XIAO MULAN FOR HERSELF AND ON BEHALF OF MEMBERS OF THE FAMILY OF TANG YEUK CHUN, DECEASED v. SUN WING HING AUTO ENGINEERING SERVICE CO LTD

DCEC 2377/2018

[2021] HKDC 735

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2377 OF 2018

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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1.  This is the trial of the claim brought by the Applicant Madam Xiao Mulan (“Madam Xiao”), acting for herself and on behalf of members of the family of Tang Yeuk Chun, Deceased (the “Deceased”) against the Respondent Sun Wing Hing Auto Engineering Service Company Limited (the “Respondent”) for employee compensation for a fatal accident (the “Accident”) on 18 November 2016 which resulted in the death of the Deceased.

A. THE RESPONDENT’S ABSENCE

A1. O 35, r 1

2.  The Respondent failed to attend the trial.  Counsel for the Applicant Mr Tsoi made an application under O 35, r 1 of the Rules of District Court, Cap 336H (“RDC”) that the trial proceed in the Respondent’s absence.

3.  The Respondent was represented by Messrs Wong & Co until they ceased to act by the Order dated 23 June 2020, following which it has no legal representation.  The Respondent did not attend the Pre-Trial Review hearing on 29 December 2020, at which HH Judge Levy directed the Applicant to inter alia serve trial bundles and submissions on the Respondent by ordinary post and by leaving at its registered office.

4.  Pursuant to O 35, r 1, where the defendant does not appear at trial, the plaintiff may proceed to prove his claim.

5.  I am satisfied that I should proceed with the trial in the absence of the Respondent, taking into account the following circumstances:-

(1) I have read the affirmations prepared by the Applicant’s solicitors proving service and am satisfied that the Applicant duly served the trial bundles, the opening submissions (accompanied by Chinese translations), the PTR Order by ordinary post to and by leaving at the Respondent’s registered address;

(2) By a series of letters from 14 January 2021 to 27 May 2021, the Applicant’s solicitors informed the Respondent the date and venue of the trial and served the relevant Court documents on the Respondent;

(3) It has been more than four years since the Accident. Delaying the trial would be prejudicial to the Applicant who is no doubt left aggrieved and traumatised by the Accident.

6.  Further, no exceptional circumstances exists which justifies the delay of the trial date, which is a milestone date.

7.  In the circumstances, it is for the Applicant to prove her case, so far as the burden of proof lies on her.  Once such burden is discharged, the Applicant should be entitled to such relief as claimed and such other relief as is consistent therewith.  (See Deng Minghui v Chau Shuk Ling Elaine [2010] HKCFI 814 at §§9-10 and Chan Yin Kuen v Full Flush Holdings Ltd [2018] HKCFI 2703 at §§7-8)

A2. Exclusion of evidence under O 38, r 2A(6)

8.  The Respondent only filed one witness statement of Kong Hoi-for (“Mr Kong”), who, as discussed at paragraphs 22-26 below appears to be the person in charge of the Respondent.  Apart from that, the Respondent also adduced various declarations made by Mr Kong and an employee of the Respondent Mr Tang Hing Lun (“Mr Tang”) to the Labour Department.

9.  Mr Tsoi submitted that pursuant to O 38, r 2A(6) of the RDC, I should disregard not only Mr Kong’s witness statement but also the declarations made by Mr Kong and Mr Tang to the Labour Department which were adduced by the Respondent.  He referred to Deng Minghui v Chau Shuk Ling Elaine [2010] HKCFI 814 and Chan Yin Kuen v Full Flush Holdings Ltd [2018] HKCFI 2703.  In both cases, the Court disregarded the witness statements and expert evidence of the parties who failed to attend trial pursuant to pursuant to O 38, r 2A(6).

10.  O 38, r 2A(6) provides that where a party does not call a witness to whose evidence it relates, no other party may put the statement in evidence at trial.  It is clear that O 38, r 2A(6) applies to not just statements of factual witnesses but also those of expert witnesses, which appears to me to be the basis on which expert evidence was disregarded in Deng Minghui and Chan Yin Kuen.

