CHAN YUK PING v. NGAN CHO LIN AND OTHERS

DCEC 322/2020

[2023] HKDC 1835

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 322 OF 2020

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BETWEEN

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JUDGMENT

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(A) Nature of the Application

1.  This is a claim for employees' compensation brought by the applicant in relation to an alleged accident in the afternoon on 26 December 2018. The applicant claimed that at the material times, he was employed by the 1^st respondent (“R1”) and/or 2^nd respondent (“R2”).

2.  Both respondents (“Rs”) denied that the applicant was their employee. They put the applicant to strict proof with respect to the existence of the employment relationship and the occurrence of the alleged accident. Both Rs averred that at the material times, there was no accident whatsoever in their worksites.

3.  This is a fact sensitive case with substantial factual disputes. Both parties made serious factual allegations against each other. For examples, the applicant alleged that Rs had asked him not to report the injury to the Labour Department. Rs alleged that the whole allegation of the accident was made up and fabricated by the applicant. Hence, it is necessary to understand their backgrounds, their relationship and the locations of the two worksites.

(B) The Background and Relationship of the Parties

4.  The applicant was born in August 1969. He was 49 years of age at the time of the alleged accident on 26 December 2018. At all material times, he lived in Tung Fong Kwu Tung Village, Kwu Tung, Sheung Shui, New Territories (新界上水東方古洞村) (“the Applicant’s Home”). I need not set out the full address of the applicant in this judgment.

5.  R1 (森峰環保五金運輸公司) was a partnership business. According to the business registration record of the Inland Revenue Department, the partnership commenced in 2002 by Madam Ngan Cho Lin (顏楚蓮) (“Madam Ngan” hereinbelow). Mr Huang Jian, another partner, joined the partnership in 2018. R1’s business nature was reported as trading, recycling of waste materials, hardware manufacturing and transportation. The registered address of R1 was 41A Tung Fong Kwu Tung Village (東方古洞村41A號), Sheung Shui, New Territories (“41A Tung Fong District” hereinbelow). Furthermore, the reported address of Madam Ngan was the same as that of the partnership’s registered address. The reported address of Mr Huang Jian was a residential address at Uptown Plaza, Tai Po, New Territories.

6.  R2 (森峰實業有限公司) was a limited company incorporated in Hong Kong. According to the business registration record of the Inland Revenue Department, it was incorporated in 2012. R2’s business nature was reported as resources and wasted materials recycling and trading. According to the business registration certificate, the registered address of R2 was No. 13 Tie Keng Village (鐵坑村) (also spelt as Tit Hang Village), Kwu Tung, Sheung Shui, New Territories.

7.  According to R2’s annual return in 2020, its registered office was a flat at Tin Ping Estate, Sheung Shui, New Territories (“the Tin Ping Estate Address”). The company secretary was Lau Miu Sing (劉妙成) whose reported address was 41A Tung Fong District. The sole director of R2 was Madam Ngan whose reported address was also 41A Tung Fong District. Lau Miu Lung (劉妙龍) was the only shareholder of R2. The reported address of Lau Miu Lung was the Tin Ping Estate Address, i.e. the same address as the registered office of R2.

8.  Madam Ngan is the wife of Lau Miu Sing. They resided at 41A Tung Fong District. Lau Miu Lung is the elder brother of Lau Miu Sing.

9.  At all material times, the Applicant’s Home was adjacent to 41A Tung Fong District. Lau Miu Sing claimed that he knew the applicant since their teenage because they were living in the same village.

10.  The applicant used to work for R1 and/or R2 between about 2006 (or 2007) and 2013. The employer’s MPF contribution records for the applicant showed that R1 was the employer of the applicant between 21 February 2007 and 30 June 2012. R2 was reported as the employer of the applicant between 1 July 2012 and 1 June 2013.

11.  Upon perusal of the above MPF records in these proceedings, the applicant then realized that he was purportedly employed by R1 between 21 February 2007 and 30 June 2012; and then by R2 between 1 July 2012 and 1 June 2013.

41A Tung Fong District

12.  The home of Madam Ngan and Lau Miu Sing was at 41A Tung Fong District. In addition to their home, there was also an office and a workshop at 41A Tung Fong District. The office was on the 2^nd floor of a metal structure (“Tung Fong District Office”). The workshop was outside the said office and their home (“Tung Fong District Workshop”).

13 Tit Hang Village (also known as No. 13 Tie Keng Village)

13.  As admitted by Rs’ witnesses in the witness box, No. 13 Tie Keng Village, Kwu Tung, Sheung Shui, New Territories (“Tit Hang Village Premises”) was owned by R2.  It included, inter alia, a building used as an office (“Tit Hang Village Office”) and a workshop (“Tit Hang Village Workshop”).  The applicant claimed that the alleged accident occurred at Tit Hang Village Workshop (鐵坑村工場). Rs’ case was that R2 had already ceased operation and had become fully dormant since 31 March 2017.  Tit Hang Village Premises, including Tit Hang Village Workshop, was lent by Lau Miu Sing to his friend called 秦華濤 (“Chun Wah To”) who factually occupied Tit Hang Village Premises.  The applicant, however, denied and said that only the Tit Hang Village Office was used by other persons at the material times, whilst the Tit Hang Village Workshop remained operated by the R1 and/or R2 at the material times, including 26 December 2018.  The applicant said that he was directed to work at the Tit Hang Village Workshop on 26 December 2018.

(C) The Applicant’s Claim

14.  The applicant claimed that he was employed by R1 and/or R2 from 19 August 2018 onwards. He was a labour worker responsible for handling materials at the worksites.

15.  On 26 December 2018, the applicant worked for R1 and/or R2 at Tit Hang Village Workshop. At about 3:00 p.m., while he was working there, a forklift truck moved towards him. The tire of the forklift truck rolled over his right foot and he was injured as a result (the “Accident”). Consequently, his distal fibula, frontal process of right calcaneum and the distal phalanx of right big toe fractured.

16.  At the time of the Accident, the applicant claimed that his average monthly wage was HK$15,600.

17.  The applicant claimed for compensation for permanent partial incapacity, compensation for temporary incapacity and payment of medical expenses under under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap. 282) (“ECO”).

18.  The applicant was examined by the Employees’ Compensation (Ordinary Assessment) Board on 25 May 2020 and he was assessed to have 2.5% loss of earning capacity permanently. Sick leave period was originally certified from 26 December 2018 to 6 May 2020. Form 7 was issued on 8 June 2020. The applicant was not satisfied with the result of the assessment of his sick leave and the percentage of his loss of earning capacity. He applied for a review. Upon review on 19 October 2020, the assessed loss of earning capacity remained at 2.5% and the sick leave was slightly extended to 25 May 2020. Form 9 was issued on 2 November 2020.

19.  The applicant appealed and claimed that the loss of earning capacity should be 10%.

(D) The Respondents’ Answers to the Application

20.  In these proceedings, Rs were all along represented by the same team of legal representatives.

The 1^st Respondent’s Case

21.  R1 filed its Answer to the applicant’s application. The same was amended and filed on 30 September 2022. R1 averred that R2 had been fully dormant since 31 March 2017. R1 denied that there was the Accident at Tit Hang Village Workshop on 26 December 2018 as alleged or at all. In the alternative, R1 averred that even if the Accident did occur on 26 December 2018 at Tit Hang Village Workshop, the applicant was not its employee.

22.  Furthermore, R1 averred the following matters:-

(a) The applicant was an employee of R1 between 21 February 2007 and 30 June 2012. Then, the applicant was an employee of R2 between 1 July 2012 and 1 June 2013. During those periods, the applicant worked as a material handling worker.

(b) After 2 June 2013, the applicant was no longer the employee of R1 or R2.

(c) There was no such forklift truck as alleged at Tit Hang Village Workshop (see para. 7(c)(ii) of the 1^st respondent’s Answer to the Amended Application).

The 2^nd Respondent’s Case

23.  R2 filed its Answer to the applicant’s application. The same was amended and filed on 30 September 2022. R2 maintained the same case as that of R1 as summarized in the preceding paragraphs hereinabove. R2 also averred that there was no such forklift truck as alleged at Tit Hang Village Workshop (see para. 7(c)(ii) of the 2^nd respondent’s Answer to the Amended Application).

24.  By the applicant’s Request for Particulars, Rs were requested to give further particulars of the place where they placed the forklift truck at the time of the Accident on 26 December 2018. Both Rs filed their joint Answer to the Applicant’s Request for Particulars on 30 September 2022. Rs answered that the forklift truck was placed at “No. 41A, Tung Fong District, Kwu Tung, Sheung Shui and the workshop situated at 鐵坑村, Kwu Tung, Sheung Shui” (quote), i.e. 41A Tung Fong District and Tit Hang Village Workshop respectively.

25.  Mr Lau, counsel for the applicant, agreed that the applicant could only succeed on his pleaded case that his right foot was rolled over by a forklift truck at Tit Hang Village Workshop on the date of the Accident. The applicant’s hospital admission note seemed to suggest that the applicant was injured by the falling of metal goods from the height. Mr Lau fairly agreed that the applicant owed a good explanation to the court for the discrepancies of evidence.

26.  At the opening of the trial, Mr Wong, counsel for both Rs, confirmed with the court if the applicant could prove the occurrence of the Accident as alleged, the Rs would concede that the applicant was engaged under a contract of service, Rs would not be arguing that the applicant was engaged under a contract for services. In that case, whether the applicant was employed by the R1 or R2 or both is a matter to be resolved by this court.

