TAHIR KASHIF v. SAFDAR NASAR MAHMUD

DCEC 1763/2011

[2018] HKDC 600

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1763 OF 2011

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J U D G M E N T

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A.　INTRODUCTION

1.  The applicant, Mr Tahir Kashif, is an asylum seeker from Pakistan.  As an asylum seeker, he is prohibited by law to engage in any employment.

2.  On 21 November 2011, the applicant, through his former Legal-Aid assigned solicitors, filed an employees’ compensation application (“Application”) for employees’ compensation in respect of a personal injury the applicant sustained in an alleged accident (“Accident”) on 23 November 2009 (“Accident Date”) allegedly arising out of and in the course of employment. 

3.  It is not in dispute that the applicant suffered a “right forearm severely crushed injury” (“Injury”), resulting in the amputation of his right arm above his elbow (see Part F.1 below).  

4.  The Application was initially against the 1^st and 2^nd respondents, who were respectively described as “a Chinese Male known as ‘Ah Shing’ (1^st respondent) and “a Chinese Male known as ‘Ah Shing’ and Safsar Inasar Mahmud trading as partners in a Company the applicant cannot name” (2^nd respondent).  The addresses for service for both respondents were the same and were stated to be an “Unnamed iron sheet factory situated at Ping Che Road near Ping Che Tsuen, Ta Kwu Ling, New Territories, Hong Kong”.

5.  Before the name of the 2^nd respondent was amended to Safdar Nasar Mahmud (the name of the present 2^nd respondent) on 7 November 2012, the applicant had in fact since August 2012 served the present 2^nd respondent on his residential address instead of the said address for service of the unnamed iron sheet factory stated in the preceding paragraph.

6.  As for the 1^st respondent, since he could not be properly identified or served with the Application, this court granted on the applicant’s application an order on 22 July 2016 to amend the Application by striking out the name of the 1^st respondent from these proceedings.  Henceforth, the proceedings only proceeded against the 2^nd respondent. For convenience, I will, in this judgment, refer to the 2^nd respondent as the respondent.

7.  The respondent made his first appearance in person in a hearing on 22 March 2013, and denied liability. After the first appearance, the respondent, between 9 April 2013 and 28 June 2015, was legally represented before he became unrepresented again as from 29 June 2015.

8.  At the trial on liability and quantum, the applicant was represented by his assigned Legal Aid counsel, Mr Sakhrani. The respondent continued to act in person and maintained his opposition to the claim. 

9.  All statutory provisions referred to in this judgment, shall, unless otherwise stated, be those provided in the Employees’ Compensation Ordinance.

B.　DRAMATIS PERSONAE

10.  The evidence to be discussed will involve, apart from the applicant and the respondent themselves, a number of dramatis personae from Pakistan. For easy reference, I will set them out below before discussing the evidence.

(a) Asim Dar Tahir (“Asim”) – the applicant’s younger brother.

(b) Waris Muhammad (“Waris”) – the applicant stated that he was the respondent’s nephew, while the respondent averred that he was his long-time friend.

(c) Mehfooz Rana (“Rana”) – a flat mate of the applicant and Waris.

(d) Butt Saeed (“Saeed”) – the applicant’s alleged childhood friend.

(e) Ijaz Muhammad (“Ijaz”) –  another flat mate of Waris, Rana and the applicant.

11.  Similar to the applicant, Asim, Waris, Rana and Ijaz were at the material times, asylum seekers from Pakistan.

12.  Since the parties’ cases are diametrically divergent, it would be convenient to briefly set out the parties’ respective cases before identifying the issues.

C.　THE PARTIES’ CASES

C.1　The applicant’s case

13.  The applicant’s case, briefly stated, is that he was employed by the respondent to work in “an unnamed iron sheet factory” (“Alleged Factory”) situated at Ping Che Road near Ping Che Tsuen, Ta Kwu Ling, New Territories” (“Accident Location”).  On the Accident Date, inside the Alleged Factory, whilst he was placing computer monitor parts on a compressing machine operated by a Chinese co-worker, his right arm was caught by the machine, causing the Injury.

14.  The Chinese manager called “Ah Goi” however refused to call for an ambulance.  Waris later came and took the applicant to the North District Hospital (“Hospital”) by taxi. Whilst he was in the Hospital, the respondent allegedly threatened him and told him to conceal the true cause of the Accident by giving him $60,000. The applicant’s statement given to the police in the Hospital that stated that the Injury was caused in a traffic accident was allegedly doctored by the respondent by his making a false interpretation of the applicant’s statement.  

C.2　The respondent’s case

15.  The respondent has vigorously denied liability throughout the proceedings by denying that he was the applicant’s employer, that he had made any threats, that he had provided any false translation or that he had paid any money to the applicant as alleged.

16.  The respondent in fact filed altogether two answers in opposition to the Application. The first one was a home-made answer filed on 2 April 2013 when the respondent was acting in person. The respondent’s former solicitors, probably unaware of the first answer, filed on 23 April 2013 a second answer on behalf of the respondent.

17.  Since both of the two answers contain similar grounds of opposition and in view of the fact that the first answer did not contain the requisite Statement of Truth, this court regularized these double filings by ordering the expunging of the first answer.  

18.  The respondent in both his home made answer and the second answer provides similar grounds of opposition, which in a nutshell are as follows:

(1) The respondent had “no direct or indirect contractual relationship” with the applicant.

(2) The respondent was at the material time an employee of Maahir Company (“Maahir”) (whose sole proprietor was his brother, Javiad Iqbal (“Iqbal”).

(3) The respondent did not know the applicant and had he only met the applicant for the first time on 7 December 2009 in the Hospital when the respondent, upon Waris’ request, assisted the applicant with the interpretation when the applicant gave a statement to the police in connection with a police inquiry into a traffic accident.

(4) In the applicant’s statement to the police, the applicant had in fact told the police, in the presence of Waris, that his right arm was injured in a traffic accident, which contents the respondent interpreted accordingly without any deliberate false translation as alleged.  The respondent later learnt that the applicant’s injured arm was amputated.

D.　ISSUES

19.  The following are the issues for this trial: -

(1) Was the Injury caused by a traffic accident or by an industrial accident?

(2) If the Injury was caused by an industrial accident, was it caused in the course of and arising from the applicant’s employment by the respondent?

(3) If so, should the court exercise its powers under s.2(2)[1] to deal with the applicant’s employment as if he was working under a valid contract of service notwithstanding the applicant’s status as an asylum seeker who was prohibited from engaging in employment in Hong Kong?

(4) The amount of compensation under ss.9 and 10 (the applicant having abandoned his claim under s.10A). Whether the applicant should give credit for the $60,000 that the respondent had allegedly paid to him to conceal the true cause of the Accident?

E.　GOVERNING PRINCIPLES FOR ASSESSING THE CREDIBILITY OF WITNESSES

20.  In light of the diametrically conflicting evidence of the parties, the determination of the issues on liability will largely depend upon the witness’ credibility. It is therefore useful to set out the guiding principles for assessing the credibility of witnesses. These guiding principles have been instructively recapped by B Chu J in  Ip Fung Kuen v Sam Kee Frozen Meat Co Ltd & Ors.[2] (at paras [66]-[67]), and which guiding principles applicable to this case can be summarized as follows.

(1) Generally, in assessing a witness’ credibility, the court takes into account, among other things, the inherent probabilities or improbabilities of a witness’ testimony, the contemporaneous documents or any evidence, which is undisputed or indisputable, tending to support or contradict one account or the other, and the overall impression of the characters and motivations of the witnesses.

(2) In evaluating the overall impression of the witnesses, this court should caution itself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.

(3) Where there is a conflict of evidence such as there was in the present case, this court should, in ascertaining the truth, refer to the objective facts and documents (such as the contemporaneous written documents and documents which came into existence before the problems in question), to the witnesses’ motives, and to the overall probabilities by, for example, testing the credibility by a comparison between the witness’ oral testimony and his witness statement.

21.   Documentary evidence, especially undisputed or indisputable contemporaneous documents, being one of the important objective pointers that a court should take into account in the evaluation exercise, will be discussed first in the following Part F.

F.　DOCUMENTRARY EVIDENCE

F.1　Medical reports

22.   According to the medical reports[3] of Dr Yiu Hon Wah (“Dr Yiu”) , the orthopedic doctor, and Dr Lo of the A&E Department of the Hospital respectively dated 1 February and 6 February 2012,  the applicant was attended by a doctor in the Hospital at around 15:14 hours on the Accident Date.  The applicant’s general condition was described as serious, and he was found to have suffered severe crush injury of his right forearm.

