SHEK WAH MING v. FONG KWOK MING

[English Translation – 英譯本]

DCEC 182/2017

[2019] HKDC 128

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 182 OF 2017

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JUDGMENT

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Background of the Application

1.  This is an application for Employees’ Compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”) by the applicant against the respondent in respect of an accident which happened on 25 June 2015.  The application was filed on 24 January 2017.

2.  In the present case, the respondent has neither submitted an Answer or witness statement, nor appeared in any previous hearing.  Judge Levy made an order on 8 June 2018 for judgment to be entered for the applicant.  The respondent was held liable with the amount of compensation to be assessed.

3.  The first hearing on the assessment of the amount of compensation was conducted before me on 9 August 2018. That day, however, I was informed that a bankruptcy order had been made against the applicant on 14 March 2017.  I then raised the issue of locus standi. In particular, after the applicant had been adjudged bankrupt, whether his cause of action was assigned to the trustee in bankruptcy who became the only person having the authority to continue with the present application.

4.  In order to make good use of the court’s time, Ms Lui, counsel for the applicant, urged the court that day to carry on with the hearing, and then adjourn the case to the afternoon upon the completion of the case of the applicant.  This would allow her time to conduct legal research to assist the court.  I approved the request.

5.  Therefore, the applicant testified in court, completed his case and the hearing was adjourned to the afternoon.

6.  When the hearing resumed in the afternoon, Ms Lui submitted that according to the English Court of Appeal case ofOrd v Upton [2000] Ch 352, even if the applicant’s case is one for personal injuries, if the applicant’s claim is not limited to PSLA, but also includes other economic losses, such as loss of earning capacity and so on, only the trustee in bankruptcy has the right to make this application.

7.  In view of the fact that the present case involves other economic losses to the applicant, Ms Lui submitted that she needed some time to resolve the issue, including consulting with the trustee and considering making an application for the case to continue.

8.  I accepted the request of the applicant that day and made an order as follows:

(1)  This application be adjourned sine die with liberty to restore; and

(2)  Costs of today be reserved.

9.  After the first hearing, the applicant issued a letter on 22 August 2018 on the issue of locus standi to the trustee in bankruptcy who then gave a reply on or about 6 September 2018.

10.  According to the trustee’s reply, their stance was that under section 46(1) of the Ordinance, the applicant’s cause of the action was not assigned to them and they agreed to the applicant’s resumption of the application.

11.  Upon receiving the reply and after considering the matter, the applicant agreed to the stance of the trustee in bankruptcy.  Therefore, he restores this application.

The locus standi of the applicant

12.  The applicant took the view that the cause of action remained with him even after he was adjudged bankrupt, which the trustee does not dispute. However, this is a legal issue which I have to deal with first.

13.  The crux of the matter is:

(1)  Under section 43 of the Bankruptcy Ordinance:

“(1) … a bankrupt’s estate comprises –

[(a)] all property belonging to or vested in the bankrupt at the commencement of the bankruptcy; ….

(6) This section has effect subject to the provisions of any enactment not contained in this Ordinance under which any property is to be excluded from a bankrupt’s estate.”

(2)  Under section 58 of the Bankruptcy Ordinance:

“(1) On the making of a bankruptcy order, the property of the bankrupt shall vest in the Official Receiver …

(2) On the appointment of a trustee the property shall forthwith pass to and vest in the trustee appointed.

(3) The property of the bankrupt shall pass from trustee to trustee, including under that term the Official Receiver when he fills the office of trustee, and shall vest in the trustee for the time being during his continuance in office, without any conveyance, assignment or transfer whatever.”

(3)  Furthermore, under section 2 of the Bankruptcy Ordinance:

“property”（財產）includes money, goods, things in action, land and every description of property, whether real or personal and whether situate in Hong Kong or elsewhere, also obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as above defined.”

14.  The applicant’s cause of action is regarded as his “things in action”, which means a kind of property of the applicant.  In the absence of any other non-alienation provision, as this case involves economic losses of the applicant, his cause of action would be deemed to be his “bankrupt’s estate” after he was adjudged bankrupt, and therefore assigned to the trustee. See Ord v Upton [2000] Ch 352.

15.  However, section 43(6) of the Bankruptcy Ordinance also states clearly that subject to the provisions not contained in this Ordinance, any property may be excluded from a “bankrupt’s estate”.

16.  Section 46 of the Ordinance states that:

(1)  “Compensation payable under the provisions of this Ordinance shall not be capable of being assigned, charged or attached, and shall not pass to any other person by operation of law nor shall any claim be set off against such compensation.”

17.  Therefore, on the issue of locus standi of the applicant, it hinges on whether the cause of action of the applicant is excluded from the “bankrupt’s estate” under section 46 of the Ordinance.

