LI KAI YIN v. STUDIODANZ CO LTD

DCEC 338/2024

[2026] HKDC 1028

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 338 OF 2024

--------------------------------------------

---------------------------------------------

----------------------------------------

JUDGMENT

----------------------------------------

Introduction

1.  This action arises out of an accident at work, a catastrophe to a young energetic person who was a professional dancer and dancing instructor by occupation. He has since been rendered a tetraplegic as a result.

2.  On 28 July 2022 at around 22:35 hours, the Applicant Mr Li Kai Yin (“A”), whilst performing on stage in the MIRROR.WE.ARE Live Concert 2022 (“Concert”) at the Hong Kong Coliseum, was struck by a giant LED display panel falling from height (“Accident”). He sustained serious life-threatening injuries.

3.  He sues his employer Studiodanz Company Limited as the Respondent (“R”) for employees’ compensation under the Employees’ Compensation Ordinance, Cap 282 (“ECO”) in this action.

4.  Interlocutory Judgment for A was entered against R by this Court on 4 July 2025 leaving compensation to be assessed. This is the hearing of assessment of compensation.

5.  Arising from the Accident and as a result of investigation by the Labour Department, R, as the employer, was prosecuted and convicted on 15 November 2023 on its own guilty plea of the offence of failing to take out employees’ compensation insurance policy to cover A in respect of the Accident in contravention of s40(1) ECO.

6.  After the Accident and until now, R has not paid any compensation nor sick leave/periodical payments to A.

7.  R has never entered an appearance in these proceedings and was absent in all court hearings.

8.  The evidence of records and circumstances of service of these court proceedings all along, including the Order on trial made on 19 December 2025, the trial bundles, A’s opening submissions and list of authorities by ordinary and registered posts addressed to and by leaving at R’s current registered office address on divers dates, all returned and on occasions returned by hand, raises a clear suspicion that R was evading service and, for that matter, liability. I exercised my discretion to deem the service effected on R valid and proceeded the trial on assessment of compensation in its absence.

9.  A was represented by Mr Eric Tsoi of counsel.

Witnesses of Fact

10.  A has adduced in this action 2 witness statements, one from himself[1] and one from his father Mr Li Shing Lam (“Father”)[2] both dated 13 November 2025. He had prepared to call both makers of witness statements to give evidence at trial.

11.  By a letter dated 27 April 2026 from A’s solicitors, this Court was informed of the unfortunate death of the Father shortly before trial on 25 April 2026. By a second letter of the same date, A sought leave to admit in evidence the Father’s witness statement under the hearsay rule provided in s47 of the Evidence Ordinance, Cap 8 (“EO”).

12.  I have considered the Father’s witness statement which contains mainly evidence on the extensive care and attention required by A as a result of the injuries sustained by him in the Accident. Since the Accident, as parents, the Father and his wife had devoted all their time in accompanying A in treatments and taking care of him round the clock.

13.  Prior to the Accident, the Father was employed to work as an Interim Senior Pastor with the Scarborough Chinese Baptist Church in Canada earning an annual income of CAD 89,441 as evidenced by an engagement letter dated 10 December 2019 and his tax records.[3] He flew back from Canada to Hong Kong immediately after the Accident, and had to resign from all his work engagements in order to take care of A full time ever since.

14.  The Father’s witness statement contains non-contentious matters, well supported by the medical evidence adduced.

15.  S47(1) of the EO provides that:

“(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless—

(a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b) the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.”

16.  No objection was raised by the opposite party R who never appeared in these proceedings.

17.  Having considered the matter and the contents of the Father’s witness statement, I was satisfied that such evidence should be admitted in evidence in the interest of justice.

18.  I therefore granted leave for A to adduce the Father’s witness statement in evidence at trial as his evidence-in-chief without calling him. The only issue would be the weight to be placed by the court on his evidence.

19.  Therefore A was the only witness of fact called at trial. He is currently continuing with rehabilitative treatment in the hospital. Leave was granted for him to give evidence at trial via video link.

A’s Case/ The Evidence

20.  A was aged 27 at the time of the Accident, and is now 31.

Injuries/Treatment/Permanent Loss of Earning Capacity

21.  There is no dispute that as a result of the Accident, A sustained serious cervical spine fractures and dislocation injuries. The giant LED display panel that struck him in the Accident weighs in excess of 700 kg, as referred to in the related criminal action arising out of the Accident in HKSAR v Ng Hoi Ying & Ors [2025] HKDC 856 at §§2, 3 and 36.

22.  A was rescued and admitted to the Accident & Emergency Department of Queen Elizabeth Hospital (“QEH”) for treatment immediately after the Accident. Initial examinations revealed head and neck injuries. A diagnosis of cervical spine dislocation was made.[4]

23.  He underwent emergency operations and intensive treatment initially at the Intensive Care Unit of QEH. He was later transferred to other private hospitals in Hong Kong and overseas, and has continued to attend surgical and rehabilitative treatments until now.

