SUSAN-YUNITA-NINGTIAS v. WONG CHUNG KWAN AND ANOTHER

DCEC 1163/2020

[2024] HKDC 913

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1163 OF 2020

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IN THE MATTER OF AN APPLICATION BETWEEN:

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ASSESSMENT OF COMPENSATION

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A. Introduction

1.  The Applicant applied for compensation under Sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“ECO”) arising out of a series of tragic events that occurred on 10, 18, 19 and 20 December 2017.

B. Factual Background

2.  The Applicant is an Indonesian. She was divorced and living with her mother and her son who was born in 2009. One year after her divorce, she started working, as a babysitter in Jakarta from around 2012 to 2013, then as a factory worker in a toy factory for about three years. She then left for Singapore in 2015 and received domestic helper training for 7 months there. After the training, she worked as a domestic helper in Singapore for one year and eight months until the elderly lady she cared for passed away. She then received another one-month domestic helper training before she entered into an employment agreement with the 1^st Respondent (“R1”) to work as a domestic helper in Hong Kong.

3.  The Applicant arrived in Hong Kong on 5 December 2017 and started her employment with R1 on 10 December 2017. Her job was to take care of the 13-year-old daughter of R1 as she needed full assistance to take a shower, walk, eat, go to the toilet, accompany her to school and during class as well as some household duties.

4.  Unfortunately, the Applicant was soon sexually assaulted and raped by the husband of R1 Mr Tsang Wai Sun (“Mr Tsang”) on multiple occasions between 10 and 20 December 2017 at the family residence where the Applicant was employed in Flat 2817, Block 5, Yiu Sin House, Wong Tai Sin, Kowloon (“Accident”).

5.  The Applicant then reported to the police. An investigation soon started and Mr Tsang was later found guilty after trial of 2 counts of indecent assault and rape and was sentenced to a total of 11 years imprisonment on 5 March 2019 by Mr Justice H L Lee of the High Court (with action number HCCC 187/2018).

6.  As a result of the Accident, the Applicant suffered post-traumatic stress disorder (“PTSD”).

7.  The Applicant then commenced the present proceedings on 22 June 2020 against R1 for compensation under ECO.

8.  R1 was unfortunately not insured and apparently in a difficult financial position. Potential claim for payment pursuant to the Employees Compensation Assistance Ordinance (Cap 365) is therefore likely and the interest of the Employees Compensation Assistance Fund Board, i.e. the 2^nd Respondent (“R2”) came into play.

9.  By order of Her Honour Judge Levy dated 18 June 2021, interlocutory judgment on liability was entered in favour of the Applicant against R1 with compensation to be assessed. By a second order of Her Honour Judge Levy of the same date of 18 June 2021, leave was given to R2 to intervene in these proceedings to contest the issue of quantum.

10.  On 17 August 2022, the Employees Compensation (Ordinary Assessment) Board issued a Certificate of Assessment (“Form 7”) and assessed the Applicant’s loss of earning capacity permanently caused by the injury (described as suspected sexual assault and rape resulting in psychiatric impairment) to be 10% and the Applicant’s period of absence from duty necessary as a result of the injury to be nil. This was confirmed on 15 March 2023 by a Certificate of Review of Assessment issued by the same board (“Form 9”).

11.  The Applicant appealed against such an assessment.

12.  Following the conviction of Mr Tsang, the Applicant was provided with criminal injuries compensation (“Criminal Injuries Compensation”) in the amount of around HK$118,760. She received the majority of this sum by around December 2021 with the remaining part stake held by her solicitors for various purposes.

C. Interlocutory Matters

13.  Two interlocutory matters were dealt with on the first day of the trial.

14.  Firstly, the Applicant applied to adduce a further witness statement of the Applicant dated 20 September 2023. R1 made no comment. R2 did not object to the reliance on this further witness statement. I therefore allowed the Applicant to rely on this further witness statement as part of her evidence in chief.

15.  Secondly, the Applicant applied orally to adduce further evidence in the form of a single page of what appears to be a medical document. According to Mr Brettell, the solicitor representing the Applicant, this document discussed the heart condition of the Applicant.

16.  R1 made no comment. R2 objected to this late discovery.

17.  I agreed with R2’s objection and refused to admit this new document disclosed for the first time on the first day of the trial without any reasonable explanation as to such delay. More importantly, this document was very blurred. Apart from a few words here and there, the majority of the document is illegible making it impossible to attach any weight to such a document.

