ALI HASHAM v. BM HUMAN RESOURCES & CONSTRUCTIONS LTD

DCEC 914/2024

[2025] HKDC 2035

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 914 OF 2024

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This is an application by the Applicant under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“ECO”) for compensation for the injury sustained by him in an accident at work on 13 September 2023 (“Accident”). At the time of the Accident, the Respondent was the Applicant’s employer.

2.  On the date of Accident at about 9:45 am, the Applicant was instructed by the Respondent to work at CLP Black Point Power Station in Tuen Mun. His duty involved pulling wire and fixing it in the cable tray. When the Applicant cut a wire, it suddenly slipped, resulting in a cut in the Applicant’s right ring finger.

3.  Judgment on liability was entered on 11 November 2025, leaving compensation to be assessed.

4.  According to Form 7 dated 24 December 2024:

(1)  The injury sustained by the Applicant was right ring finger injury resulting in right ring finger pain and stiffness;

(2)  The period of absence from duty necessary as a result of the injury is from 13 September 2024 to 14 August 2024 (“Certificated Sick Leave Period”); and

(3)  The loss of earning capacity is 1.5%.

There is no appeal against Form 7 by either the Applicant or the Respondent.

THE RESPONDENT’S ARGUMENTS

5.  Regrettably, the supposedly straightforward hearing for assessment of compensation was complicated (and, in my view, unnecessarily) by the opening submissions filed by Mr Swainton for the Respondent on 25 November 2025 (ie one day before the hearing). In his written opening, Mr Swainton raised two arguments:

(1)  Firstly, Mr Swainton argued that the Applicant had failed to attend medical examination requested by the Respondent in November 2023 and March 2024. By reason of the failure, the Applicant “would not be entitled to any compensation” by virtue of section 16 of ECO (“S.16 Argument”); and

(2)  Secondly, Mr Swainton argued that the injury sustained by the Applicant was minor and sick leave should not have been granted to him after 1 April 2024 (“Sick Leave Argument”).

S.16 Argument

6.  At the outset of the hearing, I expressed my concern on whether the S 16 Argument was challenging the liability. As indicated above, an interlocutory judgment was entered on 11 November 2025 and there is no appeal against it. Mr Swainton submitted that the S.16 Argument concerned quantum, rather than liability. The hearing was then stood down to allow Mr Swainton to consider the authorities submitted by Mr Ip for the Applicant on 25 November 2025 addressing the S.16 Argument.

7.  When the hearing resumed, Mr Swainton initially told me that he would abandon the S.16 Argument. However, when he continued his oral opening, he changed his position and said that he still wished to run the S.16 Argument. The trial then proceeded on the basis that the S.16 Argument was a live issue and witnesses were cross-examined on matters relevant to the said Argument, such as when the request for medical examination was made, how was it made and whether the Applicant or his former solicitors was notified of the date, time and the place of medical examination, etc.

8.  Quite unexpectedly, at the closing submissions, Mr Swainton suddenly changed his position again and said that he would not run the S.16 Argument. Upon my enquiry, Mr Swainton confirmed that it was his final position.

9.  In light of Mr Swainton’s final position, it is strictly speaking unnecessary for me to deal with the S.16 Argument. However, if I were required to do so, I would have had no hesitation to reject Mr Swainton’s submissions that the S.16 Argument concerned the quantum, rather than the liability.

10.  In Cheung Sau Lin v Tsui Wah Efford Management Ltd [2019] 2 HKC 344, HH Judge Harold Leong held that, if the employee failed to attend a medical examination over a period of 15 days, unless the court is satisfied that there was reasonable cause for such failure, the employee’s right to compensation under ECO was extinguished by section 16(4) and no compensation was payable; see also Chau Wai Tak v Senmax Property Management Ltd [2024] 3 HKC 130.

11.  If section 16 applies to extinguish the employee’s right under the ECO and no compensation is payable, there is no liability on the part of the employer. It is thus clear that the S.16 Argument is challenging the liability, instead of quantum and such challenge is not allowed in light of the interlocutory judgment on liability.

12.  In any event, I do not think the evidence adduced by the Respondent, even being taken at the highest, supports the S.16 Argument. It is not disputed that the request for medical examination was not made in writing. The Respondent’s witness Mr Khadka confirmed that the communication with the Applicant was through WhatsApp and the Applicant asked him to contact his solicitors. Mr Khadka called the phone number provided by the Applicant and reached the then handling solicitor of the Applicant’s case. Mr Khadka told the solicitor that the Respondent would like the Applicant to undergo medical examination. He requested the solicitor to ask the Applicant to attend the Respondent’s office on any Tuesday morning and he would bring the Applicant to a clinic for medical examination but the solicitor refused.

13.  It is noted that the above evidence of Mr Khadka was given for the first time when he gave oral evidence at the trial. In his witness statement, Mr Khadka only said that he had “asked [the Applicant] to arrange an appointment with [the Respondent’s] doctor but he refused”. Under cross-examination, Mr Khadka accepted that he had never provided the date, time and place of the intended medical examination to the solicitor.

14.  Section 16(1B) provides that, where an employee is required to undergo a medical examination by a medical practitioner, the examination shall be conducted by a registered medical practitioner named by the employer and the employee shall, when required, attended upon the registered medical practitioner concerned at the time and placed notified to the employee by the employer or that medical practitioner.