(E) Legal Principles

27.  There are no hard and fast rules in determining the existence of an employment relationship. The court will look at all of the circumstances and examine all of the evidence in determining if an employment relationship exists. Traditionally, the court will consider the control test, business integration test and financial risk test. Each case must be decided on its own facts. The court will examine all of the relevant factors, including the nature of the alleged employment, the duties and work assigned to the workers, mode of payment or remuneration of the workers, the financial risk of the workers, the provision of equipment and etc.

28.  In Poon Chau Nam v Yim Yiu Cheung (2007) 10 HKCFAR 156 at 167, the Court of Final Appeal held that:-

“18. The modern approach to the question whether one person is another’s employee is therefore to examine all the features of their relationship against the background of the indicia developed in the abovementioned case-law with a view to deciding whether, as a matter of overall impression, the relationship is one of employment, bearing in mind the purpose for which the question is asked. It involves a nuanced and not a mechanical approach, as Mummery J emphasised in Hall v Lorimer 26 (in a passage approved by the English Court of Appeal):

In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.” (per Ribeiro PJ at para 18)

29.  Sections 5(1) and 5(4)(a) of ECO provide that:-

“(1) Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.

...

(4) For the purpose of this Ordinance --

(a) an accident arising in the course of any employee’s employment shall be deemed, in the absence of evidence to the contrary, also have arisen out of that employment.”

(F) Witness Evidence

30.  The applicant gave evidence and he called Miss Cheng Hoi Yan, his former colleague, to give evidence for him. Rs had four witnesses, namely Lau Miu Sing, Madam Ngan, Lau Miu Lung and Chong Chong Sing (“Mr Chong”).

The Applicant’s Evidence

31.  The applicant adopted his four witness statements as his evidence-in-chief. His 1^st witness statement can be summarized below:

(a) He was born in 1969 and had received education up to form 1 of secondary school. He was able to read and write simple Chinese.

(b) He lived near the Tit Hang Village Workshop. He knew Madam Ngan, Lau Miu Sing and Lau Miu Lung. He used to work for them in about 2006.

(c) He called Lau Miu Sing and Lau Miu Lung as bosses. He called Madam Ngan as lady boss. Other colleagues also called them in that way.

(d) His lawyer retrieved some documents about his previous employment with Rs. He then realized that between 21 February 2007 and 30 June 2012, his MPF contribution was paid by R1. Between 1 July 2012 and 1 June 2013, his MPF contribution was paid by R2.

(e) On about 19 August 2018, he worked for R1 and/or R2. He said that Lau Miu Sing, Madam Ngan, Lau Miu Lung were related persons or associated persons. He also said that he was employed by these three persons’ companies, i.e. R1 and/or R2. He added that the business sign displayed outside the workshop(s) bore the name “森峰環保” (translated as “Forrest Hill Environmental Protection” herein).

(f) He denied that R2 had ceased operation as alleged. He said that he was employed by both Rs jointly. In the alternative, he said that if R2 had really ceased operation as alleged at the time of the Accident, he was employed by R1.

(g) He was employed by R1 and/or R2 as a materials processing worker. His duties included processing and delivering environmental waste materials, including processing them by a packing machine. He had to work 9 hours a day and his daily wage was HK$600. R1 and/or R2 would pay him wages by cash according to the numbers of days that he had worked as recorded on his time card with R1 and/or R2.

(h) A time card of December 2018 was produced as exhibit (“the Time Card”). The applicant said that the name “陳平 (translated as “Chan Ping” herein)” was also his name. The handwriting on the Time Card was made by Miss Mo (whose full name was later known as Cheng Hoi Yan).

(i) Other than wages, the applicant had no other employee benefits.

(j) Regarding the Accident, the applicant stated that he worked at the Tit Hang Village Workshop at about 3 p.m. on 26 December 2018. He talked to Mr Chong, his colleague, about job related matters. The environment was noisy while he was talking to Mr Chong. Mr Chong was the operator of a forklift truck in Tit Hang Village Workshop. While they were talking at that time, the applicant was standing beside the forklift truck and Mr Chong was sitting on the driver’s seat of the forklift truck. The engine of the forklift truck was on, but the forklift truck was stationary while they were talking. When they finished talking, the applicant turned to the opposite direction of the forklift truck and intended to deliver waste materials to a packing machine for processing. At that moment, the forklift truck suddenly moved and its left rear wheel rolled over the right foot of the applicant. The applicant was injured as a result. He fell on the ground and yelled out of pain. Mr Chong did not realize the Accident immediately. He only realized it when other colleagues alerted him.

(k) After the Accident, other colleagues informed Lau Miu Lung about the Accident. Lau Miu Lung returned to the Tit Hang Village Workshop. Lau Miu Lung drove his car and sent the applicant, with the accompany of Mr Chong, to the North District Hospital for medical treatment.

(l) The applicant was hospitalized on 26 December 2018 and was discharged on 7 January 2019. After his discharge from hospital, he received a series of medical treatments. In addition, he had to attend a total of 15 sessions of physiotherapy treatments between 14 January 2019 and 20 August 2019. He relied on all of his medical records to prove his injuries.

(m) The applicant stated that after the Accident, R1 and/or R2 paid him a total of HK$78,000 as employee compensation.

(n) He stated that he had paid HK$2,500 as medical expenses. At the applicant’s opening, the applicant confirmed that he actually claimed for HK$1,993 only as his medical expenses precisely incurred.

32.  The 2^nd witness statement of the applicant was made in reply to the witness statements filed by Rs. The applicant stated that:-

(a) In about August 2018, he called Lau Miu Sing to see if he could have a job to do. Lau Miu Sing then asked Lau Miu Lung to arrange some work for the applicant. Afterwards, Lau Miu Lung gave job instructions to the applicant. Lau Miu Lung also handled the payment of the applicant’s wages.

(b) Between August and December 2018, the applicant had to work for both Rs at two locations, namely at 41A Tung Fong District and the Tit Hang Village Workshop. In the morning, the applicant had to report duty at 41A Tung Fong District first. In particular, he had to go to Tung Fong District Office first and reported duty by using a clock-in machine therein. His time card would record the dates and hours that he had worked. Then, the applicant would usually work at Tung Fong District Workshop first. Upon the instructions by R1 and/or R2, he had to travel to Tit Hang Village Workshop by using the company’s vehicle. Sometimes, he had to travel between 41A Tung Fong District and Tit Hang Village Workshop from time to time depending on the need of R1 and/or R2.

(c) On 26 December 2018, the applicant reported duty at Tung Fong District Office at about 8 a.m. as usual. He then worked at 41A Tung Fong District. At around 10 a.m., his colleague Mr Chong drove the company car and took him to Tit Hang Village Workshop to work. At about noon time, Mr Chong drove the applicant back to 41A Tung Fong District for lunch. At around 2 p.m., Mr Chong drove him to Tit Hang Village Workshop again to work. The Accident occurred in the afternoon at Tit Hang Village Workshop.

(d) The applicant said Mr Chong was his partner at work. He personally delivered environmental waste materials whilst Mr Chong operated the forklift truck to assist him at the same time. So, they had to coordinate with each other.

(e) According to applicant’s knowledge, Mr Chong did not have any operation licence to operate any forklift truck. But R1 and/or R2 still instructed Mr Chong to operate the forklift truck at Tit Hang Village Workshop when they worked.

(f) At the time of the Accident, there were two other colleagues at Tit Hang Village Workshop, they were couples. They attended to the applicant immediately after the Accident and asked the applicant for his condition. At the time the 2^nd witness statement of the applicant was prepared, these two colleagues had already quitted their job, the applicant had no way to contact them.

(g) After the Accident, Lau Miu Lung drove the applicant to the North District Hospital. Mr Chong assisted the applicant in making registration at the registration counter of the A&E Department. Later on, Mr Chong left. Lau Miu Lung stayed behind. In the evening, Lau Miu Lung bought a dinner box for the applicant. Lau Miu Lung then left the hospital at about 7:30 p.m.

(h) Regarding the Time Card, the applicant said that the off-duty time of 26 December 2018 was filled in by Rs’ female staff called “Miss Mo”. Miss Mo was the secretary of Rs. The applicant used to see Miss Mo writing on the time cards of other colleagues. He did not know the full name Miss Mo. The applicant and other colleagues simply called her “Ah Mo”.

33.  In his 3^rd witness statement, the applicant made further reply to Rs’ allegations. The applicant that:-

(a) About 2 weeks before the Accident, Lau Miu Lung told him that he would deal with the MPF contribution for the applicant because the applicant had worked for about 3 months.

(b) Wages of the applicant were paid in cash by Lung Miu Lung on behalf of R1 and/or R2.

(c) The applicant did not work for Rs anymore after the Accident. He stayed at home and had no job to do.

(d) In about January 2021, the applicant eventually found another job to do. He worked for another environmental waste recycling company as a part-time worker.

(e) While he was working for R1 and/or R2, his colleagues usually called him “Ah Ping” or “Chan Ping”. He worked six days a week from Monday to Saturday. Even if 26 December 2018 was a public holiday, he still had to work as usual because it was a Wednesday.