24.  The severe injuries and various lengthy treatments and rehabilitative trainings received by A from the date of the Accident until to date, with some recent notable progress and improvement in trunk control and limbs motor functions, are summarised in and fully supported by the medical evidence comprising 30 medical reports from the treating doctors.[5]

25.  The medical evidence on the injuries sustained by A, treatment and requirement for full time medical and nursing care and attention is not disputed and is accepted.

26.  For the purposes of the ECO, A attended assessment by the Employees’ Compensation (Ordinary Assessment) Board (“Assessment Board”) on 11 and 18 June 2025. As set out in the Certificate of Assessment (Form 7) issued on 2 July 2025, he was assessed to be suffering 100% loss of earning capacity permanently in respect of multiple injuries resulting in tetraplegia and other disabilities resulted from the Accident. The sick leaves granted from the date of the Accident up to the date of assessment (18 June 2025), for a total of 1,057 days (or 34.7 months), were endorsed.[6]

27.  On the other hand, A’s evidence is that he was granted continuous sick leaves from the date of the Accident up to 28 August 2025,[7] ie beyond the date of assessment of 18 June 2025 and for more than 3 years. This is supported by sick leave certificates issued.

28.  In reality, the medical evidence supports permanent 100% loss of work capacity, consistent with the assessment set out in Form 7. There is no question and I accept that A has suffered permanent total incapacity as provided under ss7 and 10 ECO from the date of the Accident to date.

Pre-Accident Work and Earnings

29.  During university years from 2015 to 2019, A had developed a keen interest and found his talent in dancing, and ever since been engaged in numerous paid part-time jobs of dancing performances locally and overseas. He became a full-time dancer in 2019 and had since been fully engaged in the busy work of dancing performances on TV shows and in concerts, advertisements, music videos, etc. In between performances, practices and rehearsals, he tutored dancing classes in at least 4 studios including R, at hourly rates ranging between $300 and $1,000 odd.

30.  Most of his work engagements and arrangements were on projects or casual basis, and normally agreed and made upon oral agreements.

31.  Some work projects and engagements were recorded in contracts, such as the Concert/work for R during which the Accident occurred. A had on 21 July 2022 signed a Concert Dancer’s Agreement with R covering two periods of 25-31 July 2022 and 2-6 August 2022 for dancing performance in the Concert.[8]

32.  From the various work engagements, A received earnings mostly by cheques and through electronic payments such as PayMe and FPS. Some work correspondents/organisers would deposit payments directly in his bank account. All income payments are shown in the bank statements.[9]

33.  In respect of the work for the Concert at the time of the Accident, R paid him by cheques.

34.  Sometimes A received cash payments from students after dancing lessons.

35.  He would deposit in his bank account all cheques and cash received every few days.

36.  A has adduced in evidence deposit slips and bank statements of his bank account covering a period from August 2021 to August 2022[10] which show numerous deposits, as set out in the summary of bank deposits.[11]

37.  A explains in his witness statement, with reference to the bank statements, that the sums deposited in his bank account during the period from August 2021 to August 2022 came to a total of $763,884.64 – this represents earnings from his work performed during the 12-month period prior to the Accident from August 2021 to July 2022. His average monthly earnings at the time of the Accident were thus $63,657 per month ($763,884.64/12).[12] This is the figure adopted in Mr Tsoi’s calculations of employees’ compensation in his opening submissions.

38.  A testified in court that all the bank deposits shown in the bank statements were earnings received from his dancing performances and classes, tutoring work and engagements.

39.  He clarified further when asked by this Court that after he had received payments in cash, he would use up some cash in his pocket before depositing the remainder in his bank account every few days.

40.  But there was no fixed pattern, and A cannot recall, the amount of cash in hand that he would normally spend in a month.

41.  Having perused all evidence and heard A’s testimony in court, I have no doubt and find A a frank and honest witness. I accept his evidence on the series of multiple busy work engagements and the pre-accident earnings, supported by evidence of bank statements.

42.  I also place due weight on and accept the evidence of the Father as stated in his witness statement regarding the disabilities of A and the extensive full time care and attention required. His evidence is fully supported by medical evidence, and not challenged.

43.  There is no question and I accept that A has as a result of the Accident suffered and continues to suffer permanent total incapacity.

The Issues

44.  Upon the evidence before the court, Mr Tsoi’s opening submissions and A’s testimony, there transpires to be and I raised the following issues in assessing employees’ compensation:

(1)  Whether the maximum statutory cap should be awarded for care and attention required by A under s8(1)(a) ECO;

(2)  What were A’s monthly earnings at the time of the Accident for the purposes of calculating earnings under s11 ECO, and whether the Court should allow an increase in A’s earnings to reflect the unaccounted cash spent hence not shown in the bank statements;

(3)  Whether the Court is bound by the Form 7 endorsing sick leaves of 34.7 months (adopted in Mr Tsoi’s opening submissions, but revised to 36 months at the closing submissions stage) in the present case, in the assessment of temporary incapacity under s10 ECO by operation of s16H ECO; and

(4)  Whether the statutory holidays (of 39 days) should be deducted from the certified total (of 1,057 days) per the Form 7 (leaving 1,018 days as set out in Mr Tsoi’s opening submissions, but retracted during trial) for the purpose of assessing compensation for temporary incapacity under s10 ECO.