D. Injuries and Treatment

18.  After the Accident, the Applicant attended the Accident and Emergency Department at the Queen Elizabeth Hospital on 24 December 2017. She later received consultation at the outpatient clinic of the Department of Obstetrics and Gynecology of Pamela Youde Nethersole Eastern Hospital on 18 January 2018. Physical examination was unremarkable and she was referred to a clinical psychologist for counselling. However, the Applicant soon left Hong Kong and did not attend the follow-up appointment.

19.  The Applicant subsequently returned to Hong Kong in March 2018 and consulted a clinical psychologist Ms Jessie Yiu on 5 March 2018 arranged by the Legal Aid Department but she soon left Hong Kong again on 8 March 2018. Ms Yiu opined that the Applicant presented with symptoms of PTSD.

20.  About 10 months later, the Applicant returned to Hong Kong in January 2019 and stayed for two weeks to give evidence in the criminal action against Mr Tsang. On 28 January 2019, 4 days after the Applicant completed giving evidence in court for 5 days in the previous week, the Applicant was seen and assessed by a clinical psychologist Ms Lim Kwai Tat (“Ms Lim”) of the clinical psychology unit of the Social Welfare Department for the purpose of preparing a victim impact report at the request of the High Court of Hong Kong. According to the observations of Ms Lim:

“Albeit the sexual assault has occurred one year before, Ms. “X” still suffers gravely from Post-Traumatic Stress Disorder with dissociative features. She is imbued with negative mood, including anger, guilt, anxiety and depression (with ongoing self-mutilative tendency). Signs of severe disruption are detected in pervasive aspects of her life, including her daily lives as well as physical, psychosocial and occupational functioning.

22. The sexual assault per se had induced in Ms. “X” primary trauma, while the timing of the present assessment might have led to secondary trauma.

23. It should be noted that the sufferings of Ms. “X” may have been exacerbated by her increasing self-isolation and shrinking social support subsequent to the sexual assault. It is apparent that she has been dealing with her traumas mainly on her own, which will take her a much longer time than victims with similar experiences to recover and resume her normal functioning.”

21.  On 10 June 2022, a joint examination was conducted via Zoom by two expert psychiatrists on 10 June 2022 including Dr Silvia Chen (“Dr Chen”) appointed by the Applicant and Dr Sherry Chan (“Dr Chan”) appointed by R2 in English with the assistance of an Indonesian Interpreter. According to the joint report provided by Dr Chen and Dr Chan, it is their joint view that:

(1) The Applicant has no past history of PTSD. She has been suffering from PTSD as a result of the Accident.

(2) The lack of effective treatment and the lack of social support and networks have contributed to the perpetuation of the symptoms.

(3) All the current medical conditions/symptoms were caused by the Accident. They are compatible with the extent of the injury caused to the Applicant. The PTSD symptoms had remained vivid and severe even 4½ years after the incident.

(4) The Applicant could resume working as a domestic helper theoretically but with limited work options as she would have difficulties working in a household with the presence of adult males or providing any care to males that require physical contact.

(5) The period of full sick leave should be from the date of the Accident to the end of 2021 with further partial sick leave granted from January 2022 to December 2022.

(6) With the proper treatment, symptoms of PTSD can be fully recovered but the Applicant has never received any treatment.

(7) The overall whole-person impairment is 5%.

(8) There is a 100% loss of earning capacity by 2019 and a 50% loss of earning capacity from 2020 to 2027.

(9) It is anticipated that it would take about 4 years for the Applicant’s full recovery.

22.  The Applicant is also suffering from cardiomegaly which was first discovered in 2019. It is not particularly clear as to the Applicant’s position regarding this heart condition. Whilst agreeing that there is no evidence showing that this is related to the Accident, the Applicant in her written closing submissions kept referring to it together with PTSD. In any event, insofar as the Applicant may want to rely on cardiomegaly as part of the basis of her claim in these proceedings, I duly reject such submission. There is a complete lack of evidence showing the causation, i.e. that the cardiomegaly arose out of and in the course of the employment with R1.

E. Assessment

23.  It is trite that when the jurisdiction under Section 18 ECO is invoked, the Court needs to approach the matter afresh. As held in Chan Kit v Sam Wo Industrial Manufactory [1989] 2 HKLR 230 at 232G-H (later approved in cases such as Tsang Kwong Tong v Tennille Decoration & Design Ltd & Ors (CACV 42/2006, unrep., 10.10.2006) at §39)

“… the court’s jurisdiction appears to be appellate. But one has then to remember that these Boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons. So that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the court is so minded; it is plain that a Court approaching this matter has really got to start afresh.”