(f) He denied what had been stated in the witness statement of Mr Chong. The applicant was certain that Mr Chong had attended work at Tit Hang Village Workshop on 26 December 2018. He usually called Mr Chong as “Fat Sing” or “Brother K”. At the time of the Accident, the applicant had not dodged away from the forklift truck because the forklift truck moved suddenly towards him.

(g) The applicant replied that the events stated in Mr Chong’s witness statement were untrue. The applicant alleged that Mr Chong denied driving the forklift truck because he had no valid licence for operating the same and Mr Chong did not want to bring himself into trouble.

(h) Immediately before the Accident, the applicant and Mr Chong were talking about job related matters, other colleagues were some 20 feet away. At that time, the breaking machine for environmental wastes was in operation and it generated much noise. When Mr Chong operated the forklift truck, he had to put on his ear protection muff.

(i) He believed that Miss Mo had worked on 26 December 2018 and it was Miss Mo who put down the two Chinese words “工傷” (job injury) on the Time Card at the entry of 26 December 2018.

(j) Regarding the payment of wages while he was on sick leave, the applicant supplemented what he had said in his 1^st witness statement. He stated that the HK$78,000 was actually paid by Lau Miu Lung on behalf of R1 and R2 by 5 instalments. He said that he had to work for 26 days a month and his daily wage was HK$600. After the Accident, Lau Miu Lung paid him the above HK$78,000 in total as sickness allowance or wages for a consecutive of 5 months. On each occasion, he was required to acknowledge receipt of the payment for the record of both Rs (see paragraph 10 thereof).

(k) After the Accident, he had no job to do from 26 December 2018 to December 2020. He could only find a part-time job to do in January 2021. He worked for 6 days a month on average and his average income was only HK$4,000.

(l) He relied on the joint medical report of Dr Chan and Dr Foo dated 17 February 2022. He said that his loss of earning capacity should be 10% as assessed by Dr Chan, instead of 2.5% only.

34.  The applicant filed his 4^th witness statement to clarify three matters. Firstly, he clarified that after the Accident, it was Mr Chong who actually drove the private seven seater and took him to North District Hospital and not Lau Miu Lung. But he was sure that the three of them, including Lau Miu Lung, travelled to hospital together and Lau Miu Lung stayed behind in the North District Hospital that evening. Secondly, the applicant stated that Miss Mo or Ah Mo was Miss Cheng Hoi Yan (“Miss Cheng”) who would be his witness in this case. Thirdly, the applicant clarified that on 26 December 2018, he did not actually know if Miss Cheng did work on that day. But the applicant was sure that the Chinese words “job injury” were written on the Time Card by Miss Cheng. The applicant did not know when exactly Miss Cheng wrote the two Chinese words of job injury on the Time Card.

35.  This case was set down for trial in the running list. The trial commenced on 12 June 2023. However, Rs filed their Supplemental List of Documents, 2^nd Supplemental List of Documents and 3^rd Supplemental List of Documents on 28 April 2023, 18 May 2023 and 7 June 2023 respectively. Among those belatedly disclosed documents was an undated photograph which purported to show a clock-in machine. That photograph was only disclosed on about 7 June 2023, i.e. just a few days before the trial.

36.  Leave was granted to the applicant identified his own photographs at the witness box and the make reply to Rs’ belatedly disclosed photographs. The applicant identified certain photographs taken by him which showed followings:-

(a) There was a display sign on the iron hoarding or iron gate of Tung Fong District. The display sign read “森峰”, “森峰環保” and “上水古洞東方區41A” (translated as “Forest Hill”, “Forest Hill Environmental Protection” and “41A Tung Fong Kwu Tung District, Sheung Shui”).

(b) The entrance of Tit Hang Village Workshop and the area outside.

37.  In relation to the photographs belatedly disclosed by Rs, the applicant replied as follows:-

(a) The clock-in machine as shown on Rs’ photograph was not the same clock-in machine in 2018 when he worked there.

(b) Concerning two other photographs (also disclosed by Rs on about 7 June 2023) which purported to show the Tung Fong District Office, the applicant recognized the place as the same office when he was employed in 2018. The two photographs showed that Tung Fong District Office was actually consisted of a reception area and a working area. There was a set of sofa, tea table and a television set at the reception area. There were three desks and chairs, desktop computers and monitors, various documents and stationary in the working area. The two areas were separated by a sliding door. Next to the sliding door in the reception area was a clock-in machine.

38.  In the cross-examination, the applicant was strenuously cross-examined on his previous employment with R1 and then R2 between about 2007 and 2013 in relation to the MPF and insurance matters during those periods. For example, the applicant was asked to explain why Rs made MPF contribution for him in the previous employment but not for the alleged employment in 2018. The applicant was also cross-examined on his previous wages during the previous employment in 2007. The applicant said that in May 2007, his wage was HK$8,000 per month. He was then cross-examined on this matter by Rs’ counsel because the MPF records only showed that the applicant only earned HK$4,000 per month in 2007 as reported by R1. The applicant was even asked to comment on the wages of Mr Chong and Lau Miu Sing during those periods. I do not find the applicant’s comments to those matters are helpful in assisting the court to dispose fairly of the real issues of the present case. Hence, I need not set out the applicant’s answers to those matters in detail here. It is because the applicant’s evidence on those matters during his previous employment serve little probable value (if any) in this case. I shall explain my reasons in the latter part of this judgment.

39.  In his cross-examination, the evidence of the applicant is as follows:-

(a) The applicant confirmed that Rs had not yet made MPF contribution for him in respect of his August 2018 employment.

(b) His wages were paid on the fifth day of following month.

(c) Regarding the post-Accident payment of wages in a total sum of HK$78,000, the applicant said that he received HK$78,000 in total by five instalments. The first instalment was paid sometime in February 2019. Then, the remaining four instalments were paid on the fifth or sixth day of the following months. Hence, the fifth instalment was paid on about the fifth or sixth of June 2019. He did not remember the exact amount of money actually paid to him on each occasion. The applicant was asked how he was able to come up with a total figure of HK$78,000. The applicant replied that he recorded the each instalment on a piece of paper.

(d) Regarding the post-Accident payment, it was put to the applicant that Lau Miu Sing or Lau Miu Sing only paid the applicant HK$45,000 as a personal loan out of friendship. The applicant denied categorically.

(e) The applicant only lodged a complaint about the Accident to the Labour Department on about 15 June 2019.

(f) A copy of the auditor’s report of R2 and its financial statement for the year ended 31 March 2017 was shown to the applicant. They recorded that 31 March 2017 was the “date of ceased” (quote). It was put to the applicant that R2 had ceased operation on 31 March 2017. The applicant denied and said that he lived next door and he knew that in fact R2 was still operating. He added that in fact both Rs were operating.

(g) It was also put to the applicant that he did not know if Tit Hang Village Workshop was actually operated by R1 or R2. The applicant denied.

(h) A copy of the applicant’s hospital admission note issued by the North District Hospital dated 26 December 2018 (“the Admission Note”) was shown to him. The Admission Note showed that applicant was injured on duty. In particular, it recorded in English that “Right foot injured by metal goods falling from ~1m height at ~4pm” (quote). It was put to the applicant that he told the doctor about the cause of injury as such. The applicant denied. The applicant said that Lau Miu Sing had reached the hospital ward at that time and it was Lau Miu Sing who told the doctor as such. The applicant explained that when the doctor asked for the cause of the injury, Lau Miu Sing gave the applicant a glance and told the doctor that the applicant was injured by metal goods falling from 1 metre in height. The applicant heard it and did not know how to respond at that moment (佢〔劉妙成〕望一望我，我都反應唔切). The applicant was also cross-examined as to why he did not seek to rectify the cause of injury as recorded in his Admission Note. The applicant replied that Lau Miu Sing had already told him not to report his injury to the Labour Department and he could resume his work after he had fully recovered. Lau Miu Sing also promised that the applicant would be compensated. The applicant did not realize that his injury was so serious at that time. Hence, at that time, he did not see any need to rectify it.

(i) A copy of his Occupational Therapy Report dated 11 March 2020 was shown to the applicant. The said report was attached with a 3-paged written printout with the heading of “Work Rehabilitation Assessment”. The assessment date was 20 February 2020. In the printout, the date of injury was recorded. The cause of injury was recorded as “Right foot injury, injured by metal goods, falling from 1m height” (quote). The whole report was in English. It was also put to the applicant that he did not rectify the record about the cause of injury as stated in the Work Rehabilitation Assessment printout. The applicant said that he did not tell the occupational therapist as such. He only knew there was such a record in the witness box.

(j) It took about 3 minutes from the Tung Fong District Office to the Tit Hang Village Workshop, if one travelled by car.

(k) Tit Hang Village Office had been rented to others.

(l) The applicant was cross-examined as to why he stated the place of the Accident as “上水古洞東方區工場 (近鐵坑村)” (translated as “Sheung Shui Kwu Tung Tung Fong District workshop (near Tit Hang Village)”) on his notice of accident which was lodged with the Labour Department on about 29 June 2019. The applicant replied that he was not so educated, he meant he was injured in the workshop which was near Tit Hang Village.

(m) The Accident happened at about 4:30 p.m. It took about 15 to 20 minutes to reach the North District Hospital from Tit Hang Village Workshop.

(n) After the Accident, he met Miss Cheng about two times for payment of his wages. On both occasions, he saw Miss Cheng took money to Lau Miu Lung who then gave the money to him.

