SHAHZAD AJMAL v. CHAKWAL AUTO TRADERS (HK) LTD AND ANOTHER

DCEC2556/2015

[2019] HKDC 876

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO.2556 OF 2015

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JUDGMENT

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1.  The Applicant claims that, on 10 Apr 2015, he was a general labourer employed by the 1^st Respondent company (R1) and that he suffered personal injuries by accident arising out of and in the course of that employment on that day.

2.  In the afternoon of that day, the Applicant claims to have used an electric hand grinder at Room 1907, New Treasure Centre, No.10 Ng Fong Street, San Po Kong, Kowloon (the Premises) to cut a metal frame into pieces. The cutter of the grinder broke and a piece of broken blade injured his right eye (the Accident).

3.  On 2 Dec 2015, solicitors acting for the Applicant issued this application against R1 to recover compensation pursuant to ss.9, 10, 10(5) and 10A of the Employees’ Compensation Ordinance, Cap.282 (the Ordinance)[1].

4.  Mr Shahid Mahmood (Shahid), director and shareholder of R1, sent on behalf of R1 to court a letter, which arrived in Aug 2016 (R1’s Answer), denying that the Applicant was employed by R1 on 10 Apr 2015 (and he verified R1’s Answer by a statement of truth prepared by R1’s 1^st former solicitors in Dec 2016).

5.  In Aug 2016, a certificate of assessment (Form 7) was issued certifying that the Applicant sustained injury of “ruptured eyeball resulting in right eye disability”. His loss of earning capacity permanently caused by that injury was assessed at 50%. His period of absence from duty necessary as a result of that injury was certified to be from 10 – 17 Apr 2015, 4 June 2015, 24 June 2015, 23 Sept 2015, 20 Jan 2016, and 16 – 17 May 2016.

6.  On 18 Apr 2017, leave was given to the Employees Compensation Assistance Fund Board (the Board) to join as the 2^nd Respondent to dispute liability and quantum^[2].

7.  In June 2017, the Board filed its Answer referring to R1’s Answer and not admitting, inter alia, that the Applicant (a) was alleged employee of R1, (b) met the Accident as alleged in the course of employment. It further averred that the Applicant has been remaining in Hong Kong under recognizance for purpose of a claim under the Convention against Torture.

8.  In Jan 2019, these proceedings were set down for trial in the fixture list on 16 & 17 May 2019. On 10 May 2019, R1’s 2^nd former solicitors obtained an order declaring that they ceased to be solicitors acting for R1. R1 thus became unrepresented.

9.  When the trial was called upon, Mr Neil Thomson of counsel (Mr Thomson) appeared for the Applicant, and Mr Patrick Lim of counsel (Mr Lim) appeared for the Board.

10.  Shahid turned up at trial purportedly representing R1 but R1 has not complied with O.5A, r.2(2) of Rules of District Court[3]. R1 was treated as absent. Having been satisfied that R1 was duly notified of the trial, I proceeded with it in the absence of R1.

11.  The Applicant elected to give evidence. Leave was given on 1^st day of trial to him to file and serve a supplemental witness statement dated 16 May 2019 (A’s 2019 W/S). He adopted its contents as well as that of his witness statement dated 2 Mar 2017 (A’s 2017 W/S) as his evidence-in-chief.

12.  Mr Lim called Shahid as witness for the Board[4]. Shahid adopted the contents of R1’s Answer as his evidence-in-chief. Mr Lim obtained my leave to elicit further oral evidence-in-chief from Shahid in response to allegations raised in A’s 2019 W/S.

13.  Mr Thomson abandoned before me any claim under s.10(5) and 10A of the Ordinance. And Mr Lim confirmed that the Board had withdrawn its appeal against the assessment of Form 7, whose assessment therefore becomes binding on the parties.

14.  The remaining issues that require my determination are: -

(1)   was the Applicant employed by R1 on 10 Apr 2015?

(2) did the Applicant meet the Accident at the Premises on 10 Apr 2015 arising out of and in the course of his alleged employment with R1 as alleged?

(3) should this court exercise its discretion to deal with this application as if the Applicant had been working under a valid contract of employment with R1 if it is proven?

(4)   what are the monthly earnings of the Applicant at the time of the Accident for the purpose of calculating compensation, if any, under the Ordinance?

(5)   what is the amount of compensation, if any, payable from R1 to the Applicant pursuant to s.9 and/or s.10?

Background facts

15.  Having considered the evidence given by the Applicant and by Shahid, and the documentary evidence before me, the following facts are either admitted, not disputed, or cannot be disputed.

16.  The Applicant was born in Oct 1982 in Pakistan. He was married in Pakistan in 2012 with a daughter aged 4. His wife and daughter are in Pakistan. He received education up to secondary level in Pakistan. He speaks Punjabi. He can speak and understand some English[5]. He cannot speak or understand Cantonese.

