CHEUNG PEI TAK v. WAI KWOK YAU

DCEC 369/2015

[2018] HKDC 661

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 369 OF 2015

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JUDGMENT

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INTRODUCTION

1.  This is an employees’ compensation claim made by the applicant against the respondent. 

2.  By an application dated 25 February 2015 the applicant applies for a number of reliefs under the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”).  They include:-

(a) compensation under Sections 9, 10 and 10A of the Ordinance, ie for periodical payment, loss of earning capacity and medical expenses; and

(b) leave to appeal against the Certificate of Review of Assessment dated 23 October 2014 by the Employees’ Compensation (Ordinary Assessment) Board (“the ECB”), a formal appeal was lodged on 26 February 2015.

BACKGROUND

3.  The applicant claims that he was employed to work as a cook by the respondent in a small restaurant by the name of 「越煲越有 (大有麵館)」 located atG/F, No 15 Hin Keng Street, Sheung Keng Hau Village, Tai Wai, Shatin, New Territories (“the Restaurant”) .  He claims that the Restaurant was owned and operated by the respondent.   On 5 May 2013 at about 11:15 pm, while in the course of his employment with the respondent, the applicant claims that he was attacked by a customer of the Restaurant (“the Accident”).

4.  The Accident allegedly happened during closing time and two customers were still occupying a table in the outside sitting area.  The applicant’s colleague Madam Au Sai Foon ( 「區細歡」) (“Madam Au”) asked the customers to leave but was met with refusal and foul language.  The applicant therefore left the kitchen and went out to reason with the customers.  In the process, one of them became agitated and hit the applicant with a wine bottle, causing head injuries to him.

5.  The attacker was arrested by the police at the scene, subsequently been prosecuted, pleaded guilty and was sentenced to 2 months’ imprisonment.  The amended brief facts of the prosecution supports the applicant’s version of how the Accident occurred.

6.  By the amended answer filed by the respondent, he disputes almost every single aspect of the applicant’s claim:-

(1)  he does not admit that the applicant suffered personal injuries on the day in question;

(2)  he had leased the Restaurant to one Tsui Man Wai ( 「崔文偉」)   (“Tsui”) from 1 December 2012 to 6 May 2013;

(3)  he did not own or operate the Restaurant at the time of the Accident and did not employ the applicant;

(4)  if the applicant was injured as claimed, the applicant was a cook, not a waiter, and therefore was not employed to remind customers that the restaurant was about to close;

(5)  he also disputes the applicant’s injuries by relying on the 0.5% assessment on loss of earning capacity by the review certificate of the ECB; and

(6)  he did not file a Form 2 because he was not the applicant’s employer.

7.  Thus, both the issues of liability and quantum are in dispute in this case.

8.  At the trial, the applicant himself gave evidence and has called Madam Au as his witness.  The respondent, on the other hand, besides giving evidence himself, has called 2 witnesses, namely, Madam Tse Pik Heung ( 「謝碧香」) (“Madam Tse”) and Madam Cheng Yin Chun ( 「鄭燕珍」) (“Madam Cheng”) .     

DISCUSSSION

Issues in dispute

9.  The date/time/location ofthe Accident cannot be disputed as they are put beyond doubt by the amended brief facts and the guilty plea and sentence of the attacker.  Further, the fact that the applicant suffered injuries arising out of the attack can also be proved conclusively by the medical reports, in particular the report of Dr Fu Wai Kee dated 18 April 2016, an orthopaedic specialist jointly appointed by the parties. 

10.  Hence, the only real issue in dispute is whether the respondent was the applicant’s employer at the time of the Accident.

Credibility of the witnesses 

11.  Given the way the applicant and his colleague Madam Au came to work in the Restaurant, perhaps it is not surprising that there was no documentary evidence to support his employment with the respondent. There was no writtencontract of employment signed between them; the applicant was paid in cash with no acknowledgment of receipt; the respondent did not makeany mandatory provident fund (“MPF”) contribution on behalf of the applicant; no Form 2 was ever filed by the respondent (although the applicant did make a report of injury on duty to the Labour Department on20 May 2013); and the respondent had not paid the applicant any periodicalpayment or medical expenses.

12.  Thus, at the end of the day, it boils down to a question of credibility of the witnesses who gave evidence at trial.

