WONG SHI YAN v. G.W AUTO LIMITED

DCEC 2554/2015

[2022] HKDC 1015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2554 OF 2015

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ASSESSMENT OF COMPENSATION

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1.  Mr Wong Shi Yan (“Mr Wong”), the applicant, formerly worked for G. W Auto Limited, the respondent, as an automotive technician. On 6 February 2015, he slipped and fell while cleaning wheels that were hung on a wall. As a result, Mr Wong sustained injuries to the face. Born on 23 January 1986, he was 29 at the time of the accident.

2.  Mr Wong now claims against the respondent for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“Ordinance”).

3.  The respondent is absent from today’s hearing.  By an affirmation of service filed by the solicitors for Mr Wong on 31 August 2022, the assessment bundle of this trial was served on the respondent by leaving at its registered office on 30 August 2022.  By a further affirmation filed on 13 September 2022, the opening submissions, list of authorities and hearing bundle were sent to the respondent by registered post at its registered office.  All of the documents were, however, returned with the words “moved” handwritten on the envelopes. 

4.  At the hearing, Mr Leo Li, solicitor of Messrs Wong & Tang acting for Mr Wong, informs me that the opening submissions and the list authorities have both been served on the respondent by leaving the same at its registered office on 5 September 2022.  He also confirms that the respondent is still in operation in so far as the records at the Companies Registry showed last week. Subject to the filing of a further affirmation to verify these facts on service, which I order the applicant to do so within 7 days from today, I am satisfied that regular and sufficient notice has been brought to the attention of the respondent and proceed with the assessment of Mr Wong’s claims in its absence.

5.  This application was filed on 2 December 2015.  Mr Wong pleaded that at the material time he was employed by the respondent to work in a garage located at Room 3, Ground Floor, Kwong Sang Hong Centre, 151 Hoi Bun Road, Kwun Tong, Kowloon for a monthly salary of $15,000 immediately preceding the accident.  After 6 February 2015, he was granted sick leave to 15 February 2015 and then from 9 June 2015 to 10 June 2015.

6.  On 16 August 2017, the respondent, then represented by Messrs Au-Yeung, Cheng, Ho & Tin, solicitors (“AYCHT”), filed an Answer.  It is to be observed that the Answer did not raise any substantive dispute to the application.  The respondent simply made no admission to the alleged employment or to the earnings claimed.  On this basis, the respondent denies Mr Wong’s entitlement to compensation.

7.  By the Order of the Court made on 6 July 2016, the respondent was originally directed to file and serve within 28 days a list of earnings of the applicant for the 12 months prior to the accident, and within 35 days a list of documents.  By virtue of the late filing of the Answer, the time for doing both of the two steps was extended to 21 days from 20 September 2017.  On the same day, the Court further directed for witness statements as to facts to be exchanged between parties within 56 days.

8.  Notwithstanding earlier Orders and directions, there was no compliance on the part of the respondent.  On 9 December 2021, an unless order was made for the filing and service of a list of earnings and list of documents by 4:00 p.m.  on 6 January 2022, failing which the respondent would be debarred from adducing evidence at the trial of this application.  There was a further direction for the senior partner of AYCHT to explain in writing by 16 December 2021 their absence from the hearing on that day. 

9.  Having failed to comply with the unless order, interlocutory judgment on liability was entered in favour of Mr Wong on 29 April 2022.  For the assessment of compensation, a second unless order was given to require the respondent to file and serve its witness statement on quantum by 4:00 pm on 27 May 2022 lest it be debarred from adducing evidence in this trial.  The Court also gave usual directions for the setting down of the application but ordered that the respondent be served with the assessment hearing bundles and written submissions by registered post and by leaving at its registered office.  Incidentally, AYCHT ceased to be the solicitors for the respondent with leave from the Court on the same day.

10.  There is only one witness in this trial, that is to say Mr Wong himself. On 21 February 2022, Mr Wong filed a witness statement which he adopted as his evidence in chief.  The respondent did not file any evidence in opposition.

11.  Pausing here, a criminal summons was issued on 27 January 2016 against the respondent in KTS 1869/2016 for contravening s 40(1) and (2) of the Ordinance.  On 25 August 2016, the respondent entered a guilty plea to a charge of failing to take out insurance policy for employees and was fined $5,000.  According to the summary of facts, based on which the respondent was convicted and sentenced, the respondent admitted that Mr Wong was employed since 1 November 2014 as a car technician making a monthly salary of $15,000.  His work hours were from 10:00 a.m.  to 8:00 pm every Monday to Saturday.  A sick leave period between 6 February 2015 and 15 February 2015 was also admittedly granted to Mr Wong.

12.  I am satisfied that the monthly earnings of Mr Wong at the time of the accident was $15,000, which also accords with the amount stated in the Form 2 purportedly filed by the respondent on 7 July 2015.  Notwithstanding a notice of appeal filed on 26 April 2017 under s.18 of the Ordinance, Mr Li confirms that the appeal is abandoned.  Mr Wong accepts the assessment of the Employees’ Compensation Board made on 20 December 2016, finding a loss of earning capacity of 1% for left face laceration resulting in left face scar, pain, numbness and twitching.  Sick leave was also confirmed to be as pleaded.

13.  Accordingly, I accept the submissions of Mr Li and make the following awards in favour of Mr Wong: -

(a)  under s 9 of the Ordinance, a sum of $15,000 x 96 x 1% = $14,400;

(b)  under s 10 of the Ordinance, a sum of $15,000 x (12/30) x 4/5 = $4,800;

(c)  under s 10A of the Ordinance, a sum of $500 being the medical expenses claimed.

14.  As for costs, I order that the respondent do pay the applicant’s costs of the application, to be taxed if not agreed, and the applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.