17.  He came to Hong Kong in about Apr 2014 and has applied for Unified Screening Mechanism. Since May 2014, he has been a recognizance holder and he was, and he knew he was, not permitted to work lawfully in Hong Kong. At all material times, he resided with his cousin(s)/brother(s) in Kam Tin, Yuen Long.

18.  At all material times, R1, incorporated in Feb 2015, ran a yard in Kam Tin, Yuen Long, and was, on 10 Apr 2015, the registered owner of a light goods vehicle with the registration mark GV3690 (the Truck). It was a lorry crane of Japanese origin. Its permitted gross vehicle weight was 5.5 tonnes. A front photo of the Truck was produced by the Applicant at trial.

19.  On 10 Apr 2015, Shahid had given the keys of the Truck to one Malik Zubar[6] Safdar (Zubar), who had driven it away. Photos of Zubar were also produced by the Applicant at trial.

20.  At about 1808 hours on 10 Apr 2015, the Applicant attended with Zubar at the Accident & Emergency Department (A&E Dept) of Pok Oi Hospital (POH). Medical examination revealed right lower eyelid laceration and irregular collapsed right pupil, and ruptured right eyeball was seen over computerized tomography.

21.  It was common ground that Zubar had called Shahid and, afterwards, Shahid had attended POH with Applicant’s brother/cousin to meet the Applicant.

22.  The Applicant was later transferred from POH to Tuen Mun Hospital (TMH). He arrived at A&E Dept of TMH at about 1926 hours. According to Dr Rachelle Monique Chan (Dr Chan), a resident of the Department of Ophthalmology of TMH,[7] operation of right lower lid laceration repair and right ruptured eyeball repair was carried out on the Applicant at TMH on 10 Apr 2015. On 14 Apr 2015, the Applicant was discharged from TMH.

23.  On 11 May 2015, the Applicant signed a Notification of Accident (the Notification) filled by his cousin/brother on his behalf reporting that he worked as a general labourer, and suffered injuries caused by broken piece of the blade of a hand grinder hitting his eye while he used the grinder to cut steel frame at the Premises at 1600 hours, on 10 Apr 2015.

24.  On 15 May 2015, Applicant’s solicitors wrote by post to the Commissioner of Labour (the 15/5 Letter) regarding the Applicant’s claim for employees’ compensation for eye injury on 10 Apr 2015 and enclosed, among others, the Notification. They applied for a copy of Form 2, if any, filed in the matter.

25.  On 28 May 2015, the Labour Department replied Applicant’s solicitors that no Form 2 regarding the Accident was received.

26.  On 25 Aug 2015, Applicant’s solicitors wrote a letter by post to R1 (the 25/8 Letter) regarding the Applicant’s claim for employees’ compensation for eye injury on 10 Apr 2015. They referred to Zubar driving the Truck registered in R1’s name on 10 Apr 2015 and indicated that proceedings might be issued against R1.

Applicant’s case

27.  The Applicant gave evidence of receiving on 7 Apr 2015 a call from Zubar who worked for R1[8]. Zubar told him that he got his numbers from his brother. Zubar told him that he needed a worker to work in their yard. The Applicant told Zubar that he held recognizance paper and did not have proper documents to work in Hong Kong. Zubar said it would still be fine.

28.  In the morning of 8 Apr 2015, the Applicant arrived at the R1’s yard at Kam Tin, where he first met Shahid who he understood to be R1’s owner. Shahid told the Applicant, and it was agreed, that he would be paid a daily rate of $700 for 5.5 days of work per week (Friday half day because of prayers and no work on Sunday) with working hours from 0800 to 1700 hours. He was not asked to sign any employment contract.

29.  Afterwards, Zubar showed the Applicant what to do and the Applicant started working at R1’s yard as a general labourer for R1 on 8 Apr 2015. The yard was enclosed. There were 2 containers placed on top of one another which served as offices. The rest of the yard was an open scrap yard with piles of various metals. R1 cut up cars and other scraps. There were open bins into which metals were to be sorted. Large pieces were to be cut up into smaller pieces before being placed into the bins. The Applicant was required to sort out scrap metals into large containers and to cut large metal parts into smaller parts with an electric cutter. He so worked at R1’s yard on 8 & 9 Apr 2015.

30.  It was Friday on 10 Apr 2015. There was no work at the yard during the daytime. After prayers, Zubar called the Applicant in the morning and told him that he would pick him up in the afternoon in the company truck and take him to a place where they could collect scrap for R1.

31.  At or about 1400 hours, Zubar picked the Applicant up from his home at Kam Tin in the Truck. Zubar drove him to the Premises, whose photos were produced by the Applicant at trial. The names of two companies[9] (the Occupiers) were captured on them. There was another person there whom he had previously seen in the yard. That person was sent to make tea (the Teamaker). The Premises was a vacant office under renovation. Zubar gave him a hand grinder to cut metal frames into pieces to be taken to the yard. The Applicant afterwards met the Accident in para 2 not wearing safety goggles. After he was injured, he could not open his right eye and it was bleeding.

