SECRETARY FOR JUSTICE v. LEUNG HUNG YAT

DCCJ 2804/2022

[2026] HKDC 382

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2804 OF 2022

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BETWEEN

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ASSESSMENT OF DAMAGES

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A. Introduction

1.  This is an assessment of damages against the Defendant for the recovery of employees’ compensation paid by the Government of the Hong Kong Special Administrative Region (“Government”) to PC5777 Mr Chan Ka Lok (“PC5777”) pursuant to s.25(1)(b) of the Employees’ Compensation Ordinance (Cap.282) (“ECO”).

2.  No notice of intention to defend was given by the Defendant.

3.  On 18 May 2023, the Plaintiff obtained an interlocutory judgment against the Defendant with damages to be assessed.

4.  At the hearing, the Defendant was unrepresented and did not appear.

5.  Having considered the affirmations of service filed by the Plaintiff, I was satisfied that the Defendant had been duly notified of the proceedings. The hearing proceeded in his absence.

B. The Plaintiff’s Case

6.  The Plaintiff commenced the present action for and on behalf of the Commissioner of Police of the Government under s.13 of the Crown Proceedings Ordinance (Cap.300) and s.25(1)(b) of the ECO.

7.  At the material times, PC5777 was employed by the Hong Kong Police Force as a police constable.

8.  On 22 August 2016, the Defendant was arrested and brought to Wong Tai Sin police station.

9.  On 23 August 2016, while another police constable was taking the fingerprint of the Defendant, PC5777 was assisting and acting as a witness of the process. The Defendant complained about the waiting time and started to get emotional. The Defendant used his right hand to hit PC5777’s left forearm three times while PC5777 tried to use his left hand to ward off the Defendant’s right hand (“Incident”). As a result, PC5777 sustained injuries to his left forearm, wrist and middle finger.

10.  The Defendant was convicted of, inter alia, a count of assaulting a police officer in the case of KTCC3610/2016 at the Kwun Tong Magistracy Courts because of the Incident.

11.  According to the Certificate of Review Assessment (Form 9) dated 29 January 2018, PC5777 was assessed to suffer 1.5% permanent loss of earning capacity.

12.  The Government paid PC5777 full-pay sick leave for a total of 430 days and compensation for 1.5% permanent loss of earning capacity:

	HK$
Full-pay sick leave for 430 days, excluding statutory holidays	459,649.62
Compensation for 1.5% permanent loss of earning capacity	37,540.80
Total:	497,190.42

13.  Pursuant to s.25(1)(b) of the ECO, the Plaintiff seeks to recover the sum of HK$497,190.42 from the Defendant.

C. Relevant Legal Principles

14.  Section 25(1)(b) of the ECO provides that:

“(1) Where the injury in respect of which compensation is payable was caused in circumstances creating a legal liability in some person other than the employer (in this section referred to as the third party) to pay damages to the employee in respect thereof-

…

(b) the employer by whom compensation is payable…shall have a right of action against the third party for the recovery of any sum which he is obliged to pay as a result of the accident, whether by way of compensation or indemnity, or by virtue of any agreement made with the employee prior to the accident, and may exercise such right either by joining in an action begun by the employee against the third party or by instituting separate proceedings:

Provided that the amount recoverable under this paragraph shall not exceed the amount of damages, if any, which in the opinion of the court would have been awarded to the employee but for the provisions of this Ordinance.”

15.  As held by Yuen JA in Yardway Motors Ltd v Tam Siu Lun [2005] 2 HKLRD 118, at §48:

“In other words, the ECO provisions cater only for the simple situation where the employer was not to blame for the injury, and his only liability to the employee was the statutory duty (under the ECO) to pay compensation. He can then stand in the shoes of the employee and recover what the employee can recover from the third party.”

D. Findings

16.  It is an obvious case where the Plaintiff is entitled to seek recovery of compensation from the Defendant because the Plaintiff was blameless for the Incident. Its only liability to PC5777 was the statutory duty to pay employees’ compensation pursuant to the ECO.

