NUR ALAM v. CHENG TSZ KIN t/a K & Y TRANSPORT

DCEC 1210/2017

[2021] HKDC 701

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1210 OF 2017

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J U D G M E N T

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1.  This is the trial of the applicant’s claim for employees’ compensation.

2.  The applicant (“the AP”) was born in March 1990 in Bangladesh. He came to Hong Kong as a refugee in 2013.  He was allowed to stay in Hong Kong on recognizance pending verification of his claim for asylum.

3.  At about noon on 26 July 2016, which was a Tuesday, the AP was severely injured in a traffic accident.  He was the front seat passenger of a medium goods vehicle bearing the registration mark SP897 (“SP897”) owned by the respondent (“R”).  The driver of SP897, one Lam Fu Sum (“Lam”), drove carelessly[1] and failed to stop SP897 at the junction of Yuen Shin Road and Tai Po Tai Wo Road causing the nearside front of SP897 to ram violently into the rear of another lorry stopped at the red light of that junction (“the Accident”).  The AP sustained multiple major injuries.

4.  The AP’s case is that at the time of the Accident, he was employed by R as a delivery worker and his injuries were sustained arising out of and in the course of that employment as SP897 was then making a delivery to Tai Po in the course of R’s business and he was riding in SP897 as a delivery worker working for R to make the delivery.

5.  In the Answer filed on 13 November 2017 when R was legally represented, his defence case was, while admitting the details of the Accident, that

a.  the AP was a friend of R;

b.  the AP had never worked as a delivery worker for R; and

c.  on the date of the Accident, R asked “his driver” Lam, who was driving SP897, to pick up the AP at Tsuen Wan MTR Station to bring “the AP along to Tai Po Industrial Estate before joining [R] for lunch”[2].

6.  On 4 December 2020, Her Honour Judge Levy made the following Unless Orders in a hearing attended by R personally who was then acting in person:-

a.  Unless within 28 days R file and serve a List of the AP’s earnings in the 12 months prior to the Accident, R be debarred from adducing any evidence to contest the amount of the AP’s earning;

b.  Unless within 42 days R file and serve his List of Documents, R be debarred from adducing any documentary evidence; and

c.  Unless within 56 days R file and serve the witness statements of witnesses he intended to call, R be debarred from calling any witnesses to give evidence at trial.

7.  Despite the consequences to be imposed automatically upon failure to comply, R did not comply with all of the said Unless Orders, in time or at all.

8.  At trial, this Court again explained to and reminded R these consequences.  However and understandably as he was not legally trained, R tried to introduce his version on some of the factual matters on many occasions during his submissions and cross-examination of the AP.  Either upon Mr Shum’s objection or on the Court’s own volition, R was stopped on many of those occasions and was explained that it would have been improper and wrong for this Court to receive his version of factual matters when he was debarred from proffering any documentary evidence or calling any witnesses.

9.  This trial was conducted in English so as to allow simultaneous translation, to the AP from English to Bengali, and to R from English to Chinese; instead of being conducted in Chinese with double translation to the AP, from Chinese to English then to Bengali.  This Judgment therefore is written in English.  R may arrange with my clerk for this Judgment to be interpreted to him in Punti.

Credibility of the AP as a witness

10.  The AP made a detailed 12-page witness statement.  He has proffered cogent documentary evidence to prove that he had been working as a delivery worker for R, which clearly directly contradicts and proves wrong R’s pleaded case that the AP had never worked for him as a delivery worker.  When giving evidence, the AP impressed me as smart and intelligent.  He was attentive and answered questions spontaneously, directly and frankly.  I find him a credible and honest witness.  I accept his evidence.

My findings on whether the AP was R’s employee and whether the AP’s injuries were sustained arising out of and in the course of that employment

11.  Accepting the AP’s evidence and based on the documentary evidence mentioned and the reasons given below, I find the following.

12.  The AP was introduced to R as someone looking to employ a delivery worker who was willing to accept a low salary.  The AP met R in around July 2015 at R’s office in Kwai Fong.  R gave the AP his business card[3].  R also gave the AP for him to sign a 2-page document written in manuscript in Chinese bearing the heading “員工守則”[4].  The document stated that work began at 9:00 am and ended when the deliveries allocated for that day were completed.  Paragraph 3 of that document stated that in the event that the worker broke any of the goods, he would be personally responsible and the company would not.  Paragraph 4 stated that the monthly basic salary would be HK$11,000 and there would be a monthly allowance of HK$1,000, while paragraph 7 stated that the worker would be paid on the 5^th and 20^th of each month.  Paragraph 8 stated that there would be a probation of 2 months and before the completion of the probation, a 3-days’ notice to resign was required and afterwards a 7-days’ notice was required.  The AP said that the document was explained to him by R but he did not sign as he did not read Chinese.

