WU TAOHONG v. BILLION VISION HOLDINGS LTD TRADING UNDER THE STYLE OR FIRM NAME OF HO KONG MAHJONG ENTERTAINMENT CO

DCPI 1800/2023

[2026] HKDC 819

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1800 OF 2023

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JUDGMENT

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1.  This is a personal injury action arising out of an alleged incident that occurred at a mahjong parlour at 20-22 Un Chau Street, Sham Shui Po, Kowloon, Hong Kong (the “Parlour”) operated by the defendant.

2.  The plaintiff claims for damages against the defendant for negligence, negligence of its employee, agent or staff for which the defendant was vicariously liable and / or breach of its statutory duties under the Occupiers’ Liability Ordinance, Cap. 314.

3.  The defendant disputes both liability and damages.

Liability

The plaintiff’s case

4.  According to the Statement of Claim (paragraph 5, Trial Bundle p. 28-29) the incident happened as follows:

a.  On 21 June 2020 at around 9 pm, the plaintiff went to the Parlour to play mahjong;

b.  At around 11 pm, whilst she was playing mahjong, a male employee of the defendant was performing his job behind her;

c.  To perform the job, the male “needed to hit the plastic brand card of the mahjong playing table hung by a string from the girders and / or beams and / or roof…(of the Parlour) signifying that he received the cash from the mahjong game players…”;

d.  At the material time, “without any advanced notification or warning of caution to the plaintiff, the male stood behind the plaintiff continuing to perform the said job by hitting the plastic brand card with force but without paying attention to his surroundings. As he did so, his right elbow whacked the back of the plaintiff’s head”;

e.  As a result, the plaintiff sustained injuries over her head.

5.  In her witness statement, the plaintiff further elaborated (paragraph 3 (c) to (h), Trial Bundle p.99):

a.  At the time, the plaintiff had a “kong” and received money from the other player, and she placed the money on the left side of the table for the male employee to take (“抽水”);

b.  Because the plaintiff was quite short, she needed to stand to reach for the mahjong tile further from her, but as she was “half-standing up”, she felt that her head was hit by a hard object and felt severe pain;

c.  She then found out that it was the male employee who had hit her whilst hitting the plastic brand card hanging over the table.

d.  She said that the male employee had taken the cash on her left, but had then moved to her right behind her back without her knowing.

e.  The male employee did not raise any warning or caution and, as the plaintiff was standing up, he was almost at the same time using force to hit the plastic brand card so his right elbow hit with great force upon her head.

6.  After the alleged incident, the plaintiff claimed that a female employee gave her some medicinal oil to rub and she continued to play for around 10 or more minutes whilst enduring the pain. She stopped playing and requested for an ambulance. However, “Sister Wah”, the manager of the Parlour, suggested that she could take a ride in their car to hospital after they finished work. As such, at around 11:30 to 11:40pm, four of the defendant’s staff accompanied her to the Accident and Emergency Department of Caritas Medical Centre. (paragraph 5 of the plaintiff’s witness statement, Trial Bundle p.99).

The defendant’s case

7.  The defendant’s case is simple: the defendant contends that no such incident occurred at the Parlour and the plaintiff is put to strict proof.

Consideration

8.  In my view, the plaintiff’s case is problematic.

9.  First of all, if such an incident had occurred on 21 June 2020 and that the plaintiff had suffered various significant long term symptoms as alleged, one might question why she did not notify the defendant earlier. The plaintiff’s solicitors, Lee & Associates Law Office (“Lee & Associates”) only wrote to notify the defendant on 21 September 2022, some two years and 3 months later (the “Letter Before Action”, Trial Bundle p. 447-449).

10.  Secondly, and even more problematic, in the Letter Before Action, Lee & Associates stated that “the circumstances of the accident” was as follows:

“…At around 11:00 pm, while she was playing mahjong, a male staff was performing his job behind her. To did (do) the job, he first needed to put all the cash inside a metallic can hung by a string from the girdles and / or beams and / or roof of (the Parlour). By using this string attached to the sling on the ceiling, he then needed to hit the metallic can forcefully in order to push it towards the direction of the cashier counter inside (the Parlour). With no advance notification or warning or caution to our client, the male staff continued to hit the metallic box with force without paying attention to his surroundings. As he did so, his right elbow whacked the back of our client’s head. As a result, our client sustained injuries over her head…”

11.  Here, the defendant was alleged to have a “抽水” procedure which required the employee to hit a metal can containing the “抽水” cash with force to send it to the cashier. Thus, this earlier version of the circumstances of the alleged incident was completely different from what was later pleaded in the case.