24.  Mr Lee, counsel for R2 further helpfully drew to the attention of the Court various comments made in the case law that the Court should be aware of the subjective complaints and information provided by a patient as documented in documents such as medical records and expert reports being a kind of hearsay evidence not given under oath or tested under cross-examination; that it is not the duty of a treating doctor to cross-examine his patient or challenge the medical history, symptoms and signs proffered by his clients; that psychiatric symptoms are largely subjective without objective yardstick to measure; and that ultimately it is for the Court to decide on the basis of the overall evidence adduced and circumstances proved during the trial. (See: Ko Wai Fan v Tung Wah Group of Hospitals [2022] 6 HKC 436 at §§48, 58; Singh Bal Winder v IWS Waste Management Co Ltd [2018] HKCFI 1107 at §§25-27, 35-39; Ale Thak Prasad v Tsang Chin Keung & Anor (HCPI 579/2012, unrep., 29.12.2017) at §§32, 34, 38; Gurung Kamala v Hong Wei Limited (DCPI 1660/2010, unrep., 26.3.2012) at §§78-80; Yip Koon Man v Yuen Long Merchants Association Secondary School (DCEC 602/2008, unrep., 30.6.2009) at §§46-48)

25.  These comments are particularly important in the present action when the Applicant only has patchy medical records of her medical conditions and only met the psychiatric experts for a limited period of time through a video conference.

E.1 Section 9 Claim

26.  The relevant provisions of a claim under Section 9 ECO are trite:

(1) Section 7(1)(a) ECO provides that:

“(1) Where permanent total incapacity results from the injury, the amount of compensation shall be –

(a) In the case of an employee under 40 years of age at the time of the accident, a lump sum equal to 96 months’ earnings or 96 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(a) specified in the first column of that Schedule, whichever is the less;

…”

(2) Section 9(1)(b) ECO further provides that:

“(1) Subject to subsection (1A), where permanent partial incapacity results from the injury the amount of compensation shall be … (b) in the case of an injury not specified in the First Schedule, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at that time …”

27.  It is common ground among the parties and I duly find that the monthly earnings of the Applicant at the time of the Accident were HK$5,360 per month (including food allowance). Applying the formula under Section 7(1)(a) ECO, the compensation payable in the case of permanent total incapacity is HK$514,560 = HK$5,360 x 96.

28.  The main issue here is the multiplier, i.e. the percentage of permanent partial incapacity to be applied under Section 9(1)(b) ECO.

(1) The Applicant takes the position that by reason of the special circumstances of the present case, she should be entitled to 25% permanent partial incapacity.

(2) R2 maintains that the assessment of 10% in both Form 7 and Form 9 should be upheld.

(3) R1 makes no specific submission on the figures.

29.  To arrive at the figure of 25%, Mr Brettell invites the Court to:

(1) start from the figure of 50% assessed by the experts as the percentage of temporary incapacity for the years 2020-2027;

(2) then apply discounts taking into account various factors such as the persistence of the Applicant’s PTSD symptoms; the lack of proper medical treatment; the fact that the Applicant is unlikely to return to Hong Kong but has to go somewhere else to work as a domestic helper given her traumatic experience in Hong Kong;

(3) to arrive at the figure of 25% permanent loss of earning capacity.

30.  The experts were not able to provide any figure for permanent impairment and their assessment of loss of earning capacity was only on a temporary basis. They opined that PTSD may fully recover with the proper treatment but they assessed the impairment of the whole person to be 5%. They also opined that the Applicant may return to the previous work as a domestic worker though with some limitations. Whilst I agree with Mr Brettell’s submissions that such assessment of temporary incapacity may be taken into account, that is as far as it may go. One should not confuse the temporary incapacity which is dealt with in Section 9 of ECO and the permanent partial incapacity which is dealt with in Section 10 of ECO, as rightly suggested by Mr Lee.

31.  The severity and persistence of the symptoms that the Applicant actually suffered have been the focus of the cross-examination of the Applicant during the trial. I have had the opportunity to carefully observe the oral evidence of the Applicant together with the demeanour in delivering such oral evidence. There are the following pertinent observations.