45.  Counsel Mr Tsoi submitted upon this Court’s direction supplemental closing submissions on Issues (2), (3) and (4).

(1)  Whether Maximum Statutory Cap under s8(1)(a) ECO Applicable

46.  S8(1)(a) of the ECO for assessing compensation for care and attention to an “employee requiring attention”, applicable to the present case, states as follows:

“(1) Where permanent incapacity which results from the injury is of such a nature that the employee is unable to perform the essential actions of life, without the attention of another person, the compensation payable under this section for and in relation to such attention shall, in addition to any compensation payable under other provisions of this Ordinance, be—

(a) such amount not exceeding the amount specified in the second column of the Sixth Schedule shown opposite section 8(1)(a) specified in the first column of that Schedule as the Court considers necessary to meet the cost of such attention …

…

(2) Compensation under subsection (1)(a) shall be—

(a) a lump sum payment calculated with regard to the probable duration and cost of the attention;

…”

[emphasis added]

47.  The Sixth Schedule of “Specified Amount of Compensation” provides the maximum amount for compensation under s8(1)(a) ECO at $644,710 prevailing at the time of and applicable to the Accident which took place on 28 July 2022.

48.  To justify an award of the maximum statutory cap, the attention and help must not be of an intermittent nature. The employee needs to show that as a result of the permanent total incapacity, he is unable to perform the essential actions of life and requires constant and regular attention and help of another person: see the judgments of HHJ Levy in Lai Wai Kwong v Yu Kwok Man (unreported, DCEC 1171/2015, 27 July 2017) (at §28) and Tse Wut Cheuk by his next friend King Chung Lan v Patent Design & Engineering Ltd (unreported, DCEC 1007/2015, 17 May 2017) (at §§39-41).

49.  In considering the amount of compensation, the court should have regard to the cost of the attention as well as the probable duration. Useful guidelines are set out in Lai Wai Kwong (supra) (at §43), quoting from the judgment of HHJ Peter Cheung (as Cheung JA then was) in Lau Ka Shui v Yiu Wing Construction Co Ltd & Anor [1991] 2 HKC 644 (at pp 648A-649B):

“(1) The kind of help required to enable the injured employee to perform the essential actions of life. The amount of compensation will depend on what kind of help and care the injured requires, which can range from assisting an injured in ambulation only (for example a wheelchair-bound person) to providing all-round basic care such as doing bathing, taking the injured to the toilet, eating or bed turning to avoid bed-sores for a bed-ridden injured.

(2) The place where the injured receives the attention and care to enable an injured to perform the essential actions of life – at one’s own home or a special care institution.

(i) If it is one’s own home, compensation can be calculated with reference to the costs of the care provided to the injured. These costs will include the costs of hiring an outside help, such as a care worker as well as the loss of wages incurred by a relative or spouse in giving up the latter’s job to care for the injured employee.

(ii) In the event that the injured is cared for in an institution, the costs of such a care home provided that s.8(3) is not infringed.

(3) The estimated life span of the injured employee. Obviously, the longer the life span, the larger will be the amount needed for the care and attention for the injured employee.”

[emphasis added]

50.  I have considered the judgments of Lau Ka Shui (supra), Lai Wai Kwong (supra), Leung Kwok Biu v Tam San Yu t/a New Shine Engineering Co (unreported, DCEC 1278/2007, 21 January 2009), Kok Wai Leung v Ho Tin Building Material Ltd [2021] HKDC 57 and Li Tsan Fai v WLF Logistics (Hong Kong) Ltd (unreported, DCEC 516/2020, 28 August 2023). In these cases, the court made awards under s8(1)(a) ECO at the applicable statutory maximum amounts in the form of a lump sum to the injured employees who were much older than A in the present case, had expected life span up to 20 years and required constant care and attention in essential actions in life and daily living activities.

51.  In the present case, A is relatively young at age 31. Mr Tsoi refers me to the Hong Kong Life Tables (2016 – 2046) (published by the Census and Statistics Department in August 2023), Table 14 for “Projected Hong Kong life table for males, 2026” and highlights the long expectation of life of 53.29 years for a 31-year-old male.

52.  In the light of the authorities, even taking a conservative approach in the remaining life expectancy of A which may be impacted upon by his medical conditions, I have no doubt and accept Mr Tsoi’s submission that the long future life span of A should warrant compensation for the attention required under s8 ECO at the maximum amount.