32.  Zubar told the Applicant that ambulance would not be called and insisted on taking him to a hospital in Yuen Long and not to one in Kowloon. Zubar was afraid that police would ask for identity card of the Applicant and that R1 would get into trouble for hiring illegal workers. The Applicant also heard Zubar advising Shahid the Accident by phone, after which Zubar drove him to POH. He believed that this was what Shahid had told Zubar to do.

33.  At POH, the Applicant reported that he had been injured while working. Shahid came to POH about the time they arrived. Shahid told the Applicant that there was no need to say anything about R1 and that he should not mention how it all happened. He also told the Applicant not to worry and promised to look after him.

34.  At TMH, Zubar gave information to the admissions officer that the Applicant’s injury occurred while drinking tea. Before the Applicant was discharged, Shahid came to see him a few times at TMH. After discharge, Shahid did not come to see him again. Zubar met him when he was discharged but not after.

The Board’s case

35.  Shahid gave evidence that R1 had never employed the Applicant. Whatever accident that occurred to the Applicant on 10 Apr 2015, it has nothing to do with R1.

36.  Shahid said Zubar was a mutual friend of the Applicant and him. Zubar always used the Truck whenever he needed to transfer or carry some goods and the same thing happened on 10 Apr 2015. Zubar came along that day to him and asked for the keys of the Truck as he had to carry some goods as usual. He could not refuse him and let him take the Truck.

37.  Zubar and the Applicant, said Shahid, went somewhere together on the Truck and got employed with some company or individual to make money.

38.  Shahid said (in R1’s Answer) he “came to know about all this recently when he received a compensation notice from the court office. Enquiries were made with Zubar who said that it has nothing to do with R1 as they went to work somewhere else”.

39.  Shahid explained that R1’s business in 2015 was buying and selling of whole vehicles and dealing with their parts. R1’s customers would visit R1’s yard in Kam Tin and either buy whole vehicles or their parts (like engines which R1’s staff obtained from dismantling the vehicles) from R1. Shahid said R1 did not have the place to store the small parts. If R1’s customers did not buy them from R1, they would be thrown away as rubbish.

40.  Shahid denied meeting the Applicant personally at R1’s yard on 8 Apr 2015, denied R1 agreeing to employ the Applicant at $700/day for 5.5 days/week, and denied the Applicant ever working at R1’s yard on 8 & 9 Apr 2015 as alleged.

41.  Shahid recalled Zubar calling him on 10 Apr 2015 and told him about the injury to the Applicant. He was shocked hearing that. He said he accompanied Applicant’s brother/cousin to visit the Applicant at POH as a friend and as a fellow Pakistani.

42.  In response to Applicant’s claim of his telling him at POH not to mention R1 or how it all happened, and promising to look after him, Shahid said the Applicant was lying. The Applicant never worked for R1 and there was no reason for him to take care of the Applicant. To the contrary, Zubar was, Shahid said, a welfare recipient and he would be in great trouble were he to be held responsible. Finally, he went to POH only and never visited the Applicant at TMH.

Discussion

Issue 1 – employee of R1 or not?

Issue 2 – Accident at work for R1 at the Premises or not?

Inherent probabilities

43.  In gist, Mr Thomson submitted that it is inherently more probable than the Applicant was employed by R1 on 10 Apr 2015 such that 1) Zubar had managed to obtain the Truck from Shahid, that 2) Zubar had called Shahid after the Accident and that 3), afterwards, Shahid had gone to POH to see the Applicant on that day.

44.  As Mr Thomson cross-examined Shahid, these 3 facts are, he sought to argue, consistent with R1 being the employer of both Zubar and the Applicant, and Shahid meeting R1’s illegal employee at hospital to ensure that the Accident at work was not properly reported.

45.  Such a case advanced by the Applicant is, I agree, possible. But I cannot go as far to conclude it is more probable than the case run by the Board.

46.  Shahid had provided in the box, I think, plausible explanations to all these 3 facts relied on by Mr Thomson.

(a)   First, Shahid maintained under cross-examination that Zubar was his long-time friend, not R1’s employee. He only described Zubar as “the crane truck driver” as he was driving the Truck on 10 Apr 2015. The Truck was not required for use by R1 on 10 Apr 2015 and thus, for reason of friendship, he lent it to Zubar. He never made it available to Zubar to collect any scrap metal for R1. R1 never operated at R1’s yard any scrap business. When Zubar collected the Truck, the Applicant, said Shahid, was not with Zubar.

(b)   Secondly, Shahid explained that he believed Zubar called him because they were friends and because he often helped fellow Pakistanis in need. He was, he said, at that time a member of Hong Kong Youth Betterment Association, and he used to help fellow Pakistanis with difficulties[10]. And, according to Shahid, Zubar called Applicant’s brother with Shahid at that time first before calling Shahid next (at a time when Zubar and Applicant almost reached POH and he never instructed Zubar to take the Applicant to POH).