The Applicant’s Performance in Court

32.  Firstly, overall, the Applicant was relatively calm and capable of controlling her emotions. There were some occasions when she went into tears but she was able to recover relatively quickly. Since the court interpreter was a male, I granted special permission to the Applicant so that she could have one of her close female friends sitting next to her together with the male interpreter. With such a special arrangement, the Applicant was able to give her evidence without any difficulty associated with the presence of the male interpreter sitting not far from her.

The Applicant’s Sleep Problem

33.  Secondly, the Applicant’s description of her psychiatric conditions, especially her sleep problem appears to be exaggerated.

34.  The Applicant complained repeatedly about her sleep problems. She asserted that she normally went to bed at about 2:00 am but got up at about 4:00 am so that she could start preparing food to be sold by her mother. It is rather unrealistic to suggest that the Applicant could maintain such a schedule of having 2 hours of sleep only at night for any extended period of time, even adding the short periods of sleep during the day that she orally supplemented when being pointed out about such inherent improbability.

35.  The Applicant further asserted in her supplemental witness statement that after seeing the experts, she would generally go to bed at about 2:00 am but could not sleep or had a very light sleep until 5:00 am to 6:00 am and woke up at 10:00 am. This does not however sit well with the Applicant’s earlier evidence in her witness statement that she felt better and her conditions were getting better when she was with her son and mother. In particular, she confirmed that sleeping with her son helped her overcome the sleeping problem and “I do not have this problem with sleep anymore”.

36.  She orally confirmed that she was able to go out with friends and felt much better after the court hearing in the criminal proceedings and that she could actually manage well as long as she did not come to Hong Kong.

37.  The Applicant later wanted to retract and alleged that her son was not sleeping with her very often as he would be staying in a prayer place overnight frequently even at kindergarten and primary school age. Her son then went to a boarding school in March 2023 at the age of 14. This new allegation is rather bizarre to me. Even assuming there are arrangements in Indonesia for primary school students (or even younger) to stay in religious institutions overnight, which appears to be unusual, when the Applicant’s sleep and health conditions were very much dependent upon the support of her son, there does not appear to be any compelling reason for her son at such a young age to be staying away from home and her mother so frequently. The Applicant certainly has not provided any reasonable explanation in this regard but only asserted that this was at her son’s request. Similarly, it is unlikely for the Applicant to send her son to a boarding school away from her most of the time if her sleep problem persisted and could only be alleviated when her son was sleeping together with her.

38.  It is particularly notable that the Applicant totally omitted this improvement of sleep problem with the support of her son when she was interviewed by the experts. Her explanation that she did not tell the experts because she was not asked about it is hardly convincing.

39.  In the circumstances, I find that the sleep problem and probably other associated psychiatric symptoms were and are much lighter than what the Applicant wanted to portray to the experts and to the Court. It is much more likely that the sleep problem had improved significantly after the Applicant went back to Indonesia staying with her family and friends, especially with her son to the extent that the Applicant does not have this problem anymore.

40.  Thirdly, the Applicant’s description of her psychiatric conditions is contradicted by other conduct of hers.

41.  The Applicant asserted that she was still having difficulty concentrating, was unable to focus and becoming forgetful frequently. She also had significant difficulty being in places with a lot of males.

42.  However, the Applicant was able to give testimony relatively normally in court with the presence of multiple males such as the interpreter, the court clerk, various legal representatives of both parties, and the judge. There apparently was also no particular difficulty for Mr Brettell, a male solicitor, to represent the Applicant in these proceedings.

43.  More importantly, there are three circumstances tending to contradict the Applicant’s assertion of serious residual psychiatric conditions.

The Food Selling Business

44.  The first circumstance is the Applicant’s work of selling food together with her mother since 2019.

(1) According to her evidence, the Applicant started helping her mother sell food outside a primary school in 2019 but stopped doing so between March 2020 and December 2021 as the school was closed because of the coronavirus. She resumed selling food in December 2021 after receiving the Criminal Injuries Compensation.

(2) She would be preparing the food to be fried and occasionally fry the food herself but she would not be involved in the selling part.

(3) She stated in writing that she was earning around HK$20-30[1] per day through selling food. However, during her oral evidence, the Applicant claimed that such income belonged to her mother and she actually earned nothing. I find her explanation for such a change of evidence unconvincing. It is more likely that she did not actually obtain cash from her mother out of her assistance in the food selling business but was provided with food as a reward for her work. In any event, it is the working capability that we are more concerned with, not the actual cash received by the Applicant.