53.  The predicaments of A in his permanent disabled conditions, the need for constant lifetime attention and assistance in personal care and daily living activities and the requirement of the current 3-carer regime, together with the medical staff and his parents, are fully supported by medical reports from his treating doctors,[13] and explained in the witness statements of A[14] and the Father.[15]

54.  I am satisfied that A has suffered catastrophic disabilities and permanent total incapacity, and will require lifetime constant care and attention. He is incapable of ever leading or appreciating an independent adult life. It is appropriate for the court to assess the attention required under s8(1)(a) ECO in a lump sum award at the statutory maximum of $644,710, and I so order.

(2) A’s Monthly Earnings for compensation under ss7 and 10 ECO

55.  In considering the monthly earnings of A at the time of the Accident, reference is made to the following applicable subsections of s11 ECO on Method of calculating earnings:

“11. Method of calculating earnings

(1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings—

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.

…

(2) Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.

…

(7) Where the employee had entered into concurrent contracts of service with 2 or more employers under which he worked at one time for one such employer and at another time for another such employer, his monthly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident:

Provided that the earnings of the employee under the concurrent contract shall be taken into account only so far as the employee is incapacitated from performing the concurrent contract…”

[emphasis added]

56.  It is clear from A’s evidence that prior to the Accident, he was engaged in dancing performances and jobs in concurrent contracts with many different employers with no fixed work patterns or hours nor regular patterns of receipt of earnings or payments.

57.  His evidence is that his earnings are all recorded in the bank statements.[16]

58.  The bank statements show that the monthly total sums of deposits vary greatly from $20,000 odd to about $100,000. For the month of June 2022, ie the month immediately before the Accident, the total amount of bank deposits was $29,188.

59.  It is noted that in August 2022, ie the month after the Accident, total bank deposits from 3 payments by cheques was the highest at $148,320.

60.  A explains in his witness statement[17] that these bank deposits made in August 2022, albeit received in the month after the Accident, were earnings he made for previous work done in February, April, May and June 2022 (totalling $58,600). Two other sums of $73,720 and $16,000 received in August 2022 were earnings from the Concert. All these deposits should thus be counted as his earnings made within the 12-month period prior to the Accident.

61.  This is reasonable and accepted, because A did not and clearly could not work after the Accident.

62.  Total annual income in respect of work done during the 12-month period from August 2021 to July 2022, supported by bank records and summarised in A’s witness statement[18], amounted to $763,884.64, or $63,657 per month on average.

63.  By operation of ss11(1), (2) and (7), A’s monthly earnings are calculated to be the monthly average of $63,657 over 12 months (s11(1)(b) ECO), which calculation is more favourable to him than that provided in s11(1)(a), no matter whether he was engaged to work for long or short periods under the concurrent contracts.

64.  The monthly average of $63,657 is calculated from the bank deposits, but on the evidence it clearly does not represent all of A’s earnings.

65.  A’s evidence is that he sometimes received cash payments which he deposited in his bank account within a few days of receipt.[19] This is supported by evidence of cash deposits shown in the bank statements.[20] His oral testimony in court is that he would spend some cash in pocket before depositing the remainder in his bank account.

66.  This is only logical and accords with common sense that one would retain or use up part of the cash received in pocket rather than deposit all in the bank account, to avoid the trouble of having to withdraw cash from the bank for use later. Indeed one would not be surprised that A might have even on occasions spent all the (small amounts of) cash received in his pocket without depositing it in his bank account.

67.  A however cannot recall the details or the approximate amounts or percentage of his earnings that he had spent and not deposited in his bank account hence not shown in the bank statements.

68.  On such evidence, Mr Tsoi at the closing submissions stage invites this Court to apply a nominal increase of 5% on top of the monthly average of $63,657 shown in the bank statements to account for the cash earnings spent by A before depositing the remainder in the bank.

69.  On A’s unequivocal evidence, which I accept, is that his monthly average earnings should be higher than $63,657. The question is by how much, on which there is no evidence before this Court.

70.  I accept Mr Tsoi’s submission that the trial judge must ascertain the earnings “as best he can” per Cozens-Hardy MR in Jury v Owners of S.S. Atlanta [1912] 3 K.B. 366 (CA) at p 368, echoed in the judgment of Bokhary PJ in Lam Pak Chiu & Anor v Tsang Mei Ying & Anor (2001) 4 HKCFAR 34 as follows (at p 44J to 45C):

“Assessing damages is seldom easy. And it tends to be especially difficult where future loss is involved. The judicial statements to that effect are legion. And they are readily explainable. Weighing evidence to decide what in all probability had actually happened is difficult enough … But the mere fact that an assessment is extremely difficult does not relieve the court of its duty, or deprive it of its ability, to make that assessment. The court, in the time-honoured expression, does the best it can with what it has.”

