CHOW KIN HANG ALI v. SECRETARY FOR JUSTICE FOR AND ON BEHALF OF FOOD AND ENVIRONMENTAL HYGIENE DEPARTMENT

CACV 99/2023, [2025] HKCA 324

On Appeal from [2023] HKDC 237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 99 OF 2023

(ON APPEAL FROM DCEC NO 1413 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the Judgment of Her Honour Judge Levy (“the Judge”)  given on 10 March 2023 (“the Judgment”).  The Judge held that the applicant failed to establish he has suffered a personal injury by accident that arose out of and in the course of his employment and dismissed his claim for compensation under the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”).

The facts

2.  The facts leading to the claim have been set out in detail in the Judgment and summarised in an earlier judgment of this Court (Au and Chow JJA)[1]. For the purpose of this appeal, the following summary suffices. 

3.  The applicant is a civil servant employed to work as a foreman (管工)  in the Food and Environmental Hygiene Department (“the Department”).  Arising out of an incident in March 2015, the applicant developed “reactive depressive and anxiety symptoms including lowish and irritable mood, negative rumination, somatic symptoms and poor sleep” (反應性抑鬱和焦慮抑鬱症狀), and was diagnosed to be suffering from “adjustment disorder” (適應性障礙).  He had since January 2016 received regular psychological treatment.

4.  On 8 June 2017, the applicant was informed by the Department that he would be assigned to carry out enforcement duties in a newly created unit called the District Enforcement Team (專責執法隊, “DET”), commencing on 20 June 2017. 

5.  The applicant did not agree to the proposed posting.  On 16 June 2017, he telephoned a senior management officer of the Department (“Mrs Cheng”)  and requested to be exempted from the new posting citing health reasons.  Shortly afterwards, a management staff in the Department (“Mr Chow”)  telephoned the applicant in relation to his request.  It is the applicant’s case, but disputed by the respondent, that both Mrs Cheng and Mr Chow were unhelpful, Mrs Cheng had, contrary to his express request, told Mr Chow about his mental illness, and Mr Chow had said things to him that were inappropriate and embarrassing. 

6.  What is not in dispute is that the Department did not accede to the applicant’s request to be exempted from the DET posting.

7.  On 20 June 2017 which was the first day of his new posting, the applicant made an oral request to his supervising officer (“Mr Chan”)  to be transferred out of the DET.  He was told to make a written application and to provide supporting documents.  The applicant was not happy with the reply.  He went to the roof of the building in which the North District Environment Hygiene Office was situated and threatened to jump off from the roof.  He also wrote and displayed a banner complaining that he was being forced to work in the DET.  Later some policemen and firemen attended the scene, and the applicant was taken to hospital.

8.  The medical report[2] shows that on examination, the applicant’s general condition was stable, he was calm with no aggression and emotionally settled.  The provisional diagnosis of the attending doctor was “situational emotional reaction”.  The applicant was discharged on the same day and granted two days’ sick leave, with a referral to have his psychiatric appointment brought forward.

9.  The applicant returned to work on 29 June 2017.  On the same day, he made a written application to be transferred out of the DET.  On 11 July 2017, he was posted out of the DET.

DCEC 1413/2019

10.  On 14 June 2019, the applicant commenced proceedings in the District Court (DCEC 1413/2019)  to claim compensation under the Ordinance in respect of the incident on 20 June 2017. 

11.  The basis of the applicant’s claim was set out in paragraph 3 of Form 1[3], which stated that on 20 June 2017 and in the three days prior to that, the Department forcibly posted him to the DET in disregard of the fact that he was not suitable for the posting due to health reason, and that the Department was guilty of serious negligence with regard to his work arrangement and direction which caused him to suffer mental injury.

12.  The respondent disputed the claim both as to liability and quantum.  In respect of liability, the respondent’s case is that: (1)  the events on or before 20 June 2017 did not come within the meaning of “accident” in section 5(1)  of the Ordinance; and (2)  the applicant’s diagnosis of mental disorder was not caused by the events on or before 20 June 2017.  As to quantum, the respondent disputed the applicant’s entitlement to compensation under sections 9 and 10 of the Ordinance for the reasons that the applicant’s mental injury has not caused a permanent loss of earning capacity, his absence from work was not due entirely to his mental illness and/or that the applicant has suffered no loss of earnings.