13.  I would like to say from the outset that the applicant’s evidence can by no means be described as perfect or without its shortcomings.  In fact, I find many areas of his evidence are less than satisfactory.   However, when it comes to the material issue of the case, namely, who was his employer at the time of the Accident, his evidence in my view is preferable and more convincing than the evidence given by the respondent.  Overall, I find the applicant as an honest and truthful witness who tried his best to give an account to the best of his ability.  Given his personal background (who has worked as a chef for most of his life) and educational level (primary 3 only), it comes as no surprise that he managed to mix up some of the accounts he had previously given to the police and his solicitors.  He was also confused about who were at the initial meeting and what was said at that meeting.    

14.  However, his evidence in respect of the employment relationship with the respondent has been corroborated by Madam Au’s evidence. I find Madam Au to be an impartial and honest witness.  She is intelligent and smart. She gave her evidence in a straight-forward and direct manner.  She has not been shaken under cross-examination. She clearly has no personal interest in the outcome of the case.  I find what she said about the employment makes a great deal of sense and consistent with what the applicant alleges.  I believe and accept her evidence.

15.  When compared with the applicant and Madam Au, I find the respondent to be an evasive, self-conceited and less than truthful witness.  When giving evidence, he clearly has come across as a much more street-wise and sophisticated person than the applicant.  However, in my view, a lot of his evidence simply does not add up and plainly goes against common sense.  They are also inconsistent with the surrounding circumstances leading to the opening of the Restaurant and how business was run.  I also find that he was readily prepared to provide answers whenever they suit his case.  He is, in my view, not an honest witness.  I also find some of his accounts to be simply inherently importable.

16.  The 2 witnesses called by the respondent, who was respectively former neighbour/customer and friend/former employee of the respondent, while sincere did not have any first-hand knowledge of the employment relationship between the applicant and the respondent.  I do not find their evidence to be particularly helpful in determining the central issue of the case.

17.  Thus, where there are any discrepancies between the accounts given by the witnesses, I prefer the evidence of the applicant and Madam Au than those given by the respondent and his 2 witnesses.    

Analysis of the evidence

18.  I think it is fair to say that the applicant did not come across as an impressive witness.  He was cross-examined extensively by the respondent’s counsel, Ms Christine Yu, on the name of the Restaurant, a matter which he has obviously mistaken.  He has also confused about the date, the time and some of the persons involved in the initial meeting when he went to discuss about the job at a small café (Cha Chaan Teng) in Hin Keng Estate.  However, in my view, when it comes to the central issue of this case, namely, who was his employer at the Restaurant and what took place in his work place, I have no doubt that the applicant is telling the truth. 

19.  As said, what is at the core of this dispute is who was the employer of the applicant at the time of the Accident.  To determine this issue, the court will have to look into matters like the circumstances of how the applicant (as well as Madam Au) came to work in the Restaurant; who rented the premises; who provided the tools and equipment; who paid for utilities like water, gas and electricity; who paid for the cost of the food and ingredients; who paid the wages of the workers; who took the takings from the business at the end of each day; who decided the hours, the days and the mode of his work, etc.

Name of the Restaurant

20.  On the name of the Restaurant, I find the applicant has clearly made a mistake on the matter.  He insisted that the Restaurant was called 「 越煲越有 (大有麵館)」 and not 「越煲越有」 as he had told the police in his witness statement on 6 May 2013.  This clearly could not be right.  The name of the Restaurant as depicted by the photographs taken by the police on the night of the Accident was 「越煲越有」 and not 「越煲越有 (大有麵館)」.  Despite of such clearly indisputable evidence, yet the applicant insisted that the name in fact was 「越煲越有」with the characters 「大有麵館 」appeared in smaller size on the sign.  I find this part of the applicant’s evidence not reliable and I would reject his evidence on this.

21.  In this regard, I find the evidence of Madam Cheng (RW3), who was working as a part-time dishwashing worker at the Restaurant, more reliable.  She says the words 「大有麵館 」 was not on the signboard when she was working there. I think she must be right on this. 

