Professional Route) for the Royal Institution of Chartered Surveyors to examine candidates on their requisite level of knowledge and expertise to qualify as a chartered surveyor.

28. Prior to his present employment, he has accumulated the following working experience:

(a) Between 1986 and 1988, he worked as a trainee in Housing Department.

(b) Between 1991 and 1997, he worked in a bus company in Hong Kong.

(c) Between 1997 and 1998, he worked as head of the repair division in the container terminal.

(d) Between 1998 and 2000, he worked in Jones Lang Lasalle in the management of facilities and maintenance of properties.

(e)...

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