The Judge’s judgment

13.  After a five-day trial, the Judge handed down the Judgment dismissing the applicant’s claim with costs. 

14.  The Judge noted that the applicant’s case, as set out in Form 1 and a Statement by Injured Officer on Reported Injury on Duty dated 4 July 2017 filed by the applicant[4], is that on 20 June 2017 he met an accident during his work which was caused by the negligence of the management of the Department, and that the posting arrangement was in breach of his employment contract[5]. The Judge held that the allegations of negligence and breach of employment contract were irrelevant to the claim and did not call for determination, but it was necessary to consider the posting arrangement and the events before and on 20 June 2017 as they impact on the basis of the applicant’s claim under the Ordinance[6].

15.  In respect of the DET posting and the events before 20 June 2017, the Judge accepted the evidence of the respondent’s witness 袁漢雲 (“Mr Yuen”)  and the outcome of the Department’s investigation as contained in a Case Report and Follow-up Record dated 11 July 2017 (“11-7-2017 Case Report”)  as credible and reliable[7].  The Judge found the applicant had embellished his evidence and concluded that where his evidence conflicted with the content of the 11-7-2017 Case Report, the latter was to be preferred[8]. The Judge held that the applicant failed to establish there was anything extraordinary or improper in his DET posting arrangement or that he was being persecuted or discriminated. 

16.  Regarding the events on 20 June 2017, the Judge accepted the evidence of Mr Chan and another respondent’s witness吳偉強 (“Mr Ng”)[9]. The Judge found[10] (1)  the applicant knew and it was within his expectation that the new posting would commence on 20 June 2017 such that his dissatisfaction and response would not amount to an accident; (2)  the interactions between the applicant and Mr Chan on the day did not cause any untoward or sudden mishap; (3)  there was no impropriety in the conversations and contacts that Mrs Cheng, Mr Chow or Mr Chan had with the applicant; and (4)  the applicant’s acts of going to the roof, writing and displaying banner as well as his response to the posting arrangement were probably due to his personality and pre-existing mental illness and did not fall within the meaning of “accident”.

17.  As to the mental disorder suffered by the applicant after 20 June 2017, the Judge found, on the applicant’s own evidence and the medical evidence available at the trial, that it was a pre-existing condition and was not caused by the accident he alleged[11].

18.  The Judge accordingly held that: (1)  the applicant did not meet any “accident” arising out of and in the course of his employment on 20 June 2017; and (2)  the applicant’s mental or psychiatric illness was a pre-existing one, and he failed to show that he suffered any personal injury by accident arising out of and in the course of his employment.

19.  That would have disposed of the claim.  Out of completeness, the Judge also discussed the issue of quantum and took the view that:[12] (1)  the applicant’s mental illness did not cause any permanent loss of earning capacity; and (2)  out of the 75 days of absence, only six days were related to the posting arrangement or the incident on 20 June 2017, and the applicant had received full salary payment for all the days of absence.  The Judge concluded that, even if liability could be established, the applicant would not be entitled to any compensation under sections 9 or 10 of the Ordinance.  

The appeal

20.  By a notice of appeal served on 28 March 2023, the applicant appealed the Judgment to this Court.  No grounds of appeal were given in the Notice of Appeal.  Pursuant to directions given by the Registrar of Civil Appeals, he filed a Supplemental Notice of Appeal on 15 May 2023, which contains 10 grounds of appeal numbered (a)  to (j)  (respectively “Ground (a)” to “Ground (j)”).  In summary, they contend that:

(a)  The applicant’s evidence was “dislodged unlawfully”.

(b)  The respondent counsel and the respondent witness, Mr Ng, were allowed to discuss the case before Mr Ng gave evidence.

(c)  During the trial an unidentified officer from the Department of Justice (“DOJ”)  was allowed to sit with the respondent’s legal team and worked together on the case.

(d)  The applicant only adduced his witness statement and did not have an oral examination-in-chief.  The Judge only had “the secondary evidence generated from his cross examination” by the respondent’s counsel.

(e)  Throughout the trial the Judge made “highly intensive interruptions” of the applicant.

(f)  The Judge repeatedly gave legal advice to the respondent’s counsel by referring to the Court of Final Appeal judgment in relation to pre-existing condition, enabling the respondent’s counsel to change position in her submission.