(o) The applicant was shown the photographs of a packing machine and a breaking machine. It was put to him that R1 obtained the government funding to purchase the breaking machine in 2019. Hence, the breaking machine was only purchased by R1 in 2019. The applicant denied and insisted that there was the breaking machine at Tit Hang Village Workshop when he worked there in December 2018.

(p) The applicant was asked why he claimed for HK$2,500 as medical expenditure in the first place and then reduced it to HK$1,993. The applicant stated that the figure of HK$1,993 was calculated by his lawyers before the trial.

(q) It was put to the applicant that he did not work after the Accident because he wished to claim for more employee compensation. The applicant denied.

(r) It was put to the applicant that the Time Card was not the time card of Rs and the applicant got the Time Card from somewhere else. The applicant denied.

(s) The applicant had filed the witness statement of Lee Hon Ming. But Lee Hon Ming did not come to the court to give evidence. It was put to the applicant that he did not call Lee Hon Ming to testify because he did not want Lee Hon Ming to tell the truth which would undermine his case. The applicant denied. He said that before the trial, Lee Hon Ming did not answer his phone calls. He came across Lee Hon Ming in Sheung Shui, Lee Hon Ming said that he did not remember the details. The applicant said that if Lee Hon Ming did not want to testify for him, he could not force Lee Hon Ming to do so.

40.  In the applicant’s re-examination, he clarified the following matters:

(a) His Admission Note dated 26 December 2018 recorded that “IOD [Injury while on Duty] Right foot injured by metal goods falling from ~1m height at ~4pm”. He reiterated that this description of injury was provided by Lau Miu Sing to the doctor. The applicant supplemented that when Lau Miu Sing came to visit him, the doctor asked for his relationship with the applicant. Lau Miu Sing told the doctor that he was the applicant’s boss. Then, the doctor asked Lau Miu Sing how the applicant was injured. Lau Miu Sing replied that the applicant’s foot was injured by the falling of metal goods from about 1 metre in height (佢〔劉妙成〕嚟探我，醫生問佢：「你係佢邊個呀？」跟住佢話：「我係佢老細」。跟住醫生話：「佢係點樣整親呀」，佢話：「俾啲鐵俾啲1米高嘅嘢擲親隻腳」。)

(b) As to the reason why the applicant did not subsequently correct the different versions about the cause of the injury, the applicant maintained his answers in his cross-examination by saying that he did not realize the record at that time when he met the occupational therapist. He did not think the matter was so serious, Lau Miu Sing had promised to pay him wages and told him not to report his injury to the Labour Department (當時唔為意囉，即係無冧過咁大件事。佢都話出糧俾我，叫我唔好報勞工處喇。)

(c) The applicant maintained that he had told the A&E Department about his cause of the injury as soon as he reached the A&E Department. He was shown a copy of the medical record of the A&E Department of the hospital. The triage record at about 16:48 recorded stated that the applicant’s right foot was injured by a forklift truck at about 16:30. The applicant said that this record was correct.

(d) Concerning Tit Hang Village Premises, the applicant said that Lau Miu Sing had told him that the office at Tit Hang Village Premises had been rented to someone else and asked the applicant not to enter the office there. Tit Hang Village Workshop was actually behind the Tit Hang Village Office. Inside Tit Hang Village Workshop was the breaking machine. The breaking machine was purchased in about September 2018 or October 2018. The breaking machine was used to break PC plastic materials into pieces. Lau Miu Lung and Mr Chong would turn on the breaking machine, the applicant’s job was to dump the plastic materials on the transportation belt of the breaking machine, then the plastic materials would be conveyed to the breaking machine and they would be crushed into pieces.

(e) In his cross-examination, the applicant mentioned that after the Accident, he recorded Rs’ payment of his wages on a piece of paper. At his re-examination, he produced a piece of paper which purportedly recorded payments of HK$16,200, HK$14,400, HK$15,600, HK$15,600 and HK$16,200 in respect of January to May respectively, totaled HK$78,000. The piece of paper was exhibited as exhibit A-3. The applicant added that he actually wrote exhibit A-3 in about July 2019. Those entries on exhibit A-3 were written at the same time in July 2019. He recorded the payments of wages because Rs had ceased making further payments and he would report the matter to the Labour Department.

(f) After the applicant had reported the matter to the Labour Department, when he was in a restaurant near his home, he saw the breaking machine was transported from Tit Hang Village Workshop to 41A Tung Fong District.

41.  Leave was granted to Rs to re-open their cross-examination of the applicant on the issues arising from exhibit A-3, i.e. the purported documentary evidence showing the payments of HK$78,000 by Rs to the applicant. The applicant admitted that he received the wage of December 2018 which was handed to him by Lau Miu Lung. The post-Accident wages were actually received by him in the following months. That is to say, the January 2019 wage were received by him in February 2019. The applicant agreed that he did not record the wage of December 2018 on exhibit A-3. He agreed that if the wage of December 2018 were also counted as well, he did not only receive payments on five occasions as recorded on exhibit A-3.

Evidence of Cheng Hoi Yan (Miss Cheng)

42.  Miss Cheng Hoi Yan (“Miss Cheng”) testified for the applicant. She adopted her witness statement as her evidence-in-chief. Her evidence is:-

(a) She was educated up to Secondary 5. She worked for R1 and/or R2 from about 2015 onwards as a general clerk at Tung Fong District Office.

(b) Her duties included compiling the work records of the staff of R1 and/or R2, calculated their wages, attending matters concerning the vouchers and correspondence of R1 and/or R2. She was also responsible for the handling of documents. The heading of those documents bore the names of R1 and/or R2.

(c) While she was working for R1 and/or R2, Lau Miu Sing gave her the job orders and his wife Madam Ngan would give her the wages. She usually met Lau Miu Sing and Lau Miu Lung. According to her understanding, Lau Miu Sing, Madam Ngan and Lau Miu Lung were her bosses, they were the responsible persons of R1 and/or R2.

(d) The applicant was her colleague and she knew him. She worked at the Tung Fong District Office and the applicant had to report to Tung Fong District Office by using the clock-in machine there. The time card of the clock-in machine would record the on-duty and off-duty time of the staff. Therefore, she had opportunities to meet the applicant and would chat with him. She had no private friendship with the applicant.

(e) Other colleagues called her by her nickname “Ah Mo”. The colleagues of the workshop(s) had to work 6 days a week. If the week days were public holiday, they still had to work. They were paid according to the numbers of days that they had worked. Their wages were payable monthly. If the colleagues of workshop(s) need to take leave, they had to notify Lau Miu Sing or Lau Miu Lung for approval first.

(f) On the date of Accident, i.e. 26 December 2018, Miss Cheng was not on duty because it was a public holiday. She only learned about the Accident afterwards from other colleagues and Lau Miu Lung. She learned from them that the applicant was injured by a forklift truck operated by Mr Chong (also known as Brother K) at the waste recycle workshop. Mr Chong was also her colleague.

(g) A copy of the applicant’s Time Card was exhibited to her witness statement. She was able to recognize the handwritten words on the Time Card as her own hand-writing. She added that at the end of December 2018, she wrote the words “工傷 (job injury)” on the Time Card against the date of 26 December 2018, for the purpose of calculating the amount of wages payable to the applicant. She said Ching Ping was also the name of the applicant, i.e. Chan Yuk Ping.

(h) She knew that R1 and/or R2 continued to pay wages to the applicant after the Accident,

(i) She resigned in about early 2019 because she had found another job.

(j) She recognized the photographs of Tung Fong District Office as her workplace during her employment. The photograph showed three seats in the working area of Tung Fong District Office. She pointed out the seat of Lau Miu Sing on the photograph. Her seat was in the middle and Lau Miu Sing’s seat was behind her seat. She said that Lau Miu Lung usually worked in the workshops. If he returned to Tung Fong District Office, he would be sitting at the seat in front of her seat. Madam Ngan did not return to Tung Fong District Office, Madam Ngan worked at her home.

(k) A photograph of a clock-in machine (being the Rs’ belatedly disclosed document disclosed on 7 June 2023, i.e. at 5 days before the trial) was shown to Miss Cheng. She said that she recognized the place as Tung Fong District Office, she could also recognize the rack for holding the time cards. However, Miss Cheng was adamant that the clock-in machine as shown on the photograph was not the same clock-in machine when she worked there. She explained that when she worked there, the clock-in machine was without a digital display panel. The style should be an old fashion one and it was not as clean as the one shown on the photograph.

(l) When she worked for R1 and/or R2, she knew that there was a breaking machine. She knew that the breaking machine was purchased in 2018. She confirmed that the breaking machine had already been purchased on 26 December 2018 and it was placed at Tit Hang Village Workshop. She learned that because Lau Miu Sing told her that the breaking machine was placed at the Tit Hang Village Workshop. She also heard Lau Miu Lung and Lau Miu Sing talked about the breaking machine which was placed at Tit Hang Village Workshop.

(m) She added that before the purchase of the breaking machine, she was responsible for processing documents for the purchase of the breaking machine. So, she knew there was a breaking machine.

43.  In the cross-examination, Miss Cheng’s evidence was that:-

(a) She gave one month notice of termination of employment in about January 2019. She left the employ of R1 and/or R2 in about February 2019 or March 2019.

(b) Her duties included processing documents, dealings with customers, calculating sales figures. Apart from serving Rs, she also needed to handle the private matters of Lau Miu Sing.