23.   When Dr Yiu later attended the applicant, the applicant told the doctor that the Injury was caused by a vehicle.   The applicant only later told Dr Yiu that his right forearm was compressed by a machine in a factory when Dr Yiu was considering whether an amputation to the injured forearm was required.

24.   On 24 December 2009, the applicant’s right arm was amputated due to an infection complication. A second revision amputation was performed on 1 January 2010. The applicant was discharged from the Hospital on 11 January 2010.

F.2　Notifications of accident

25.   Two notifications of accident[4] respectively dated 30 March 2010 and 1 February 2011 (respectively the “1 st ”and “2nd Notification”) were submitted by the applicant to the Labour Department.

26.   In the 1st Notification, the applicant named his employer as “Known as ‘Mr. Kaul’ Mr.”. The contact person was stated to be a “Mr Kwok” and his telephone number was “6426 [x]”. The applicant provided the same address for the employer and the place of the Accident, namely an “un-known godown at ‘Ng Chow Road’, Wo Keng Shan, Ping Chi, N.T”.  

27.  In the 2nd Notification, the applicant named “Safdar Nasar Mehmood” as his employer, and also stated the telephone number of the contact person as “9275 [y]” without identifying the person. Similarly, the same address of the employer and the place of accident was given, namely, “DD-114, Lot No.62, Lo Uk Tsuen, Pat Heung, Wang Toi Shan, Pat Heung, Kam Tin, N.T.”.

28.   Additionally, the applicant in the 2nd Notification also identified the principal contractor as “known as ‘Ah Sun’ & or ‘Mr Kaul’” whose given telephone number and address were the same as those of the employer stated in the 1st Notification.

F.3　Police statement and records of interviews of the applicant

29.  The applicant was interviewed by the police on four separate occasions. The first interview was conducted in the Hospital on 7 December 2009 by a police officer of the Traffic Branch of New Territories North (新界北交通部) with the respondent acting as an interpreter. The record taken was in the form of a police statement[5] in Chinese  (“Police Statement”) .

30.  After the applicant was discharged from the Hospital, the applicant on 15 June 2010 was interviewed by a police officer from Ta Kwa Ling Police Station.

31.  Later, on 29 July and 6 September 2010, the applicant was interviewed by DPC33379 of the District Crime Squad of the Border District at the Border Police Station (邊界警署).

32.  According to the records of the above-mentioned interviews (respectively the “1st”[6], “2nd” and “3rd”[7] Records of Interviews”), double interpretations by a Chinese/English interpreter and an English/Urdu interpreter were done during these interviews.

F.3.1　Police Statement

33.  Materially, the applicant, in this statement, was recorded to have stated that his Injury was caused in a traffic accident when he was hit by an unknown big lorry at Ping Che, Ta Kwu Ling after finishing lunch with friends at the vicinity.

34.  As will be shown in the 1st Record of Interview to be discussed below, the applicant disavowed the truthfulness of this statement.

F.3.2　1st Record of Interview

35.  The purpose of this interview, according to the interview record, was for the police to inquire about the traffic accident the applicant referred to in the Police Statement. The record[8] also shows that the applicant during the interview had taken the police to an unnamed iron-sheet factory where he said the Accident occurred.

36.  Under caution, the applicant stated that:

“…the accident is not a traffic one. The incident is happened like this that on 23.11.2009 at about 3 pm, I was working in an unnamed iron sheet factory in Peng Che Un Chau South, Ta Ku Link ... [After I was injured], I asked Foreman to take me to hospital or call the ambulance. He called (phoned) boss, but boss refused to call the ambulance. And then boss called his friend asking him to take me to hospital in his private car. And boss friend came after two hour. After that I called my friend WARIS who brought taxi and then he took me in it to Hospital. Then when policeman came to take the statement in the Hospital, Mohmood the partner of the boss made false statement that it is a traffic accident and threated me and Mohmood took 75,000 $ from the boss out of it he gave me 60,000 $ to shut the mouth so to hide the reality from the Doctor and Police. But when doctor asked me inside ICU at that time I told the truth being in conscious that it is not a traffic accident but a wound cut by machine inside factory and doctor agreed to it. 6426[x] is the phone no. of my boss; and his name is ‘Ah Siu’ and his car no. is [NE xxxx], it is a mini cheap [jeep][9].” (6426[x] is the same number stated in the 1st Notification referred to in para 26 above).

37.  After the above-mentioned statement, the interviewing officer declared the arrest of the applicant for “breach of condition of stay”. After he had cautioned the applicant, the officer then questioned him. The answers the applicant gave under caution are as follows.

(i) He was semi-conscious when Mahmood made a false statement to the police and threatened him by stating “that I give you money keep your mouth shut otherwise it would not be good for you”.

(ii) He was not able to provide the addresses of either “Ah Shing” or Mahmood.

(iii) When he was asked about his work at the iron sheet factory, the applicant stated that “Mahmood introduced me to the job. I started working for Ah Singh since Sept. 2009. I received wages for Sept., Oct. 2009. My monthly wages were fixed $6,000, but I did not receive wages of Nov.2009. I used to receive wages in cash. My boss used to come factory every day, but used to stay short period of time”.

(iv)   When he was asked for the reason for making the statement, the applicant stated that, “Firstly, to reveal the truth to police and secondly to receive industrial accident compensation”.

F.3.3　2nd Record of Interview

38.  Before he was cautioned and stated the following, the applicant told the officer that he was educated till matriculation and could read Urdu.

(i) Apart from Waris, Asim also went to the Hospital with him on the Accident Date.

(ii) Shortly after he arrived at the Hospital, he was unconscious for about 2 days.

(iii) Waris worked in the same “Company” as the applicant and he knew “why, how, and where” he was injured.

(iv) As for the details regarding the Accident, the applicant stated that after he was injured, he telephoned Asim and told him about the Accident.  As the manager refused to call for an ambulance or a taxi, he waited for help for two hours before Waris whom had been telephoned by Asim to come to take the applicant to the Hospital.  When Waris telephoned the applicant, the applicant told him that he met an accident at his place of work. Waris came after 20 minutes to his place of work and took him to the Hospital.

(v) When the applicant was asked to give the full name of “Mehmood” against whom the applicant in the 1st Record of Interview alleged having made false interpretation, he gave the name of “Nasir Mehmood”, whose telephone number was “9275 [y]” (the name and the telephone number referred to in the 2nd Notification, see para 27 above).

(vi) The applicant gave a description of the boss of the company, who was called Ah Shing, Chinese, around 35 years of age, with slim build and round face, spoke little bit of English and Cantonese.

F.3.4　3rd Record of Interview

39.  In this interview, the applicant, under caution for a case of “misleading a police officer”, stated the following:

(i) When the applicant was asked why he had stated in the Police Statement that he was injured in a traffic accident, the applicant stated that he had actually told the police when giving the Police Statement that he was injured in an industrial accident. “But I do not know what the person interpreting said in Chinese to the police because I do not know Chinese language”.

(ii) When DPC33379 asked the applicant to give an explanation at p.4 of the Police Statement (the sketch purportedly to be the location where the applicant was hit by a big lorry), the applicant stated, “The police asked me through the person interpreting as to where the accident took place and directions for going there. Therefore, I gave the direction to the place of the accident. Later my signature was obtain (sic) on a sketch. No vehicle is pinpointed in the sketch”.

(iii) When he was asked to further explain about the alleged threat and the alleged payment of $60,000 by Mehmood in the 1st Record of Interview, the applicant explained that the threat made him very afraid. He therefore did not inform the police “the developed situation”. When the doctor did not agree with the applicant that his injury was caused by a traffic accident, the applicant was advised to go to the police to tell the truth. The applicant said he told police all along that the Accident was an industrial accident.

F.4　Police statement of Dr Yiu

40.  After DPC33379 interviewed the applicant on 29 July 2010 (see the 2nd Record of Interview), he later took a statement[10] from Dr Yiu on 3 August 2010.  The following is a summary of Dr Yiu’s police statement.

(i) Dr Yiu was the doctor in charge of the treatment of the applicant in the Hospital.

(ii) The applicant told Dr Yiu that the Injury was caused by his right hand being hit by a bus.

(iii) Dr Yiu did not believe that the Injury was caused by a vehicle and repeatedly asked the applicant for the cause of his Injury.  The applicant repeatedly told Dr Yiu in English that the Injury was caused by the hitting by a bus.

(iv) Around two weeks after the applicant’s admission to the Hospital when a decision needed to be made as to whether the applicant’s injured arm required amputation, Dr Yiu asked the applicant again for the cause of the Injury.  The applicant only then told Dr Yiu that his right arm was crushed by a machine at work.