12.  The defendant’s witness Lai Man Wa, the manager of the defendant (“Madam Lai”), stated in her witness statement that the Parlour had never employed this system. In fact, as far as she was aware, this system (“Anscombe Rapid Cash Railway”) was only used in old Traditional Chinese Medicine shops and not in any Mahjong parlours in Kowloon.

13.  Further, Madam Lai stated that if the plaintiff was mistaken but was in fact trying to describe a system where a small bucket was hanged above the Mahjong tables, the Parlour also did not employ this system but she knew of two other Mahjong parlours nearby (in Mongkok) that did so. She listed the names and addresses of these parlours (paragraph 12 of Madam Lai’s witness statement, Trial Bundle P.107).

14.  During cross-examination, when presented with the photographs showing the interior of the Parlour and the Mahjong tables concerned (e.g. p. 446 of Trial Bundle), the plaintiff confirmed that this was indeed the interior of the Parlour with the chain and the plastic card etc. above the table at the time of the alleged incident.

15.  These photographs show that a rather thin chain hanged from the ceiling (around 1.3m long as claimed by Madam Lai in court and not challenged by the plaintiff) above each Mahjong table. On each chain were hung two small cards: the one at the bottom was a small acrylic plastic card around 0.2cm in thickness (which designated the stakes of the table), and the one above was an even smaller disc with the table number. There was clearly no “metal can and cashier” system.

16.  The plaintiff confirmed in court that “the circumstances of the accident” as stated in her solicitor’s letter was wrong. She sought to explain the obvious inconsistency by claiming that she had told the staff of her solicitors that the male employee was hitting a plastic card, but that she was not aware what her solicitors wrote in the Letter Before Action. She said that the solicitors must have failed to express her instructions clearly (“表達唔清楚”).

17.  I do not find that explanation credible at all.

18.  “The circumstances of the accident” stated in the Letter Before Action were not unclear. Instead, they were drafted with precision and details. Both the plaintiff and her solicitors must know that the allegation of how the accident occurred would be amongst the most crucial part of the claim. I cannot see how the plaintiff’s solicitors would come up with all these information if such were not the plaintiff’s own instructions. I am also not convinced that the plaintiff was totally unaware of the content of the letter before it was released.

19.  Indeed, to get the circumstances of the accident so wrong initially must raise a serious question on whether the incident had occurred in the manner now pleaded at all.

20.  On the other hand, Madam Lai in her witness statement admitted that she was on duty on 21 June 2020 but denied receiving any complaints from any customer nor notifications from the staff member of any such incidents. She also stated that if such an incident had happened, she would have produced a written record to both the directors and licensee of the defendant. She would also have reported any injuries to the police immediately. Further, Madam Lai denied noticing any staff leaving the Parlour with a female that evening. She also denied instructing or permitting any employee taking a female to hospital.

21.  I note that the plaintiff did mention “Sister Wah” as the manager of the defendant in her witness statement and this may conceivably be Madam Lai.

22.  However, the plaintiff admitted that one of her interests was playing Mahjong. Under cross-examination, she also admitted that she had been to other mahjong parlours (and there are 4-5 other such parlours in the vicinity). It is entirely conceivable that she had known Madam Lai as a manager of one of the parlours. If the alleged incident happened at all, it is also conceivable that the plaintiff was confused or mistaken about the location (as well as the “抽水” procedures of different parlours) so it might have happened in one of the other parlours mentioned in Madam Lai’s witness statements.

23.  There are further problems even if one considers the plaintiff’s case as now set out.

24.  As stated above, the plaintiff’s case is that the male employee hit the plastic card with force.

25.  It is not in dispute that the purpose of the procedure was to show that an employee has collected the “抽水”. By allowing the other employees to see a moving card above the table, they would not need to approach the table again. Thus, all that was required was to show some movement of the plastic card above the table. There was obviously no need to whack it hard because this was an entirely different procedure from knocking a metal can to send it back to the cashier on a rail or sling system (as claimed in the Letter Before Action).

26.  As shown in the photographs and confirmed by Madam Lai (and not challenged by the plaintiff), the plastic card was not heavy and hanged from the ceiling by a long thin chain.

27.  As stated by Madam Lai (and a matter of common sense), any attempt to hit the plastic card with force would send it swinging around wildly like a pendulum and perhaps even hitting the ceiling (or other people around the table) or breaking the chain.

28.  It is of note that the plaintiff admitted in court that she did not see what hit her head. Instead, she only felt a hard object hitting her head as she was standing up (or “half-standing”, whatever that meant) to reach for the tile. Thus, she did not actually witness the male employee hitting the plastic card with force and hitting her head with his elbow.

29.  As such, her allegation of the actual circumstances of the incident was not supported by evidence from any eye-witnesses (including the plaintiff). Instead, her case was based, at best, upon her own post-incident “re-construction”, perhaps some years later when she instructed her solicitors.