(c) She accepted Rs’ suggestion that Lau Miu Sing privately engaged her to work as Lau Miu Sing’s personal assistant to handle the company’s affairs and also his own personal affairs. (問：其實係劉妙成私人請你呢好似一個私人助理咁樣，當然有代表佢去處理公司嘅嘢啦，又代表佢處理私人嘅嘢咁個樣。答：無錯)

(d) April 2017, Miss Cheng donated part of her liver to a stranger called madam Tang. She denied Rs’ suggestion that she failed to inform Lau Miu Sing about the liver donation operation in advance. Miss Cheng said that one or two days before the liver transplantation operation, she did inform Lau Miu Sing about that.

(e) After the liver donation operation, she applied for sick leave for several months. She received sickness allowance from Lau Miu Sing. She accepted Rs’ case that Lau Miu Sing was dissatisfied with her because of the liver donation operation. But she denied that Lau Miu Sing’s dissatisfaction arose from her failure to inform him about the operation in advance.

(f) She agreed that when she was on sick leave for several months after the liver donation operation, she was not involved in calculating R1’s workers’ wages. But after she had resumed duty, she continued to calculate the wages of the workers.

(g) She denied Rs’ suggestion that Lau Miu Sing had actually quarreled with her about the liver donation matters.

(h) She denied Rs’ suggestion that after she had resumed duty, she was absent from work because of the pain in her wound.

(i) She admitted that she did attend several experience sharing seminars with others about her liver donation experience.

(j) It was put to Miss Cheng that in about December 2018, she falsely claimed to Lau Miu Lung that she had pain in her wound and she had to take further sick leave, but she actually went to attend an experience sharing seminar about her liver donation experience. Miss Cheng denied. It was further put to her a series of suggestions that because of the incident of false claiming for sick leave, Lau Miu Lung was dissatisfied with her and Lau Miu Lung demanded her to report duty by using a clock-in machine from then onwards. As a result of the demand for using the clock-in machine to report duty, Miss Cheng served her notice of termination of employment. Miss Cheng denied all these suggestions categorically.

(k) She assisted in applying for the government fund in December 2018. The government fund was received in December 2018. She was not sure whether a breaking machine was purchased after the government fund had been received. It was put to Miss Cheng that R1 actually purchased the breaking machine in 2019. Miss Cheng could not be sure.

(l) Miss Cheng denied Rs’ suggestion that she did not talk to Lau Miu Lung at all in the last month of her employment. She also denied that she was angry with Lau Miu Lung.

(m) It was put to Miss Cheng that she, without approval, had taken away a notebook in which wages given to the employees in advance were recorded. Miss Cheng denied. It was also put to her that she stole the notebook in retaliation to Lau Miu Lung. She denied.

(n) It was put to Miss Cheng that she gave false evidence about the Time Card in these proceedings out of retaliation. Miss Cheng denied.

44.  After Miss Cheng had already finished giving evidence. Mr Wong for the Rs clarified that those allegations made against Miss Cheng about the dissatisfaction of Lau Miu Lung, the stealing of the notebook and the alleged retaliation by Miss Cheng should all be relating to Lau Miu Sing, as opposed to Lau Miu Lung. It was Lau Miu Sing, instead of Lau Miu Lung, who asked Miss Cheng to report duty by using a clock-in machine in January 2019. The parties formally agreed in court that Miss Cheng’s evidence was clear that she had never stolen any notebook at all and she did not give evidence against Rs because of any grudges or retaliation at all. Hence, the parties agreed that there was no need to recall Miss Cheng simply for case putting purpose. The applicant was fully alerted that Rs’ allegations were that Miss Cheng had poor relationship with Lau Miu Sing, instead of Lau Miu Lung, and she gave false evidence in retaliation of Lau Miu Sing. The parties also confirmed the same in their written closing submission as well.

Evidence of Lau Miu Sing

45.  Lau Miu Sing adopted his witness statement as his evidence-in-chief and his evidence is that:

(a) He was the manager of both Rs and he was authorized to give evidence on behalf of both Rs.

(b) R1 was established on 16 September 2002 and its business address was 41A Tung Fong District. R1’s business affairs were local recycling of plastic, hardware and ironware.

(c) R2 was incorporated on 12 January 2012. Its workshop address was Tit Hang Village, Kwu Tung, Sheung Shui. R2 engaged in trading business for recycled plastic, hardware and ironware (paragraphs 5 to 7 thereof).

(d) Since the incorporation of R2, Tit Hang Village Workshop was for the storage of one or two forklift trucks and other materials like plastic, hardware and ironware to be sold to mainland China.

(e) The employees of R1 worked at 41A Tung Fong District and they dismantled the hardware and ironware into smaller parts or pieces.

(f) Since the implementation of new policy about recycling of materials by the Chinese government in about 2017, Rs could not make any profits anymore. Hence, R1 became partly dormant until January 2019 and R2 became fully dormant.

(g) Before January 2019, only he and Lau Miu Lung took care of 41A Tung Fong District in which some materials were stored.

(h) There were no workers in Tit Hang Village Workshop at all which was lent to his friend (paragraph 10 thereof).

(i) In December 2018, R1 was granted government fund. Hence, R1 planned to restructure its business and resumed its materials recycling business from 2019 onward. So, R1 started employing employees from January 2019 onward.

(j) He knew the applicant since their teenage because the applicant lived near to 41A Tung Fong District.

(k) He had been working for both Rs since they had been set up. Lau Miu Lung had been working for R1 since 2011 and Lau Miu Lung also worked for R2 since its incorporation in 2012 (see para 13 of his witness statement as amended in court).

(l) The applicant used to work for R1 and then R2 until May 2013. In 2013, the applicant had a fight with his wife and the applicant was hospitalized as a result. After the applicant had been discharged from hospital, the applicant argued with him about his salaries while he was on sick leave. They had argument about the calculation of the applicant’s salaries. As a result, the applicant quitted the job with R2 at the end of May 2013. (It should be noted that this allegation is not put to the applicant when he was in the witness box).

(m) On 26 December 2018, he said Lau Miu Lung was the representative and shareholder of R2. Lau Miu Lung was to take care of 41A Tung Fong District (paragraph 23 thereof).

(n) He denied that the applicant was the employee of R1 and/or R2 as alleged.

(o) He asserted that there was no such Accident or any accident in 41A Tung Fong District or Tit Hang Village Workshop.

46.  In addition to the evidence in his witness statement as summarized hereinabove, Lau Miu Sing also gave the following evidence in his examination-in-chief in the witness box:

(a) He had employed Miss Cheng personally since 2013.

(b) In about 2017, when he was in Japan, he learned that Miss Cheng was about to donate her liver tissue to another person. He telephoned Miss Cheng and confronted with her that if she did not work, no one would take care of his business. After the alleged telephone conversation, Miss Cheng proceeded to donate her liver tissue on the following day. His relationship with Miss Cheng became poor thereafter.

(c) He did not know English and using computer. He heavily relied on Miss Cheng. After donation of liver tissue, Miss Cheng took sick leave for about half a year.

(d) While Miss Cheng was on sick leave, Lau Miu Lung would calculate the employees’ wages, then Madam Ngan would give the money to Lau Miu Lung. Lau Miu Lung would then pay the wages to the employees.

(e) Even after Miss Cheng had resumed working, she falsely claimed that her wound was painful and had to take further sick leave. In fact, she attended experience sharing seminars with the press to share her experience in liver donation.

(f) He regarded Miss Cheng as a person with no sense of responsibility because she did not care about her work. He used emotional expression by describing Miss Cheng as an angel in the expense of causing his business falling to the hell. As a result, Miss Cheng was required to report duty by using a clock-in machine from January 2019 onwards.

(g) In early January 2019, Miss Cheng did not talk to him at all. Miss Cheng then resigned. When Miss Cheng quitted the job, she took away a “wages borrowing notebook” in which the wages paid to employees in advance were recorded.

47.  Under cross-examination, Lau Miu Sing gave the following evidence:-

(a) He was paid HK$10,000 per month for his work in R1.

(b) He was the company secretary of R2. His assistance to R2 included planning for the business direction of R2, sourcing for materials, assisting in sales and introducing customers to R2. But he insisted that he did not receive any money from R2 for his assistance to R2. He also assisted a lot of people in their work without charging them.

(c) His relationship with Miss Cheng was poor because she donated her liver tissue without considering the impact on his business. He was unhappy about it. He was dissatisfied with Miss Cheng’s poor altitude after she had resumed her work because she lied in relation to the pain in her wound.

(d) In about 2017, both workshops, i.e. Tit Hang Village Workshop and Tong Fong District Workshop, had ceased operation completely. In 2017, R2 had no employees at all. No one worked for R2, except Lau Miu Lung, his wife Madam Ngan and himself.

(e) In about 2017, only Madam Ngan and Lau Miu Lung worked for R1.

(f) He needed Miss Cheng to report accounts to him and then return the account books to him, so that he could reconcile the sales accounts with his mainland and Japanese customers. Because of Miss Cheng’s conduct, his personal business became a chaos.

(g) He did not admit that R1 and/or R2 were the employers of Miss Cheng. It was put to him that Miss Cheng did not work for him alone, she also worked for Rs (所以我向你指出就係咁樣，[Miss Cheng]唔係淨係幫你一個人去打工嘅，同唔同意?). He denied and supplemented that the mere fact that Miss Cheng called him a boss did not mean he was the employer, it was merely a way to address others (我講咗唔單止唔同意呀。仲有，佢淨係講叫我哋做老闆，做老闆唔代表係佢老細，可能你高高在上，我地講做老闆嘅係一個稱呼).