[emphasis added]

71.  Mr Tsoi refers me, by way of illustration, to the judgments in the fatal cases of Chen Ruihong v Hoi Shing Hong Investment Ltd [2023] 1 HKLRD 529 and Chan Siu Kai v Hop Chung Carriage Co Ltd (unreported, DCEC 71/2006, 25 July 2007) in which the court adopted an increase of 20% in assessing the deceased workers’ monthly earnings on account of their personal spending, and the conventional percentages of 33% or 25% (in households of 3 or 4) for assessing claims for losses of dependency and accumulation of wealth on account of personal spending adopted in Harris v Empress Motors Ltd [1984] 1 W.L.R. 212 (CA).

72.  I do not think the cited authorities nor the assessed percentages of 20%, 25% or 33% to be helpful or applicable to the present case. The issue here is not the percentage of total personal spending over monthly earnings (being considered in those authorities), but the amount of cash in pocket spent by A before he deposited the remainder in the bank.

73.  I note in A’s bank statements some cash deposits, in particular a lump sum cash deposit of $3,500 in the month of August 2021.[21] In light of such evidence and doing the best I can in assessing A’s monthly earnings, I accept Mr Tsoi’s submission that a nominal increase of about 5% or $3,183 ($63,657 x 5%), rounded up to $3,200 per month, on account of cash spent would not be unreasonable.

74.  I therefore find A’s monthly earnings at the time of the Accident to be $66,857 ($63,657+$3,200) for the purposes of assessing employees’ compensation under the ECO.

(3)  The Certificate of Assessment/Form 7 – s10 Compensation

(4)  Deduction of Statutory Holidays from the Certified “Period(s) of Absence from Duty” in Calculating s10 Compensation

75.  Issues (3) and (4), both arising from the assessment set out in the Certificate of Assessment/Form 7 issued on 2 July 2025, can be conveniently dealt with together.

76.  I first consider whether the court is bound by the Form 7 endorsing sick leaves of 34.7 months (adopted in Mr Tsoi’s opening submissions, but revised to 36 months at the closing submissions stage) in the assessment of temporary incapacity under s10 ECO.

77.  There is no question that the Form 7, against which no s18 ECO appeal was lodged, was issued and signed by the Assessment Board and by operation of s16H ECO, it “shall be admitted in evidence without further proof on its production in any court” and “shall be evidence of the matters stated therein”. Such matters include the permanent loss of earning capacity and duration of sick leaves, or more precisely certified “period(s)of absence from duty necessary as a result of the injury”.

78.  It is trite that such evidence can become conclusive through the appeal procedure not being invoked. The assessment is to be final unless appealed within the period prescribed under s18 ECO. (See Ng Ming Cheong v Mass Transit Railway Corp [1997] HKLRD 1231 (CA) at p 1236H to I; and Leung Shui Cheong v Au Chung Yin Jimmy [2023] HKCA 963 at §§49-50).

79.  At the same time, s10(1) ECO provides that the calculation of compensation for temporary incapacity whether total or partial must have regard to “the probable duration” and “probable changes in the degree” of the incapacity as follows:

“(1) Where temporary incapacity whether total or partial results from the injury, the compensation shall be the periodical payments hereinafter mentioned, or a lump sum calculated accordingly, having regard to the probable duration, and probable changes in the degree, of the incapacity…”

[emphasis added]

80.  It is clear that the underlined wording provides for the discretion of the court in assessing compensation under s10(1), ie having regard to the circumstances of the case, and recognises “the possibility that the periodical payments may be made for a period which may be longer than the period ultimately assessed as the period of temporary incapacity…” as stated in Kan Wai Ming v Hong Kong Airport Services Ltd [2011] 3 HKLRD 497 (CA) per Fok JA (as Fok PJ then was) at §§17 and 34. In other words, the certified period of absence from duty for which periodical payments shall be paid may not exactly match the period for which compensation under s10 is ultimately assessed.

81.  S10(2) ECO provides the following deeming provision on account of the “period of absence from duty” certified in the Form 7:

“(2) For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.”

[emphasis added]

82.  However, the presumption under s10(2) ECO that a period of absence from duty so certified is a period of total temporary incapacity is rebuttable: see Yu Tat Kam v Chu Tung Shing [2009] 6 HKC 411 (CA) at §§23-27. Yuen JA held in that case that the court is not bound to award compensation for the certified period of sick leave even if there was no appeal against the Assessment Board assessments:

“24. However s 10(2) does not mean that the court is bound to award compensation at four-fifths of the employee’s pre-accident earnings during the certified period. As noted previously, s 10(1) contemplates that even for total temporary incapacity, the compensation would be reduced if there were earnings that the employee was earning, or was capable of earning, in some suitable employment during the period of temporary incapacity.”

[emphasis added]

83.  The unfettered discretion of the court is also provided under s10(5) in regard to extension of temporary incapacity beyond 24 months, as discussed in the judgment of Rogers VP in Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd [2001] 2 HKLRD 803 (CA) at 807F to H, and applied in Wong Kai Fun v Sun On Logistics Ltd (unreported, DCEC 5/2013, HHJ Levy, 20 May 2015) at §65, in that “the paramount consideration will be one of fairness to an employee”.