11.  There is no doubt that Mr Kong’s witness statement should be disregarded under O 38, r 2A(6).  However, I do not think O 38, r 2A(6) extends to the declarations of Mr Kong and Mr Tang to the Labour Department.  These declarations are not witness statements; they appear to me to be no different from any other hearsay evidence which is generally admissible, and which shall only be excluded if the Court having regard to all circumstances considers that the exclusion would not result in any prejudice to the interest of justice (section 47(1) of the Evidence Ordinance, Cap 8).

12.  I do not think that the Respondent’s failure to attend trial alone justifies the exclusion of such evidence.  The test is whether the exclusion of declarations of Mr Kong and Mr Tang to the Labour Department will cause prejudice to the interest of justice, and I am not satisfied that they should be excluded applying such test.  Of course, the weight to be attached to these declarations must be assessed having regard to the usual rules of evidence.

B. THE PARTIES RESPECTIVE CASES

13.  The Applicant’s case as set out in the Application dated 15 October 2018 is that:-

(1) The Deceased was a vehicle repair mechanic employed by the Respondent, and was aged 58 at the time of the Accident;

(2) On 18 November 2016, the Deceased was repairing a private car in the course of employment for a customer of the Respondent.  In the course of doing so, the car jack which the Deceased used to support the car toppled and the Deceased was crushed.  As a result, he sustained hypoxic brain damage and multiple fractures from which he unfortunately died on 21 November 2016.

(3) The Deceased’s monthly earning immediately before the Accident and the average earning during the 12 months prior to the Accident was HK$21,000.

14.  The Applicant did not specify the amount claimed as compensation in the Application.  Mr Tsoi confirmed that the amount of compensation claimed is HK$900,000 pursuant to section 6(1)(c) of the Employee’s Compensation Ordinance, Cap 282 (“ECO”), consisting of the following:-

(HK$21,000 (monthly earnings) + HK$4,000 (being value of lodging provided by the Respondent)) x 36 months = HK$900,000

15.  Mr Tsoi further confirmed that the Applicant does not seek compensation for funeral expenses under section 6(5) of the ECO since Mr Kong’s son had paid for the Deceased’s funeral expenses.

16.  The Respondent’s case as set out in the Answer dated 18 March 2019 is that:-

(1) It denies that the Deceased was employed by the Respondent or that the Accident arose out of and in the course of employment.

(2) It alleges that the Deceased was self-employed, but gave no particulars of the circumstances in support the allegation.

(3) It put the Applicant to strict proof of inter alia the employment relationship, circumstances of the Accident and monthly earnings.

C. ASSESSMENT OF EVIDENCE

17.  In assessing the credibility of a witness, the court normally attaches much weight to undisputed contemporaneous documents, inherent probabilities, motive or the lack of it, logic and common sense (see Hui Cheung Fai v Daiwa Development Ltd, unrep, HCA 1734/2009, at §§76-83)

C1. The Accident

18.  Much of what happened on the day of the Accident can be gleaned from the Labour Department record of interview of Mr Chan Hung-Hoi Jimmy (“Jimmy”) dated 24 November 2016 and his employee Ms Lam Hoi-Yin (“Ms Lam”) dated 5 December 2016:-

(1) On Friday, 18 November 2016 at around 11am, Jimmy, accompanied by Ms Lam, drove his car to the Respondent’s garage in Shun Tai Street, Tuen Mun;

(2) Jimmy informed the Deceased that various parts of his car did not pass the vehicle examination and require repair/replacement.  The Deceased informed him that the Respondent did not have the relevant parts.  As the deadline for vehicle examination was on that very day, Jimmy suggested driving the car to an open yard at Lot 1703 in DD129, Lau Fau Shan, Yuen Long where he parked a similar car which he previously purchased, as he thought he could find some of the parts from that car for use.  The Deceased therefore took some tools with him and travelled with Jimmy and Ms Lam to the open yard.