17.  At the hearing, the Plaintiff called two witnesses, namely, PC5777 and Mr Yu Ngok Fung (“Mr Yu”). Mr Yu at all material times was a senior inspector in charge of personnel matters and employees’ compensation claims for the staff of the Hong Kong Police Force.

18.  I find both PC5777 and Mr Yu truthful. Their evidence was supported by contemporaneous documents. I accept their evidence in full.

19.  PC5777’s entitlement to full-pay sick leave was supported by regulation 1286(1) of the Civil Service Regulations which provides:

“An officer who is injured as a result of an accident attributable to the nature of his duties and not caused by his own serious and wilful misconduct or is suffering from an occupational disease may be granted full-pay sick leave by the appropriate authority during a maximum of 24-month period from the commencement of sick leave related to the injury or disease…”

20.  During examination-in-chief, Mr Yu rectified some clerical errors made in table for calculating the amount of full-pay sick leave paid to PC5777. Those errors in fact did not affect the calculations and all the relevant figures adding up to the total of HK$459,649.62. The calculations, according to Mr Yu, were as follows:

From	To	No. of days	Monthly salary (HK$)	Sick-leave payment (HK$)
23 Aug 2016	31 Oct 2017	420	32,045 (from Aug 2016 to Mar 2017) 32,985 (from Apr 2017 onwards)	32,045 x 9/31 = 9,303.39 32,045 x 7 = 224,315 32,985 x 7 = 230,895 (minus 15 days of statutory holiday = 15,787.83[1])
14 Nov 2017	17 Nov 2017	4	32,985	32,985 x 4/30 = 4,398
20 Nov 2017	21 Nov 2017	2	32,985	32,985 x 2/30 = 2,199
27 Nov 2017	28 Nov 2017	2	32,985	32,985 x 2/30 = 2,199
4 Dec 2017	5 Dec 2017	2	32,985	32,985 x 2/31 = 2,128.06
Total (excluding statutory holidays):				459,649.62

21.  The payments of the full-pay sick leave were supported by the salary statements of PC5777 for the period from August 2016 to December 2017. PC5777 also confirmed the receipt of all said payments.

22.  The compensation for 1.5% loss of earning capacity, according to Mr Yu, was calculated as follows:

HK$26,070 x 1.5% x 96 months = HK$37,540.80

23.  At the time of the Incident, PC5777 was 34 years old. According to s.7(1)(a) of the ECO, the adoption of 96 months is correct. At time of the Incident, the maximum amount of monthly earning allowed under the Sixth Schedule of the ECO was HK$26,070, which was less than PC5777’s salary at that time. The adoption of HK$26,070 is also correct according to s.7(1)(a) of the ECO. Hence, there is nothing wrong with the above calculation by Mr Yu.

24.  The payment of the compensation for loss of earning capacity was supported by the miscellaneous payment advice dated 29 May 2018. PC5777 also confirmed the receipt of the said compensation.

25.  PC5777 confirmed that he did not lodge any civil claim against the Defendant because of the Incident. Therefore, the proviso under s.25(1)(b) of the ECO was not engaged.

26.  As a result, I find that the Plaintiff is entitled to be indemnified by the Defendant for the entire sum of HK$497,190.42 pursuant to s.25(1)(b) of the ECO.

E. Disposition

27.  I order that the Defendant do pay the Plaintiff the sum of HK$497,190.42.

28.  As Mr Thomas Li for the Plaintiff confirmed that the Plaintiff does not seek pre-judgment interest, I order that the Defendant do pay interest on the said sum at judgment rate from the date of this judgment of assessment of damages until full payment.

29.  Costs should follow the event. Having considered the statement of costs submitted by the Plaintiff, I order that the Defendant do forthwith pay costs of the assessment of damages to the Plaintiff, summarily assessed at HK$55,000.

30.  I thank Mr Thomas Li for his assistance.