(4) Moreover, the Applicant also indicated that during the period when the food selling business was not operating, she would help with household chores at home.

(5) The job duties of preparing food and doing household chores are similar to at least part of the job duties of a domestic helper. Apparently, the Applicant retained or recovered such capabilities since 2019 at the latest.

An Online Undergraduate Course

45.  The second factor is the Applicant’s enrolment and pursuance of an online undergraduate course (“Online Course”).

(1) According to the Applicant, she registered for the Online Course in 2021 which started in the beginning of 2022. She originally enrolled for a double major in management and psychology but later dropped the psychology major and only focused on management. This course required the Applicant to study online on Saturdays rather intensively from 8:30 am until 5:30 pm to 6 pm with only a one-hour break in between.

(2) There are originally a total of 12 semesters to be finished in 6 years but after dropping the psychology major, it could be finished within 3 years through 6 semesters. By the time of this trial, the Applicant had finished 2 semesters of study with 4 more to go but this Online Course was suspended due to a shortage of funds to pay for the tuition fee. For the 2 semesters completed, the Applicant took and passed the relevant exams.

(3) This Online Course is a rather heavy burden financially to the Applicant. The tuition fee is around HK$9,000 per semester. To put it in perspective, the Applicant only had a total saving of around HK$3,000 in her bank account at the time of the trial and she was earning about HK$20-30 every day from the food selling business with her mother in 2019.

(4) The Applicant temporarily suspended the Online Course because she did not have sufficient funds to pay for the tuition fees, not because she had any difficulties following the teachings in the class, reading the textbooks or passing the exams.

(5) The determination to take this rather expensive investment and the ability to successfully pass every semester and subject that she has undertaken so far tends to suggest that Applicant’s mental conditions and cognitive functions, especially concentration and memory already returned to at least near normal level as at the time when the Applicant undertook the Online Course the latest.

Applications for Work in Singapore

46.  The third factor is the Applicant’s application to work as a domestic helper in Singapore:

(1) The Applicant told the experts that she started to apply for the job as a domestic helper in Singapore in 2019 and she claimed that she was “100% confident that she could go back to work”. However, she stated in her witness statement that she only applied in late 2020 “although I did not think that I was fit to be a domestic helper”. When such discrepancy was pointed out, the Applicant claimed that she actually applied every year since 2019 and she in fact intended to apply again next year.

(2) The applications failed because of the Applicant’s heart condition. Notably, the Applicant never asserted that such failure had anything to do with her mental problem.

(3) These repeated applications corroborate the Applicant’s confidence that she could go back to work as a domestic worker, at least from the psychiatric point of view.

The Applicant’s Failure to Seek Professional Treatment

47.  Fourthly, the Applicant’s failure to seek any psychological or psychiatric treatment does not tally with the allegation of severe persistent psychiatric symptoms.

48.  The Applicant does want to take care of her health. She repeatedly stressed her regret of not being able to work or help her family and she took some herbal medication. She would also go to see a general practitioner and even travel for up to 5 hours to see a specialist for her cardiac problem.

49.  Moreover, the Applicant should have had sufficient money to seek professional consultation for her PTSD, at least after she had received the Criminal Injuries Compensation and resumed her insurance coverage provided by the Indonesian Health Care and Security Agency in December 2021.

50.  The Applicant further admitted during her oral evidence that it would be okay for her to attend consultation sessions with a female psychiatrist for treatment with the assistance of someone she trusted such as her sister. Bearing in mind that the Applicant did consult various professionals in Hong Kong for her psychiatric problem, it is rather clear that as a matter of fact and practicality, there may be difficulty, but no insurmountable hurdle for the Applicant to seek psychiatric or psychological treatment in Indonesia. These treatment sessions must be less stressful than the sessions with experts such as Ms Lim, Dr Chen and Dr Chan whose jobs were to assess the injuries suffered hence duty bound to inquire into the details of the traumatic Accident. They should also be less stressful than the court hearings that the Applicant sat through during this trial.

51.  When the Applicant was asked as to why she did not go to see a female psychiatrist, she answered that she had no money and that if she had money she needed to take care of her family first and pay for other expenses such as renovation of her family home and the Online Course. Though she did not specifically mention it, it is also clear that she prioritized the tuition fee of an expensive boarding school for her son (with a total monthly fee of HK$4,400 per month) over treatment of her psychiatric illness when allocating the use of her Criminal Injuries Compensation.