(h) He actually gave business to Rs. He also sold materials and introduced business customers to Rs (Lau Miu Sing: 你話[我]幫佢哋工作，應該係話我俾嘢佢哋[Rs]做，我賣嘢俾佢哋，幫佢揾埋銷售嘅客戶).

(i) A copy of the applicant’s time card of November 2012 in relation to his former employment was shown to Lau Miu Sing. He denied that it was their time card in 2012. He said that he only realized this former time card one week before the trial.

(j) He admitted that a photograph showing a clock-in machine was only taken in June 2023. It was put to him that the clock-in machine as shown in the photograph was not the same one in December 2018. He denied. He said that he bought the clock-in machine in 2017 and he placed the clock-in machine next to the sliding door of Tung Fong District Office, but without using it until January 2019.

(k) He denied that a total sum of HK$78,000 was paid to the applicant after the Accident. Instead, he asserted that he lent a total sum of HK$45,000 to the applicant as a personal loan.

(l) When the applicant was admitted to hospital, the applicant telephoned Lau Miu Lung. Lau Miu Lung visited the applicant first. He then visited the applicant at the hospital ward on the same day.

(m) On the day when the applicant was discharged from hospital in January 2019, he instructed Lau Miu Lung to lend HK$15,000 to the applicant on his half.

(n) In February 2019 and March 2019, he asked Lau Miu Lung to lend HK$10,000 to the applicant on his behalf. He did that because R1 paid wages on the fifth day of each month (之後呢，喺每個月，係接著嘅第二個月同第三個月，因為第一答辯人佢係每個月5號去出糧嘅。跟住，我就叫大佬幫我借多一萬蚊俾佢). He said that the last instalment of HK$10,000 to the applicant was made in the same way in April 2019.

(o) After Lau Miu Lung had lent HK$10,000 to the applicant on Lau Miu Sing’s behalf in March 2019, Lau Miu Lung saw the applicant walking un-aided outside 41A Tung Fong District every day. However, when the applicant came to Lau Miu Lung for collecting the loan money, the applicant had his foot in a cast. Lau Miu Lung told Lau Miu Sing all about that. Then, Lau Miu Sing telephoned the applicant and asked the applicant to work for R1. The applicant promised that he would work for R1 within two weeks. Despite the fact that applicant could walk un-aided in March 2019, Lau Miu Sing nonetheless agreed to lend the last sum of HK$10,000 to the applicant in April 2019, making a total of HK$45,000 as a personal loan.

(p) But after April or May, 2019, the applicant repeatedly refused to work for R1. Lau Miu Sing once told the applicant that if he did not return to R1 and work, he had to repay the HK$45,000 personal loan. Thereafter, since the applicant repeatedly refused to honour his promise by working for R1, Lau Miu Sing did not talk to him anymore. Yet, he did not chase the applicant for repayment of the HK$45,000 personal loan or asked him to come back to work at 41A Tung Fong District. He was totally disappointed by the applicant. He had never asked for the repayment of any money from the applicant (咁佢答應咗再返嚟之後，始終係冇出現，跟住我就放棄咗呢個人，我就再冇同呢個人傾偈喇。我就冇話去追佢錢或者再叫佢返嚟森峰即係東方41A上班。我就再冇跟進呢件事，亦都從來冇追過佢錢).

(q) He did not ask his lawyer to issue any demand letter to the applicant for repayment of the HK$45,000 because the present legal proceedings has been commenced and he had no written record of the HK$45,000 loan. He added that at the very beginning when he lent money to the applicant, even if the applicant did not repay him, his loss was HK$45,000 only. If the applicant did not repay, it showed that what kind a person the applicant was. He also lent several ten thousand dollars to Miss Cheng’s mother who did not repay. He did not chase Miss Cheng’s mother for repayment either.

(r) He recalled that when the applicant was employed by R2 in about 2013, the applicant had a fight with his wife and the applicant was hospitalized as a result. He said that if the employees only took their rest day or sick leave for one or two days, he would not deduct any wages from them because he was very kind to the workers. But on that occasion, the applicant took sick leave for several days and still claimed sickness allowance, he thought that the applicant was abusing his kindness. Therefore, he had an argument with the applicant about the sickness allowance. As a result, the applicant quitted his job in May 2013. However, he subsequently realized that the applicant was really entitled to claim sickness allowance from R2. He learned that from the Labour Department. From May 2013 onwards, he knew that he really owed the sickness allowance to the applicant, he felt guilty about that. But, he had neither informed the applicant about the outstanding sickness allowance, nor had he repaid the sickness allowance to the applicant.

(s) In May 2013, he confirmed that the wage of the applicant was HK$10,000 and he took sick leave for about 7 days. Although the sickness allowance for 7 days was not a substantial sum, he thought the applicant was abusing his kindness in May 2013.

(t) Regarding to the present Accident, he said that he only reached the hospital after 9 p.m. on that day. When he met the applicant, the applicant told him that his foot was injured by a forklift truck. He admitted that 9 p.m. was after the normal visiting time. He could manage to enter the hospital ward because he told the security guard or the nurse that he had to bring something to the applicant urgently. Therefore, he was allowed to get in. In fact, he brought a dinner box to the applicant. He later went to buy a cup and a towel to the applicant on the same day.

(u) He realized that Lau Miu Lung had visited the applicant after 6 p.m. on 26 December 2018.

(v) Inside the hospital ward, he only met the applicant, he did not meet any doctor at all. Therefore, he denied that he had ever told any doctor that the applicant was injured by metal goods falling from 1m in height.

(w) There was no breaking machine at all at Tit Hang Village Workshop. Miss Cheng was instructed by him to apply for government funds for R1, so that R1 could buy a breaking machine in 2019. Miss Cheng was not an employee of R1, Miss Cheng worked for him personally.

(x) He admitted that Tit Hang Village Workshop belonged to R2. He lent Tit Hang Village Premises, consisting of Tit Hang Village Workshop and Tit Hang Village Office, to his friend called Chun Wah To in around 2018. As R2 was dormant, he lent Tit Hang Village Premises to Chun Wah To because Chun Wah To would pay rents. He admitted that there was no written record about the arrangement of lending Tit Hang Village Premises to Chun Wah To at all.

(y) He admitted that Chun Wah To had already ceased using Tit Hang Village Premises at the time of the trial. He lent it to another person. When he was asked for the name of the current user of the Tit Hang Village Premises, he said he needed not tell the applicant about the current user’s name and refused to answer the question because he did not want to cause any trouble to the current user. When he was reminded of his oath, he then said that the current user of Tit Hang Village Premises was called Mr Cheung or Big Head Cheung. He did not remember when he lent Tit Hang Village Premises to Mr Cheung.

48.  In his re-examination, Lau Miu Sing said:-

(a) He reiterated that the Time Card was not the time card of R1 or R2 at all. R1 or R2 had no time card in 2018.

(b) The main reason for lending HK$45,000 to the applicant was because he wanted the applicant to work for R1 in January 2019. But he added that another reason for making the loan was because he owed the applicant his sickness allowance in 2013.

(c) In about 2018, he regarded the applicant as his friend. They had fair relationship at that time.

Evidence of Madam Ngan

49.  Madam Ngan adopted her witness statement as her evidence-in-chief. Her witness statement was substantial and materially the same as that of Lau Miu Sing which I have already set out at paragraph 45 of this judgment hereinabove. Hence, I need not set it out again.

50.  Madam Ngan was one to the two partners of R1. She was also the sole director of R2. She was authorized to make her witness statement for both Rs. She said Lau Miu Sing had been working for R1 and R2 since they had been set up. Lau Miu Lung had been working for R1 since 2011 and for R2 since its incorporation.

51.  She said that at the end of 2018, Lau Miu Sing told her that the applicant would come to work from 1 January 2019 onwards. However, she later learned that the applicant was hospitalized and her husband visited the applicant in hospital. As the applicant had no money, her husband lent a total of HK$45,000 to him.

52.  In her cross-examination, Madam Ngan’s evidence was:-

(a) She used to study in primary school but she was not graduated. She did not know English.

(b) She did not handle the affairs of R2 which were dealt with by Lau Miu Sing, she was only responsible for signing documents.

(c) She knew the Tung Fong District Workshop and Tit Hang Village Workshop.

(d) She admitted that Tung Fong District Workshop was owned by R1; and Tit Hang Village Workshop was owned by R2.

(e) When she was asked why workers of R1 were transferred to R2 in about 2012 or 2013, Madam Ngan said that the matters relating to work were not handled by her, she had no participation. As to whether there were workers working at both Tung Fong District Workshop and Tit Hang Village Workshop in 2012 or 2013, Madam Ngan said she did not know.

(f) She was asked if she knew R1 would also use Tit Hang Village Workshop in 2018. She said she did not know those matters relating to operation (呢啲我唔知，運作上嘅嘢我唔知㗎).

(g) Her duties in R1 from 2012 to the end of 2018 were signing documents, receiving money and making payment. She needed not do the calculations. When Lau Miu Lung needed to use money, Lau Miu Lung would ask her for money. When money was received, the money would be given to her and she would deposit the money into the bank. Apart from that, she had no other duties.

(h) In about the end of 2016, Lau Miu Sing told her that R2 had to cease operation in about March 2017 because of the implementation of new policy on mainland China.