(g)  The Judge allowed documents and witness statements to be used at the trial when there were no orders permitting them to be filed.  The Judge explained that the parties had an obligation to make discovery from time to time, but she ignored the case management requirements under the Civil Justice Reform.

(h)  The Judge fundamentally ignored there was unilateral variation of the employment contract and there was no contemporaneous documents to support Mr Yuen’s testimony on the DET and the enforcement duty.  The Judge advanced a “double recovery defence” for the respondent, and failed to consider this contravened the “sickness allowance” under the Ordinance and the Employment Ordinance, Cap. 57 and a potential office had been inadvertently revealed. 

(i)  The witnesses’ testimonies showed that the applicant was the only person deployed to the DET who displayed a different mental condition, and that his mental illness was known and talked about over the phone.  The Judge gave legal advice to the respondent’s counsel on the calling of witnesses and pressed the respondent’s legal team to call witnesses, including Mrs Cheng.

(j)  The respondent’s legal team obtained the respondent’s appraisal reports from a government office without a legitimate procedure and/or a warrant and adduced them as material evidence, which went against the applicant’s right under the First Schedule of the Ordinance and the “paper mills formula”[13].

21.  In his oral submissions, the applicant stressed that (1)  the respondent had exercised undue influence over the Judge and misled the Judge; (2)  the respondent had made threat and inducement and prevented the audio recording to be listened to; and (3)  despite that employees’ compensation is meant to be an insurance such that an employee does not have to make a common law personal injury claim, he has so far not received any compensation.   

Our reasons for decision

(1)  The law on injury by accident

22.  The Judge had considered the law relating to what amounts to injury by accident within the meaning of section 5 of the Ordinance by reference to her decision and the Court of Appeal’s judgment in 楊艷娥對保良局第一張永慶中學[14] as well as the Court of Final Appeal’s judgment in Sit Wing Yi Sibly v Berton Industrial Ltd[15] and five appeal decisions of the UK Social Security Commissioner[16].  As the applicant’s grounds of appeal are not directed at the applicable law, we will not dwell into this part of the Judgment[17], other than to make two observations.  First, when referring to the discussion on the meaning of “accident” in Sit Wing Yi Sibly v Berton Industrial Ltd, the Judge probably meant the Court of Appeal’s judgment[18] and not the Court of Final Appeal’s judgment since the latter did not deal with the meaning of “accident”.  Second, subsequent to the cases cited in the Judgment, there was an extensive discussion on what amounts to injury by accident for the purpose of section 5 of the Ordinance in this Court’s judgment in Yu Kwok Wa v China Telecom Global Ltd [2023] 1 HKLRD 1043.

(2)  Preliminary matters

23.  Before addressing the applicant’s grounds of appeal, we would deal with two matters concerning the conduct of this appeal that were raised in the applicant’s written and oral submissions.  Firstly, the applicant refers to Order 59 rule 6 of the Rules of the High Court, Cap. 4A which concerns respondent’s notice, and Coleman J’s decision[19] which explains that where no respondent’s notice is filed in an appeal, the respondent to an appeal cannot raise matters that can only be raised by way of such a notice and that the issues to be determined in the appeal will be those identified in the notice of appeal.  As explained in Coleman J’ decision, a respondent to an appeal is not obliged to file a respondent’s notice.  In this appeal, the fact that the respondent has not filed a respondent’s notice carries no significance.  The applicant has not pointed to any part of the respondent’s submissions that has gone outside of the matters raised in the notice of appeal. 

24.  Secondly, the applicant complains that the respondent’s submission makes a misrepresentation in saying that this Court does not have the transcript of the trial before the Judge when he has already obtained an audio recording of the proceedings.  He refers to section 44 of the Crimes Ordinance, Cap. 200, which concerns the admission of a certified copy of record of proceedings in evidence in proceedings for an offence against sections 31, 38 or 39 of the Crimes Ordinance.  The complaint and the reference to the Crimes Ordinance are misplaced.  Order 59 rule 9(1)(g)  of the Rules of the High Court provides that an appellant should provide to the Court “such parts of the transcript of the official shorthand note, if any, of the evidence given in the court below as are relevant to any question at issue on the appeal.”  A shorthand note of court proceedings includes a record of the proceedings by mechanical means, hence a digital audio recording[20]. A transcript of proceedings and a digital audio recording of proceedings are two different things.  A transcript of proceedings comes into being when the digital audio recording is transcribed into writing.  Although the applicant has obtained a digital audio recording of the trial below, it does not detract from the fact that he has not provided this Court with the transcript of the trial. The respondent’s submission is neither wrong nor misleading in pointing out that the applicant has not placed before this Court a transcript of the trial.