(3) Upon arriving at the open yard, Jimmy left and the Deceased and Ms Lam stayed behind.  Between 12:10 pm and 12:30 pm, while Ms Lam was working inside a container in the open yard, she heard the Deceased yelled.  When she walked out of the container, she found the Deceased was crushed underneath the rear right chassis of the car.  She immediately reported the accident to Jimmy and the Police.

19.  According to the Fatal Accident Report dated 15 May 2017:-

(1) It is believed that the Deceased dismantled the rear right wheel and jacked up rear part of the car by using a manual car jack found at the scene to inspect and repair the car;

(2) The car jack suddenly toppled when the Deceased was lying underneath the chassis.  Some hand tools were also found at the scene.

(3) The Deceased suffered fatal injuries and passed away on 21 November 2016.

20.  Relevantly, as discussed in paragraph 22 below, Mr Kong was in custody pending trial in DCCC 1012/2015 at the time.  The Police contacted Mr Kong’s son Kong Yiu-Pan (“Kong Junior”), who dealt with the aftermath of the Accident on behalf of the Respondent.

21.  The Respondent did not adduce any evidence to contradict the account of Jimmy and Ms Lam of the Accident.  There is no reason for me to doubt their account, which were provided shortly after the Accident and are consistent with the other contemporaneous records (including photos taken at the scene shortly after the Accident, the Deceased’s medical record and Mr Tang’s declarations to the Labour Department).

C2. Mr Kong’s evidence in the criminal proceedings

22.  Although not named in the Respondent’s corporate documents, Mr Kong appears to be the person in de facto control of the Respondent.  He was arrested on 20 July 2015 on suspicion of conspiracy to handle stolen goods and handling stolen goods (see HKSAR v Kong Hoi-For [2016] HKDC 1652 at §7).  He was remanded in custody until he was acquitted after trial in DCCC 1012/2015 on 21 December 2016.

23.  As recorded in the transcript of his video record of interview on 22 July 2015:-

(1) he admitted to being the person (老闆) in charge of the Respondent;

(2) the Respondent engaged in the business of inter alia dismantling, resale and repair of cars and car parts;

(3) The Respondent had two staff both by the surname of Tang (鄧) although he struggled to provide their full names at that time.

24.  In his statement to the Police also made on 22 July 2015, Mr Kong again confirmed that he all along was the only “boss” of the Respondent, and that his three daughters (two of whom are named in the Annual Return as the Respondent’s director and company secretary respectively) and son were all working/studying in Australia.

25.  Mr Kong gave evidence at the trial of DCCC 1012/2015.  According to the transcript of the trial on 16 November 2016 (which incidentally was just two days before the Accident), he gave evidence that:-

(1) There were two staff working in the Respondent’s two garages (located in Tuen Mun and Lau Fau Shan respectively) called “Ah Chun” and “Ah Lun” respectively who had served for 10 odd years.  Their duties included acquiring and repairing vehicles.

(2) In the acquisition of vehicles, he trained his staff to inspect the vehicle to ensure that the vehicle was not a stolen vehicle before proceeding further.  The staff were given a free-hand in the negotiation of the price to a certain extent, but the staff would need to obtain funds from him to complete the purchase.

(3) After a vehicle was dismantled, a vehicle scrapping certificate would be issued on behalf of the Respondent to the vehicle owner for the owner to deregister the vehicle with the Transport Department.

(4) While he was remanded in custody, the two employees took care of the Respondent’s garages.

26.  It would appear that regarding the staff referred to by Mr Kong, “Ah Chun” was the Deceased and “Ah Lun” was Mr Tang.  The trial judge accepted Mr Kong’s evidence that he was the person in charge of the Respondent with two employees.  I see no reason to doubt the truth of this aspect of Mr Kong’s evidence in the criminal proceedings, which withstood the test of cross examination by counsel and appears to be largely coherent and consistent with the contemporaneous account of the Deceased as well as Mr Tang.

C3. The Deceased’s statements to the Police

27.  The Deceased gave two statements to the Police on 22 July 2015 and 3 January 2016 in connection with the criminal investigation, in which he stated:-

(1) He was employed by the Respondent in around 2004 as a garage worker.  His duty was to repair cars.  His monthly salary was HK$20,000 and Mr Kong was his boss.