84.  This is illustrated in Tsang Chiu Tung v 陳創成 & Anor (unreported, DCEC 713/2009, 25 November 2010), in which case the injured worker was granted sick leaves for almost 3 years but was never assessed by the Assessment Board. HHJ Simon Leung (as Leung J then was) considered all medical and expert evidence and refused to extend beyond 24 months as provided in s10(5) in assessing s10 compensation, highlighting the unfettered discretion of the court (at §§78-79) as follows:

“78. … I have no intention of limiting the discretion under section 10(5), which the appellate court in Choy Wai Chung did not approve.

79. I believe the discretion is unfettered, subject perhaps to the consideration of all the circumstances of the case. The presumption under section 10(2) does not change that.”

[emphasis added]

85.  S16D(5)(b) ECO specifies that the Assessment Board shall assess the period of absence from duty necessary as a result of the injury (as opposed to “period of total temporary incapacity” under s10).

86.  I accept Mr Tsoi’s submissions that the conclusive “period of absence from duty” under s16H ECO certified in a Form 7 should not be equated to conclusive “period of total temporary incapacity” under s10(1) ECO and thereby removing the unfettered judicial discretion. Otherwise it will render the rebuttable deeming provision under s10(2) wholly otiose, and ignore the mandatory considerations of “the probable duration, and probable changes in the degree, of the incapacity” provided under s10(1).

87.  The conclusive “period of absence from duty” certified in a Form 7 should not restrict the court’s discretion to assess compensation with reference to the “period of total temporary incapacity” under s10(1) and (5) in view of the “rebuttable” deeming presumption under s10(2).

88.  The court is entitled to take into account the conclusive certified “period of absence from duty” under s16H and assess the “period of total temporary incapacity” under s10(1) either:

(1)  below the certified period of absence from duty in the event that the employer discharged his burden of proving that the employee was earning money or still capable of earning money during the certified period of sick leave for a reduction in compensation as illustrated in the CA judgment of Yu Tat Kam (supra) (at §26); or

(2)  above the certified period of absence from duty under s10(5) ECO “to alleviate the problem which would be caused when an employee suffered a period of temporary incapacity followed by a period of permanent partial incapacity” as illustrated in Choy Wai Chung (supra) (at 807H). In that case the Form 9 certified period of absence from duty necessary as a result of the injury from 30 June 1996 up to the date of review of 16 October 1998 (27.5 months). Exercising its discretion under s10(5), the Court of Appeal allowed the applicant’s claim for an extension of the period of temporary total incapacity for the full 12-month period up to 36 months.

89.  By way of illustration, counsel has referred me to Chan Kai Man v Baiqian International Holding Ltd (unreported, DCEC 1612/2012, DDJ Michael Liu, 28 October 2016): The Form 7 therein certified the period of absence from duty necessary as a result of the injury to be 3-5 & 22-31 August 2012, and 3-7 September 2012, of a total of 18 days only (§86). The assessment was maintained upon review per the Form 9. No appeal was lodged against the Form 9. Medical receipts showed nevertheless that the applicant had thereafter sought treatment in Dongguan City in the PRC in 2013. The court, on the premise that it retains judicial discretion under s10 ECO and upon taking into account all relevant factors including the Form 7 and Form 9, assessed compensation for temporary total and partial incapacity as covering the intermittent periods from 3 August 2012 to 15 January 2014, well beyond the cut-off date of 7 September 2012 certified in the Form 7/Form 9 (§§86, 95, 96 and 101-106). It is noteworthy that most of the periods allowed for s10 compensation were not covered by sick leave certificates.

Extension of the Certified “Period(s) of Absence from Duty”?

90.  In the present case, the “period(s) of absence from duty necessary as a result of the injury” of A is certified in the Form 7 to be “28 July 2022 to 18 June 2025”, ie a total of 34.7 months.

91.  On the other hand, the indisputable fact supported by all medical evidence is that A has suffered from catastrophic disabilities resulting in permanent loss of earning capacity of 100%.

92.  I accept Mr Tsoi’s submission that the discretion of the court to assess the “period of total temporary incapacity” under ss10(1) and (5) ECO should not be fettered by the conclusive certified “period of absence from duty” of 34.7 months per the Form 7 under s16H ECO, nor changed by the deeming provision/presumption under s10(2).

93.  In any event, the certified period stated in the Form 7, up to the date of the Assessment Board’s assessment on 18 June 2025, is in my view tantamount to a snapshot taken on the date of assessment without regard to the entire clinical picture or “the probable duration… of the incapacity” as provided under s10(1) ECO.

94.  Upon the paramount consideration of fairness to the employee, I exercise my discretion to extend the period beyond the date of assessment and up to the maximum of 36 months allowed under s10(5) for assessing s10 compensation as sought by A, following the CA judgment of Choy Wai Chung (supra).