(c)   Thirdly, Shahid gave evidence of a closer relationship of his with Applicant and his cousins/brothers before the Accident than that given by the Applicant. He said he knew the Applicant from his arrival in Hong Kong and the Applicant was his friend. Applicant’s 2 brothers were living “in front of” R1’s yard. Whenever the Applicant and his brothers had free time, they would come to his yard to sit, to chat and to have meals with him.

47.  Furthermore, Shahid gave evidence of the Applicant coming with Zubar and his cousins/brothers to R1’s yard 3 to 4 weeks after the Accident and demanding him and/or Zubar to pay money or else file a claim against Zubar.

48.  In so far Mr Thomson relied on the above piece of evidence pointing to an alleged compromise of Applicant’s claim against R1 as the employer or attacking Shahid’s credibility, I do not think it is open to him. The Applicant himself gave no evidence of such event. And, when Mr Lim put to the Applicant that he and his cousins/brothers had pestered Shahid to pay him compensation, he denied.

49.  To the contrary, it is the substance of Shahid’s evidence that he/R1 was made a scapegoat for Zubar. In this respect, the Applicant answered Mr Lim that he had spoken with Zubar about compensation for his eye injury and Zubar had replied it had nothing to do with him. Zubar, said Shahid, was a welfare recipient.

50.  This contrary case run by Shahid is, I think, equally possible, all the more so when Zubar was not called to give evidence one way or another.

The Notification

51.  I agree with Mr Lim’s submissions that the Notification is a telling document against the Applicant’s case or evidence. In its section B of “particulars of employing company/person”, only Zubar was put down. Shahid’s name or R1’s name was not put down. The 2 boxes of “contact person” and “address” in the same section were left empty. The address of R1’s yard was not put down in the address box, whereas the Premises was put down in section D as the place of accident away from the employer’s address.

52.  On Applicant’s own evidence, he knew and could have known the name of Shahid, the name of R1 and/or the address of R1’s yard to have put them down onto the Notification if he saw fit.

(a)   Prior to 8 Apr 2015, he had already known Shahid, knew his name, and saw him many times in Kam Tin (but not meeting him before 8 Apr) because he was living in that area and he was Pakistani.

(b)   In 2014-5, there were, he agreed, a lot of Pakistanis living in Kam Tin and almost all of them were Muslin by religion (and they all went to mosque for worshipping). These Pakistanis were, he also agreed, a close community. He agreed that Shahid was “possibly” a community leader among Pakistanis in Kam Tin.

(c)   On his first alleged day of work at R1’s yard on 8 Apr 2015, there was, he agreed, no need for Shahid to introduce himself to him. Prior to 8 Apr 2015, he had already known that Shahid was connected to business run at R1’s yard, and knew that Shahid was the owner of R1. On 8 Apr 2015, he also knew of R1’s name from his cousin.

(d)   R1’s yard was near his home in Kam Tin at that time. The Applicant managed to take photo of the Truck parked near R1’s yard and produced it at trial. There should be no great difficulty for him obtaining address of R1’s yard if he saw fit.

53.  Mr Thomson submitted that the Applicant had, as he had explained, misapprehended the meaning of “employer”, and confused it with “manager” and “boss”, before and at the time of the filling of the Notification. I do not think it likely the case.

(a)   The Applicant claimed in the box he was at that time “confused” and he understood “employer” to mean the person who “gave work”. He said Zubar was put down in the Notification because he was the person who had “introduced” him to R1’s yard, who had “accompanied” him, who was “working with” him, who “drove” him to the Premises, who was “with him” at work, who had “brought things in and out”, and who “had a hold”, at the Premises.

(b)   But, it was also Applicant’s own evidence that he first met Shahid at R1’s yard on 8 Apr 2015 and it was Shahid (and not Zubar) who agreed his daily wages, number of working days per week and hours of work with him. He understood at that time Shahid was his “boss”, which, he understood, means the one who agreed to pay him wages. On these evidence, one thinks it unlikely that he could have misunderstood who his “employer” was at the material time.

54.  Considering further Applicant’s own evidence of his dealings with Shahid after the Accident and his purpose of filling the Notification, one further thinks there is every reason for him to put down Shahid, R1 and/or R1’s address in the Notification or to put them in the Notification in addition to that of Zubar.

(a)   Shahid had promised to look after him in POH, going as far as he said for the first time in the box of “sending him to Sri Lanka to change his eye”.

(b)   He then believed Shahid in so saying was accepting him as his “employee” (and there was, he said, “no misunderstanding” about that) and that Shahid did not promise to take care of him “out of goodness of his heart” or out of “charity”.

(c)   On top of their not seeing him after his discharge from hospital, Shahid and Zubar, he said also for the first time in the box, had blocked his calls soon after that and he soon realized that Shahid was not keeping his words of taking care of him.