(v) Dr Yiu used simple English to ask him why he had previously lied.  The applicant told Dr Yiu that the reason that he had lied about having been hit by a bus was because he wanted to conceal his illegal employment.

(vi) Dr Yiu advised him to tell the police the truth. He further stated that the applicant never mentioned that somebody told him to lie about the hitting by the bus.

F.5　Record of Interview[11] of the respondent

41.  On 27 August 2010, DPC33379 interviewed the respondent through a Chinse/English interpreter. The respondent was cautioned for a case of abetting the applicant in not telling the truth about the applicant’s injury when doing the interpretation of the Police Statement.

42.  Under caution, the respondent stated that:

(i) He was born and educated in Hong Kong and can speak English and Chinese but he cannot write Chinese.

(ii) He did not know the applicant until he was asked by Waris, his good friend, to go to the Hospital to do interpretation for the applicant.

(iii) The respondent stated that when assisting the applicant and the police for the taking of the Police Statement, he had done his best to do accurate translation of what the applicant actually told the police. The respondent stated that at that time the applicant had indeed stated that he had been injured in a traffic accident when he gave the Police Statement. The respondent said that he only later learnt from the police that the applicant’s Injury had been caused by a machine. The applicant also denied having given the applicant $60,000.

(iv) He did not know a person named “Ah Shing” or whether the applicant had a job.

F.6　The Surveillance Report

43.  The applicant engaged a company called “Secret Eye Investigation Company Limited” (“Surveillance Company”) to carry out surveillance between 4 and 25 October 2011. On the first day of surveillance, the applicant took the investigator to an unnamed iron sheet factory which the applicant identified to have been his work place. The investigator compiled a report[12] dated 27 October 2011 (“Surveillance Report”).

44.  The Surveillance Company had prepared, apart from the photos that were contained in the Surveillance Report, 2 DVDs and 26 pictures, which were provided to the applicant’s former solicitors.  In addition to these, there should have been also enclosed with the Surveillance Report, 7 documents, namely:

(1)  The Lot Index Plan of the Lands Department;

(2)  Four Land Registry records of the Land Registry;

(3)  Five certificates of particulars of vehicle;

(4)  A business registration of a Jinxin Digital Technology Co Limited (“Jinxin”);

(5)  The Incorporation Form of Jinxin;

(6)  A business card of Chen Xubiao; and

(7)  Two delivery notes of a delivery company called “永盛物流有限公司”.

45.  After the trial, it was then discovered that the present solicitors had not provided to the court the DVDs and the pictures and omitted to include the above enclosure materials in the hearing bundle.  After inquiries from this court, the applicant’s solicitors said that it was their oversight to have omitted the materials but they had in fact not been provided with all the materials as the former solicitors had misplaced them. They have only subsequently lodged the enclosed materials in Items (1), (2), and one of the certificates in Item (3), (4) and (7) as well as one DVD.

46.  Upon receiving these materials, I directed the parties to make further submissions in relation to these materials.  In response, the applicant’s solicitors stated that they have nothing further to add in relation to them. However, in the much later written response dated 26 April 2018, the respondent objected to these materials by stating that the litigation has been dragged on for an exceedingly long time.  In reply to the respondent’s objection, the applicant’s solicitors stated in their letter dated 4 May 2018, that the court should refer to these materials for the reason that the respondent has not suggested that these materials had not been originally attached to the Surveillance Report.

47.  I agree with the applicant’s solicitors. It is not the case that the applicant recently disclosed these documents and other materials. The Surveillance Report was already disclosed in the applicant’s List of Documents filed on 17 September 2012[13]. Hence the Surveillance Report together with these documents and materials referred to in it would have been available for inspection by the respondent’s former solicitors.  The applicant’s inadvertence is unsatisfactory. However, this should have no prejudice to the respondent. In my view, the documents and the DVD form part of the Surveillance Report, and they should thus be so regarded.  

48.  The DVD is only a video recording of the surveillance, and thus adds nothing further to the materials disclosed in the Surveillance Report. The investigations carried out by the Surveillance Company in fact failed to produce any fruitful result for the applicant.

49.  Despite the applicant on 4 October 2011 during the surveillance allegedly having found an unnumbered iron sheet structure that he identified as the Alleged Factory at a location that the investigator found to have been behind No.70 Kwan Tei North, and the corresponding land registry record showing the land lot address as Lot No. 3 in DD 83, the three co-owners (surnamed Tang) of the land were not shown to have any connection with the applicant’s alleged employer referred to as “Ah Shing”.

50.  Neither could the Surveillance Company find anything from the search on Jinxin disclosed on the posters found at the vicinity of the Alleged Factory. A Mr Chen Xubiao seemed to have been connected with Jinxin and he might have been the same person as the contact person “陳經理” (“Manager Chen or Chan”) referred to in the posters. Nonetheless, the applicant, after having been shown the photos taken of this Chen Xubiao, could not make any positive identification of this man with his alleged employer, Ah Shing.

51.  The applicant also identified an adjacent structure next to the Alleged Factory at the location the Surveillance Company found to have been situated between Nos.91 and 93, Kwan Tei North. Despite the information from the residents that a man called “ Mr Chen” had been seen around the said office at No. 92 Kwan Tei North, the corresponding land registry of land lot no. 32 of DD 83 failed to show that its owners (Li Tun Pun Tong, Lee Kae Bun and Li Kwok Fung[14]) bore any connection with Chen Xubiao or the applicant’s alleged employer, Ah Shing.

52.  Similarly unfruitful were the vehicle searches the Surveillance Company carried out on the three private cars parked outside the above-mentioned office during the surveillance. Despite the applicant’s purported identification of Ah Shing’s blue private car bearing a registration number of PM7107, the owner of the vehicle, according to the vehicle search, was a “Chen Shaobin” whose address was stated to be an address in Ngau Tau Kok.

53.  The Surveillance Company was unable to find any useful information to identify or locate the applicant’s alleged employer “Ah Shing”, and it concluded that the above-mentioned structure that the applicant identified as the Alleged Factory and its adjacent office was likely to have been connected with Jinxin, which was owned and controlled by Mr Chen and his family.

F.7　Certified Extracts of Information on the Business Register of Maahir

54.  Maahir was a car scrap yard business which business commenced on 3 December 1999. After the death of one of the partners on 29 December 1999, Iqbal was the sole-proprietor of Maahir.

55.  The business address until 22 March 2017 was “DD 114 Lot No. 62 Kam Tin Road (opp.) of Lo Uk Tsuen, Pat Heung, Wang Toi Shan, Yuen Long, Hong Kong” (“Maahir’s Address”), before it was changed to “DD114, Lot No 125-127 & 158-159, Lo Uk Tsuen, Pat Heung, Wang Toi Shan, Kam Tin, Yuen Long, NT”.

56.  Maahir ceased business on 5 May 2017.

G.　THE WITNESSES

57.  A total of four witnesses testified at the trial. Apart from the parties themselves, Asim was called as the applicant’s witness, and Rana as the respondent’s.

58.  Dr Yiu, who had prepared a statement dated 18 February 2016 for the applicant, was not called.  By agreement, Dr Yiu’s statement was admitted as evidence without calling him.

59.  The respondent had before the trial, also filed a witness statement of Waris.  The respondent informed this court that Waris had already left Hong Kong. In the circumstances, this court should not attach any weight to his witness statement.

G.1　The admitted evidence of Dr Yiu

60.  At the material time, Dr Yiu had been an orthopedic doctor for 17 years. He recalled that when he attended to the applicant’s injuries on the evening on the Accident Date, the applicant told Dr Yiu that the injuries were caused by having been hit by a bus.

61.  However, Dr Yiu found that the applicant suffered severe crush injuries that were more consistent with having been mechanically caused than having been caused by the alleged hitting by a bus. Dr Yiu therefore repeatedly asked the applicant to tell him the true cause of the Injury.     

62.  About two weeks later, Dr Yiu told the applicant that he had to decide whether it was necessary to amputate the injured arm, and asked the applicant again for the true cause of the Accident.  It was only till then that the applicant disclosed to Dr Yiu that his right arm was crushed in a machine when working in a factory. Dr Yiu believed that the said version was likely to have been the truth as it was consistent with the aetiology of the Injury.

63.  The applicant also told Dr Yiu the reason for having previously lied about the cause of the Accident, because he wanted to conceal his illegal employment from the police.  Dr Yiu advised the applicant to tell the truth to the police.

G.2　The applicant’s evidence

64.   The applicant altogether filed two witness statements respectively dated 25 July 2013 and 25 September 2015, which statements the applicant adopted at trial.  He gave evidence in Punjabi.