22.  However, one thing is clear is that the new name of the Restaurant did not come from the applicant but Kwai See-Kit (季詩傑) (“Kwai”), the son-in-law of the respondent.  It was also Kwai who had initially provided instructions to the applicant as to how to go about his job.  I accept the applicant’s claim that Kwai did say to the applicant that he was helping his father-in-law, ie the respondent to employ him, although the applicant was not sure about this.  But what is clear is that Kwai and the respondent worked together to run the Restaurant during the initial stage of setting up the business.  

23.  However, I agree with Ms Christina Lee, counsel for the applicant, that the name of the Restaurant is not at the centre of the dispute in this case.  Nor in my view are the dates, time and the persons involved in the initial meeting at the café which the applicant clearly has also mistaken. They are not crucial to determine the central issue.

How did the applicant come to work in the Restaurant? 

24.  The applicant stated in his witness statement that it was Madam Au who had introduced him to work at the Restaurant as a cook.  At the time when the Accident happened, he says that he was working at the Restaurant 6 days a week, with every Wednesday as his off day.  His working hours were from 9:00 am to 11:00 pm each day.  He was paid a monthly wage of $15,000.  The applicant was paid in cash.  He was not required to sign any receipts for the wages.  He was also not required to make any MPF contribution. He was not required to pay any tax. The above arrangement has been confirmed by Madam Au.

25.  Although in this witness statement, the applicant stated that he was introduced by Madam Au to work at the restaurant from 18 October 2012 onwards, when giving evidence in court, the applicant stated that he actually started working at the restaurant in mid-November only, the exact date of which he could no longer remember. The later date is consistent with the evidence of the respondent’s witnesses and more likely to be the actual date when the applicant and Madam Au commenced to work at the Restaurant.

26.  I accept the applicant’s evidence that he first met Madam Au, her nephew, Kwai and a person by the name of Mars or Marsh (“Mars”) at a café in Hin Keng Estate in Tai Wai.  The meeting was for the purpose of discussing the opening of the Restaurant and his employment in the Restaurant.  The respondent was not present at the meeting.  At that time, both the applicant and Madam Au thought that the owner of the Restaurant was Kwai.  In my view, it was not an unreasonable assumption given the way how Kwai had acted in the meeting.  I further accept the applicant’s evidence that before he started working at the Restaurant, Kwai and Mars had taken him to the Restaurant for inspection.  It was on that occasion that Kwai had introduced the respondent to him (and Madam Au) as his father-in-law.  It was then that the applicant thought Kwai and the respondent were operating the Restaurant together. He had never asked who was the owner of the Restaurant as he says both Kwai and the respondent would turn up at the Restaurant often during the initial period. I consider it is perfectly reasonable for a kitchen worker like the applicant to think to himself that “as long as I get paid, I do not need to ask who my boss is”. 

27.  Given the circumstances and the ways how the respondent subsequently behaved in the Restaurant, it is in my view not unreasonable for the applicant to assume that the respondent was his employer.

28.  I find that both Kwai and the respondent had deliberately tried to keep their role vague at the Restaurant because they did not want to take up the responsibilities which come with that of an employer and owner, like taking out business registration and employees’ compensation insurance for their employees.   

29.  The applicant’s case is supported by Madam Au’s evidence.  She claims that she had originally thought at the meeting in the café that Kwai was the owner of the Restaurant and hence her employer.  It was only after Kwai had agreed to employ her (and the applicant) that he introduced the respondent to them as the owner.  It was only then Madam Au realized that Kwai was merely acting on behalf of the respondent in employing them.  I accept Madam Au’s evidence on this.

30.  What is quite significant to note in this case is that the respondent has failed to call Kwai as a witness.  He is clearly a material witness.  As he lives with the respondent under the same household, there is no reason why he could not be called to give evidence to support the respondent’s case.  Failing to call a material witness to give evidence on a material aspect of the case when the witness is available or within the power of the party to call him or her would allow the court to draw adverse inference against that party: See Wisniewski v Central Manchester Health Authority[1998] PIQR P324.  I so draw such adverse inference against the respondent in this case.   

The lease allegedly signed by Tsui

31.  The respondent claims that the premise was leased out to Tsui who was the owner of the Restaurant and hence the employer of the applicant and Madam Au.