(d)   He understood the purpose of filling the Notification was to make a claim for employees’ compensation for injuries he sustained in the Accident against whoever was responsible. On his evidence, Shahid had once accepted responsibility and later disclaimed it.

(e)   Had he had any misunderstanding of, or confusion of, “employer” as alleged, he could have put down Shahid’s name in addition to that of Zubar in the Notification to go after whoever was responsible to pay him compensation (after all, he chased after both and got his calls to both blocked). When such suggestion was put to him by Mr Lim, the Applicant could give “no further explanation”.

(f)   Though he claimed he was not aware of the law at that time, he was, one notes, legally advised by Applicant’s solicitors soon after the date of the Notification, which was enclosed with the 15/5 Letter.

The 15/5 and 25/8 Letters

55.  The 15/5 Letter was, the Applicant agreed, sent with his instructions and it reads that he suffered the Accident “during the course of his employment with Zubar (italic supplied)”. Such contents are, I also agree with Mr Lim, inconsistent with Applicant’s case.

56.  Notwithstanding it referred to registration of the Truck in R1’s name, the 25/8 Letter was sent by Applicant’s solicitors to R1 saying that the Applicant suffered the Accident “during the course of his employment with you and/or Zubar (italics supplied)”. R1 was demanded to “confirm” whether it was Applicant’s employer and, if not, to provide particulars of Applicant’s employer.

57.  The Applicant’s case had, I think, apparently changed from that of the 15/5 Letter (likely, one thinks, due to discovery of the registration of the Truck) to become an uncertain one in the 25/8 Letter. Significantly, there was no mention in the 25/8 Letter of the Applicant meeting Shahid of R1 on 8 Apr 2015 with Shahid agreeing with him daily wages (Shahid’s name appeared in application against R1 issued in Dec 2015 whereby it was pleaded[11] that “the Applicant was instructed by a Zubar/Shahid of R1 to carry out renovation works at the scene (italics supplied)” on 10 Apr 2015 at “about 4:00 p.m.”.

A’s 2017 W/S

58.  Significantly also, when one compares A’s 2017 W/S against A’s 2019 W/S, there was no mention in A’s 2017 W/S of:

(a)   the name of Shahid at all (the Applicant explained in the box that this was his “mistake”);

(b)   his meeting Shahid, and Shahid personally agreeing with him daily wages, on 8 Apr 2015;

(c)   Shahid meeting him at POH, telling him not to say anything about R1 or how it happened, and promising to look after him; and

(d) Zubar giving information to admissions officers at TMH that his injuries occurred while drinking tea (the Applicant explained in the box again that such omission in (c) & (d) was his “mistake”, claiming that he was not then aware of what to mention and what need not be mentioned and he “now” becomes aware).

59.  It is, I think, inconceivable for legally-represented Applicant not to have covered such material matters in A’s 2017 W/S by alleged mistakes, when Shahid had allegedly not kept his words of looking after him by not seeing him and blocking his calls in 2015, and when R1’s Answer signed by Shahid was filed in Aug 2016 denying Applicant’s alleged employment with R1.

60.  In sharp contrast, the Applicant made no mistake in losing time to correct his medical records at TMH (alleged to be wrongly reported by Zubar). As early as on 29 May 2015 when he attended follow-up at TMH i.e. about 2 weeks after the 15/5 Letter, he had already seen fit to tell Dr Chan himself that he has “already declared” “injured on duty”[12] (and it was not a case of “home injury” as he “previously claimed”) in order to proceed with his claim.

61.  Again, when Mr Lim asked the Applicant by reference to this medical record correction exercise why the said alleged wrong report by Zubar to TMH of his injury while drinking tea was not mentioned in A’s 2017 W/S, he answered again it was his “mistake”.

62.  These material omissions and inconsistencies in this and the earlier sections cast, I am afraid, serious doubt on the credibility of the Applicant.

Photographs of Zubar

63.  The Applicant’s answer that he did not know who wrote the handwritten words “the employer” appearing above the handwritten name of Zubar on the photos of Zubar he produced[13] does not, I think, inspire confidence in his evidence either.

64.  When Mr Lim put to him that he identified Zubar in these photos as his “employer”, the Applicant answered: “I just want to show that he was with me when this happened (italics supplied)”. If that was what the Applicant intended to show, it could, one thinks, be so written not using the words “the employer” he allegedly had misunderstanding or confusion.

R1’s Answer

65.  Turning to Mr Thomson’s submissions on Shahid, I do not think Shahid had “volunteered” to admit at trial (when he otherwise need not) that he had gone to POH to see the Applicant after receiving a call from Zubar to have, submitted by him, contradicted his previous words of his coming “to know about all this recently when he received a compensation notice from the court office” in R1’s Answer.

66.  I accept Shahid’s explanation that he came only to know an accident to the Applicant on 10 Apr 2015 but not of any compensation claim made by Applicant against him. He learnt of the latter only when he received this application from this court. R1’s Answer was not satisfactorily written in English for him as, he said in re-examination, he could not read or write English properly and it was prepared for him by a Pakistani or Indian lawyer in a law office in Tsimshatsui. That likely also explains why it was also unsatisfactorily put down in English in R1’s Answer that he “could not refuse” Zubar borrowing the Truck as his friend.