52.  The Applicant further asserted that she did not go because there was no one to accompany her to see the psychiatrist at all. She obviously has someone she could trust even in Hong Kong who accompanied her when she gave evidence. It is unbelievable that there was no one to accompany her back home in Indonesia.

53.  I have been reminded that for EC claim, failure to mitigate would not disentitle the injured employee of her compensation (See: Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] 1 HKLR 556 at 558E-F). The related statutory requirement of Sections 16(6) and 16(7) ECO similarly does not apply in the present action when the Applicant was not required by R1 to undergo any special treatment without expense to the employee.

54.  However, that is not the point. In this regard, I find the observations of Master Leong on the “reasonable patient behaviour test” in Singh Bal Winder §§25-27 particularly apt and applicable.

“25. I would also think that any reasonable patient who has been suffering from years of continuous pain which prevented restful sleep and return to work would be very desperate. I would expect that he or she would have seen many doctors and exhausted all the numerous means of medical treatment for pain control, and perhaps even have explored unconventional treatments.

26. In fact, the plaintiff admitted that he had not seen a doctor since November 2013. When asked as to why, he firstly said that he was afraid to be “cut open” again, and then he said that he could not afford to pay for a translator for all these years.

27. Such explanations are clearly absurd. The plaintiff’s behaviour instead showed that if he suffered any residual symptoms at all after the operation, these were of such degree that the plaintiff had very little or no concern about.”

55.  In my judgment, the total failure to seek professional help whilst such help is available and the decision to spend her money on house renovation, enrolment of the Online Course and other various items rather than to seek medical help is indicative that the symptoms are far less serious as the Applicant wants to portray, at least at the time of late 2021 when the Criminal Injuries Compensation had been partially paid.

56.  The Applicant by way of closing submissions raised the possibility of applying the Hong Kong Paper Mills formula under Section 9(1A) of ECO and pursuant to the case of Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] 1 HKLR 556. Such submission does not get off the ground because:

(1) Both experts agreed that the Applicant could return to her pre-accident job of a domestic worker, though with certain limitations.

(2) This is in line with the training and working experience of the Applicant as a domestic helper and the capability that she has demonstrated in working in Indonesia helping her mother’s food selling business, doing household chores and undertaking the Online Course.

(3) It is well established that the Hong Kong Paper Mills formula does not apply when the injured employee is able to return to his or her pre-accident work (See: Ho Kam Wah v 蘇定 & Fung Kee Recycling Co Ltd (DCEC 950/2010, unrep., 28.9.2012) §41; Kashif Munir v Heng Fai Geog & Const Co Ltd & Anor (DCEC 401/2006, unrep., 29.4.2008) §89)

(4) In any event, the bare assertion that the salary of domestic helpers in Hong Kong is higher than elsewhere is insufficient. No evidence has been adduced and no figure has been proposed as to the earnings of the job that the Applicant is now capable of undertaking for the purpose of applying the formula.

(5) As a result, there are no “special circumstances” that would justify the application of this special formula.

57.  In light of the matters discussed above, I agree with Mr Lee and conclude that there is no basis for the Applicant to claim for a figure of loss of earning capacity higher than the 10% already assessed in Form 7 and Form 9.

58.  The amount of compensation that the Applicant is entitled to under Section 9 ECO is therefore HK$51,456 = HK$514,560 x 10%.

E.2 Section 10 Claim

59.  The relevant parts of Section 10 ECO are 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. Such periodical payments shall be, or shall be at the rate proportionate to, a monthly payment of four-fifths 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, in some suitable employment or business during the period of the temporary incapacity after the accident.

(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.

…

(5) An employee who has received periodical payments under this section for a period of 24 months from the date of the commencement of the temporary incapacity or for such further period being not more than 12 months as the Court may allow in any particular case shall no longer be entitled to periodical payments under this section …”

60.  The first and foremost issue is the appropriate sick leave period. The Applicant invites the Court to grant compensation on the basis of the full 36 months of sick leave being the maximum period allowed under section 10(5) ECO. The Board submits that no sick leave is entitled.

61.  The second issue is whether there is any deduction needed to give credit to the income earned by or capable of earning by the Applicant during the sick leave period.