Increase in accordance with the Consumer Price Index

95.  In accordance with ss11(1A)(b) and (1B)(b), where an employee suffers temporary incapacity beyond 12 months or 24 months after the date of the accident, the monthly earnings of the employee shall be computed with rates of increase according to the Consumer Price Index.

96.  The mandatory requirement is explained in Lai Ka Wai v Mei Fai Hong Kong Engineering Ltd & Anor [2021] HKCA 1036 (CA) per Au JA (at §§25-26):

“25. 上述條文的字面意思已清晰地表明了這兩條條文的適用情況，即，(一) 若僱員在意外發生後暫時喪失工作能力，而喪失工作能力的期限超過12個月或者24個月，且 (二) 僱主在相類工作中沒有僱用所具賺取收入能力類似該僱員的其他人，則在考慮條例第10條賠償時，必「須」根據事故發生日期後的12個月期間及 / 或24個月期間結束時，消費物價指數的增幅來調整僱員的每月收入。

26. 本庭認爲這個解釋是符合條例的立法原意的。首先，法律條文本身採用了「須」字，證明這兩條條文的適用性並不是給予法庭酌情權，而是若案件滿足第 11(1A)(b) 及第 11(1B)(b) 條所述的條件，則法庭必須按照消費物價指數的增幅來調整僱員的每月收入。此外，條例的明顯目的是爲了保護需要休冗長的病假期僱員的利益。而衆所周知，在通貨膨脹的時代，貨幣的購買力也隨之變化。因此，法定的補償亦應隨之變化來抵消貨幣的貶值。”

[emphasis added]

97.  I therefore compute annual increase of notional monthly earnings after the initial 12-month and 24-month periods from the Accident in accordance with the Consumer Price Indices Table published by the Census and Statistics Department as submitted by Mr Tsoi. The relevant rates are 3.1% (for 2023/24) and 1.5% (for 2024/25).

98.  In assessing s10 compensation, monthly earnings and notional monthly earnings of A during the 36-month period allowed under s10(5) after the Accident are thus taken to be:

(1)  (1^st year) 28 July 2022-27 July 2023:

$66,857 (as found in §74 hereinabove)

(2)  (2^nd year) 28 July 2023-27 July 2024:

$66,857 x (1+3.1%) = $68,930

(3)  (3^rd year) 28 July 2024-27 July 2025:

$68,930 x (1+1.5%) = $69,964

Deduction of Statutory Holidays from Certified “Period(s) of Absence from Duty”

99.  This issue arose from Mr Tsoi’s opening submissions seeking s10 compensation based on the Form 7 certified period of absence from duty (from 28 July 2022 to 18 June 2025) of a total of 1,057 days, with deduction of 39 days statutory holidays in between, leaving 1,018 days.

100.  It became obsolete when Mr Tsoi in the course of trial and at the closing submissions stage revised A’s claim under s10 based on the maximum of 36 full months allowed under s10(5) without deduction of statutory holidays. I have as set out hereinabove made a ruling and allowed the claim for 36 months in this judgment (§94).

101.  I nevertheless consider it desirable for me to deal with the issue whether statutory holidays should be deducted from the certified sick leaves/periods of absence from duty.

102.  I am aware of some decided cases in which the court assessed s10 compensation upon sick leaves/periods of absence from duty certified and shown on Form 7/Form 9 after deduction of statutory holidays. To name a few: Zafar Sikandar v Charming Construction Engineering Hong Kong Company Ltd (unreported, DCEC 324/2023, 25 February 2025) (at §33); Tin Yuet Sheung v Care For Mumi Service Ltd (unreported, DCEC 472/2013, 16 April 2014) (at §23); Hong Chun Tak v Yip Kan Kee Contracting Co Ltd & Ors (unreported, DCEC 849/2017, 24 March 2021) (at §67); Leung Siu Kam v 梁國強 & Anor (unreported, DCEC 2917/2017, 6 October 2021) (at §45) and Wen Yuantian v Tsang Chung Kiu T/A Wing Tat Engineering Co (unreported, DCEC 2487/2020, 30 May 2022) (at §21).

103.  However I cannot find any discussion or specific ruling on the propriety of deducting statutory holidays from the certified sick leaves or period(s) of absence from duty.

104.  In the majority of s10 awards assessed in other employees’ compensation judgments/decisions, no deduction of statutory holidays was made.

105.  I have considered Mr Tsoi’s supplemental closing submissions (§§3.6-3.8) citing the CFA judgment of Ma CJ in Cathay Pacific Airways Ltd v Kwan Siu Wa Becky & Ors (2012) 15 HKCFAR 615 (at §§20(2) and (3)). The issues being considered by the CFA in that case were determination of the rates of holiday pay and annual pay under the Employment Ordinance, Cap 57. I do not think the discussions on those issues should be interpreted to have the effect of rendering it necessary to deduct paid rest days and/or statutory holidays in calculating s10 compensation under the ECO in respect of (i) workers of fixed monthly or annual salary and (ii) workers with variable earnings but fixed work and/or rest days, but not (iii) in the case of casual workers (as in A’s case), as suggested by Mr Tsoi.