65.   The applicant stated that after he came to Hong Kong illegally on 27 August 2009, and having been detained for about a week by the Immigration Department, he was released on his own recognizance.  Before the Accident, he shared a flat in Fanling with four other asylum seekers, his brother (Asim), Waris, Rana and Ijaz.

G.2.1　The alleged employment with the respondent

66.  Upon his release from detention, he wanted to find a job.  Through Saeed, his childhood friend, the applicant found work in or about September 2009 after he was introduced to the respondent at the office of Maahir at Maahir’s Address.

67.  The respondent allegedly told the applicant that he was a partner of an iron sheet factory at the Alleged Location and afterwards brought him to the Alleged Factory to meet his partner, a Chinese male known as “Ah Shing”.

68.  The respondent explained to the applicant his job duties, working hours (which were the same as other workers, Monday to Saturday from 9 to 6 p.m) and salaries ($6,000 per month) before the applicant was offered the job at the Alleged Factory.  The respondent also gave to the applicant his contact telephone number (which was the same number stated in the 2nd Notification in para 27).

69.  After the above terms were discussed, the next day the respondent drove the applicant and Waris (whom the applicant believed to be the respondent’s nephew) from Maahir’s Address to the Alleged Factory. In addition to Waris, the applicant said that there were about 6 other Chinese male workers including the manager, Goi. At the trial, the applicant also said Rana also worked there part-time.

70.  The applicant stated that the respondent came to the office of the Alleged Factory every day for about 2 to 3 hours and occasionally on Saturday. He would sometimes come to the Alleged Factory to check on the applicant’s work.

71.  The applicant averred that the respondent had paid him wages of $4,000 in cash in September (after Ah Shing had paid him wages in advance in the sum $2,000) and $6,000 in October but had not yet paid the November wages.  The applicant was emphatic in his oral testimony that there was no doubt in his mind that the respondent was his boss.

G.2.2　Circumstances of the Accident

72.   On the Accident Date, Waris was off-duty. Ah Shing brought a Chinese worker to work with him. Before he met the Accident at about 2:30 in the afternoon, the respondent also came to the Alleged Factory in the morning for two hours. After his arm was caught in the machine operated by a co-worker, the applicant asked Goi to call for the ambulance. Goi then telephoned “Ah Shing” who told the former not to call for an ambulance and further told other workers to leave the work place. The applicant was then left alone for two hours inside the Alleged Factory.  The applicant first telephoned Asim who was at that time at the office of the International Social Service (“ISS”) at Mong Kok. Asim was therefore not able to come. The applicant then called Waris who later came to the alleged Factory to take him to the Hospital by taxi.  At trial, the applicant elaborated that Rana also came with Waris to take him to the Hospital. But in cross-examination, he said Waris and Asim went to the Alleged Factory to collect him.

73.   The applicant stated that he was in a lot of pain and became unconscious when reaching the Hospital. He later learnt that Asim, Waris, Rana and the respondent were at the Hospital on the Accident Date.

G.2.3　The alleged threat and the alleged false translation by the respondent

74.   In his supplemental witness statement, the applicant alleged that the respondent, when purportedly interpreting for the applicant in the taking of the Police Statement, told the police that the Injury was caused by a traffic accident when the applicant had in fact told the police that it was caused by an industrial accident. In his oral testimony, the applicant further elaborated that the respondent instructed him to only move his lips when he was giving the Police Statement.

75.   In the supplemental witness statement (at para.57), the applicant had initially alleged that the respondent showed him $75,000 in cash after the Police Statement was prepared, and told him to keep his mouth shut and threatened his safety if the applicant did not cooperate.  However, at the trial, the applicant stated that the respondent in fact did not show him any money.

76.   Several days after the making of the Police Statement on 7 December 2009, it was alleged that the respondent gave $75,000 to Waris, who in turn gave $60,000 to Asim. The applicant took the $60,000 and spent it mostly on his living expenses.

77.   In around March/April 2010 after the applicant was discharged from the Hospital, Ah Shing arranged a meeting with the applicant. The meeting was also attended by Asim and an Ah Shing’s Bengali employee, who acted as the interpreter for Ah Shing. In that meeting, Ah Shing told him and Asim that he had in fact transferred $75,000 to the respondent, and showed them a transfer slip for the same amount.

G.3　Asim’s evidence

78.   Asim also testified in Punjabi, and adopted his witness statement dated 30 September 2015 as evidence.

79.   Asim came to Hong Kong at almost the same time as the applicant, and shared a flat with the applicant, Waris, Rana and Ijaz.  He said he could describe the location of the Alleged Factory because he used to bring lunches to the applicant.  During his many visits to the Alleged Factory, Asim averred that he had seen the respondent at the Alleged Location many times, giving instructions to the applicant in Punjabi and other Chinese workers in Cantonese.

80.   On the Accident Date, when the applicant called him and told him that his arm had been caught in the compressing machine, he was at the ISS in Mong Kok, and thus not able to go to help the applicant. Waris later called him informing him that the applicant was in the Hospital.

81.   When Asim later arrived at the Hospital, apart from Waris and Rana, the respondent was also there. Rana and Waris told him that the Hospital had notified the police because the applicant had not been taken to the Hospital by ambulance.

82.   The police later arrived at the Hospital but could not talk to the applicant due to his poor condition. Asim however saw the police talking to the respondent outside the Hospital.  The respondent had allegedly told him words to the effect that he would handle the matter and further threatened him that he should not interfere with what the respondent was doing or disclose any information to the police.

83.   Waris and Rana also told Asim that the respondent would handle the situation.  Asim also saw the respondent speak to the doctors. They all left the Hospital after having stayed there for about 2 to 3 hours.

84.   After the Accident, Asim said that Waris, Rana and the respondent also visited the applicant.  In about the second or third day after the applicant’s admission to the Hospital, the respondent was alleged to have warned Waris, Rana and Asim not to speak to the police or anyone about the Accident.  The respondent also told the applicant to call the respondent when the police came or when the applicant needed anything.  The respondent told the applicant that he would pay money to the applicant after he was discharged from the Hospital. 

85.   A few days after 7 December 2009, Asim received $60,000 from Waris in their shared flat.  Waris told Asim that the money was from the respondent who said that he would give the applicant more money. The respondent had allegedly told Waris that they should not go to the Labour Department or tell the police about the Accident.

86.   Asim gave the same account of the meeting he and the applicant had with “Ah Shing” (see para 77).

G.4　The respondent’s evidence

87.   The respondent testified in Punjabi and adopted his witness statement dated 15 August 2013 as his evidence. 

88.   The respondent was locally born and educated up to Form 5. He is fluent in spoken English, Urdu, Punjabi and Cantonese.

89.   At the material time, the applicant was employed as a full-time salesman by Maahir responsible for selling used cars and motorcycles to local and overseas customers from Africa. He was paid $12,800 per month and did not receive any commission. He was also paid bonus and double pay.

90.   The respondent had known Waris for about 20 years before the latter came to Hong Kong illegally in February 2009 as their families came from the same neighbourhood in Pakistan. The respondent only knew that Waris had come to Hong Kong when he contacted him after his arrival.  After Waris came to Hong Kong, the respondent would visit Waris at his rented flat at Fanling that he shared with Rana and Ijaz. Hence, the respondent also became acquainted with them. The respondent only later learned that Waris had brought in the applicant as an additional roommate to share the rent payment. The respondent however stated that he only met the applicant for the first time on 7 December 2009 in the circumstances described below. The respondent was adamant that he neither knew or heard of Saeed whom the applicant had alleged as the person having introduced the respondent to the applicant to obtain the alleged employment.

91.   On 6 December 2009, Waris telephoned the respondent and told him that the police needed someone who could speak Cantonese to assist with the interpretation for a friend of Waris from Pakistan having been involved in a traffic accident.

92.   The respondent was initially reluctant to accede to Waris’ request but eventually yielded and agreed to go to the Hospital the next day due to his long-standing friendship with Waris.

93.   Hence, the next day on 7 December 2009, the respondent went to the Hospital where he met the applicant for the first time. In the presence of Waris, Rana and Ijaz, the respondent interpreted to the police what the applicant said when he gave the Police Statement. He denied that he either falsely interpreted for the applicant, or made any threats to the applicant and Asim as alleged.

G.5　Rana’s evidence

94.   Rana testified in Punjabi and adopted his witness statement dated 15 August 2013 as his evidence.  

95.   Rana came to Hong Kong illegally in August 2009.  At the time of the trial, Rana told this court that he has been issued a Hong Kong identity card upon marrying a local woman. Hence, he is no longer an asylum seeker.

96.   Rana met Waris in Kam Tin, and then soon became good friends. After Waris arranged the renting of a room to share with other asylum seekers, Rana lived in a rented room with Waris, the applicant, Asim and Ijaz. But Asim later left the flat, leaving only the four of them.