R1 operating scrap yard or not?

67.  I cannot agree either with Mr Thomson that Shahid admitted R1 operating its yard as a “scarp yard” under cross-examination. At all times in the box, Shahid denied R1 cutting parts of vehicles like cabin into smaller pieces to store and selling the smaller pieces as scrap. He explained that cutting parts like cabin damage the cabin, reducing its otherwise sale price, and it could catch fire if one cuts without the right machine as there is foam and plastic inside the cabin.

68.  Shahid, I observe, was unshaken after cross-examination. He maintained that 90% of R1’s business at the material times was purchase and sale of whole vehicles to, inter alia, overseas customers. For the remaining 10% business in sale of parts, it is for R1’s customers to decide to dismantle damaged vehicles to obtain the parts or not. For parts like cabins of Japanese vehicles (whose cabins are smaller than those of European vehicles), R1’s customers would at times bring lorry to take the whole cabins (some already pressed) away by themselves.

69.  As such, I also agree with Mr Lim that it was less probable that R1 had a side line business of collecting scrap metals from the Premises in Kowloon as alleged.

Driving to POH & not others

70.  Had the Accident happened at the Premises as alleged, while Zubar could, I agree with Mr Lim, equally avoid calling ambulance (and avoid alerting the authorities about hiring of illegal worker) by calling a taxi to bring the Applicant to a hospital in Kowloon and not driving the Applicant to POH far away in Yuen Long, it is, I agree with Mr Thomson, also explainable by Zubar calling Shahid and Shahid instructing Zubar to do so to ensure that the wrong report was made to hospital staff.

71.  However, this later explanation advanced by Mr Thomson does not, I note, sit well with Applicant’s answers to Mr Lim that, during the journey to POH, Zubar did not coach him what to tell the nurses on arrival, and that, at POH, listening to his answer of “injured at work” given in English to nurse, Zubar did not intervene to say to him anything in Punjabi, such that he decided to tell the nurse the truth of “injured while working by a grinder”.

Medical records at POH

72.  Medical examination results of Applicant’s injuries at A&E Dept of POH at para 20 are, I think, consistent with a broken blade of the cutter of a grinder hitting the eye as reported by him at the Notification set out in para 23.

73.  The entries of “Rt eye hit by heavy object at 1730…(bold supplied)”[14] and of “…R eye hit by metal while working (illegible) (by grader) (bold supplied)”[15] on the medical records kept by A&E Dept[16] of POH are, I tend to agree with Mr Thomson, supportive of Applicant’s case of sustaining the Accident.

74.  But the entries are not entirely legible. I am also doubtful if the word “working” was used in the sense of “injury on duty” or in the sense of “using” a tool. Were the former meaning the right one, the entries still give no clue to the identity of the Applicant’s employer, if there was any.

Medical records at TMH

75.  In comparison, it cannot be doubted that the entries of “hit by metal object @ friend’s home 1730 (bold supplied)” and of “injured by metal blade while drinking tea at friend’s house IOD° (bold supplied)”[17] in the medical records of TMH[18] plainly excluded “injury on duty”, such that the Applicant saw fit to correct them with Dr Chan on 29 May 2015[19] at para 60.

76.  Had these TMH entries been falsely made by Zubar (and falsely confirmed by the Applicant later) as alleged, the key question remains: for whom were they falsely made by Zubar as a cover up of alleged illegal hiring or employment of the Applicant?

Timing of injury

77.  By reference to a common injury time of 1730 hours appearing on medical entries in POH and TMH, Mr Lim submitted that it is improbable that the Applicant was injured at 1600 hours at the Premises in San Po Kong as claimed. It is, he submitted, more probable that the injury happened at a location relatively close to POH in Yuen Long, probably in the vicinity of Kam Tin.

78.  First, the Applicant, it is common ground, attended POH for treatment at about 1808 hours. And he agreed that it possibly took 2 hours to drive from San Po Kong to Yuen Long, especially on Friday evening at a time when people got off work.

79.  Secondly, in order to keep fast to receive operation at TMH on 10 Apr 2015, the Applicant agreed that he had answered nurse “last food @1400, last drink @1630” as recorded. And he agreed it unlikely that he drank water on the journey to POH and more likely he drank water at work before the Accident.

80.  On being cross-examined on these entries, the Applicant wavered on his answers regarding the time of injury. He first answered Mr Lim it occurred between 1400 - 1500 hours.  After answering the travelling time from San Po Kong to POH, he changed it to 1400 - 1700 hours. On being shown the Notification, he agreed 1600 hours recorded there should be correct. After being reminded his pre-operation answers, he agreed he probably drank water at work at 1630 hours and the Accident happened at 1730 hours. On being further asked if he would like to amend the time of the Accident to 1730 hours, he said he could not tell the exact time but it was between 1400 - 1700 hours.