(3)  Grounds of appeal

25.  We turn next to the grounds of appeal in the Supplemental Notice of Appeal.  Before dealing with each of them in turn, it should be noted that the grounds of appeal as well as the applicant’s submissions do not directly challenge the critical findings of the Judge that the applicant did not meet any “accident”, or suffer any “personal injury” by accident, arising out of and in the course of his employment.  Further, given that the Judge had found against the applicant on the issue of liability, the discussions in her judgment on quantum are obiter.  It follows that unless the applicant succeeds in this appeal to overturn the Judge’s finding on liability, his challenge to the Judge’s views on sections 9 and 10 compensation is academic.  

(3.1)  Ground (a)

26.  In Ground (a), the applicant alleges that two documents had been physically removed from the case file by the Judge, namely (i)  “United Hospital Psychiatrists’ Medication Prescriptions over the period” and (ii)  “Daily working Log Sheet in Office”.  Document (i)  refers to copy of six prescription bags issued by United Christian Hospital to the applicant on 14 June 2022 which has been included in the appeal bundle. The applicant has not elaborated on document (ii).  The respondent’s written submissions[21] pointed out that shortly before the trial, the applicant disclosed the prescription bags and some documents called “每天工作表” which were dated between 3 and 28 February 2020 by way of an applicant’s trial bundle.  At the trial, after hearing submissions on the relevance of the documents, the Judge allowed the prescription bags to be included in the applicant’s hearing bundle.  The applicant has not disputed this part of the respondent’s submissions or that this was what had happened.  It is within the Judge’s case management power to decide whether to permit documents disclosed very late to be admitted and used at the trial.  The allegation that the Judge had physically removed documents (i)  and/or (ii)  from the case file is unfounded. Ground (a)  is not made out.   

(3.2)  Ground (b)

27.  The thrust of this ground is that the respondent counsel improperly held discussions with the respondent witness, Mr Ng, before he gave evidence, Mr Ng retracted “his previous testimony in an unusual way” that was akin to perjury, and the Judge did not deal with the inconsistencies.  There is no legal principle or procedural rule which disallows a counsel in a civil trial to converse or hold discussions with a witness before calling the witness to give evidence.  The applicant has not elaborated on what had been retracted by Mr Ng or the inconsistencies in his evidence that the Judge should have dealt with.  There is no substance in this ground.

(3.3)  Ground (c)

28.  This ground stems from the applicant’s misunderstanding of the role of the DoJ in the proceedings below.  The Secretary for Justice, acting for and on behalf of the Department, is the respondent in this case.  The Secretary is the head of the DoJ, and some of his duties may be carried out through the DoJ, such as providing legal advice to government departments and/or providing legal representation in civil litigations.  In the present case, the Secretary through the DoJ has engaged a firm of solicitors and a counsel in private practice to conduct the proceedings and appear at the trial.  As such, it is neither unusual nor improper for a government counsel from the DoJ to attend the trial and to sit and work with the respondent’s legal team.  The applicant’s complaint that there was non-compliance with the procedure under Order 67 of the Rules of High Court is misplaced as there is no change in the solicitors representing the respondent.  Similarly, the reliance on HKSAR v Tsang Yam Kuen [2018] 2 HKLRD 186 at [38], [42] and the assertion that undue pressure was exerted on the Judge are misplaced and not borne out by the facts.  This ground fails.   

(3.4)  Ground (d) 

29.  The applicant’s complaint under this ground is that he did not have an oral examination-in-chief such that the Judge only had his evidence under cross-examination.  This is an incorrect understanding of the trial procedure.  Order 38 rule 2A(7)(a)  of the Rules of the District Court, Cap. 336H provides that a trial judge may order that the witness statement(s)  given by a witness be adopted as the examination-in-chief and to stand as part of the evidence of the witness.  In this way, the witness does not have to orally repeat the content of the witness statement(s), thereby saving time and costs.  This has for a long time been the usual practice of the court in civil trials.  There is no basis for the complaint that the Judge deliberately “skipped” the examination-in-chief.  What the Judge did also does not amount to any procedural irregularity.  This ground cannot stand.