32.  I find the respondent’s evidence in this aspect of the case inherently improbable and hard to believe.  First, he claims that he and his wife had thought of closing down the business of 「 大有麵館 」which they had run together for a number of years upon the birth of their granddaughter in or around October 2012 as they wanted to spend more time with the granddaughter.  According to the respondent, it was in November 2012 that his son-in-law Kwai had mentioned to him that one of his friends was interested to rent the premises.  Kwai apparently is a practicing lawyer who, together with his wife and children, lives with the respondent and his wife.  According to the respondent, one day Kwai and Tsui, together with the applicant and allegedly a group of relatives of the applicant, just turned up at the premises and talked to him about taking it over to run a restaurant. He seems to be able to recall that Tsui is a friend of his son-in-law and the applicant is the relative of a friend of Tsui.  It is his evidence that it was Tsui who subsequently contacted him and signed a tenancy agreement on 18 November 2012.

33.  According to the respondent, Tsui agreed to rent the shop for HK$12,000 a month.  He also claims that Tsui asked him for a trial period of 3 months as he had never run a restaurant before.  The respondent claims that he had never been told who was the owner of the restaurant and who would be responsible for running it.  Given the fact that he was the holder of the “light refreshment restaurant licence” at the time and would be personally responsible for the hygiene standard of the Restaurant (as the licnece was not transferable), I find this assertion of the respondent simply unbelievable.    

34.  Further, according to the respondent, he was supposed to receive a sum of takeover money between HK$80,000 to $100,000 from Tsui.  Yet for some unexplained reasons, he was prepared to forego such a large sum of money without even demanding for it.  I do not believe that the respondent would be prepared to give up the takeover money so readily from a virtual stranger.  Further, a temporary lease which supposed to have been signed between the parties earlier that day was never produced as evidence at the trial.  As the shop was still filled with kitchenware, cutleries, furniture and fitting and was connected with water and electricity, ready for the operating of a small restaurant business, I cannot think of any reason why the respondent would not charge Tsui any takeover money, unless of course he knew all along that the Restaurant was not run by Tsui.    

35.  Another reason why I think the lease was not a genuine one is because the 3 months’ period was stated to be from “1.12.2012 to 30.2.2013” in the lease.  We all know that there is no 30^th day in the month of February.  When asked who put down the date on the lease, he said he could not remember.   He said the lease however was brought to him by Kwai.  It could be Kwai who had written down the information but he was not sure.  Given the fact that his son-in-law is a practicing lawyer, at least according to the respondent, it is simply unimaginable that he would get such fundamental fact wrong if this is indeed a genuine document.  What is however significant to note is that the respondent has failed to call Kwai as a witness in this case even though his evidence will be clearly relevant and material. 

36.  Another peculiar feature about this lease is that it shows no rental deposit was ever paid by the supposed tenant. The respondent said that no deposit was received from Tsui in this instance whereas evidence from his saving accounts shows that he had been a landlord since 1999 for another unit in the same village for which he had collected rental deposits from his tenant.  In my view, there is no reason why in this particular instance he would forgo the deposits from somebody whom he had hardly knew and only met very briefly. 

37.  The respondent admitted that the formal lease also made no provision for any deposits for water and electricity.  It also made no mention of who should be paying the utility bills and an inventory of what furniture and fixture, tableware and cookware could be found in the Restaurant.  Unlike the 2 formal leases subsequently signed by the respondent with two parties after the Accident, this lease lacks all the material particulars which one would expect to find in a lease of such nature, such as rental deposits, takeover money, advance rent payment, water and electricity deposit and so on.

38.  When he was being challenged by the applicant’s counsel on this matter, the respondent tried to give an answer that this lease was found in such a casual format due to the fact that it had not been stamped at the Stamp Duty Office.  When it was put to him that none of the other two leases that he subsequently signed with the 2 other tenants was stamped, he then said that he was very cavalier (「求其」) about it.

39.  In my judgment, this lease is a sham and most likely created by the respondent to give a false impression that he had leased the shop to Tsui.  When compared to the 2 subsequent leases, which probably are genuine, this one lacks all the material particulars one would expect to find in a lease of such nature. 

40.  In the circumstances, I find the above account of the respondent not believable at all.  I find that lease allegedly signed by the respondent and Tsui on 18 November 2012 most likely to be a bogus document created by the respondent for the sole purpose of distancing himself from this matter. 

How the Restaurant was run on a daily basis?