(2) He had a colleague whose surname was Tang whom he called “Ah Lun”;

(3) Mr Kong had the key to the Lau Fau Shan garage and he took the Deceased there to collect vehicle parts two or three times.

28.  The Deceased had no apparent self-interest in Mr Kong’s criminal proceedings.  His account of the relationship with Mr Kong/the Respondent is consistent with Mr Kong’s own evidence in the criminal proceedings.  It is of note that when the Deceased made his first statement on 22 July 2015, Mr Kong had just been arrested, and was unlikely to have been able to influence the Deceased even if he wanted to.  The Deceased could not have foreseen his own demise or the use of his statements in the present action.  As further discussed below, the substance of his statement is corroborated by/sits well with the other contemporaneous evidence.  There is no reason for me to doubt the truth of his statements.

C4. Declarations of Mr Tang to the Labour Department

29.  On 21 November 2016, three days after the Accident, Mr Tang stated in a declaration to the Labour Department:-

(1) He and the Deceased were both employed (“受僱”) by the Respondent.  He had around 18 years of experience in car repairs and worked for the Respondent for around 10 years;

(2) He and the Deceased mainly worked in the Respondent’s garage in Tuen Mun but sometimes repaired vehicles at other locations at the request of customers.

(3) He had known the Deceased since his employment by the Respondent and that the Deceased lived in the garage while in Hong Kong.

(4) On the day of the Accident, when the Deceased left with Jimmy, the Deceased gathered some tools.  Mr Tang was shown photos of tools, and confirmed that certain tools found near the scene of the Accident, ie one yellow bucket of tools, one black box of tools near the chassis and one screwdriver and another tool underneath the chassis, as tools belonging to the Respondent.  However, he said the car jacks found near the scene of the Accident were not the Respondent’s.

30.  As discussed at paragraph 26 above, the evidence consistently shows that the two staff/employee (which terms were used interchangeably in the transcript in the criminal proceedings) of the Respondent referred to by Mr Kong and by the Court in the criminal proceedings were in fact the Deceased and Mr Tang.

31.  In the 2^nd declaration dated 17 January 2017 to the Labour Department, Mr Tang stated:-

(1) He was paid a fixed monthly salary of HK$16,000, which the Respondent paid in cash.  He agreed with the Respondent that it did not need to pay MPF.  There was no receipt or payment advice for the payment of his salary and no written employment agreement, only verbal promises.

(2) The Deceased had been employed by the Respondent before he joined, and he did not know the Deceased’s terms of employment;

(3) He would carry out repair work outside the garage on the customer’s request from time to time.  After carrying out off-site repair work, he would (if required by the customer) issue a receipt to the customer under the Respondent’s letterhead.

(4) Mr Kong did mention there was a risk that the chassis might topple when working underneath and therefore the Respondent provided the “little chair” as a stool to jack up the vehicle;

(5) He would pass the money from each repair work to Mr Kong, or Kong Junior when Mr Kong was in custody.

32.  Mr Tang made two further declarations to the Labour Department on 25 January 2017 and 9 March 2017 respectively.  In his declaration dated 9 March 2017, he stated inter alia that:-

(1) The Deceased had flexible working hours and could decide when he went to work.  There were instances where Mr Kong decided to take a job and the Deceased would refuse to carry it out.

(2) When Mr Kong was in custody, the Deceased would decide whether to take up a job or not and he would follow the Deceased’s instructions.

33.  Mr Tsoi submitted that I should attach more weight to Mr Tang’s 1^st declaration and less weight to the rest of his declarations, bearing in mind he was likely susceptible to the influence of Mr Kong who had been released from custody at this point.

34.  There may well be a subtle change in Mr Tang’s attitude starting from his declaration dated 17 January 2017, in which he displayed some circumspection in his description of the Deceased’s relationship with the Respondent.  However, it does not appear to me that he was necessarily untruthful or being deliberately misleading.

