HOSSAIN MD FARUK v. KHAN, FAQERGUL (簡誠諾) formerly known as KHAN, WAJID t/a PESHAWAR AUTO DISMENTLING & GENERAL TRADING CO.

DCEC 1221/2017

[2022] HKDC 180

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1221 OF 2017

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J U D G M E N T

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1.  This is the trial of the applicant’s claim against the respondent for employees’ compensation.

Preliminary issues

2.  Mr. Wong, counsel for the applicant, informed the court that two of the applicant’s witnesses, namely Mr. Farid and Mr. Sheikh Aptar, would not attend court to give oral evidence. He therefore sought that the court should not rely on their respective witness statements.

3.  Mr. Pirie, counsel for the respondent, did not object to this and the court according made the order that the court would not consider the witness statement of Farid (Trial Bundle page 61-66)  and witness statement of Sheikh Aptar (Trial Bundle page 67-72).

4.  Mr. Pirie then made an application for the respondent:

a.  to rely on a medical report dated 20 December 2021 from Dr. Mian Javed Iqbal from a hospital in Pakistan; and

b.  for the respondent’s witness statement to be read out in court in his absence.

5.  The application was opposed by Mr. Wong.

6.  I have perused the said medical report which only concerned a road traffic accident of the respondent in Pakistan back in 12 August 2021. There was no medical evidence to certify that the respondent was medically unfit to travel or, indeed, give evidence via video conference facilities.

7.  As such, I am not convinced that the court should treat the respondent’s witness statement any differently from those of Mr. Farid and Mr. Sheikh Aptar.

8.  Further, as pointed out by Mr. Wong, this issue has already been dealt with by His Honour Judge MK Liu in his decision dated 31 January 2022 for the respondent’s application to vacate the current trial dates on the argument that the respondent had no opportunity to give evidence in court. The Learned Judge stated (in paragraph 13(1)  of the Decision)  that:

“Notwithstanding the advice given to him by his solicitors, the respondent has decided not to make an application for leave allowing him to give evidence through VCF. This is his informed choice, and the respondent should face the consequence of his choice.”

9.  I have therefore dismissed the respondent’s application and ordered that his witness statement (Trial Bundle page 73-77)  would not be considered by the court.

Background

10.  The applicant is an asylum seeker from Bangladesh and his claim is that, at the relevant time, he was employed by the respondent to work in a vehicle scrap yard called “Peshawar Auto Dismantling & General Trading Company” (the “Yard”)  for a monthly wage of HK$6,500. Mr. Qadir Gul (“Gul”)  was the person-in-charge of the Yard.

11.  The applicant claimed that on 14 November 2015, he was cutting a hydraulic pipeline using a fire cutting gun when hydraulic oil burst out and caught fire. As a result, he suffered burns to his face, neck and arms.

12.  Gul took the applicant to a different location away from the Yard and instructed him, amongst others:

a.  not to tell anyone that he was working in the Yard, since he was working illegally in Hong Kong;

b.  that if he told the truth, both the applicant and the respondent would get caught by the police;

c.  to lie to others that he was injured when cooking at home; and

d.  if he did not follow the instructions, Gul would cause trouble to the applicant.

13.  The applicant was admitted to Pok Oi Hospital via A&E department with 40% second-degree burn and then transferred to the ICU of Prince of Wales Hospital and later the Burns Unit. He underwent debridement and skin grafting to the neck on 23 November 2015 and was discharged on 7 December 2015. He was granted sick leave until 22 December 2015.

Issue of liability

14.  The respondent’s case, as stated in the Answer (Trial Bundle page 15-19)  is basically a denial of any employment relationship. According, he also denied any knowledge of the applicant’s earning at the material time (List of Earning, Trial Bundle page 20-22).

15.  At the trial, during the cross-examination of the applicant, Mr. Pirie did not challenge any of the applicant’s case as stated above, but only ascertained that it was Gul whom the applicant contacted regarding to his work at the Yard and his salary, and that, on the relevant day, it was Gul who instructed the applicant to work on the particular vehicle and provided the equipment etc.

16.  After the applicant closed his case, Mr. Pirie applied to disclose a new piece of evidence, which was apparently a travel record obtained from the Immigration Department which purported to show that the respondent (that is, Mr. Khan, Faqergul (“Mr. Khan”))  was not present in Hong Kong at the time of the accident.