30.  Indeed, one might question how well the plaintiff actually remembered the incident and thus the accuracy of this “re-construction”.

31.  It is of note that she did not give evidence that she saw the plastic card swinging wildly after the incident as one would expect if it was struck with force. This crucial omission supports that the male employee could not have used any force when performing the “抽水” procedure as alleged.

32.  This also raises again the suspicion that the alleged incident, if happened at all, might have occurred in a different location using a different “抽水” procedure and not at the Parlour.

33.  Furthermore, during the trial and for the first time, the plaintiff claimed that the male employee had apologised to her. Firstly, if this was true, there was no reason why the plaintiff would fail to raise this early on, e.g. in her witness statement. Secondly, even if this was true, I cannot see why it could not be a gesture of politeness to a client (rather than any outright admission of fault) after an inadvertent contact of human bodies.

34.  In conclusion, I do not find that, on balance of probability, that the alleged incident had occurred in the Parlour nor that it had occurred in the manner as pleaded by the plaintiff. As such, plaintiff’s claim must fail (Mak Kang Hoi v Ho Yuk Wah David (2007) 10 HKCFAR 552) and there is no case for any claim under vicarious liability or occupier’s liability.

35.  There are further problems with the plaintiff’s case.

36.  The plaintiff’s case was that she was standing up (or least in some ways moving her upper body) to reach for a tile.

37.  If the male employee was making movements on the plastic card  and the plaintiff suddenly stood up (or moved her upper body) without warning, she might have simply hit her head on the arm of the male employee.

38.  Incidentally, Madam Lai alleged in court for the first time that the routine “抽水” procedure should only involve the employee twisting the plastic card. Whether this is true or not is not important given my finding that the procedure could not have been done with force in any case.

39.  The plaintiff admitted that she has seen such “抽水” procedure some 30 times during the evening. It was arguable that she only has herself to blame: she was aware of the “抽水” procedure and yet she suddenly stood up (or moved) without warning. Thus, even if there was a case for negligence, there would be a very substantial element of contributory negligence.

40.  However, I do not even go as that far as finding that there is a case for imposing a duty of care.

41.  I fail to see how there is any reasonably foreseeable danger in an employee in performing the “抽水”  procedure (making movements on a small and light plastic card hanging above a Mahjong table) that would give rise to a duty to e.g. give verbal warnings.

42.  Indeed, this incident, at best, is akin to an encounter we are all used to in daily human lives, for example, minor bodily contacts and bumps in a crowded underground train carriage or on a busy street.

43.  It is trite that a defender is not liable for a consequence of a kind which is not foreseeable by a hypothetical reasonable person. As such, I cannot see how it is fair, just and reasonable to impose a duty of care under the circumstances (see McLoughlin v O’Brian [1983] 1 AC 410, McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621) and Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14).

Damages

44.  Given the above findings, there is no need to proceed to damages assessment but I will do so for the sake of completeness.

PSLA

45.  The plaintiff is claiming HK$300,000 under this head of claim.

46.  I note that various non-specialist treating doctors recorded e.g. “impression: post-concussion dizziness and headache” or “post-concussion syndrome”.

47.  However, the doctors’ consultation summary showed a distinct pattern. The plaintiff repeatedly attended the clinic whenever her sick leaves ran out. She would complain of persistent symptoms but physical examination would invariably reveal no objective neurological findings (“GC (General Condition) well. Walk unaided. Gait steady”). Symptomatic medications like stemetil and paracetamol were sometimes prescribed. But, at some stage, no medication was prescribed because the plaintiff had “own stock”. Accordingly, it was recorded that the plaintiff only attended to seek further sick leave certificates (“come for SL”). It is also of note that the doctors would only allow short periods of sick leaves (around 2 to 5 days).

48.  One would question such “patient behaviour”: if the plaintiff was suffering from such serious long term symptoms, why would she accept the doctors prescribing essentially the same medications repeatedly? Why would she attend when she still have her own stock of medications?

49.  Such medications apparently have not cured her and allowed her to return to work. One would expect a reasonable patient to ask for other (hopefully more effective) medications.

50.  Clearly, as recorded on various consultation summary, the plaintiff was more concerned with obtaining further sick leave certificates than actually seeking for a cure.

51.  This was clearly not the behaviour expected of a reasonable patient with genuine symptoms.

52.  Furthermore, the report from the treating neurosurgeon, Dr. Tse Po Ki, Teresa (Trial Bundle p.121) only recorded subjective complaints (“dizziness, headache and memory impairment”) not supported by any positive objective examination or investigation results (“CT of the brain…did not (reveal) any fractures or haemorrhages” and “otherwise well without any focal neurological deficit”). It is of note that Dr. Tse did not give any specific diagnosis either.