62.  There was some further dispute as to whether the income of the 13^th - 24^th months of sick leave should be calculated on the basis of the original amount of $4,310 stated on the employment contract of the Applicant or the amount of $4,520 which was the statutory minimum wage of a domestic helper effective as of 29 September 2018. However, the Applicant subsequently confirmed, in agreement with R2, that such minimum wage is not applicable and they are not pursuing this argument anymore.

Sick Leave Period

63.  Unlike the usual cases of this type regarding injured local employees, no sick leave certificate is provided and in both Form 7 and Form 9, the period of absence from duty necessary as a result of the injury has been assessed to be nil, presumably because the Applicant was in Indonesia but not in Hong Kong and submitted no sick leave certificate.

64.  As a result, I need to make an assessment without the assistance of any sick leave certificate. I bear all circumstances and medical records already discussed hereinabove in mind. I note the following to be of particular importance:

(1) According to Ms Lim’s observation on 28 January 2019, the conditions of the Applicant at that time were rather bad with signs of severe disruption of the Applicant’s life and various functions. This may have been aggravated by the attendance of court hearings and the assessment itself in January 2019. I agree with Mr Brettell’s submissions that it is unlikely that the Applicant could return to work in such conditions as observed and recorded by Ms Lim. Nevertheless, Ms Lim’s report was about the situation in January 2019, it cannot speak for the situation thereafter.

(2) The conditions apparently improved in 2019 when the Applicant started to help her mother cook and sell food, something that she could not do in 2018. She also applied for a job as a domestic helper in 2019 and continued to do so in 2020 and thereafter. Her application was rejected but on the basis of her heart problem, not of any mental illness.

(3) The experts also opined that there was a significant improvement between 2019 and 2020 so they suggested the loss of earning capacity figure of 100% for 2019 and before, but a figure of 50% for 2020 onwards.

(4) The experts opine that the normal sick leave period should only end by January 2022 when the Applicant started her online undergraduate course but due to her drop of the psychology part of the course, partial sick leave should be granted till the end of December 2022. However, there are some caveats to such an opinion:

(a) It is reasonable to infer that the mental function of the Applicant had recovered to a normal or near normal level at the time when the Applicant registered for the Online Course, but it does not necessarily follow that she only recovered to that level at that time.

(b) One important factor is the financial position. It is the Applicant’s evidence that she had financial difficulties and was only barely making a living helping her mother sell food outside a school, which got even worse in March 2020 when the school closed due to coronavirus and two of her brothers moved out in late 2019. This position only improved when she received the Criminal Injuries Compensation in December 2021. She spent this sum of money for various purposes including but not limited to the decoration of her family home as well as payment for the tuition fee of the Online Course. So apparently, lack of money was the major reason why the Applicant only registered for the Online Course in December 2021.

(c) It is apparent that the experts were not appraised of the full picture especially those revealed during the oral examination of the Applicant. As discussed above, the improvement of her sleep problem was not revealed by the Applicant to the experts during the assessment. The experts were not told about the full story of the job applications in Singapore. They appeared to be unaware of the Applicant’s involvement in her mother’s food-selling business since 2019. Some of the written statements of the Applicant covering some of the above issues were apparently sent to the experts for their review. It is difficult to assess how much of those matters were considered in the minds of the experts but at least the report itself contained no discussion of the same. In any event, it is clear that the experts had no opportunity to comment on the various inconsistencies of the evidence of the Applicant revealed during the trial that I have discussed hereinabove.

(d) Moreover, the experts also opined that the Applicant was able to resume work as a domestic helper (though with some limitations as to the presence of adult males) based on her application for such a position in Singapore in 2019. The experts did not specify when they opined that the Applicant could resume work. Logically, the resumption date should not be too far removed from 2019 following such logic.

(e) I fully appreciate that in the present case, the opinion expressed was the joint opinion of both experts. However, I remind myself of the duty of the Court to make independent findings and the limitation of the weight of expert opinions, especially those heavily reliant upon subjective information provided by the patient as reiterated in various cases such as Singh Bal Winder (at §§35-37); Yip Koon Man (at §§46-48) and Ale Thak Prasad (§38) as already discussed hereinabove.

(5) As a result, whilst I do draw significant assistance from the opinion expressed by the experts jointly, I cannot rely upon them totally and do not consider the end of 2021 to be the proper time when the sick leave period should have ended.

(6) There is unfortunately a gap of evidence about two years between January 2019 and December 2021. The job application and the food-selling business started in 2019 but the evidence is not clear as to when exactly they started.