(3.5)  Grounds (e)  and (f)   

30.  These two grounds essentially complain that the Judge acted improperly during the trial.  It is said that she repeatedly interrupted the applicant and referred the respondent’s counsel to the judgment of the Court of Final Appeal concerning pre-existing conditions.  The applicant has, however, only made general assertions with no particulars or evidence to support the complaint that the Judge had made improper interruptions. 

31.  Regarding the Court of Final Appeal judgment mentioned in Ground (f), the applicant has not provided any details.  It is probably a reference to Sit Wing Yi Sibly v Berton Industrial Ltd.  The case concerns an employee’s compensation claim in respect of an employee who was found slumped on the floor of the toilet in the office block with the cause of death being unknown.  The Court of Final Appeal, in dismissing the appeal against the dismissal of the claim, held that “injury by accident” encompasses cause and effect, with accident as the cause and injury as the effect, and these are distinct elements.  The Court of Final Appeal’s decision does not relate to pre-existing conditions and there is no discussion on this in the judgment. 

32.  Both under Ground (f)  and in the written submissions, the applicant also contends that the respondent had changed or departed from his position, but does not say what are the changes.  From reading the papers in the case and the Judgment, it can be seen that throughout the respondent’s position on liability is that a case for compensation under the Ordinance is not made out because the applicant did not meet with an “accident” within the meaning of the Ordinance and his diagnosis of mental disorder after the incident was not caused by any accident.  We do not discern any change in the respondent’s position.

33.  As to the issue of pre-existing conditions, it is not in dispute that the applicant had since January 2016 been diagnosed to have adjustment disorder and was receiving treatment at the time the incident happened.  For the reasons given in [79] and [80] of the Judgment, the Judge found the diagnosis of mental illness after the incident was a pre-existing condition and was not an injury caused by any accident.  The applicant has not pointed to any error in the Judge’s findings in this regard.

34.  In light of the above discussions, the applicant has failed to substantiate these two grounds of appeal. 

(3.6)  Ground (g)

35.  This ground contends that the Judge had allowed documents and witness statements to be used at the trial when there was no order permitting them to be filed.  However, it has only identified one document, namely, a 2011 recruitment advertisement of the Department which relates to the recruitment of the applicant.  According to Miss Lee who appeared for the respondent, due to lapse of time the physical copy of this advertisement is no longer available.  Mr Yuen, whose evidence was accepted by the Judge, testified that from the information provided during the recruitment process and induction training, the applicant should have known the work duties of foreman and that they include law enforcement duties.  This part of Mr Yuen’s evidence was occasioned by the applicant’s allegation that his posting to the DET was a unilateral variation and a breach of his employment contract.  In our view, Mr Yuen’s reference to the 2011 recruitment advertisement is both relevant and permissible, even though the original advertisement could not be adduced in evidence.  There is also no incompatibility with the underlying objectives of the Civil Justice Reform as reflected in Order 1A rule 1 of the Rules of the District Court.  This ground cannot stand.  

(3.7)  Ground (h)   

36.  Ground (h)  has two parts.  The first part relates to the Judge’s acceptance of Mr Yuen’s evidence that since the commencement of the applicant’s employment in 2011 law enforcement has been a part of his work duties as a foreman, and the Judge’s finding that the applicant’s deployment to the DET was not a unilateral variation or a breach of the applicant’s employment contract.  These are findings of fact of the Judge which the Court of Appeal will not lightly interfere.  In order to successfully challenge them, the applicant must show that the Judge’s findings were plainly wrong, which is a high threshold.

37.  The applicant complains that the Judge ignored the Statement by Injured Officer on Reported Injury on Duty dated 4 July 2017 in which he stated that there was a unilateral variation of the employment contract.  He argues that Mr Yuen’s evidence regarding the DET and the law enforcement duty is not supported by contemporaneous documents, and the Judge did not have regard to the legal principles on negative averments.  He also asserts that the “employment contractual problem” for new civil servant and for foremen will potentially affect thousands of employees and their employer.  We do not accept these submissions.  