18.  I note that apparently there is no precedent on this issue, while Ms Lui only relies on the literal meaning without referring to any particular cases.  However, I note that in Re Ng Shiu Fan [2008] 4 HKLRD 813, the Hong Kong War Memorial Pensions Ordinance was referred to, and section 19 thereof states that:

“(1) The entitlement of an eligible beneficiary to a pension shall not be assignable or transferable except for the purpose of –

(a) satisfying (either in whole or in part) a debt due to the Government; or (Amended 67 of 1993 s. 3)

(b) satisfying an order of any court for the payment of money towards the maintenance of the spouse or former spouse or minor child of the eligible beneficiary.

(2) The entitlement of an eligible beneficiary to a pension shall not pass to any other person by operation of law.”

19.  In this case, Kwan J took the view (see paras 48-50) that as it is stated that it “shall not pass to any other person by operation of law”, the property can be effectively excluded from that “bankrupt’s estate”.  

20.  The decision of Kwan J was later endorsed by the Court of Appeal. See Ng Shiu Fan [2009] 4 HKLRD 774, paras 23-27.

21.  Apart from that, under section 3 of the Interpretation and General Clauses Ordinance (Cap 1), the word “person” has a wide meaning (which includes any public body and any body of persons, corporate or unincorporated, and this definition shall apply notwithstanding that the word “person” occurs in a provision creating or relating to an offence or for the recovery of any fine or compensation), which may include the trustee in bankruptcy.

22.  Moreover, in respect of the English Workmen’s Compensation Act which is similar in nature, the English cases show that the court always emphasizes that the spirit of the Ordinance is to guarantee that an employee shall have, for his subsistence, the compensation awarded which shall not be trenched upon by anyone, especially the creditors.    

23.  Among those cases, in Rosenell Gas Coal Co v M’Vcar (1904) 7F. 290, where the Workmen’s Compensation Act 1897 was involved, under which (Schedule 1, sec. 14) it was stated that:

“A weekly payment, or a sum paid by way of redemption thereof, shall not be capable of being assigned, charged, or attached, and shall not pass to any other person by operation of law, nor shall any claim be set off against the same.”

24.  Lord Justice Clerk took the view that:

“The object of the Act is to secure that an injured workman shall have for his subsistence the sum awarded to him, and that it is not to be trenched upon in any way. This is made perfectly clear by section 14 of the First Schedule.”

25.  The above approach was also applied in Woods v The Royal Bank of Scotland [1913] 1 SLT 499, where Sherifff Welsh mentioned that:

“The pursuer also contended that if this sum, being of the nature of an alimentary fund, were thus protected, it would be in an exceptional position as regards the law of Scotland compared with alimentary funds in general. That may or may not be so. But payments of compensation are exceptional in so far as they are the creatures of statute, and if they are exceptionally protected it is because the statute gives that protection.”

26.  In William Baird & Company Ltd v Campbell [1928] SLT 201, which involved the Workmen’s Compensation Act 1925, whose section 40 stated that:

“A weekly payment payable under this Act or any scheme certified under this Act, or a sum paid by way of redemption thereof, shall not be capable of being assigned, charged, or attached, and shall not pass to any other person by operation of law, nor shall any claim be set off against the same.”

27.  Lord Constable took the view that:

“In both cases the object of the statute manifestly is to provide for the personal support of the injured workman or his dependants – in other words, the provision is alimentary in character – and in both cases special means are taken to ensure that the provision shall be available for the maintenance of the beneficiary.”

28.  Lastly, in North Lanarkshire Council v Crossan [2007] SLT (Sh Ct) 169, the court stated that the provision only offers protection to the person concerned before but not after the receipt of payment.  However, I note that the case was not directly related to the Workmen’s Compensation Act but it concerned other provisions instead, while the applicant in the present case has not received the said amount yet.

29.  Therefore, in conclusion, I agree with the stance of the applicant and the trustee, that is, the applicant’s cause of action and related entitlements are effectively excluded from the “bankrupt’s estate” under section 46 of the Ordinance.  After the applicant was adjudged bankrupt, he retained the cause of action and therefore he may carry on with the present case.

30.  As for the cases mentioned by the applicant earlier, including Ord v Upton [2000] Ch 352; Chan Yuk Lun v Tse Yuen Ming Teresa (CACV 229/2014, 21/3/2018), [2018] HKCA 182 and Thomas Vincent v. Cheung Lai Shuen & Another, DCPI 2230/2014 (Deputy District Judge Eric Tam; 5/5/2016), they concerned compensation under the common law instead of the Ordinance or the Workmen’s Compensation Act, they therefore did not involve section 46 of the Ordinance or any other similar provisions, and as a result they are different from the present case. 

The applicant’s case

31.  At the time of the accident, the applicant, aged 34, was in the employ of the respondent as an air-conditioning technician.

32.  On the day of the accident, the applicant was required to climb out of the window on the 2^nd floor of a certain building in Kwai Chung in order to take off two radiators separately from the wall outside the building and take them inside. He then took the two new radiators outside separately for installation on the wall outside.  Before the accident took place, he had just installed the second radiator and fastened the unit with two screws. When he was about to go back inside, he suddenly lost balance and fell onto the canopy outside the building and then fell further to the ground landing first on his left side. 