35.  In any event, when Mr Tang’s declarations are read together, the overall picture still clearly showed that Mr Kong or Kong Junior all along maintained control of the Respondent’s finance, and Mr Tang’s impression was that the Deceased was his (albeit more senior) co-worker and an employee of the Respondent.

36.  As submitted by Mr Tsoi which I agree:-

(1) the fact that the Deceased was allowed flexible working hours is unsurprising given that he was provided lodging at the garage;

(2) that the Deceased was given a wide discretion in his work is consistent with the fact that he was more senior than Mr Tang and therefore paid more than Mr Tang;

(3) the Deceased’s alleged ability to refuse to carry out work, even if true, does not detract from the fact that the Respondent’s finance was firmly in the hands of Mr Kong or Kong Junior.

C5. Mr Kong’s declaration to the Labour Department

37.  Mr Kong made a declaration to the Labour Department on 25 January 2017, in which he stated that the Deceased was self-employed.  He said the Deceased and the Respondent were in partnership whereby the Deceased would be paid 70% of the costs of the repairs carried out by the Deceased and the Respondent would get 30%.

38.  This appears to me to be a self-serving allegation, not least for the following reasons:-

(1) Mr Kong never mentioned in any of his evidence in the criminal proceedings about having a partnership or sharing profit with either the Deceased or anyone else.

(2) Further, had there been any such profit-sharing arrangements, one would expect that the Respondent would have kept some record (however elementary) of such arrangement.  Yet the Respondent did not adduce a single shred of such evidence, despite having had legal representation throughout the process of discovery and exchange of witness statements.

39.  There being no corroborating contemporaneous evidence (whether documentary or otherwise), I reject Mr Kong’s allegation of profit sharing/partnership with the Deceased or that the Deceased was self-employed.

40.  Further, as pointed out by Mr Tsoi, it is worth noting that even in Mr Kong’s own declaration:-

(1) He confirmed that when he was in custody, it was Kong Junior who maintained control of the Respondent’s finance;

(2) He confirmed that the Respondent gave instructions to the Deceased on the use of car jacks, towing procedure and safety measures.

(3) He confirmed that the Respondent provided lodging to the Deceased.

C6. Evidence of Madam Xiao and Mr Deng

41.  Madam Xiao and Deng Jianming (“Mr Deng”) (son of Madam Xiao and the Deceased) gave evidence for the plaintiff. They both resided and still reside in Hui Zhou in the Mainland.

42.  In her witness statement, Madam Xiao states inter alia that on the night of the Accident, she received a call from Kong Junior who identified himself as the son of the Deceased’s boss Mr Kong, informing her of the Accident and arranged a car to pick her up on the same night to visit the Deceased in hospital.  Mr Deng did not go with her that night because he did not have the requisite permit to travel to Hong Kong at the time.

43.  Mr Deng gave the following account in his witness statement:-

(1) He met Kong Junior on the night of the Accident when Kong Junior (who identified himself as the Deceased’s boss’s son) came to pick up Madam Xiao.  Kong Junior gave him his card with the Respondent’s name printed on it.

(2) On 22 November 2016, Mr Deng obtained the travel permit and was met by Kong Junior in Hong Kong.  On 23 November 2016, Kong Junior took him to the Deceased’s accommodation in the Respondent’s garage at Sun Tat Street, where he found the Deceased’s clothes, his Home Return Permit and a copy of the Deceased’s statement to the Police dated 22 July 2016.

(3) The Deceased was paid HK$21,000 monthly before the Accident, and the Deceased told him that his boss Mr Kong increased his salary to that amount because Mr Kong asked him to take care of his business while Mr Kong was in custody.

44.  In his witness statement, Mr Deng estimated the value of the Deceased’s lodging at HK$4,000 monthly.  When he gave evidence at trial, he gave a more detailed account of the condition of the lodging which he was able to observe during his visit on 23 November 2016.  According to Mr Deng:-

(1) It was housed in a container which was divided into two storeys, of which the Deceased occupied the upper level accessible by stairs;

(2) The size of the upper level was around 6 meters by 2 meters, containing cabinets, a fridge, a rice cooker and a bunk bed.  The top bunk was used to store the Deceased’s belongings while the Deceased slept in the bottom bunk.  The Deceased occupied the space alone.  There was no bathroom in the lodging.