97.   Rana did not personally know the respondent but had probably seen him around in a mosque at Kam Tin. He however did not previously talk to the respondent.

98.   On the Accident Date, Rana was at home with Waris when the latter received a phone call from the applicant telling Waris that he had been hit by a truck, and that he was at Peng Che Road.  Waris then left with him in a taxi to go to the applicant. 

99.   When he arrived at Peng Che Road, he saw the applicant sitting on the footpath with a bleeding right arm.  Rana then helped the applicant to board their taxi for the Hospital.

100.   After the applicant was admitted to the Hospital, the police also later arrived. He and Waris told the police in simple English that the applicant had told them that he had been hit by a truck and also how they picked up the applicant from the road.

101.   Contrary to Asim’s evidence, Rana stated that the respondent did not come to the Hospital after the applicant’s admission to the Hospital.

102.   Afterwards, Rana together with his flatmates visited the applicant almost every day and he saw police in the Hospital asking them if they knew anyone who could speak Chinese to interpret for the applicant in the giving of a statement to the police.

103.   On 6 December 2009, a traffic police officer asked Rana and Waris in the Hospital whether they knew a friend who could speak Cantonese to help with the interpretation. Rana then saw Waris telephone the respondent to ask him to help after he had briefly explained the situation to him.

104.   On 7 December 2009, in the presence of Rana and Waris, the applicant gave the Police Statement with the respondent doing the interpretation. Rana stated that he heard the applicant tell the police that he was hit by a truck.

105.   Rana denied that he worked part time in the iron-sheet factory as the applicant alleged.

H.　EVALUATION OF THE CREDIBILITY OF THE WITNESSES

H.1　Background Features

106.   As already discussed in Part E above, the assessment of the credibility of the witnesses is not done in a vacuum.  In this case, I have identified, based on the uncontroverted facts, several special features that have emerged from the evidence, which I consider to be particularly relevant to the assessment exercise of the credibility of the viva voce witnesses as follows.

H.1a　The relationship among the main protagonists

107.   The majority of the protagonists in this case, namely the applicant, Asim, Waris and Rana, as newly arrived asylum seekers from Pakistan with limited financial means and with little English and nil Cantonese, would have likely formed a tight ethnic community of asylum seekers from Pakistan.  The movements of these asylum seekers would have likely been only, apart from their shared place of abode in the New Territories, restricted to a few locations such as the ISS for receiving the necessary social services and the mosque in Kam Tin, New Territories, for practicing their faith.  In these places where they frequented, they would have likely met the other fellow asylum seekers and exchanged among themselves snippets of information about the ins and outs of the Pakistani community in Hong Kong. In the mosque, they might have additionally met other local Pakistanis.

108.   Significant to note is that Waris, one of the main protagonists, who seemed to have played a rather crucial role in this case, was no longer available to testify. Hence, much of the otherwise relevant evidence that could help throw light on the inherent probabilities or improbabilities of a witness’s testimony in this case is unavailable.   Neither was Saeed, who allegedly introduced the applicant to the respondent, which was vehemently denied by the latter, called to testify. The applicant’s said allegation is thus entirely uncorroborated.

H.1b　Motive to conceal illegal employment

109.   The law prohibits asylum seekers to seek employment.  The applicant (and his fellow asylum seekers) would have likely known that in the event that his employment, which he knew was illegal, was revealed to the relevant authority, he would be subject to arrest, prosecution and probably imprisonment.  There was therefore every reason for the applicant (and his fellow friends) to conceal any illegal employment that either the applicant or his fellow friends had engaged in.

110.   It is also illegal for an employer to employ an asylum seeker. Hence, anyone who hired the applicant would have every reason to similarly cover up the applicant’s illegal undertaking to avoid being caught.

H.1c　No prosecutions for the disclosed criminal activities

111.   According to the statements the applicant gave to the police under caution in the Records of Interviews, a number of prosecutable criminal offences might have been committed either by the applicant or the respondent,  namely (i) misleading a police officer (against the applicant and/or the respondent for the alleged misleading statement contained in the Police Statement); (ii) breach of condition of stay (against the applicant); (iii) aiding and  abetting the breach of condition of stay or knowingly employing a person not legally employable (against the respondent); (iv) criminal intimidation (against the respondent for the alleged threat); and (v) attempting to pervert the course of public justice (against the respondent for the alleged cover up of the applicant’s employment). Yet, in spite of the seemingly vigorous investigations by DPC33379 of the District Crime Squad, it appears that no prosecutions were brought at all.

H.1d　The applicant failed to locate and name his alleged Chinese employer “Ah Shing”

112.   Despite the police investigations and the seemingly detailed investigations by the Surveillance Company the applicant engaged, the alleged Chinese employer “Ah Shing” (alias “Ah Sun” (see para 28 above), “Ah Siu” (see para 36 above) or “Kaul”, (see paras 26 & 131)) remains at large and not properly identified.

H.1e　Different versions of the alleged place of employment

113.   Apart from averring the Accident Location (“Ping Che Road near Ping Che Tsuen, Ta Kwu Ling, New Territories”) to be the address of the Alleged Factory, the applicant has provided a number of other descriptions of the Alleged Factory and the Accident Location where he was allegedly employed and allegedly met the Accident.  

114.  The first version was stated in the 1st Notification[15]. In it, the applicant, instead of the Alleged Factory, described the place of the Accident as an “unknown godown”, and the Accident Location as “Ng Chow Road, Wo Keng Shan, Ping Chi, N.T.”.

115.  The second version is next found in the 1st Record of Interview. He described to the police that the Alleged Factory was  an “unnamed iron sheet factory” and the location was  “in Peng Che, Un Chau South, Ta Ku Link” [16] (see para 36  above).  These descriptions, though slightly different, seem to have matched the Alleged Factory and fitted the description of the Accident Location.

116.  Yet, despite the fact that the applicant had identified the Alleged Factory in the interview as shown in the 1st Record of Interview, the applicant some 8 months later in the 2nd Notification, gave a completely different version of the location of the Alleged Factory, which was stated to be “DD-114, Lot No.62, Lo Uk Tsuen, Pat Heung, Wang Toi Shan, Pat Heung, Kam Tin, N.T.”, which seems to be Maahir’s Address at the material time.

117.  Eight months after the 2nd Notification, the location of the Alleged Factory,  according to the Surveillance Report, was found to be situated at a location  “behind No. 70 Kwan Tei North”, and the lot number address was “Lot No. 3 in DD 83, North New Territories”[17].

H.2　The evaluation and findings

H.2.1　Dr Yiu’s agreed evidence

118.  Dr Yiu is an experienced orthopedic doctor. His unchallenged evidence contained in his witness statement is consistent with the statement that he gave to the police (see Part F.4 above). I accept his evidence. Based on his unchallenged diagnosis of the Injury, I find that the Injury was caused by mechanical crushing in an industrial accident, not by the hitting by a bus or lorry.  I find that the applicant, as Dr Yiu had stated and also told the police, had initially lied to Dr Yiu and to the police when he was first asked about the cause of the Injury by fabricating a traffic accident. I further find that he only revealed the true cause of the Injury to Dr Yiu only shortly before his amputation operation, and further find that he had told Dr Yiu that he had lied because he wanted to conceal his illegal employment.

H.2.2　Finding on Issue (1)

119.  Accordingly, the answer to the question in Issue (1) is in the affirmative, that the Accident was an industrial accident.

H.2.3　Viva Voce Witnesses

120.   Since all the oral testimonies were given in Punjabi through an interpreter, I have paid particular attention to the manner and the tone of the witnesses as they testified at court.  It is therefore necessary to caution myself in this evaluation exercise of the pitfall of drawing conclusions solely or mainly from the appearance of the witnesses.

121.   In addition, I must also take into account that the witnesses in this case were required to give evidence of events that happened about 8 years ago. The relatively long lapse of time might have adversely impacted on the witnesses’ recollection of events, resulting in gaps and inconsistencies of evidence.

H.2.4　The applicant’s evidence

122.   Granted, these possible causes for the inconsistencies of evidence, the applicant’s inconsistent evidence and contradictions to be discussed below, in my assessment, weren’t a question of memory gaps but likely to have been due to the deliberate concealment of the truth.

123.   On the whole, I am not impressed by the applicant and find him an unreliable and untruthful witness. Overall, I find the applicant’s allegations against the respondent are not only largely uncorroborated, but are in fact contradicted by the objective facts and documents, including the contemporaneous documents. 