41.  Madam Au was the only waitress/cashier employed at the restaurant.  Her job included taking of orders, serving of food, clearing up and handling all the money received from the customers.  I believe her when she said that when she was interviewed for the job she did not ask details like who owned the Restaurant and who was her employer.  It was only after she started working at the Restaurant that she came to realize the respondent was the owner and her employer.  She has given details as to why she come to such belief.  I accept her evidence on this.    

42.  Madam Au stated in evidence that when she first started working at the Restaurant, the respondent, his wife and Kwai would often come down to the Restaurant to monitor the operation.  This continued for a while until the respondent’s wife told her to get paid by taking money out of the money box placed inside the Restaurant at the end of each day.   Madam Au would place a slip of paper inside the box to knowledge receipt of the payment.  Further, if anything happened at the Restaurant, it was always the respondent who would come down to the Restaurant to deal with them.  If there was not enough money in the Restaurant, it was also the respondent who would come down to the Restaurant to deal with such matters.  This in my view is consistent with the fact that the respondent was the owner of the business and the employer of both the applicant and Madam Au.

43.  I accept the applicant’s evidence given in court (as contrast to what he has stated in his witness statement) that he was paid by Madam Au from the money box kept at the Restaurant which was used to keep the takings from the business.   If there was not enough money in the box, he said someone would bring it down and give it to Madam Au.  He said that he did not see the respondent giving any money to Madam Au. The applicant says it could have been Kwai who had done that. This is consistent with what he has stated in evidence, ie as long as he received his wages, he cared very little who actually paid him.

44.  It is significant to note that Madam Au has denied that Tsui was her employer as she had never seen Tsui at the Restaurant even once while she was working there.  This is an important matter which the respondent has failed to provide any satisfactory explanation.

45.  I also accept the respondent had told her once that if the business continued to do well, he would take back the beauty/facial shop next door to the Restaurant and the upstairs premises for the expansion.  This is another reason why Madam Au believed that the respondent was the owner of the Restaurant and their employer.  I find that to be a perfectly reasonable belief.

46.  Another telling matter is that both the applicant and Madam Au have given evidence to the effect that the respondent would often go inside the Restaurant and helped himself with bottles/cans of beer from the refrigerator without payment.  In my view, nobody would enjoy that kind of privilege unless he is the owner of the business.   Madam Au also testified that the respondent’s regular presence in the restaurant would be compatible to an owner keeping an eye on his own business.  I consider this as a reasonable assumption.

47.  Madam Au has fairly pointed out that running a small Restaurant like the one in question was entirely within her capacity. She did not need close supervision.  Similarly, the applicant as an experienced cook did not need any supervision.  He did not need to take instructions from his employer on a daily basis on how to do the cooking and what dishes to prepare.  He would go to the market each morning at around 10:00 am and, after return with the daily marketing, would go out to have lunch by himself.  He would then start preparing the food at around 4:00 pm and would be cooking in the kitchen from 6:00 pm until its closing time at 11:00 pm.  He would lock up the shop after cleaning up.

48.  The money for the food purchases in the market was taken out from the money box.  The other cooking ingredients like cooking oil, sources and frozen meats were ordered and delivered to the premises.  Beers were also ordered and delivered to the premises.  They were usually paid by cash taken out from the money box.  If there was insufficient cash in the money box, then the applicant would call the respondent on the mobile phone and asked him to come down to the Restaurant to settle the bills.  This the respondent would usually do within several minutes after his call.  Also, when the officials from the Food, Environmental & Hygiene Department came for inspection, it was always the respondent who would come down to the Restaurant to greet them as he was the license holder. In my judgment, if the respondent was not the owner of the Restaurant and hence the employer of the applicant, he certainly would have no reason to do any of the above at all. In my view, the respondent has failed to provide any plausible reason of why he would do those things.  

49.  Madam Au was in charge of taking orders from the customers, serving the food, collecting payment and closing the accounts at the end of the day.  It was perfectly reasonable in my view that the applicant would be reimbursed by Madam Au from money taken out from the money box for his daily purchase in the market.  I note that this crucial part of the evidence was not challenged by the respondent’s counsel during cross-examination.