45.  With the Respondent’s absence from the trial, Madam Xiao and Mr Deng’s evidence was unchallenged.  I find their evidence reliable and consistent with contemporaneous records, including aspects of Mr Tang’s declarations to the Labour Department and the Deceased’s statements to the Police in the criminal investigation against Mr Kong.

D. LIABILITY

D1. Employment relationship

46.  The modern approach to the question whether one person is another’s employee is therefore to examine all the features of their relationship against the background of the indicia developed in the abovementioned case-law with a view to deciding whether, as a matter of overall impression, the relationship is one of employment, bearing in mind the purpose for which the question is asked.  It involves a nuanced and not a mechanical approach (Poon Chau Nam v Yim Siu Cheung [2007] HKLRD 951 at §18).

47.  In Tang Chau Yuet v Fu Kin Po [2011] 1 HKLRD 519, §12, the Court set out eleven criteria in the determination of the existence of an employment relationship:-

(1) Whether the alleged employer had the degree of control over the task of the alleged employee which was commensurate to his capacity as the employer?

(2) Whether the alleged employee provided his own equipment for the task?

(3) Whether the alleged employee hired his own helpers for the task?

(4) Whether the alleged employee took any financial risk and the nature / degree of it?

(5) Whether the alleged employee had an opportunity of profiting from sound management in the performance of his task?

(6) Whether the alleged employee bore any responsibility for investment and management, and the nature / degree of it?

(7) Whether the alleged employee was properly regarded as part of the alleged employer’s organization?

(8) Whether the alleged employer bore any responsibility in relation to insurance and tax for the alleged employee?

(9) Whether the alleged employee was carrying on business in the trade in question?

(10) What was the parties’ own view of their relationship?

(11) Whether the traditional structure of the trade or profession concerned and the practices within it would assist with the understanding of their relationship?

48.  Having considered all the evidence, applying the relevant test, I conclude that the Deceased was an employee of the Respondent at the time of the Accident.  I place significant weight in particular on the following:-

(1) The Respondent provided equipment and vehicle parts to the Deceased to carry out repair work (see the Deceased’s 1^st police statement dated 22 July 2015).  Mr Tang in his 1^st declaration to the Labour Department made just 3 days after the Accident confirmed that the Deceased used several tools belonging to the Respondent.

(2) The Respondent provided lodging to the Deceased.  In this regard, Mr Tsoi drew my attention to the case of Tsang Siu Hong v Kong Hoi For [2002] HKDC 21, in which Mr Kong provided similar accommodation to an employee who worked in the garage as a welder. The significance of this case is further discussed at paragraph 55 below.

(3) Madam Xiao and Mr Deng both gave evidence that when Mr Kong was in custody he increased the Deceased’s salary to HK$21,000 as he wanted the Deceased to manage the business.  This is consistent with the Deceased’s account in his 1^st police statement (made two days after Mr Kong’s arrest) that his monthly salary was HK$20,000.  As discussed at paragraph 39 above, I reject Mr Kong’s allegation of profit sharing/partnership with the Deceased/the Deceased was self-employed.

(4) In Mr Kong’s evidence in the criminal proceedings, he repeatedly described the Deceased as an employee.  His evidence in this regard was accepted by the trial judge.

(5) As to the evidence of control:-

(a) In the criminal proceedings, Mr Kong deposed to training the Deceased in the procedure for dismantling vehicles, and confirmed that although the Deceased had discretion in the negotiation of the price up to a certain extent, he would ultimately need to obtain funds from him to complete the purchase.

(b) In Mr Kong’s declaration to the Labour Department, he confirmed that the Respondent gave instructions to the Deceased on the use of car jacks, towing procedure and safety measures.