17.  Mr. Wong objected to this. He informed that court that this document was only disclosed by the respondent to the applicant’s solicitors the day before the trial.

18.  Firstly, I am surprised by Mr. Pirie choosing to made the disclosure application at this stage of the trial, given that he had that document on hand when making his two earlier applications as preliminary issues to the trial. There is no reason why Mr. Pirie could not have made the application then.

19.  Further, Mr. Pirie also failed to make use of this evidence during cross-examination nor put any case relevant to this new evidence to the applicant, and only disclosed this after the applicant has closed his case. This is not even an attempt to, so as to say, ambush at trial, it was an attempt to stab the victim in the back after letting him walk past peacefully.

20.  More importantly, Mr. Pirie never challenged the applicant’s case that Gul was the person-in-charge of the respondent (paragraph 5 of the applicant’s witness statement, Trial Bundle page 50). As such, whether Mr. Khan was in Hong Kong or not at the time of the accident was clearly irrelevant to the issue of whether there was an employment relationship between the respondent and the applicant.

21.  As such, I have dismissed Mr. Pirie’s application.

22.  In his closing submission, Mr. Pirie argued that the court should view the applicant’s evidence “with extreme caution” because he has lied about the cause of his injury (that is, that he was injured by boiling something at home)  to various doctors and others. He suggested that the applicant only changed his story in order to obtain compensation.

23.  However, if this was the respondent’s case, it was never put to the applicant during cross-examination. The applicant’s case was that he was an asylum seeker working illegally for the respondent and it was Gul who instructed him to lie. None of this was challenged by Mr. Pirie during cross-examination.

24.  Mr. Pirie also suggested that it was Gul who employed the applicant and that there was no “reliable” evidence showing that the applicant was employed by the respondent. Again, if that was the respondent’s case, it was never put to the applicant whose evidence, all along, was that Gul was the person-in-charge of the respondent.

25.  Mr. Pirie also produced the case of Shahzad Ajmal v Chakwal Auto Trader (HK)  Ltd DCEC 2556 of 2015 and suggested that the two case was similar and the judge in that case dismissed the claim.

26.  However, Mr. Pirie did not assist the court further by elaborating how the Shahzad case was similar to the current case. The only similarity that I can see is that in both cases, the accident happened in a scrap yard.

27.  The issue of whether there was an employment relation is a finding of fact by the court in each case and on the basis of such in the current one, I find that there is an employment relationship between the respondent and the applicant.

Illegal worker

28.  The parties do not dispute the legal principles laid down by the Court of Appeal in Yu Nongxian v Ng Ka Wing [2007] 4 HKC 551 that where an illegal worker was doing lawful work, public policy reasons favoured exercising the discretion permitting the illegal worker to recover employees’ compensation under Section 2(2)  of the Employees’ Compensation Ordinance.  I see no reason why the court should not exercise such a discretion in the current case.

Issue of quantum

29.  There was no dispute between the parties regarding the quantum of compensation.

Monthly earning

30.  I accept that the monthly earning of the applicant is HK$6,500 per month from September 2015. This is not challenged by the respondent.

Section 9

31.  The Board assessed 3% Loss of Earning Capacity but Dr. David Ip (the orthopaedic expert)  opined 5% with various medical reasons including chronic pain and neck stiffness. I will accept Dr. Ip’s opinion.

32.  The applicant was 23 years old at the time of the accident.

33.  The compensation under this head of claim should be HK$6,500 x 96 x 5% = HK$31,200

Section 10

34.  The applicant was granted a total of 40 days of sick leaves which Dr. Ip opined was reasonable.

35.  The compensation under this head of claim should be HK$6,500 x 4/5 x 40/30 = HK$6,933.33

Section 10A

36.  The applicant’s medical expenses were paid by the Social Welfare Department so no claim is made under this head.

Total sum

37.  The total sum of compensation should be HK$31,200 + HK $6,933.33 = HK$38,133.33

38.  I accept that the respondent has paid no advance payment.   

Interest

39.  Interest should be awarded at half judgment rate from the date of the accident (i.e. 14 November 2015)  to the date of judgment, and thereafter at judgement rate until full payment.

Costs

40.  There be an order nisi for the respondent to pay the applicant’s costs of the action, with certificate for counsel, to be taxed if not agreed.