50.  It is also very telling immediately that after the Accident, she telephoned the respondent’s son-in-law Kwai and very soon afterwards the respondent appeared at the Restaurant.  The respondent says that he was told about the Accident and went down to the Restaurant purely out of nosiness.   I have no hesitation in rejecting such outrageous claim as I find the only reason why the respondent went down so quickly after the Accident was because he knew full well that he was the owner of the business and the applicant’s employer. 

51.  I also find that he did not report the injury of the applicant to the Labour Department not because he did not consider himself as the applicant’s employer as claimed by him but because he has never taken out any employees’ compensation insurance for the workers in the Restaurant as the law required.

52.  One particular matter that stands out in Madam Au’s witness statement is that she continued to work at the Restaurant after the Accident and only resigned about a month later.  During that time, not much have changed and certainly Tsui had not suddenly emerged as the owner of the Restaurant and claimed to be employer of the workers.

Evidence of the respondent’s witnesses

53.  The respondent’s witnesses Madam Tse and Madam Cheng on the surface appear to have nointerest in the outcome of the case.  However, in my view, they are not entirely neutral witnesses.  They clearly have known the respondent and his wife for a long time and tried to speak favorably on the respondent’s behalf.  In any event, I find their evidence is of rather limited value to assist the court in deciding the core issue of the case.

54.  Madam Tse said she was a regular customer of the Restaurant for many years when it was still being operated by the respondent and his wife under the name of 「 大有麵館 」.  Her evidence concentrated on the events happened before it was closed down in or around November 2012, in particular a farewell party she was invited to attend.  She was certain that the farewell party took place in November 2012 because her open granddaughter was born one month earlier in October 2012. 

55.  She was also certain that the respondent and his wife operated 「 大有麵館 」by themselves prior to the closing down of the business.  However, she frankly admitted that she did not know what the respondent did to the premises after they closed down the business and who employed the applicant. 

56.  She only visited the Restaurant on 1 or 2 occasions after it was re-named 「 越煲越有」 as she did not like the cooking there.

57.  Judging from the above, in my judgment, Madam Tse’s evidence is at best neutral and at worse unhelpful to the respondent’s case.

58.  On the other hand, Madam Cheng knew the respondent and his wife for over 20 years.  She first met the respondent’s wife when they were doing voluntary work together.  She also knew the respondent although her husband knew him better and for a longer time.  Thus, one cannot say that she is an entirely independent witness as it is difficult to say how much of her evidence is influenced by the friendship she and her husband have enjoyed with the respondent and his wife.

59.  Madam Cheng worked at the Restaurant in the evening as a worker responsible for washing up and cleaning during part of the time while the applicant and Madam Au were working there.  It is interesting to note that that Madam Cheng at the beginning of her evidence has specifically mentioned that it was Mrs Wai (the respondent’s wife) who had told her about the job at the Restaurant.  However, she was at pain to point out that Mrs Wai did not take her to the Restaurant and did not introduce her to the job.  This contrasted to her witness statement where she stated that she had simply walked past the Restaurant on or about the 10^th day of Chinese New Year (“CNY”) in 2013 and went into the shop to enquire herself. In the witness statement, she stated that she was employed by the applicant and it was the applicant who had given instructions to her regarding her job duties.  She therefore believed that the applicant was the owner of the Restaurant and her employer.    

60.  This differed from what Madam Au stated in evidence when she said that it was Mrs Wai who took Madam Cheng to the Restaurant to work.  Madam Au also testified that Madam Cheng worked between 6:00 and 11:00 pm each day and was paid HK$30 an hour. Her wages, like that of the applicant and Madam Au, would be taken out from the money box kept at the Restaurant on a daily basis. 

61.  Madam Au during cross-examination did not agree with the suggestion put to her that Madam Cheng had only started to work in the Restaurant after the CNY in 2013.  She was adamant that Madam Cheng started before CNY that year as she had written a lot of Chinese “Red Banners” (「 揮春」) in the Restaurant and in fact had given 2 to her.         

62.  Madam Cheng frankly admitted that she did not know the relationship between Tsui and the new business traded under the name of 「越煲越有」.  She also did not know how the applicant was paid or whether the applicant was an employee or a partner of the business.  Thus, her evidence does not in my view throw any light on the employment relationship between the applicant and the respondent.  Madam Cheng while admitted that she knew how to write Red Banners, denied that she had written any for the Restaurant.  On this issue, I find Madam Au’s evidence to be preferred as writing of the Red Banners would usually be done before CNY and it is unlikely that she would have mistaken about the timing of such a unique event.   