38.  Mr Yuen was responsible for managing the transfer and deployment of foremen.  The Judge set out his evidence in [49] to [53] of the judgment and gave her reasons for accepting his evidence and preferring it to that of the applicant at [58] to [60] of the judgment.  In our view, the Judge has provided cogent basis for her assessment of the credibility of Mr Yuen and his evidence and her acceptance of Mr Yuen’s evidence.  Based on Mr Yuen’s evidence, the Judge was amply justified in finding that law enforcement has always been part of the applicant’s work duties and there was nothing extraordinary or improper in the applicant’s posting to the DET.  The Judge was also entitled to reject the applicant’s contentions that law enforcement or issuing offence tickets (出飛)  was not within his contractual duties or there had been unilateral variation of his employment contract.  The applicant’s assertions about the potential impact on the employment terms of civil servants in general and foremen in particular are neither supported by evidence nor relevant to the correctness of the Judge’s findings on the issues in question. The applicant has also not shown how the law on negative averments relates to his claim or this appeal.

39.  The second part of Ground (h)  contends that section 2(2)  of the Ordinance binds the Judge.  It also complains that the Judge advised the respondent’s counsel to run a “double recovery defence” and ignored that this contravenes the “sickness allowance” under the Ordinance and the Employment Ordinance and amounts to a potential offence.  We are unable to see the relevance or merits of these contentions.

40.  Section 2(2)  of the Ordinance is about recovery of compensation by an employee or apprentice who was injured while working under an illegal contract of service or apprenticeship, and provides that the Court may, if it thinks proper so to do, deals with the matter as if the injured person had been working under a valid contract of service or apprenticeship.  The section has no relevance as there is no evidence that the applicant’s employment contract is illegal.

41.  As to double recovery, the Judge in her obiter discussion on quantum held that compensation under section 10 of the Ordinance was not payable because not all the days of absence were related to the applicant’s psychiatric injury and he had received full salary for the days of absence.  The Judge pointed out that to allow compensation under section 10 would be contrary to the rule prohibiting double recovery.  We have read this part of the judgment (at [104] to [114]).  We find no error in the Judge’s analysis of the law and the parties’ submissions.  The applicant has not explained how the Judge’s reasoning contravenes the Employment Ordinance or the Ordinance with regard to “sickness allowance”, or the basis of his contention that an offence is potentially involved.

42.  For the above reasons, there is no merit in Ground (h).

(3.8)  Ground (i) 

43.  This ground concerns the Judge’s findings on the dispute over the contacts and conversations that the applicant had with Mrs Cheng and Mr Chow.  The Judge did not accept the applicant’s evidence that he had during his telephone call to Mrs Cheng told her the details of his mental health condition and/or that he did not agree to Mrs Cheng passing to Mr Chow his request not to be posted to the DET.  Acting on the findings in the 11-7-2017 Case report, which she accepted as credible and reliable, the Judge found that the applicant did not relay to Mrs Cheng the details of his mental health condition, Mrs Cheng had obtained his consent before referring his posting request to Mr Chow for follow-up, and neither Mrs Cheng nor Mr Chow acted improperly in their contacts and conversations with the applicant. 

44.  For the analysis and reasons given in [61] to [67] of the Judgment, we are of the view that the Judge is well supported in the above findings.  In particular, the Judge had given due consideration to the fact that Mrs Cheng and Mr Chow had not testified, and concluded that no adverse inference should be drawn against the respondent.  The applicant has not shown that the Judge was plainly wrong in her assessment of the evidence, including the credibility and plausibility of the applicant’s evidence.  The applicant’s contention that it was “agreed conclusive evidence … supported by mutual documents” that his mental illness was talked about over the phone is not borne out by the materials before the Court.  Ground (i)  has no merits.  

(3.9)  Ground (j) 

45.  This ground concerns five appraisal reports (管工職系評核報告)  of the applicant covering the period from 20 June 2017 to 28 February 2022[22].  They have not been included in the appeal bundle. The applicant complains that the respondent improperly obtained the appraisal reports and adduced them in evidence, which adversely affected his rights under the Ordinance and the “paper mills formula”.  He claims that the Judge “solicited agreement from [the respondent’s legal team] and a witness to go to a government office in Admiralty to take away and make copies” of the appraisal reports “without legitimate procedure and/or warrant”. However, it does not appear from the Judgment and the materials before us that during the trial the applicant had objected to the appraisal reports being admitted as evidence.  There is also no evidential support for the serious allegations made under this ground of appeal.   