124.   In my overall impression of the applicant’s evidence, I find that the applicant, as evidenced by Dr Yu’s evidence that I have accepted, had initially fabricated a traffic accident to cover up his illegal employment and lied to Dr Yiu and the police.  In my finding, the applicant’s initial lie is consistent with the undisputed fact that initial inquiries about the Accident were first made by traffic police.

125.   Hence, I also find that the applicant, as confirmed by Dr Yiu’s evidence, only revealed the true cause of the Accident to Dr Yiu before the amputation operation about two weeks after the Accident Date. In the circumstances, I find it inherently improbable that the contents of the Police Statement were the product of the respondent’s deliberate misinterpretation. I find that the applicant by that stage had not yet revealed the true cause of the Accident but continued maintaining the same lie that he had told Dr Yiu.

126.   The applicant’s alleged threats made by the respondent are serious allegations. Cogent evidence is required before they should be accepted. However, I find that the allegations are bare allegations for they are not independently corroborated. I reject his evidence that the respondent made threats to him in the Hospital as alleged.

127.   I’m inclined to rather find that the applicant’s later revealing the true cause of the Accident was likely due to the pressure by Dr Yiu to tell the latter the truth, but was also probably motived by his desire to claim employees’ compensation (as he had stated in the 1st Record of Interview stated in para 37(iv) above).

128.   On the balance of probabilities, I find that the applicant’s evidence that he had “no doubt in his mind that the respondent was his boss” given towards the end of his oral testimony is not true but the result of an afterthought embellishment in the building of a case against the only remaining respondent when all the arduous efforts to locate his alleged employer, Ah Shing, had proven to be futile.

129.   I find that the unreliability of the applicant’s claim has gone beyond a phenomenon ‘of a victim engaged in litigation “colouring his recollection in way which might favour prospects at trial”’[18].  I disbelieve all the allegations the applicant made against the respondent, and reject them.

130.   I find that there is overwhelming evidence that tends to   greatly undermine the applicant’s assertion of being certain that the respondent was his employer.  I find ample evidence that points to the contrary.

H.2.4a　Naming somebody else as the employer in the 1st Notification

131.   First and the foremost, the applicant, inconsistent with his asserted certainty in his oral testimony that the respondent whom he addressed as “Mahmud” was his boss, did not identify the respondent as his employer at the first opportunity. Instead, he named “Kaul” (who was later confirmed to be the same person as “Ah Shing”) as his employer in the 1st Notification that was prepared with the assistance of his former private solicitors.   

132.   Were the applicant’s case that the respondent was a partner of Ah Shing indeed credible, the applicant would have logically named in the 1st Notification – which was an important document for the giving of information of the Accident – the two partners, the respondent and Ah Shing, as his employer.

133.   I find the applicant’s explanation for naming “Kaul” that it was pursuant to his former solicitors’ advice incredible. The alleged advice by his former solicitors to try “Kaul” first albeit that the applicant had allegedly also given the solicitors the respondent’s full name does not have a ring of truth at all.

134.   In the circumstances, the applicant’s inexplicable failure in naming the respondent as his employer at the first opportunity to do so not only seriously contradicts the applicant’s allegation that the respondent was the key person having undertaken important responsibilities in his alleged employment with the respondent (see the various alleged tasks of the respondent in Part G.2.1 above), but also makes his entire claim against the respondent shadowy.

135.   The unexplained discrepancy between the description of the Accident Location and the address stated in this notification for the place of the Accident further underlines the applicant’s unreliability.

H.2.4b　The alleged meeting with “Ah Shing” is more consistent with “Ah Shing” being the employer

136.   The alleged meeting (para 77) arranged by “Ah Shing” around March or April 2010 after the applicant’s discharge from the Hospital, in my finding, is as odd as it is evasive.   It is totally incongruent with the applicant’s alleged threat and the payment of the “hush money” of $60,000 by the respondent, which allegations I find to be inherently improbable. I find it inherently improbable that had the respondent himself indeed made the threat and the payment of the “hush money” as alleged, it would have been more logical for the respondent to arrange such a meeting. The said meeting arranged by “Ah Shing” would have been more consistent, in my finding, that any such payment would have probably been made by “Ah Shing”, who was more likely than not the actual employer rather than the respondent.   

H.2.4c　The cautioned statements in the Records of Interviews are inconsistent with the applicant’s alleged certainty that the respondent was the boss

137.   The applicant gave three statements under caution.  Notwithstanding that the respondent was mentioned in some parts of the statements, he was in some parts not referred to as employer in the context of employment and in other parts was only obliquely mentioned to have been connected with his employment.

138.   For example, in the 1st Record of Interview (which was only three months after the 1st Notification in which he identified “Kaul” as his employer), the applicant, referred to the respondent as a partner of the boss, “Ah Siu” when he was asked about the alleged false statement contained in the Police Statement, but not about his illegal employment (see para 36). 

139.   However, when the applicant was then questioned about his employer, the applicant mentioned “Ah Siu” as his boss who he came to the Alleged Factory every day (see para 37(iii) above). Later in the 2nd Record of Interview, the applicant stated that his employer was a company whose boss was “Ah Shing” (see para 38(vi) above).  Additionally, the applicant was able to provide a lot of details about this “Ah Shing” (or “Ah Siu”) including his physical appearance of (see para 38(vi) above), telephone number (which was the same number as “Kaul” stated in the 1st Notification number), and his car type and registration number (see para 36).

140.   It is pertinent to note that the applicant in the 2nd Record of Interview, stated under caution that his employer was a company whose boss was “Ah Shing”.   Since a company being the applicant’s employer is not the applicant’s case, this statement, in my finding, undermines the applicant’s claim against the respondent.

141.   A further example of the inherent weakness of the applicant’s allegations against the respondent can be found in the evidence concerning the rather doubtful character of Saeed, the alleged introducer to the respondent. The applicant’s evidence of Saeed is elusive at best, and incredible at worst. Apart from the applicant’s evidence that Saeed was his friend from Pakistan, there is virtually nothing about him. He made no witness statement, nor did he assist the police in their investigations.  The applicant’s statement under caution (in the 1st Record of Interview) that the respondent was the applicant’s introducer to the illegal employment (para 37(iii) above), in my assessment, not only completely undermines the applicant’s claim that the respondent was the employer, it makes the respondent’s evidence (see para 90 above) that he neither knew nor heard of Saeed look more credible.

142.   A further example is in relation to the addresses of the applicant’s alleged employment or employer.  Before the applicant was interviewed by the police after his discharge from the Hospital, the applicant had already named “Kaul” as his employer and also provided his address in the 1st Notification (see para 26).  Hence, it is most perplexing that the applicant according to the 1st Record of Interview told the interviewing officer that he was not able to provide the address of “Ah Shing” (who was in fact “Kaul”) (see para 37(ii)).

143.   Equally illogical, according to the 1st Record of Interview, is that the applicant also told the police that he did not know the address of “Mahmood” (the respondent) (see para 37(ii)).  This cautioned statement, in my assessment, shows that the applicant’s alleged first meeting with the respondent at the office of Maahir at Maahir’s Address inherently incredible.

144.   These statements against the respondent, albeit unfavourable, nonetheless suggest that in the eyes of the applicant, the boss was “Ah Siu”, “Ah Shing”, but not the respondent.  More importantly, they show that the applicant’s allegation that the respondent was “the boss” is only a later embellishment.

145.   The totality of these highly confusing and inconsistent statements, in my assessment, suggests that it is reasonably probable that the applicant’s evidence was not only shifting but has been highly embellished to build a case against the respondent.

H.2.4d　Changing the name of the employer and the location of the Accident in the 2nd Notification

146.   As noted above, the applicant shortly after his discharge from the Hospital, already gave notice of the Accident to the Labour Department by the furnishing of the 1st Notification, which should have been sufficient. Purportedly owing to further inquiries the applicant’s former solicitors had made with the Labour Department, the applicant, in total oblivion of the 1st Notification that he had already given for the Accident, gave another notice by the furnishing of the 2nd Notification. 

147.   Instead of correcting any inadvertent errors of the 1st Notification, the 2nd Notification looks more like a shift of the applicant’s case as evidenced by the change of the identity of the employer to that of the respondent and adding, or more precisely, relegating, “Kaul” as a principal contractor.

148.   In addition to the name change, the applicant also completely changed the location of the Accident, from the alleged location of “Ng Chow Road” (in the 1st Notification) to that of a seemingly Maahir’s Address (in the 2nd Notification).

149.   As the applicant probably became aware that the newly changed alleged location of the Accident was inconsistent with his case that the Accident took place at the Accident Location, he therefore attempted to reconcile the inconsistency by stating that Maahir’s Address was the place where the applicant allegedly first met the respondent before he was taken to the Alleged Factory to work.