106.  Under s3 ECO, interpretation of “earnings” means “any wages paid in cash to the employee by the employer and any privilege or benefit which is capable of being estimated in money…”.

107.  In the case of employees who receive monthly or annual fixed wages with benefits of paid holidays, there is no question that the wages paid in respect of paid holidays are included in “earnings” under the ECO. Where the injured workers are entitled to paid rest days or statutory holidays, their claims for employees’ compensation under s10 should thus be calculated based on the full sick leaves certified without deduction of statutory holidays.

108.  But would it mean that for daily-paid or casual workers who do not enjoy paid rest days nor receive earnings for statutory holidays, their claims under s10 ECO should be reduced on account of unpaid rest days or statutory holidays?

109.  I see no reason why workers with different earnings patterns would warrant different treatment under s10 ECO.

110.  Even in the case of casual workers who receive earnings measured by “piece rates” or “daily pay” and not entitled to be paid on statutory holidays (as in A’s case), their “monthly earnings at the time of the accident” under s11(1) ECO are computed based on the earnings of a full calendar month (of 30 days on average). The computation of “monthly earnings” has thus already factored in statutory and public holidays in the month whether the employees enjoy paid rest days/holidays or not.

111.  Calculation of s10 compensation has been provided under s10(1) to be a fixed proportion (4/5) of “the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning…after the accident”.

112.  Once the base figure of “monthly earnings” has been decided upon, s10 compensation will be calculated in accordance with the duration of “the temporary incapacity” or “certified period of absence from duty” as provided under ss10(1) and (2). “Rest days or statutory holidays”, whether paid or not, do not feature in s10, and “deduction of statutory holidays” simply has no place in the statutory formula.

113.  It is also clearly the legislative intent to provide the injured employees with a favourable computation of “monthly earnings” under s11 and to enhance quick relief. “Deduction of statutory holidays”, not expressly provided in the ECO, should not be allowed.

114.  It would thus be illogical and unreasonable in my view to deduct statutory holidays from the certified sick leaves/absence from duty stated in Form 7/Form 9.

115.  The above echoes the view of HHJ M Ng (as Ng J then was) in Wong Kin Shun v Sham Chi Kin (unreported, DCEC 535/2005, 16 May 2008) (at §118) though it was made in a different context when the court rejected the applicant’s suggestion of using a different denominator of 20 days (linked to the number of working days of the applicant who was a casual worker not entitled to paid rest days or holidays) other than 30 days in calculating the number of months for assessing s10 compensation.

116.  To conclude, I consider it appropriate to award s10 compensation under the ECO to A for temporary incapacity based on the maximum 36 full months extended under s10(5), without deduction of statutory holidays. A shall thereafter be deemed to have suffered permanent total incapacity such that s7 ECO would apply.

Medical Expenses

117.  A claims under s10A ECO medical expenses paid for medical treatment received in Hong Kong as an in-patient in a hospital as a result of the injuries sustained in the Accident, capped at $300/day as prescribed in §1(b) under the Third Schedule of the ECO.

118.  He makes no claim for the medical expenses in respect of medical treatments given outside Hong Kong, as such claims are not permissible under s10A(1A).

119.  The claim, based on 848 days of treatment A received in Hong Kong, comes to a total of $254,400 ($300 x 848).

120.  The claim is supported by medical evidence and receipts, and should be allowed in full.

Computation of Compensation

121.  I assess A’s claim for employees’ compensation under the ECO (adopting the statutory maximum figures applicable under the Sixth Schedule) as follows:

s7(1)(a) (Total Incapacity)
$35,600 x 96	$3,417,600
[*$35,600 being the prevailing statutory cap for “monthly earnings” for assessing s7(1)(a) compensation]
s8(1)(a) (Attention/Permanent Incapacity)
Maximum	$644,710
s10 (Temporary Incapacity/36 months maximum)
(1st year) $66,857 x 12 x 4/5 = $641,827
(2nd year) $68,930 x 12 x 4/5 = $661,728
(3rd year) $69,964 x 12 x 4/5 = $671,654	$1,975,209
s10A (Medical expenses)	$254,400
Total:	$6,291,919

Interest

122.  Interest is awarded on the total compensation adjudged at $6,291,919 at half judgment rate from the date of the Accident to the date of judgment, and thereafter at full judgment rate until payment.

Costs

123.  Costs should follow the event. I make an order nisi that A do have costs of the action, payable by R, with certificate for counsel, to be taxed if not agreed.

124.  In the absence of application from any of the parties to vary this costs order within 14 days, the costs order nisi shall become absolute.

125.  I thank counsel Mr Tsoi for his assistance.