15.  In the present case, even taking the Respondent’s evidence to the highest, the Respondent merely asked the Applicant to attend the Respondent’s office on a Tuesday morning of his choice and medical examination would then be arranged. The Respondent never notified the Applicant or his former solicitor of the time and place of medical examination, or the name of the doctor who would conduct the examination. In my view, the Respondent’s request did not satisfy the requirement of section 16 and the Applicant’s right to compensation would not be extinguished even assuming (and I make no finding on it) that the Applicant did refuse as alleged.

Sick Leave Argument

16.  The Sick Leave Argument is in essence a challenge to the Certificated Sick Leave Period stated in Form 7. But as indicated above, there is no appeal against the Form 7 by the Respondent.

17.  Further, according to section 18 of ECO, any appeal against Form 7 should be brought within 6 months from the date of the Form and the court has the discretion to extend the time if it thinks fit. The Form 7 in the present case was issued on 24 December 2024 and the 6-month period has lapsed on 24 June 2025.

18.  At the closing submissions, upon my enquiry, Mr Swainton confirmed that there was no application for an extension of time to appeal against Form 7. In the absence of appeal, I am of the view that it is not open to Mr Swainton to run the Sick Leave Argument.

19.  Furthermore, section 10(2) set out a rebuttable statutory presumption of temporary incapacity during the certified sick leave period in the context of an employee compensation claim. The burden is on an employer to rebut that presumption; Tse Tze Chong v Law Sze Man [2015] 1 HKLRD 1120 at §28.

20.  Mr Sawinton complained that the treating doctor, particularly Dr Chan Sai Keung who granted the Applicant sick leave from 24 November 2023 to 14 August 2024, simply accepted the Applicant’s subjective complaint of right ring finger pain and stiffness.

21.  As repeatedly emphasized by the court, a doctor is bound by “doctor-patient trust” and it is not a doctor’s role to “test” the evidence or to “cross-examine” the patient, so as to say, to ascertain their truthfulness of their complaint; Chung Yin Ting v Chan Miranda [2019] HKCFI 270 §32; Cheung Sau Lin (supra) §21. If the Respondent wished to challenge the sick leave granted by the treating doctor, it should have sought leave to adduce expert evidence to support the challenge.

22.  Facing with the difficulty of having no expert evidence in support, Mr Swainton attempted to challenge the Certified Sick Leave Period through cross-examination. At the closing submissions, Mr Swainton submitted that the Applicant was not a credible witness because his evidence on injury was inconsistent and that he had exaggerated the seriousness of his injury.

23.  According to the medical records, the Applicant was sent to Tuen Mum Hospital after the Accident. Laceration of around 1cm was found near the tip of his right ring finger with oozing. There was tenderness over the right ring finger and the range of movement was reduced. The laceration was treated with 3 stitches.

24.  The stitches were removed on 20 September 2023 but the wound did not heal well. As a result, excision and suturing of right ring finger mass was carried out on 25 October 2023 with local anaesthesia by a surgeon and the wound was stitched again.

25.  At the consultation on 24 November 2023, the right ring finger wound had healed but the Applicant complained that the tip of right ring finger was tender and sensitive. He was treated with analgesic cream and desensitizing exercise was advised.

26.  At the last consultation on 24 July 2024, the Applicant still complained of pain at the tip of the right ring finger sensitive, and he still needed to use bandage to cover the tip to avoid pain.

27.  Mr Swainton placed strong reliance on the fact that the wound had heal by November 2023. In my view, the fact that the wound had healed does not mean that the Applicant had fully recovered. According to the medical records, the Applicant kept complaining of pain and being sensitive at the tip of the right ring finger.

28.  I do not agree with Mr Swainton that there was inconsistency between the Applicant’s evidence and the medical records or there was exaggeration of injury by the Applicant. On the contrary, I find that the Applicant is a truthful witness and I accept his evidence. In my view, there is a total lack of evidence to rebut the Certificated Sick Leave Period.

29.  To conclude, I am of the view that the S.16 Argument and the Sick Leave Argument are wholly unmeritorious and should never have been raised or pursued at all. Much of the hearing time could have been saved had Mr Swainton exercised greater restraint or given more careful thought when conducting the trial.

COMPENSATION

Section 9

30.  Mr Swainton confirmed that there was no challenge to the loss of earning capacity of 1.5% stated in Form 7. The Respondent also accepted that, for the purpose of assessment, the Applicant’s pre-Accident income was $27,600.

31.  The Applicant was 21 years old at the time of the Accident and the multiplier should be 96. Thus, the compensation under section 9 is: $27,600 x 96 x 1.5% = $39,744.

Section 10

32.  The Certified Sick Leave Period consists of 337 days and the compensation under section 10 is: $27,600 x 337/30 x 4/5 = $248,032

Section 10A

33.  The Applicant accepted that the medical expenses incurred had been fully reimbursed by the Respondent. Ms Ip confirmed at the closing submissions that there was no claim under section 10A.

Summary of assessment

34.  The total amount of compensation is therefore:

Section 9:	$39,744
Section 10:	$248,032
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Total	$287,776
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35.  It is accepted by the parties that credit should be given to the advanced payment of $112,904. Thus, the net amount of compensation is $174,872.

ORDER

36.  I therefore order that the Respondent do pay the Applicant the sum of $174,872 with interest at half of the judgment rate from the date of the Accident to the date of judgment and thereafter at the judgment rate until payment.

37.  I also make the costs order nisi that the Respondent do pay the Applicant’s case of the Application, with certificate for counsel, to be taxed if not agreed. The costs order nisi shall become absolute in the absence of application to vary within 14 days.