150.   The applicant’s said explanation, in my view, is a complete nonsense.  It only reflects the applicant’s desperate attempts to mend the countless holes in his evidence.

H.2.4e　The respondent was neither the target of the surveillance nor found to have any connection with the Alleged Factory that the Surveillance Company located

151.   The applicant’s engagement of the Surveillance Company needs to be considered against the surrounding background. By that stage, according to the chronological events discussed in Part F above, the applicant had already identified his employer (in the two Notifications and the Records of Interviews), and should not have needed to spend time and expenses to conduct any surveillance were he certain that the respondent was indeed his employer as he is now alleging.

152.   By engaging the Surveillance Company with the primary target of finding the Alleged Factory and locating “Ah Shing”, the applicant, in my finding, knew full well that the respondent was not his employer.

153.   Unfortunately for the applicant, the result of the investigations seems to suggest that the person who might have been connected with the Alleged Factory and its adjacent office had nothing to do with the respondent or Maahir, but a Chinese male surnamed Chen and a company called Jinxin (see para 53 above).

154.   The address that the Surveillance Company found to have been the address of the Alleged Factory does not assist the applicant. Worse still, it only creates more confusion, and further undermines the applicant’s evidence.

155.  Further, the location of the Alleged Factory (which the applicant identified), is, as already discussed, clearly different to the Accident Location.  Based on the discussions above (see part H.1e) regarding the descriptions of the location of the Alleged Factory or the place of the Accident, I am able to find at least no less than five descriptions, namely the descriptions in the 1st Notification, the 1st Record of Interview, the 2nd Notification, the Surveillance Report and lastly the description of the Accident Location.

156.  Faced with these multiple versions of the place of the applicant’s alleged employment, this court therefore directed the parties to make further submissions to clarify the location of the Alleged Factory. Notwithstanding that, not only did the applicant fail to satisfactorily explain the confusion, the further documents that the respondent submitted with his final written submissions seem to suggest a probable fabrication having been made by the applicant.

157.  Referring to the map annotations and photographs the applicant attached to his supplemental closing submissions in order “to explain the geography and access to the” Alleged Factory, the applicant stated there was no road sign near the Alleged Factory.  Hence, the applicant could only give a narrative description of the Accident Location by referring to the names of the roads that he took to the Alleged Factory.

158.  The applicant further enclosed a Google Map drawing on which was marked a number “3” and four of its corresponding photos.  Visibly, the gate of the Alleged Factory discloses a Chinese name, “豐匯” and a land lot address, “DD 77 Lot 449”.

159.  Based on the above-mentioned maps and photos the applicant submitted, the respondent made his own inquiries and made two points.  Firstly, the respondent discovered, contrary to the applicant’s allegations that the routes that the applicant alleged that he took for the Alleged Factory were unnumbered, that the routes in fact were numbered. Secondly, the respondent submitted that the applicant’s evidence that the Alleged Factory was unnumbered is contradicted by the land lot address, “DD 77 Lot 449” disclosed in the photos.  

160.  From the photos the respondent attached to his final submissions, I find the respondent’s said criticism seems to be valid. Apart from the said contradiction the respondent has pointed out regarding the address of the Alleged Factory, the land lot address that is recently now shown to have been the address of the Alleged Factory, “DD 77 Lot 449”, seems to be different to the one established by the Surveillance Company, which was, “DD 83 Lot 3” (see para 49 above).

161.  In the circumstances, I find that the applicant, on the balance of probabilities, is not able to prove the place where he met the Accident or where he was employed.  This lends to an irresistible inference that the applicant has likely fabricated a material part of the evidence against the respondent.

H.2.4f　The applicant has tailored his evidence

162.  The discrepancies of the applicant’s evidence, in my finding, are so numerous to recount in every detail and but this court has only, for brevity, examined a few main discrepancies in this judgment. I have nonetheless examined the whole of the evidence in this case in my assessment of the applicant’s credibility.

163.  Form the totality of the evidence, it is my finding that it is inherently probable that the applicant has embellished the claim to create the evidence against the respondent.

164.  When the Application was filed, the description of the 2nd respondent as a company which the applicant could not name runs contrary to the applicant’s case against the respondent as an individual employer rather than a company.

165.  Furthermore, the applicant’s recent assertion that he had no doubt that the employer was his boss is however not supported by the documents, which were, as the discussion above shows, sporadic at best and scanty at worst.  The fact that the more elaborate details of the allegations (such as the alleged introduction of Saeed, the respondent’s telephone number, the alleged payment of wages by the respondent, the alleged threats and the false translation in the Hospital as well as the alleged payment of $60,000 as “hush money”) were not given in his first witness statement but rather in his supplemental witness statement that he filed two years later, is striking.

166.  Finally, I also find it a bit puzzling that the police, albeit having evidence revealing a number of prosecutable criminal offences (see Part H.1c above), did not seem to have brought any prosecutions arising from their investigations.  The non-prosecution may be a moot point. Having regard to the rather serious allegations that the applicant made under caution against the respondent, I consider that it is also possible that the police might have, like this court, formed a view that the applicant’s allegations were too weak to warrant a prosecution against the respondent.

167.  For the reasons stated above, I find the applicant’s evidence against the respondent unreliable, and reject it.

H.2.5　Asim’s evidence

168.   Asim is not an independent witness. Given Asim’s relationship with the applicant, Asim would have been highly motived to give favourable evidence for the applicant.  Hence, this court should not too readily accept his evidence unless it is assessed to be logical and bears a ring of truth.

169.  I am however not impressed by Asim’s evidence. I find it highly suspect that the evidence that is common to both the applicant and Asim is coincidently identical (for example, concerning the description of the Accident Location and the alleged meeting with Ah Shing).

170.  As for the evidence that was only within Asim’s knowledge but not the Applicant’s, I find it to be inherently improbable. For example, I find it quite odd that “Ah Shing”, the alleged Chinese boss, was not mentioned at all in Asim’s evidence. Having regard to the alleged frequent visits Asim allegedly made to the Alleged Factory during the applicant’s alleged period of employment, I find the omission inherently improbable. The omission, in my view, tends to show that Asim, in order to bolster the applicant’s case against the respondent, deliberately omitted “Ah Shing” from the evidence.  

171.  I also find Asim’s allegations that the respondent was present in the Hospital after the applicant had been admitted and made threats illogical. Given the undisputed facts that traffic police had been wanting to make inquiries about the Accident from the first day of the Applicant’s admission to the Hospital, I find it inherently improbable that the traffic police had to wait for 5 days until 7 December 2009 to take the Police Statement were the respondent indeed present in the Hospital on the Accident Date or any days before 7 December.  

172.  All in all, I’d be disinclined to accept Asim’s allegations against the respondent.

H.2.6　The respondent’s evidence

173.  On balance, I find the respondent honest and that he had told the court the truth regarding his dealing and encounter with the applicant.  I find his momentary outburst when cross-examined by counsel at trial was more due to his frustrations with the prolonged litigation and the wrongful allegations made by the applicant.  This, in my view, is more consistent with his honesty.

174.   I am impressed by the unwavering consistency of the respondent’s account. Before these proceedings were even commenced, the respondent already gave the same account under caution in his record of interview on 27 August 2010 (see section F.5 above). After being served with these proceedings, the respondent before he had any legal representation, filed on 2 April 2013 a home-made answer (see para 16) together with (i) a letter from Maahir dated 25 March 2013 confirming that he was Maahir’s employee (ii) photos showing the office of a company of a company called  “Maahir 786 Company”,  and (iii) a cars and motor cycles warehouse[19].

175.   In addition,  the respondent also disclosed a bundle of salary slips[20] issued by Maahir.  It was however contended by counsel that since the wage slips were computer-generated documents, they were not objective evidence for the lack of corroboration. It is counsel’s contentions that the respondent, despite having been served with the written opening one week before the trial in which opening counsel already made the criticisms on the unreliability of these wages slips, did not make any application to adduce these wage slips. Thus, these wage slips should not be relied on by the respondent to prove that he was Maahir’s employee at the material time.

176.   I do not consider counsel’s criticism either fair or valid.  Firstly, the respondent’s former solicitors had, long before the trial,  on 30 January 2014 filed and served a notice[21] under ss.47A and 49 of the Evidence Ordinance, and O.38 of the Rules of the District Court stating that at the trial, the respondent would be adducing the documents he had disclosed, which documents included the salary slips from the period between 2007 up till 2013.  The applicant never made any application to call for the maker of these documents to be cross-examined.  I do not accept counsel’s suggestion that the respondent needs to make an application to adduce these documents at trial.  By the operation of the Evidence Ordinance, these documents are already adduced as evidence. I consider these wage slips are, having regard to the nature of these documents and the notice that has been given to the applicant, not only admissible, they are evidence that carry much weight in corroborating the respondent’s assertion.