81.  Mr Thomson submitted, consistent with travelling time one requires to travel from San Po Kong to Yuen Long, that the timing of 1600 hours filled in the Notification dated 11 May 2015 should likely be the correct timing[20] and it was likely the case that a wrong timing of 1730 hours was given by Applicant’s companions to medical staff at POH and TMH on 10 Apr 2015.

82.  However, the evidence regarding the source of this common injury time of 1730 hoursgiven, and recorded, on 10 Apr 2015 is as follows. The Applicant never said in A’s 2017 W/S or A’s 2019 W/S that this timing was wrongly reported by others. While he claimed others had answered on his behalf at TMH, he never specifically said others had also answered the timing of injury for him[21]. On being cross-examined of triage note at A&E Dept of TMH, he once agreed that it was “also his own idea to say 1730 hours (italics and bold supplied)”.

83.  Considering that the injury time has a material bearing on issue 2, these entries and conflicting answers above cast, I think, further doubt on the credibility of the Applicant.

Issues 1 & 2 not proven

84.  All evidence considered, I do not think that the Applicant has managed to prove his case on issues 1 and 2 on the balance of probabilities.

85.  In arriving at the above conclusion, I do not find it necessary to rule on Mr Lim’s further submissions of drawing adverse inference against the Applicant for failing 1) to take and produce photos of R1’s yard; 2) to call evidence of the Occupiers regarding the identity of the person/company they engaged to do renovation works at the Premises, if any; and 3) to call evidence from the Teamaker.

86.  For avoidance of doubt, I have, as Mr Thomson submitted, already taken R1’s repeated breaches of various court orders into account in assessing evidence of Shahid[22].

87.  Nonetheless, for my discussion above, I remain of the view that Shahid is credible and reliable. To the contrary, I do not find the Applicant credible or reliable. In so far their evidence differ from one another, I prefer the former.

88.  For the sake of completeness, I would briefly indicate below my views and conclusions on the remaining 3 issues had the Applicant proven his case on issues 1 and 2 and established liability on R1 to pay him compensation under the Ordinance.

Issue 3 – discretion under s.2(2)

89.  It is common ground that any contract of employment the Applicant had with R1 on 10 Apr 2015, if ever proven at all, can only be illegal.

90.  This court being bound by 3 court of appeal decisions[23] on the proper approach to the exercise of discretion under s.2(2), the only submission made by Mr Lim is that it has not been proven that the Applicant was doing “lawful work” at the Premises on 10 Apr 2015 for the discretion to be exercised in his favour. The Occupiers not having been called to prove consent given for the collection of scrap metals from, and for access to, the Premises, there could, he argued, be possibilities of theft and/or burglary in this case.

91.  I cannot agree.

92.  Considering that the Premises was, on photos before me, situated inside a multi-story building and that the alleged collection of scrap metals was done on a Friday afternoon with 2 or more persons, I would have inferred that it was carried out with the consent of the Occupiers (i.e. not theft nor burglary in such place and time when it could have been easily discovered by others around) and found it “lawful work”. And Mr Lim had not cross-examined the Applicant to suggest his remote possibilities.

93.  And I would have exercised my discretion in all the circumstances of this case to deal with this application as if the Applicant had been working under a valid contract of employment with R1 on 10 Apr 2015 had it been necessary for me to do so.

Issue 4 – monthly earnings at Accident

94.  The pleaded figure in the application is $18,200 (full time) per month. Mr Lim’s made 2 submissions on this issue. First, he challenged the evidence of agreed daily wages of $700/day put forward by the Applicant.

95.  Secondly, as a matter of law, as the Applicant was not lawfully employable in Hong Kong, such agreed daily wages of $700, if proven, he submitted, should not be used to compute his compensation. Instead, the would-be monthly earnings that the Applicant could lawfully earn in Pakistan should be adopted.

96.  With consent of Mr Thomson, the Board adduced by way of evidence national-wide average wage statistics for construction industry under Labour Force Survey 2014-15 prepared by the Pakistan Bureau of Statistics of the Government of Pakistan, which showed that a male construction worker in Pakistan earned 12,040 rupee/month (or HK$909/month) in the year of 2015.

97.  Regarding the first challenge, the Applicant, I note, agreed with Mr Lim thatillegal workers are paid less than a legal worker if the employers know of the illegal status of the workers[24]. He also agreed that illegal workers are paid a lot less than legal workers, as much as less than half in most cases[25].

98.  As such, I find Applicant’s evidence of agreed daily wages of $700 as a general labourer for R1 unreliable and I place no weight on it. Furthermore, 26 days per month suggested on the pleaded monthly figure of $18,200 do not, I think, fit Applicant’s own evidence of agreed 5.5 working days per week.