53.  I have made an observation in court: for a case of alleged head injury, I thought that it would be more appropriate for the parties to instruct a neurosurgical rather than a psychiatric expert. Indeed, the psychiatric SJE, Dr. Gabriel Hung (“Dr. Hung”), also recommended the plaintiff to be assessed by an expert in neurology or neurosurgery (paragraph 14.21, Trial Bundle p. 217).

54.  Nevertheless, this was not done so the court would have to contend with the evidence before it.

55.  I note that Dr. Hung fairly commented that “most psychiatric diagnosis are based on reported and subjective symptoms” and understood that his role as an expert in litigation was different from that of a treating doctor. For such, Dr. Hung opined that “the core of reliability is consistency” (paragraph 14.1, Trial Bundle p.212).

56.  Of course, in a trial, the range of tests for reliability of evidence available under cross-examination is not limited to merely testing the “consistency” of evidence. And I would think that counsels and the court have the expertise in this respect.

57.  Thus, although Dr. Hung, during his examination, found that “there were no indications that she significantly exaggerated her psychiatric condition” (Paragraph 14.2 (c), Trial Bundle p. 213), it does not mean that the court cannot deviate from such opinion after all the evidence are tested at trial.

58.  Indeed, during cross-examination, the plaintiff complained of various symptoms inconsistent with the medical records e.g. she complained of poor sleep but the medical report from her treating family doctor stated: “Her sleep was fine”. Further, the same report recorded that “she complained of…poor memory since the head injury” but she claimed in court that she only have a deterioration of memory at the end of 2020, six months after the alleged injury (Trial Bundle, p.119).

59.  Further, if her evidence in court was correct, then one would question the issue of causation. There was no expert evidence before the court that would support that a minor head injury could cause memory loss six months later.

60.  Then, in a rather bizarre manner, the plaintiff also complained for the first time and during cross-examination that she had developed a fear of height.

61.  I also note that Dr. Hung finds that the plaintiff’s current psychiatric impairment is 0-0.5% with permanent psychiatric impairment at 0%, and her current loss of earning capacity is 0-0.5% with permanent loss of earning capacity at 0%.

62.  Therefore, even Dr. Hung opines that the plaintiff has very little, if any, long term symptoms or impairment.

63.  Overall, the impression is that the plaintiff is not a credible witness and she has been vastly exaggerating her symptoms as well as inventing new ones as she pleased in court. If she had suffered any head injury at all, a reasonable, if not already generous, award under this head should be HK$30,000.

Pre-trial loss of earnings

64.  The plaintiff corrected her claim during evidence-in-chief that her monthly salary was HK$7,304. She was claiming 168 days of sick leave so the claim under this head should be HK$7,304 x 168 / 30 = HK$40,902.40.

65.  I note Dr. Hung’s opinion is that “sick leave for a period of six months from the date of the first psychiatric appointment…is considered appropriate” (paragraph 14.22, Trial Bundle p.217).

66.  However, given my considerations above, I think that a sick leave period for 1 month is reasonable if not generous. Thus, the award under this head should be HK$7,304.

Loss of earning capacity

67.  The plaintiff is claiming HK$50,000 under this head but I would not allow this claim given Dr. Hung’s opinion and my considerations.

Medical expenses

68.  The plaintiff is claiming a total of HK$55,000 for medical expenses with HK$5,000 being reimbursement of medical expenses and HK$50,000 being future medical expenses.

69.  I find that much of the medical expenses paid were unjustified: they were incurred for the purposes of obtaining more sick leave certificates rather than for any genuine concern for medical treatments. Furthermore, there is clearly no basis for claiming any future medical expenses.

70.  I would allow HK$500 under this head.

Travelling expenses

71.  The plaintiff is claiming HK$7,000 (with HK$5,000 as reimbursement of travel expenses and HK$2,000 as future travel expenses).

72.  As considered above, I would think that I would allow HK$100 under this head.

Tonic food

73.  The plaintiff is claiming HK$5,000 under this head. I would allow HK$100.

Loss of MPF

74.  The plaintiff is claiming HK$3,360 under this head but she admitted under cross-examination that she never received any MPF (as evidenced in the salary records she herself disclosed).

75.  There should be no award under this head.

76.  Summary of damages:

HK$

PSLA	30,000
Pre-trial Loss of Earnings	7,304
Loss of Earning Capacity	0
Medical Expenses	500
Travelling Expenses	100
Tonic Food	100
Loss of MPS	0
Total:	38,004 (plus interests)

77.  Interests be allowed at 2% per annum for PSLA from the date of the writ and at half judgment rate for special damages.

Conclusion

78.  Accordingly, I would order that the plaintiff’s claim be dismissed with costs awarded to the defendant to be taxed if not agreed, with certificate for counsel.