(i) There were no workers working at Tung Fong District Workshop between February 2018 and January 2019.

(j) She had on behalf of both Rs submitted a written reply to the Labour Department on about 3 July 2019. In the written reply, there was no mention that R2 had ceased operation in March 2017. Madam Ngan explained that when she issued the written reply, she was in a hurry and omitted to state this matter.

(k) R1’s business focused on local recycled materials.

(l) R2’s business was to buy recycled materials from foreign countries. The recycled materials would then be classified and sold to mainland China (有限公司係處理外國貨，外國嘅貨都係回收嘅一種…去外國回收啲貨番嚟，再分類，再賣俾大陸嘅).

(m) She had never seen the the applicant’s former time card in November 2012.

(n) Regarding the Time Card, i.e. the applicant’s time card of December 2018, she had never seen it before.

(o) When Madam Ngan was referred to the MPF document relating to the applicant in 2011, she said that the wages of the workers were decided by Lau Miu Sing, she had not participated on that matter.

53.  There was no re-examination of Madam Ngan.

Evidence of Lau Miu Lung

54.  Lau Miu Lung adopted his witness statement as his evidence-in-chief. His witness statement was substantial and materially the same as that of Lau Miu Sing and Madam Ngan which I have already set out at paragraph 46 of this judgment hereinabove. I need not set it out again.

55.  Furthermore, he said that the government fund for buying the breaking machine was applied by R1. He claimed that there were some invoices as proof.

56.  In his cross-examination, Lau Miu Lung’s evidence is:-

(a) At about 4 to 5 p.m. on 26 December 2018, he received a phone call from the applicant. The applicant informed him that he was in hospital.

(b) At about 6 p.m. to 7 p.m., he visited the applicant at a hospital ward on the 1^st floor of North District Hospital, instead of the A&E department.

(c) Mr Chong had not come to hospital to visit the applicant.

(d) He only bought a piece of bread to the applicant and he left after 20 minutes.

(e) In about January 2019 when the applicant was discharged from hospital, he came to hospital to accompany the applicant.

(f) Lau Miu Sing instructed him to lend HK$15,000 to the applicant. So, he gave the applicant HK$15,000 as loan money on the day when the applicant was discharged from hospital.

(g) On the fifth or sixth day of the following months, a sum of HK$10,000 was lent to the applicant on three occasions, making a total loan amount of HK$45,000.

(h) Regarding the reasons for making the loan of HK$45,000, he was told by Lau Miu Sing that Lau Miu Sing had deducted wages from the applicant’s entitlement previously, Lau Miu Sing owed the applicant the wages, and the applicant was also his neighbour. So, Lau Miu Sing wanted to help the applicant. These were what he learned from Lau Miu Sing about the reasons for making the loan.

(i) When he was asked if he worked for R1 and R2 after 2012, he said he only worked for R2 after 2012.

(j) He said R2 had become fully dormant in 2017. Therefore, he had not worked for R2 since 2017. From 2017 onwards, he simply received wages from R2 without doing anything.

(k) He said in 2019, he worked for R1.

(l) He knew Miss Cheng who worked at Tung Fong District Office.

(m) He denied all of the applicant’s case about his employment with R1 and/or R2, the occurrence of the Accident, the events immediately after the Accident and etc. He claimed that he had never seen the Time Card before.

(n) He admitted that Tit Hang Village Workshop was owned by R2. But it was lent to Chun Wah To and then Mr Cheung by Lau Miu Sing.

Evidence of Chong Chong Sing

57.  Mr Chong adopted his witness statement as his evidence-in-chief. He denied everything about the Accident. In particular, his said:

(a) He was employed by R1 between 2007 and 2012. Then, upon the incorporation of R2 in 2012, he was transferred to R2. He then worked for R2.

(b) On 30 November 2018, he was transferred back to R1 as its employee again. But his wages were too low, he gave notice of to Lau Miu Sing whom Mr Chong described as the manager of both Rs that he would quit on the following day, i.e. 1 December 2018.

(c) The applicant was his former colleague.

(d) From 1 December 2018 to 31 March 2019, he was unemployed. He stayed at his home which was also in Kwu Tung, Sheung Shui, New Territories.

(e) He had not attended Tit Hang Village Workshop at all on 26 December 2018. He had not met the applicant on that day.

(f) He had never seen the Time Card before or any time cards of that kind.

(g) He worked for R1 again on 1 April 2019 as a casual worker. He was authorized by both Rs to give evidence for them.

(h) He had never heard of the Accident before 20 November 2020.

58.  In his cross-examination, Mr Chong’s evidence is:

(a) In about 2013 while he was employed by Rs, there were time cards to record his on-duty and off-duty time. The time card was also for the calculation of his wages. But he did not keep those old time cards.

(b) In about 2013, R1 and/or R2 would give the time cards to the employees, so that the employees would know how much they were entitled to and whether wages had been deducted. This was the practice of R1 and/or R2.

(c) He worked for R1 and/or R2 from 2007 to November 2018. But he did not have a time card at that time because at that time he worked outside the workshops of Rs. During that period, Lau Miu Lung and Lau Miu Sing handed his wages to him by cash.

(d) He had never seen the Time Card or any time card of that kind.

(e) He knew Miss Cheng and her nickname was Ah Mo. But he did not know whether Miss Cheng was responsible for calculation of wages for the workers.

(f) He denied that he operated a forklift truck at Tit Hang Village Workshop. He said he only got the licence for operating forklift trucks after August 2019. Before that, he only worked as a labour worker.

(g) He denied the Accident categorically.

(h) He also denied that he and Lau Miu Lung drove a car to send the applicant to hospital.

(i) In about 2016 or 2017, he worked for R1.

(j) It was put to him that in paragraph 6 his witness statement, he stated that because of the new recycling law of China in about 2017, both Rs had to become partly dormant. Mr Chong replied that R1 was not dormant, R2 was fully dormant. He did not understand why he stated wrongly at paragraph 6 of his witness statement. He did not how to reconcile his answers.

(k) From 2019 onwards, he worked for R1. It was Lau Miu Lung and Lau Miu Sing who gave job instructions to him.

59.  In his re-examination, Mr Chong confirmed that he only applied for forklift truck operator licence after August 2019.

(G) Burden and Standard of Proof

60.  It should be noted that the applicant’s claim is a civil claim for employees’ compensation. He has to prove his employment relationship with R1 and/or R2 and the Accident on balance of probability.

61.  By virtue of section 5(4)(a) of the Employees’ Compensation Ordinance (Cap. 282), the accident is deemed to have arisen out of and in the course of employment.

62.  However, both parties made serious allegations against each other. As far as the applicant’s allegations are concerned, he claimed that after the Accident, Lau Miu Sing of R1 and/or R2 promised to pay him wages while he was on sick leave. The applicant also said that he did not have employees insurance coverage and his employers failed to make MPF contribution for him. He only reported the Accident to the Labour Department after R1 and/or R2 had failed to pay him wages or sickness allowance. These allegations are very serious allegations because the implications of them suggest that his employers might have breached the relevant statutory provisions of failing to report job related injury to the relevant authority. They also suggest that the applicants’ employers offered to pay and did pay wages or compensation to the applicant without the consent of the relevant authority.

63.  In light of these positive and serious allegations made against Rs, I shall adopt the principles laid down in Re H [1996] AC 563. The applicant should prove those serious allegations by cogent, compelling and overwhelming evidence which is commensurate with the gravity of the allegations. The rationale being the more serious the allegation, the more improbable that it has occurred. If the applicant alleged that a very serious event did occur, he had to prove it by compelling and overwhelming evidence which was commensurate with the seriousness of the allegations. In this case, it is only fair to Rs that the applicant shall prove those allegations by cogent, compelling and overwhelming evidence: Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117, at para 72 and para 115. Hence, in relation to those serious allegations made against Rs involving criminal nature, I am prepared to give the benefit of doubts, if any, to Rs.

(H) Analysis of Evidence and Finding of Facts

(i) Analysis of the Witnesses’ Evidence and Credibility

Analysis of the Applicant’s Evidence and Findings

64.  The applicant had testified for one and a half days. I have sufficient opportunity to observe the way how he gave his evidence and the way how he answered the questions under cross-examination. His demeanour in giving evidence, though not a decisive factor in this particular case, is also relevant in assessing his evidence.

65.  The applicant struck me as an honest and reliable witness. I am impressed by his evidence. He is an unsophisticated and strict forward person with an education level up to form 1 of secondary school. He gave his answers in a strict forward way. He could provide most of the details of his employment, such as the numbers of the working days, working hours, daily wage and etc. Those details are supported by the Time Card. In addition, the applicant could also explain clearly to the court what had happened on the date of the Accident. For instance, the applicant explained how he first reported duty at Tung Fong District Office on 26 December 2018 and then worked at Tung Fong District Workshop in the morning. He carried on to tell the court how he was taken to Tit Hang Village Workshop to work there before noon and then returned to 41A Tung Fong District for lunch. Thereafter, he returned to Tit Hang Village Workshop again and worked there. More importantly, he could describe what he was doing at Tit Hang Village Workshop and its surrounding environment there immediately before the Accident. He also gave clear evidence as to how he was injured by the forklift truck operated by Mr Chong. The injuries of his foot and toe as described by him are consistent with the subsequent medical findings.