63.  I also reject Madam Cheng’s evidence that both she and Madam Au have to take instructions from the applicant while she was working at the Restaurant.  Not only this was never mentioned in her witness statement, this matter was never put to the applicant when he was cross-examined by the respondent’s counsel.  I find that this is most likely to be something made up by Madam Cheng when she was giving evidence.

Conclusion on liability

64.  In conclusion, based on the above analysis, I find on a balance of probabilities that the applicant was employed by the respondent on the day of the Accident and the Accident arose out of and was in the course ofemployment as the applicant was doing something in furtherance of his employer’s business.  He is therefore entitled to receive compensation under the Ordinance.

Quantum

65.  As far as quantum is concerned, the applicant was born on 3 February 1953 and was aged 60 at the time of the Accident.  Thus, for calculation of loss of earning capacity, a period of 48 months is appropriate.  See section 7(l)(c) of the Ordinance.  In his police statement given after the attack, it was recorded that he earned $16,000 a month.  I accept that was a mistake made by the applicant in the immediate aftermath of the attack while the applicant was still in a shocked and confused state. I find that he was paid $15,000 a month by the respondent.

66.  As a result of the Accident, the applicant suffered from head injury with laceration of scalp, fracture of right 5^th metacarpal bone and buttock contusion.  The medical certificates show that he had received intermittent sick leave from 6.5.2013 to 26.6.2015, a total of 375 days.

67.  Approximately 6 months after the Accident, the applicant developed tenosynovitis of the right wrist which was not caused by or related to the Accident.  It is Dr Fu’s advice that the sick leave given in relation to the synovitis should not be attributed to the injury on duty.  I consider that as reasonable.  Dr Fu endorses the sick leave as stated in the Form 9.  He assesses the applicant’s loss of earning capacity arising from the attack at 1.5%.  I accept that as the appropriate loss of earning capacity in the award to be made to the applicant.

68.  The Form 9 shows the following relevant periods of sick leave: 6.5.2013 to 30.11.2013; 9.12.2013 to 12.12.2013; 16.12.2013 to 19.12.2013; 23.12.2013 to 26.12.2013; 30.12.2013 to 2.1.2014; 7.1.2014 to 13.1.2014; 26.3.2014; 18.6.2014.  This makes a total of 230 days.

69.  Based on a monthly income at $15,000 a month, I find the applicant’s losses as follows:-

(1)  Section 9, loss of earning capacity

$15,000 x 1.5% x 48 months = $10,800

(2)  Section 10, periodical payments

$15,000 x 230/30 x 4/5 = $92,000

70.  For medical expenses under section 10A, the certificate of medical expenses issued by the treating hospital Yan Chai Hospital shows that a total of $5,647 had been spent in out-patient clinics.  Of this amount $70 was for endoscopy; $310 was for consultations at the medicine clinic; $1,180 was for physiotherapy after the wrist operation; $60 was for the special diagnostic centre and $160 was for the department of surgery.  In my view, these items are not related to the Accident and should be deducted from the total sum, leaving a balance of $3,867.

71.  The A&E charge of $100 and the in-patient charges for 14.9.2014 to 18.9.2014 were related to a medical illness while the in-patient charges from 9.2.2015 to 11.2.2015 were related to the wrist surgery.  Again, they are not recoverable from the respondent.

72.  There are some other items of additional medical expenses supported by receipts.  However, as the applicant finished his Accident related sick leave on 18.6.2014, he will only be entitled to the additional medical expenses incurred before that date ie $45 for 5 visits, totalling $225.

73.  Thus, I allow the section 10A claim at $4,092.

74.  In the aforesaid premises, I would enter judgment in the sum of $106,892 ($10,800 + $92,000 + $4,092) in favour of the applicant. The applicant is also entitled to interest at 4% from the date of the accident to the date of judgment, thereafter at judgment rate.

75.  I also make an order nisi that the respondent do pay the costs of the applicant, such costs to be taxed if not agreed, on a party and party basis, with certificate for counsel. The applicant’s own costs to be taxed in accordance with the legal aid regulations.  The order nisi will become absolute in the absence of any application from the parties to vary the same within 14 days after handing down of the judgment.