(6) In terms of finance, Mr Kong’s own evidence in the criminal proceedings, Mr Tang’s declarations to the Labour Department, and even Mr Kong’s largely self-serving declaration to the Labour Department, consistently showed that the Respondent’s finance was firmly within the control of Mr Kong himself or Kong Junior while Mr Kong was in custody.

(7) There is no credible evidence that the Deceased obtained his salary directly from the customers.  On the contrary, Mr Tang’s declaration dated 17 January 2017 stating that receipts to customers were issued in the Respondent’s name and that payments received by him would be paid to Kong Junior is more consistent with the Deceased obtaining his salary from the Respondent. Mr Tang said he had no idea how the Deceased was paid. However, had the Deceased obtained his salary directly from the customers, it would have been difficult for such to escape Mr Tang’s attention, there being only two staff in the business.

(8) Madam Xiao and Mr Deng gave evidence that Kong Junior identified himself as the Deceased’s boss’s son and his treatment of the Deceased’s affairs is consistent with that of a compassionate employer.  This is consistent with the account of the Police Officer who investigated the Accident that Kong Junior was the temporary person in charge of the Respondent and the Deceased was his employee.

D2. Arising out of and in the course of employment

49.  Pursuant to section 5(1) of the ECO, an employer must pay compensation to an employee for personal injury arising out of and in the course of the employment.  Pursuant to section 5(4) of the ECO, an accident arising in the course of an employee’s employment shall be deemed to have arisen out of employment in the absence of evidence to the contrary.

50.  In the circumstances of this case, given the Accident occurred during the opening hours of the Respondent’s garage and there was a temporal connection between the injuries and the Deceased’s profession as a vehicle repair mechanic, there can be no doubt that the Accident arose out of and in the course of employment.

51.  Accordingly, I find that the Respondent is liable to pay compensation to the Applicant.

E. AMOUNT OF COMPENSATION

52.  As discussed above, I find Madam Xiao and Mr Deng’s evidence that the Deceased’s salary before the Accident was HK$21,000 credible.  This is consistent with Mr Tang’s account that:-

(1) Mr Tang took instructions from the Deceased on whether to carry out repair work when Mr Kong was in custody.

(2) The Deceased was more senior and had more flexibility and discretion in his work.

53.  Given Mr Tang’s monthly salary was HK$16,000, it is logical that the Deceased had a higher salary due to his seniority and the additional responsibilities he took on while Mr Kong was in custody.  I therefore assess the Deceased’s monthly salary before the Accident at HK$21,000.

54.  As discussed above, I also find that the Respondent provided lodging to the Deceased, which was confirmed by Mr Deng in his evidence, and Mr Kong and Mr Tang in their declarations to the Labour Department.

55.  As to the value of the lodging, Mr Tsoi submitted that I should draw reference from Tang Siu Hong v Kong Hoi-For [2002] HKDC 21 since it in effect concerned the same employer.  In that case, based on the daily wage of HK$150, the Court assessed the value of accommodation at HK$30 per day and value of meals at HK$20 per day. Such assessment was deemed realistic in the common law claim involving the same parties in [2003] HKCFI 278.

56.  By analogy, it would be reasonable in the present case to assess the value of the lodging at around 1/5 of the Deceased’s monthly salary and the claimed amount HK$4,000 is in all circumstances appropriate.

57.  Accordingly, I find that the Respondent is liable to pay HK$900,000 (as calculated at paragraph 14 above) to the Applicant pursuant to section 6(1)(c) of the ECO, with interest accruing from 18 November 2016 at 4% per annum until the date of judgment and thereafter at judgment rate.  Such compensation and interest payable shall be apportioned equally between Madam Xiao and Mr Deng who are the only eligible members of the family pursuant to section 6A and Schedule 7 of the ECO.

58.  I grant a cost order nisi that the Respondent shall pay the Applicant the costs of the action, including any costs reserved, to be taxed if not agreed, and the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.  Unless any of the parties applies by summons to vary it, the cost order nisi shall be made absolute 14 days from the date of the judgment.

59.  It remains for me to thank Mr Tsoi for his helpful assistance.