46.  The Judge referred to the applicant’s appraisal reports in her discussion on the applicant’s claim for compensation under section 9 of the Ordinance.  What happened was that in his closing submission, the applicant contended that as a result of his mental illness the Department had difficulty finding a suitable post for him, and he would be disadvantaged in the labour market if he were to leave the civil service.  He therefore claimed, for the first time, that the “Paper Mills formula” should be adopted to assess the section 9 compensation.  The respondent opposed the adoption of the “Paper Mills formulae”, arguing that it was a late argument and there was no opportunity to cross-examine the applicant on the issue.  The respondent also referred to the applicant’s appraisal reports as showing that, after June 2017, the applicant had satisfactorily discharged many of his duties, his work performance was not adversely affected by his health condition, and he made no mention of his health problem during the 5^th and latest appraisal. 

47.  Having considered the applicant’s medical reports, the contents of his appraisal report and Mr Yuen’s evidence, the Judge found that, after June 2017, the applicant continued to carry out his work duties and his performance was assessed to be good, and that it was most unlikely that his service with the government would be terminated on account of his mental illness.  The Judge accordingly held that the applicant failed to prove any loss of earning capacity caused by his mental illness and any entitlement to compensation under section 9.  

48.  In our view, the appraisal reports are relevant to the dispute between the parties and the Judge did not err in taking them into account.  The applicant’s allegation that the Judge collaborated or conspired with the respondent to deprive him of his rights under the Ordinance is not supported by the evidence before the Court. Further, given the Judge’s finding that the applicant has no entitlement to compensation under section 9, there is simply no room for applying the “Paper Mills formula”.  Ground (j)  fails.  

(4)  Other matters

49.  Apart from the grounds of appeal, the applicant has also raised a number of miscellaneous matters. First, both in his written and oral submissions, the applicant places great reliance on the Canadian case of Whiten v Pilot Insurance Co [2002] 1 SCR 595 and argues that applying the case his compensation should be doubled.  In that case which concerns a protracted litigation over a claim under an insurance policy, the plaintiff was awarded punitive damages on account of the insurer’s unreasonable conduct.  The case has no relevance to the applicant’s claim as it is a statutory claim for compensation and there is no room for an award of punitive damages.  Further, for the reasons given above, the applicant’s allegations of procedural impropriety levelled at the respondent are not made out. 

50.  Second, the Supplemental Notice of Appeal had made repeated reference to “estoppel”.  There is however no elaboration in the grounds of appeal or the applicant’s submissions of the content and basis of the estoppel argument.

51.  Third, the applicant’s list of authorities contains a number of authorities[23] and his written submission also quotes extensively from several of these judgments and the Chief Justice’s speech delivered at the 2025 Opening of the Legal Year ceremony.  However, it is unclear how the cases and the Chief Justice’s speech relate to the grounds of appeal or support his appeal.

52.  Finally, the applicant’s oral submissions claims that as a result of undue pressure exerted by the respondent, the Judge erroneously approached his claim from the perspective of a common law personal injury claim.  It is also said that contrary to the statutory intention of providing some form of support and insurance to employees, he has been left with no remedy and no compensation for more than seven years since the incidents in 2017.  We do not think that the applicant’s criticism of the Judge is justified.  Contrary to the submission, the Judge was well aware that issues of negligence or breach of duty, which are relevant to a common law personal injury claim, are not relevant to the applicant’s claim for compensation under the Ordinance: see [47] of the judgment.  The fact that the applicant has not received any compensation under the Ordinance is because the Judge found he has failed to prove that there was injury by accident that arose out of and in the course of his employment.  For the reasons discussed above, the Judge was correct in her finding.  

  (5)  Conclusion and costs

53.  In conclusion, we dismiss the applicant’s appeal. 

54.  There is no reason why the costs of the appeal should not follow the event.  We make an order that the applicant pays the respondent the costs of the appeal, to be taxed if not agreed. 

Disposition

55.  The orders we make are as follows:

(1)  The appeal is dismissed.

(2)  The applicant pays the respondent the costs of the appeal, to be taxed if not agreed.