65.  In the circumstances, doing the best that I can, I accept that the Applicant is entitled to the full 24 months of sick leave which lasted until 19 December 2019 but decline to award any extension under Section 10(5) ECO.

66.  On that basis, the proper amount of compensation payable under Section 10 ECO is HK$102,912 = $5,360 x 24 x 4/5.

Deduction

67.  Mr Brettell agrees that the income from selling food should be deducted. On the Applicant’s case, that started in March 2019 at HK$25 per day, or HK$500 per month.

68.  I do not agree with the suggestion of Mr Brettell that such deduction should stop from March 2020 because the food selling business stopped at that time due to the coronavirus. The deduction according to Section 10(1) ECO is “the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident”. The capability apparently referred to the Applicant’s personal conditions which did not deteriorate after March 2020. However, given my decision above about the sick leave period, this issue becomes irrelevant.

69.  There is a further issue as to whether this “capable of earning” may refer to the comparable salary that the Applicant may earn in Hong Kong given her conditions if she was in Hong Kong, or the salary that the Applicant may earn in Indonesia, her hometown and the place where she was actually residing at the relevant time.

70.  In this regard, Mr Lee referred to the case of Muhammad Dost v Hong Kong Ying Cheung Trading (Recycling) Ltd [2021] 2 HKLRD 502. In that case, the question was whether the earnings through an illegal employment contract could be taken into account in assessing compensation under Section 10(1) ECO in respect of an asylum seeker who could not be lawfully employed in Hong Kong but was injured whilst being employed illegally. The Court of Appeal held that “The Adjective “suitable” is only describing the kind of work which can be done by him in the light of his physical condition”, but not his legal condition and allowed a deduction on the basis of the income that he was physically capable of earning, though illegally. This case however is distinguishable from the present case in that:

(1) The present case is concerned with a choice between the earnings to be made in Hong Kong and the earnings to be made in another jurisdiction. No illegality is involved.

(2) More importantly, the Applicant is indeed physically incapable of taking up any employment in Hong Kong, which is the consensus of the experts given her traumatic experience in Hong Kong.

71.  I, therefore, would allow a deduction on the basis of the Applicant’s earnings through the food selling business in Indonesia at the rate of HK$500 per month between March 2019 and December 2019, which amounts to HK$5,000 = HK$500 x 10 months.

72.  The total compensation payable under Section 10 ECO is HK$97,912 = HK$102,912 – HK$5,000.

E.3 Section 10A Claim

73.  Despite mentioning Section 10A ECO as one of the basis of her application for compensation, the Applicant has totally failed to adduce any evidence or make any submissions in respect of her claim under this head. Mr Brettell further confirmed that the Applicant is not claiming any sum under this head.

74.  I therefore duly assess the amount payable under this head to be HK$0.

F. Conclusion

75.  In summary, my assessment of the quantum of the compensation is as follows:

Section 9	HK$51,456
Section 10	HK$97,912
Section 10A	0
	___________
Total	HK$149,368

76.  It is ordered that the 1^st Respondent pay the Applicant compensation in the total amount of HK$149,368.

77.  There will also be interest on the aforesaid compensation at half the judgment rate from the date of the Accident to the date of this judgment and thereafter at the judgment rate.

G. Costs

78.  I thank the assistance provided by the legal representatives of the parties, especially those provided by Mr Lee on behalf of R2, who has rendered helpful assistance to screen and filter the claims of the Applicant in the performance of the statutory function of R2.

79.  Regarding the costs between the Applicant and the Respondents, I follow the guidance of Wo Chun Wah v Employees Compensation Assistance Fund Board [2019] 22 HKCFAR 495 (§§43-46) and make an order nisi that the Applicant’s costs of the assessment be paid by R1, to be taxed if not agreed; that there is no order as to costs between the Applicant and R2; and that the Applicant’s own costs to be taxed in accordance with the Legal Aid Regulations (Cap 91A).

80.  Regarding the costs between R1 and R2, I adopt the reasoning in §§32-34 of Fong Muk Kai v Ng Kam Mui and Tsang Hon Sun & Ors [2020] HKDC 243 and make an order nisi that R2’s costs of the assessment since its joinder on 18 June 2021 shall be paid by R1 with a certificate for counsel to be taxed if not agreed.

81.  I would direct that any submissions that the parties may wish to make as to costs be submitted in writing within 14 days of the date of this judgment and that, in default of such submissions, the order nisi stands as an order absolute.