13.  In cross-examination, R merely questioned the exact location in which he handed the AP this document, that the document was merely a draft, and whether there was discussion with the AP that the AP would be paid on a job-by-job basis, to which the AP answered that there was no such discussion.  R did not challenge that he did give the AP this document.  I find that R gave this document to the AP and explained the terms contained therein to the AP.

14.  The AP’s evidence was that though he had not signed the said document, he was employed by R as a delivery worker on the terms contained therein.  He was paid the monthly salary and allowance in the total sum of HK$12,000 a month, half on the 5^th and half on 20^th of each month. This monthly sum was increased to HK$13,000 since March 2016 until the time of the Accident.

15.  He said each working day, the truck would be loaded up for delivery of goods to 6 or 7 locations.  He would receive instructions from R by telephone call or by Whatsapp messages through R’s mobile phone number 56067441.  At trial, R expressly accepted that 56067441 was his mobile phone number.

16.  The AP annexed to his witness statement 17 pages[5] of screen captures of Whatsapp communications exchanged between 10 June to 20 July 2016 and between him and a person given the name “Boss Choto 1”.  These exchanges consisted predominantly of voice messages.  The icon used by “Boss Choto 1” was a picture of a couple.  The AP said, which was not challenged by R and could readily be perceived, that the male in the icon was R and the female was his wife (who was sitting in court during the trial).  The AP also produced his phone when giving evidence to show that the mobile phone number of “Boss Choto 1” was that of R’s, namely 56067441.  The AP explained that the sound made by the pronunciation of “Choto” meant in Bengali “small”.  This was confirmed by the Bengali interpreter.  The AP explained that R jokingly referred himself as the “small” boss because his wife was the “big” boss.  R in cross-examination did not dispute that he was the opposite party in this Whatsapp conversation.  Based on all the above, I accept and find that these Whatsapp communications were exchanged between R and the AP in the said period.

17.  It can be seen from the screen captures that (a) the AP was consistently receiving messages from R, from 1 to several messages every day, (b) there was one message from R, a written message and not voice message, sent at 1:32 pm on 20 June 2016[6] in which R asked the AP to make a call to the recipient one hour before arrival so that the recipient might have time to arrange someone at site to receive the goods, and (c) on many instances, pictures of invoices with cheques attached and pictures of goods, most of them wrapped together in plastics, were sent by the AP to R, followed by messages from R to AP sent shortly then after.

18.  The AP gave evidence, and I accept, that some of the invoices were invoices of goods that had been received onto the truck, while some of the invoices with cheques were payments for the goods that had been delivered; and that sometimes because of the tight schedule, he would be left at the site where goods were delivered to wait for the cheque or documentation to be issued while the truck would go on to make the next delivery.  Once he received the documentation and cheque, he would send the picture to R so that the truck would be sent to pick him up.  Concerning the pictures depicting the goods, he explained that those were the times when they had queries regarding the goods, and pictures were then sent to R to seek instructions from him as to what to do.  The AP has also transcribed the voices messages[7] sent by R and shown in the screen captures.  The AP also played 2 sample voice messages from his phone when he was giving evidence.  I am satisfied that these voice messages sent by R were in the nature of instructions relating to the delivery of goods and find that from July 2015 to the date of the Accident, the AP had been working as a delivery worker for R in the manner described by the AP and R had been consistently and daily giving him instructions as explained by the AP.

19.  As mentioned, it is common ground that R owned SP897.  In the police statement given by Lam on 7 September 2016, he referred to R as his boss.  As mentioned in paragraph 5 above, R pleaded in the Answer that Lam was at the time “his driver”.  I thus find that at the time of the Accident, Lam was working for R and was driving SP897 as agent or employee of R.

20.  In the premises, I find that the AP was employed by R as a delivery worker since July 2015 under the terms set out in the said Chinese document. His monthly salary and allowance was increased from March 2016 to a total of HK$13,000.  I also find that at the time of the Accident, the AP was riding in SP879, owned by R and driven by Lam, on the way to making a delivery to Tai Po in the course of R’s business.  I thus find that the AP was at the time of the Accident an employee of R and his injuries were sustained arising out of and in the course of his employment by R.

Section 2(2) of the Employees’ Compensation Ordinance (“ECO”)

21.  As the AP’s condition of stay did not allow him to work in Hong Kong, his such employment by R was illegal.

22.  However, section 2(2) of ECO provides

“2.  Meaning of employee

(1)  …

(2)  If, in any proceedings for the recovery of compensation under this Ordinance, it appears to the Court that the contract of service or apprenticeship under which the injured person was working, at the time when the accident causing the injury happened, was illegal, the Court may, if having regard to all the circumstances of the case it thinks proper so to do, deal with the matter as if the injured person had at the time aforesaid been a person working under a valid contract of service or apprenticeship.”