177.   I also find that the respondent’s evidence in relation to the circumstances of how he, through Waris, met the applicant, credible. Given the undisputed fact that Waris was the only asylum seeker who knew both the respondent and the applicant, I find that it is highly probable for Waris to have requested the respondent to assist with the interpretation in the police inquiries concerning the Accident.  I find the respondent truthful and credible in all material aspects, and that I prefer the respondent’s evidence to that of the applicant’s.

178.  I find the respondent’s evidence, on the balance of probabilities, plausible, and reject counsel’s argument that his evidence is fanciful.

H.2.7　Rana’s evidence

179.   Rana was the applicant’s former flat mate.  On the other hand, the undisputed evidence seems to suggest that at the material time, Rana was only a nodding acquaintance of the respondent.  In such circumstances, it is more probable that Rana’s relationship to the applicant should have been closer than his relationship with the respondent. Rana should thus be more inclined to give favourable evidence in order to assist his fellow asylum seeker, the applicant.  I should hence evaluate his evidence in this light.

180.   On the whole, I do not find Rana’s evidence contentious. Counsel only cross-examined him for an explanation as to why Waris had allegedly asked the respondent to assist with the interpretation in the police inquiries when Rana should have known that ISS should have been the appropriate authority for such services.

181.   I do not find that the cross-examination has discredited Rana at all. I find that Rana provided straightforward answers to the questions. There is no evidence as to whether Rana at the time knew of the available services at the ISS, I find his evidence that it simply had not occurred to him to go to ISS reasonable.  

182.  I accept his evidence, which I find substantially corroborates that of the respondent’s.  I find that Rana picked up the applicant at Peng Che Road and sent the latter to the Hospital together with Waris in a taxi. I also accept his evidence that the respondent only came to the Hospital on 7 December 2009, and he heard the applicant tell the police that he had been hit by a truck during the taking of the Police Statement.   

I.　CONCLUSION OF FINDINGS

183.  Based on the assessment and the findings that I made above, I find, on the balance of probabilities, that the applicant’s claim against the respondent incredible, and I reject it. I prefer the evidence of the respondent whose evidence I find to be cogent and credible.   

184.  The evidence that I have found overwhelmingly shows that the applicant, despite the arduous efforts to find his real employer, could not identify his employer beyond an alias called “Ah Shing” (or “Ah Siu” or “Kaul”).

185.  The applicant’s attempt to tailor the evidence against the respondent in order to obtain employees’ compensation can be found in the discussion of the number of the documents above. It is thus shown that the applicant, bit by bit, built his case by, for example, the stating of the respondent’s full name and mobile telephone number in the much later interview (the 2nd Record of Interview), which was 9 months after he had allegedly known the respondent’s said number when he started the alleged employment.

186.  Having regard to some of the special features that I have outlined Part H.1 above, I do not find it inherently improbable that the applicant had the respondent’s telephone number. He could have obtained such number from Waris, or even from other members of the small Pakistani community.

187.  Neither do I find it inherently improbable that the applicant was able to refer to Maahir’s Address as the alleged place that he met the respondent. As shown from the photos the respondent produced in his list of documents (see para 174 above), “Maahir 786 Company” that was believed to be the external appearance of the office of Maahir very much resembles the applicant’s description of the Alleged Factory and its office. The applicant could have conveniently in my finding made up such location by the conducting of a business search on Maahir.

188.  In conclusion, I find, on the balance of probabilities, that the applicant was employed to work in a workshop that had “four walls made of iron-sheets” (that he described in his oral testimony) in a location in New Territories by an unknown Chinese male. When the applicant met the Accident, Goi, the manager, after having consulted his employer, did not call for an ambulance to send the applicant for medical treatment for fear of exposing the illegal undertaking.

189.  I further find that the applicant’s evidence that he had called Asim first before he called Waris is likely to be true. I also find it is probable that that Waris and Rana took the applicant to the Hospital in a taxi at the roadside of Peng Che Road. In view of the applicant’s evidence that “Ah Shing” told the workers to leave the Alleged Factory when he was told about the Accident (see para 72 above), I find it probable that the applicant might have left the Alleged Factory and waited for help at the roadside as Rana stated.  I find that Asim did not go to take the applicant to the Hospital.

190.  I further reject the applicant’s case that the respondent was present at the Hospital on the first day of his admission and made threats. I prefer the evidence of the respondent that the respondent only came to the Hospital on 7 December 2009 to act as the interpreter for the taking of the Police Statement.

191.  I find that the applicant, before his amputation operation, had lied to Dr Yiu and the police in the Police Statement in stating that the Injury was caused by a traffic accident.

192.  As for the $60,000 the applicant alleged to have received, I am unable to find any evidence to rebut the payment, and I find that it is probable that he had indeed been paid this amount by his employer. However, I reject his evidence that it was paid by the respondent and as “hush money”.

193.  The applicant has the burden of proving his case.  From the findings that I have made, I find that the applicant has failed to prove his claim against the respondent, and his employees’ compensation application falls to be dismissed.

194.  Accordingly, the answer to Issue (2) must therefore be in the negative that the Accident did not arise out of and in the course of an employment by the respondent.

195.  This conclusion should be sufficient for me to dispose of the entire claim. In the event however that this matter were to be taken further and the Court of Appeal were to find in favour of the applicant, I should next consider the remaining Issues (3) and (4).

J.　ISSUE (3) – WHETHER THE COURT SHOULD EXERCISE ITS POWERS UDER S.2(2) IN FAVOUR OF THE APPLICANT

196.  Had the applicant succeeded in establishing liability against the respondent, this court would, having regard to the public policy regarding unemployable persons performing lawful work stated in the Court of Appeal in Yu Nongxian v Ng Ka Wing & Anor[22], which was followed by Talat Arslan v Li Tak Cheung[23], have exercised its discretion in favour of the applicant.  

197.  The answer to Issue (3) is in the affirmative.

K.　AMOUNT OF COMPENSATION

198.  The parties agree to the assessment in the prescribed Form 7 by the medical board of the Labour Department.  Hence, the amount of compensation for ss 9 and 10 shall be calculated according with Form 7, that is, the sick leave period is from 23 December 2009 to 9 April 2012, and the loss of earning capacity is 80 percent.

199.  Since the total duration of sick leave of 27.5 months is longer than the 24 months that are allowed under s.10(5) for the payment of periodical payments to an injured employee unless it is extended by court, I should therefore consider whether I should extend it.

200.  Having regard to the severity of the Injury, I consider it reasonable to extend the period allowed to beyond 24 months. Hence the calculation shall be in accordance with the whole period set out in Form 7.

201.  As for the applicant’s monthly earnings before the Accident, it is the applicant’s evidence that he was paid $6,000 per month.  There is no evidence to rebut his evidence, and I accept that his monthly earnings before the Accident were $6,000.

202.  Since the applicant’s temporary incapacity is beyond the 12-month period, the applicant’s earnings after this period, pursuant to s.11(1A), should be adjusted, in this case, in accordance with the Consumer Price Index counsel submitted to the court.

203.  Mr Sakhrani has very helpfully set out the calculations in both his opening and closing submissions, which I respectfully adopt.  Accordingly, the calculations of the ss.9 and 10 compensation are respectively set out as follows.

Section 9:　compensation for permanent partial incapacity

204.  The applicant was 25 on the Accident Date.  The appropriate multiplier (as fixed by s.7) is 96. I would have awarded $460,800 ($6,000 x 96 x 80%) as compensation under s.9.

Section 10:　compensation for temporary incapacity

205.  Applying the monthly earnings of $6,000 to the total number of sick leave of 27.5 months, I would have awarded the applicant $134,975[24].

206.  Hence, had the applicant’s claim been allowed, I would have granted judgment in the sum of $595,775 with interest at half the judgment rate from the date of the Accident to the date of judgment and thereafter at judgment rate until payment.

207.  Insofar as the payment of $60,000 that the applicant had admittedly received, the nature of this payment is unclear after my finding that it was not made by the respondent.  In the absence of evidence as to the nature of this payment, I direct that no reduction should be made.

L.　ORDER

208.  For the reasons stated above, the applicant’s employees’ compensation claim is dismissed.

209.  I further grant an order nisi that the applicant do pay the respondent’s costs of these proceedings, to be taxed if not agreed.  This order shall stand absolute if no application is made within 14 days from the date of handing down of this judgment.

210.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

211.  Lastly, I wish to thank Mr Sakhrani for his extremely helpful assistance and submissions that he has provided to this court.