99.  In any event, it was Applicant’s 3^rd day of work on the day of the Accident and, because of the shortness of such working period, it is, I think, impracticable to ascertain his monthly earnings at the time of the Accident by reference to agreed daily wages of $700 as alleged by him. And, no evidence of monthly earnings of comparable workers in R1’s employment or otherwise was adduced before this court.

100.  Moving to Mr Lim’s legal submissions, the authority of Tsang Siu Hong v Kong Hoi For & another, unreported,HCPI 173/2001, 10 Mar 2003, cited by him does not, I think, support his submissions in our context of compensation under the Ordinance. That was a case of personal injuries and the learned Deputy Judge, in assessing pre-trial loss of earnings payable to plaintiff illegal worker from the Mainland, adopted his otherwise lawful Mainland earnings during the period of 3 months he took unpaid leave from his Mainland employer to work in Hong Kong illegally[26].

101.  It is trite law that compensation payable under the Ordinance is to be assessed and calculated in line with the provisions of the Ordinance and not according to common law principles applied in personal injuries cases.

102.  And, once this court exercises its discretion under s.2(2) in favour of the Applicant to deal with this application as if the Applicant had been working under a valid contract of employment with R1, then, by way of binding court of appeal decision[27], such employment contract “for all purposes under the Ordinance” must be regarded as a lawful one. That, in my views, must include s.11[28], which provision, Mr Thomson rightly pointed out, could only refer to that specific employer of the injured employee at the time of the accident.

103.  I do note that Tsang Siu Hong, supra, was applied in a first instance employees’ compensation case of Jiang Zhong v Yeung Chun Leung & others, unreported, DCEC 1267/2010, 5 Feb 2016, where lawful average wages’ statistics of construction workers of Guangxi, the hometown of applicant illegal worker from the Mainland, were adopted by consent as evidence by the court in calculating compensation payable under s.9 & s.10[29].

104.  But, in Jiang Zhong, supra, the learned Deputy District Judge made no analysis of the reasoning of Tsang Siu Hong, supra, while recognizing that the common law concept of mitigation has no place in claim under the Ordinance as compensation payable under it shall be assessed by reference to its statutory provisions only[30]. For my reasons at para 100, 101 & 102 and with due respect to her, I decline to follow her judgment in Jiang Zhong, supra.

105.  Making the best of the limited evidence before me, I adopt $6,600 as the monthly earnings of the Applicant as a general labourer for R1 at the time of the Accident i.e. $300 x 5.5days x 4 weeks.

106.  If I am wrong in not adopting $909/month as Applicant’s monthly earnings as submitted by Mr Lim by reference to Applicant’s lawful earnings in Pakistan, I agree with Mr Thomson’s fallback submissions (and Mr Lim did not contend otherwise) that the then statutory minimum figure of $3,690 in s.11(5) and then 6^th Schedule shall be adopted as Applicant’s monthly earnings for the purpose of calculating compensation under the Ordinance.

Issue 5 – amounts of compensation, if any

s.9 compensation

107.  The Applicant was under 40 at the time of the Accident.

108.  Hence, s.9 compensation payable to him from R1 shall be $316,800 ($6,600 x 96 months x 50%) or $177,120 ($3,690 x 96 months x 50%) if liability is established.

s.10 compensation

109.  On this section, I follow the authority of Abu Bakkr Shiddik v MM & CO Auto Parts, Dismantling and General (a firm), unreported, DCEC 903/2009, 12 Jan 2011, where His Honour Judge Leung declined to make a s.10 award to an applicant who was not allowed to work in Hong Kong lawfully.

110.  The judgment of His Honour on s.10 was premised upon the statutory wordings of “and the monthly earnings which he is earning, or is capable of earning, in some suitable employment … during the period of temporary incapacity after the accident”. The applicant before His Honour being not lawfully employable, it was decided that he could not be said to be capable of earning income from any suitable employment during the period of temporary incapacity and there was held no basis to award any s.10 compensation[31].

111.  I find the above reasoning unassailable.

112.  As it is common ground that the Applicant is not lawfully employable in Hong Kong as a holder of recognizance, I am of the same view that he could not be said to be capable of earning income from any suitable employment in Hong Kong during his period of temporary incapacity stated in Form 7 and there is no basis to award any s.10 compensation to him.

Disposition

113.  For my conclusion in para 84, the Applicant has not proven his case on liability. This application is dismissed.

Costs

114.  I make orders nisi as to costs as follows:

(1) The Applicant shall pay the 1^st Respondent the costs of this application, including all reserved costs, to be taxed if not agreed;

(2) The Applicant shall pay the 2^nd Respondent the costs of this application as from 18 Apr 2017, including all reserved costs and the costs of this trial with certificate for counsel, to be taxed if not agreed; and

(3) Applicant’s own costs shall be taxed in accordance with Legal Aid Regulations.

If none applies within 14 days to vary the above costs orders nisi, they shall automatically become absolute and effective.

115.  Finally, I thank Mr Thomson and Mr Lim for their assistance.