23.  Section 2(2) therefore gives the Court a discretion as to whether having regard to all the circumstances it thinks proper to deal with the matter as if the injured person had been working under a valid contract of service.

24.  The exercise of the discretion under section 2(2) of ECO was the subject of the appeal in Yu Nongxian v Ng Ka Wing [2007] 4 HKC 551.  There, the Court of Appeal reviewed the earlier cases and considered in detail and weighed the public policy reasons.  It held that, where an illegal worker was doing lawful work, public policy reasons favoured exercising the discretion permitting the illegal worker to recover employees’ compensation under the ECO.

25.  Since then, discretion under section 2(2) of the ECO has often been exercised in favour of illegal workers doing lawful works in Hong Kong.

26.  The AP clearly was employed by R to do lawful work – that of a delivery worker.  There are no other circumstances in this case that justify a departure in the exercise of the discretion in the manner held in the said Court of Appeal decision.  I would therefore exercise the discretion under section 2(2) of the ECO in the AP’s favour and deal with his present claim as if he were employed by R under a valid contract of employment.

The AP’s injuries and the assessment of the Employees’ Compensation Board

27.  Concerning the injuries sustained by the AP, I think it suffice to repeat here the assessment of the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) made by its certificate dated 3 June 2020 (“Form 7”).

28.  There, the Board assessed the AP as having suffered multiple injuries resulting in (a) pelvic fracture with instability and left lower limb shortening, (b) left lower limb fracture with scar, deformity and stiffness, (c) left foot pain, stiffness and deformity, (d) right thigh scar, left middle finger extension lag, (e) left ring finger extension lag, (f) abdominal wound scar, and (g) loss of left testicle.

29.  The Board assessed the AP’s loss of earning capacity permanently caused thereby at 42% and the absence from duty necessary of a period starting from 26 July 2016 of over 3 years.

30.  As neither party appeals against it, under section 16H of the ECO the Form 7 shall be evidence of the matters mentioned above.

Section 9 - Compensation in case of permanent partial incapacity

31.  At the time of the Accident, the AP was 26 years old.  The compensation under this section is calculated by his monthly earning for the month immediately prior to the Accident times the percentage of loss of earning capacity permanently multiplied by a factor of 96.  I accept the AP’s evidence and find that his such monthly earning was HK$13,000.  Thus, the compensation under section 9 is: HK$13,000 x 42% x 96 = HK$524,160.

Section 10 - Compensation in case of temporary incapacity

32.  The compensation under this section is to be a lump sum being 4/5 of his monthly earning immediately prior to the Accident multiplied by up to a maximum of 24 months, and if the Court allows it under section 10(5), up to a maximum of 36 months.  The AP has in his Application specifically pray for an award under this section to be extended under section 10(5).

33.  This is a clear case that the Court should, and I do, allow the extension for the period of compensation from 24 to the maximum 36 months because

a.  The AP suffered very serious multiple injuries;

b.  He was actually granted sick leave by treating doctors up to 10 November 2020, which sick leave period therefore was more than 4 years; and

c.  The Board has assessed the sick leave up to the maximum 3 years as provided under section 10(5) the ECO.

34.  Thus, the amount to be awarded under this section is: HK$13,000 x 4/5 x 36 months = HK$374,400.

Section 10A – Medical expenses

35.  The AP made no claim under this section.

Payment already received by the AP

36.  It was the AP’s evidence, which I accept, that R had visited him after the Accident and had given him HK$5,000 a month for a total of 6 months from August 2016 to January 2017.  Thus, R had paid to the AP a total sum of HK$30,000 which should be deducted from the total award of employees’ compensation.

Conclusion and disposal

37.  I find R liable to pay the AP employees’ compensation in the total sum of HK$868,560 (HK$524,160 + HK$374,400 – HK$30,000) and will enter judgment against R in that amount.

38.  I will also award to the AP interest on the said sum of HK$868,560 at the rate 4% per annum from the date of the Accident to the date of this judgment and thereafter at judgment rate until full payment.

39.  The AP’s solicitors have included in the Trial Bundles bundles B1 to B9 - ranging from p197 to p2567 - over 2,300 pages of medical notes and records, which, as there is no appeal under section 18 of the ECO, are completely irrelevant and not one page of them in fact has been referred to at trial. There is no reason why R should be made to pay for the work involved, nor is there any reason why Legal Aid (or the AP) should pay the AP’s solicitors for the work/charges involved.

40.  I will therefore make a costs order nisi that (a) the respondent do pay the applicant his costs of this Application, including all costs reserved, (b) the applicant’s own costs be taxed according to the Legal Aid Regulations, and (c) the costs of and incidental to the preparation, including the photocopying costs/charges, of Trial Bundles B1 to B9 (inclusive) be excepted from the above 2 costs orders.  This costs order nisi will become absolute after 14 days unless any party applies for variation within that period.

41.  I thank Mr Shum for his assistance.