33.  The applicant was rushed to the A&E Department of Princess Margaret Hospital in an ambulance for treatment. Being seriously injured, he was immediately transferred to the Orthopaedics & Traumatology Department for follow-up.  

34.  Regarding the applicant’s injuries and treatment, as shown in the relevant medical reports submitted, multiple fractures were found on his body including left elbow (comminuted intra-articular fracture of olecranon process of left elbow), left humerus (comminuted fracture of proximal part of left humerus), right wrist (lunate dislocation of right wrist) and left pelvis (fracture posterior aspect of left ilium and anterior aspect of left acetabulum).

35.  In respect of the fracture on his right wrist, he underwent surgery on three occasions, on 26 June 2015, 9 July 2015 and 7 September 2015 respectively. He had one operation for the comminuted fracture on the left elbow, while he underwent two operations for the comminuted fracture of his left humerus.     

36.  On 19 September 2015, the applicant was discharged from hospital, where arrangements were made for him to receive physiotherapy and occupational therapy at Alice Ho Miu Ling Nethersole Hospital.  He was given sick leave certificates by the hospital for a total of 363 days (25 June 2015 to 21 June 2016).

37.  On 17 November 2016, the Employees’ Compensation (Ordinary Assessment) Board arranged for an assessment to be made on the applicant’s injury.  He was assessed to have “multiple fractures on upper limb causing ankylosis of the right wrist, left shoulder stiffness, left elbow pain and left pelvic paralysis”.  A period of absence from duty resulting from injury from 25 June 2015 to 21 June 2016 was certified to be necessary and the applicant’s permanent total incapacity resulting from injury was assessed to be 36%.

38.  As the applicant is content with the above assessment of   injuries, he has not asked for a review from the Commissioner for Labour.  

Case analysis

39.  In my view, the applicant’s case is simple and straightforward. Regarding the evidence of his monthly income, although he failed to provide any documentary proof, he explained that it was due to the lack of a formal employment contract signed by himself and the respondent, and he was paid daily wages in cash which he had not deposited into any bank account; therefore he failed to produce any documentary proof.  I accept the evidence of the applicant and his monthly wages at the time of the accident are determined by the court to be $14,000.

(1)      The amount of compensation under section 9

40.  As there is no appeal by either party against Form 7, I accept the assessment of the Board: see section 16H of the Ordinance; Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413.

41.  According to the compensation calculation method under section 9 of the Ordinance, the amount of compensation is determined to be:

$14,000 x 96 months x 36% = $483,840

(2)      The amount of compensation under section 10

42.  From 1 May 2016 to 31 May of the same year, the applicant worked in a security company as a security officer, where he worked for 20-odd days and earned $11,418.16 in total.  As the work environment was unsuitable, he left the employment around 31 May 2016.

43.  From 1 June 2016 to 6 June the same year, the applicant worked in “Perfection Security Company Limited” as a security officer for 6 days and earned a total of $1,020.  As the work environment was also unsuitable, he left the employment around 6 June 2016.

44.  The applicant agreed that taking into account the case of Yu Tat Kam v Chu Tung Shing and Another, CACV 25/2008 (8 October 2009) (paragraph 26), the court should, in all fairness, deduct wages earned during the sick leave period ($11,418.46 + $1,020).

45.  The applicant was given 363 days of sick leave. According to the compensation calculation method under section 10 of the Ordinance, the compensation for temporary incapacity is determined by the court to be:

$14,000/30 days x 363 days x 4/5 - ($11,418.46 + $1020) = $123,081.54

(3)      The amount of compensation under section 10A

46.  The total medical expenses in the sum of $9,190 incurred by the applicant with details are as follows:

(a)	Charges for A&E Department and Orthopaedics & Traumatology Department of Princess Margaret Hospital	$270
(b)	Public ward charges for A&E Department of Princess Margaret Hospital ($100 x 86 days)	$8,600
(c)	Occupational Therapy Department of Alice Ho Miu Ling Nethersole Hospital	$160
(d)	Physiotherapy Department of Alice Ho Miu Ling Nethersole Hospital	$160
		__________
		Total  : $9,190
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47.  Under section 10A of the Ordinance, the amount of compensation for medical expenses incurred is determined by the court to be $9,190.

Conclusion

48.  The amount of compensation payable to the applicant is $483,840 + $123,081.54 + $9,190 = $616,111.54.

49.  The respondent should also pay interest at half judgment rate from the date the work injury was sustained (i.e. 25 June 2015) to the date of this judgment, and thereafter at judgment rate until full payment.

50.  On costs, the order nisi as to costs is as follows:

(a)  The respondent to pay the applicant the costs, with certificate of counsel, of these proceedings (including costs for 9 August 2018, but excluding costs for 21 January 2019), to be taxed if not agreed; and

(b)  The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.

51.  The costs order nisi shall stand absolute if within 14 days no application for variation is made.

52.  I thank the applicant’s counsel for her assistance in the present case.