66.  Under cross-examination, his evidence remained unshaken. I am alive to the Rs’ complaint that the cause of injury as recorded in the Admission Note was materially inconsistent with the applicant’s case. I shall deal with this issue in the latter part of the judgment.

67.  In addition, the applicant’s evidence is also consistent with the evidence of Miss Cheng. It is very unlikely that the applicant and Miss Cheng made up their evidence against both Rs in these proceedings.

68.  If the Rs’ allegations against the applicant carry any truth, then the applicant would be a kind of a person who made up a false employee’s compensation claim against the partnership and/or company of his friends and neighbours whom he had known since his teenage. Furthermore, after the applicant had been injured and hospitalized, Lau Miu Sing made a personal loan in a total sum of HK$45,000 to him. Against this background, the applicant did not only fail to repay the loan to Lau Miu Sing, but so lodged a false claim against R1 and/or R2, i.e. the partnership and/or company Lau Miu Sing’s family members. The applicant even lodged a complaint to the Labour Department against Rs. After considering the evidence of the applicant, I am sure that this is not that case and the applicant is not this kind of person.

Analysis of Miss Cheng’s Evidence and Findings

69.  Miss Cheng is also a strict forward and honest witness. She had no private friendship or dealings with the applicant. She was a former colleague of the applicant. She testified for the applicant as an independent witness. She gave evidence about her work and also the environment of Tung Fong District Office. Her evidence about the Time Card was clear. She said the name “Chan Ping” on the Time Card referred to the applicant, i.e. Chan Yuk Ping. She was also able to tell the court why she wrote the two Chinese word “job injury” against the entry of 26 December 2018 on the Time Card. Miss Cheng also gave evidence about the clock-in machine at Tung Fong District Office in December 2018. She pointed out that the new clock-in machine as shown on a recent photograph was not the same clock-in machine in December 2018. Her evidence also contradicted Rs’ case that there was no clock-in machine at all before January 2019.

70.  Miss Chan was also able to tell the court about Mr Chong and his nicknames as well. She knew there was a breaking machine at Tit Hang Village Workshop. Her evidence in this regard also contradicted Rs’ case that Mr Chong had yet been employed by R1 and/or R2 in December 2018 and that there was no breaking machine in December 2018.

71.  Rs suggested that Miss Cheng had previous grudges with Lau Miu Sing since about April 2017 and then she quitted her job in about March or April 2019. Therefore, Rs contended, Miss Cheng was not a truthful witness. First of all, the evidence of Rs was insufficient in proving that there was such a grudge with Lau Miu Sing arising out of Miss Cheng’s donation of liver tissue or false claiming of further sick leave as alleged. Miss Cheng only admitted that she donated her live tissue to a stranger and then she had to take sick leave. In January 2019, she gave notice of termination of her employment because she had found another job. Apart from that, she denied Rs’ allegations.

72.  Miss Cheng impressed the court as an independent and honest witness. Miss Cheng’s evidence is clear, reasonable and unambiguous. I accept Miss Cheng’s evidence.

Analysis of Lau Miu Sing’s Evidence and Findings

73.  It is true that R2 had an auditor’s report with financial statement in which it was stated that 31 March 2017 was the “Date of Ceased” (quote). In response to the applicant’s interrogatories, Madam Ngan filed two affirmations for R1 and R2 respectively both on 29 April 2021. In the said two affirmations, Rs confirmed that they did not at any time possess any Notification of Cessation of Business given to the Commissioner of Inland Revenue for the alleged cessation of business of R2 since 31 March 2017 or any papers in relation thereto. Apart from that, Rs’ case mainly relied on the oral evidence of their witnesses without any documentary support. For example, when Rs asserted that R1 applied for government fund to buy a breaking machine in 2019, not a single page of document about the purchase of the breaking machine was disclosed or adduced as evidence. Likewise, when Rs alleged that Tit Hang Village Premises were lent to Chun Wah To and then Mr Cheung, not a single piece of document was produced to prove the same, such as any communication records, payments of the alleged rents by them and etc. It is also doubtful why the alleged rents were paid to Lau Miu Sing and not to R2.

74.  Rs’ case was that R1 was partly dormant before January 2019 and R2 was fully dormant at the material times. Lau Miu Sing claimed that he had many other personal businesses at least since 2017 when Miss Cheng worked for him. Lau Miu Sing specifically said that he had business trading with his mainland and Japanese customers. Therefore, he was unhappy about Miss Cheng’s decision to donate her liver tissue to another person which caused serious trouble to his business. He was dissatisfied with Miss Cheng’s false application for further sick leave. However, no documents about his so-called personal business were produced as proof. No records or documents of the alleged personal employment of Miss Cheng were produced, such as records about payment of wages to Miss Cheng by him personally, grant of sick leave, payment for sickness allowance by him personally and etc. On balance, it is very likely that Lau Miu Sing was simply made up his evidence about in an attempt to deny the fact that Miss Cheng was working for Rs in December 2018; and that she knew the Accident and she made a remark of “job injury” on the Time Card.

75.  After considering the testimony of Lau Miu Sing as a whole, I find that he is far from being a truthful witness. He did not answer the questions of the applicant’s counsel directly. He even refused to answer question about the name of the current user of Tit Hang Village Premises. He argued with the applicant’s counsel and also speculated the motive behind the applicant’s counsel. For example, when he was asked a simple question, he would say that he did not want to answer the question in either way because if he answered either way, it would not be fine for him.

76.  More importantly, I do not find him honest when he alleged that he owed sickness allowance to the applicant in May 2013 which formed one of the reasons for making personal loan to the applicant in January 2019. First of all, his allegation about a fight between the applicant and his wife in 2013 was not put to the applicant in the witness box. Secondly, the alleged outstanding sickness allowance in 2013 was not even mentioned by him in his own witness statement. He said he had owed the applicant the sickness allowance since May 2013. Therefore, he was willing to make a loan of HK$45,000 to the applicant. Of course, another reason for making the loan, according to Lau Miu Sing, was because the applicant agreed to work for R1 in 2019. However, according to Rs’ case, the applicant was employed by R2 in May 2013. If there were any outstanding sickness allowance owed to the applicant as alleged, it should be R2 who was responsible for it, as opposed to Lau Miu Sing personally. In Rs’ case, the applicant only earned HK$10,000 in May 2013. The applicant was hospitalized for just about one week in 2013 as alleged. Therefore, his sickness allowance for seven days would not be a substantial sum of money in any event. It is unreasonable for Lau Miu Sing to make a personal loan in a sum of HK$45,000 in January 2019. In addition, if Lau Miu Sing really regarded the applicant as his friend as alleged by him, upon learning from the Labour Department that the applicant was entitled to sickness allowance in May 2013, Lau Miu Sing should cause R2 to pay back the sickness allowance to the applicant who just lived next door to Lau Miu Sing and Madam Ngan’s home.

77.  Lau Miu Sing’s allegation of making a personal loan of HK$45,000 to the applicant is plainly unbelievable. I do not accept that he was such a generous person. Bearing in mind that, according to his own evidence, even if the Labour Department had told him that the applicant was entitled to sickness allowance for about one week in May 2013, he still refused or ignored to pay back the applicant. He failed to prove that he was such a generous a person who would lend a substantial sum of HK$45,000 to the applicant after he was injured on 26 December 2018. It is also hard to see why the alleged HK$45,000 were paid by four monthly instalments and the second, third and fourth instalments of HK$10,000 each was paid on the fifth or sixth day of February, March and April 2019 respectively.

78.  According to Rs’ case, the applicant used to work for them as a material processing worker before 2013 with a monthly salaries of HK$10,000 only. According to the evidence of Lau Miu Sing, in about the end of 2018, the applicant approached him for job. He then told the applicant to work for R1 in January 2019. It is hard to see why in January 2019, Lau Miu Sing would still agree to lend a total of HK$45,000 to the applicant in January 2019 in return for the applicant’s promise to work for R1 in 2019. At that time, the applicant had just been discharged from hospital and he had to attend a series of therapy thereafter. Lau Miu Sing also failed to demonstrate that the applicant had any expertise, so that a personal loan of HK$45,000 was justified to be made in return for his promise to work for R1.

79.  Lau Miu Sing failed to prove that on 26 December 2018, his relationship with the applicant was so good that he would come to the hospital ward to visit the applicant at about 9 p.m. as alleged. I prefer the applicant’s evidence that Lau Miu Sing came to the hospital in the evening and he had actually told the doctor that he was the boss of the applicant; and that after he had given a glance to the applicant, he told the doctor that the applicant was injured by the falling of metal goods from 1m in height. Obviously, Lau Miu Sing came to hospital to visit the applicant on 26 December 2018 because the applicant was injured at Tit Hang Village Workshop in the course of his employment and Lau Miu Sing is the de facto responsible person of R1 and R2. As the responsible person of R1 and R2, he came to hospital to see the injured employee of Rs. The reason why he told the doctor that the applicant was injured by the falling of metal goods was because Mr Chong had no valid operation licence for operating the forklift truck. Lau Miu Sing did not want to cause trouble to Rs or even himself, so he told the doctor as such.

80.  There are other unsatisfactory aspects in Lau Miu Sing’s evidence. For examples, he made bare allegations against Miss Cheng for stealing a “wages borrowing book” which recorded the salaries paid in advance to other employees. This allegation against Miss Cheng is a serious one. It is unknown whom those employees were, when Lau Miu Sing said they borrowed “wages” from him. It is noteworthy that Rs’ case was that R2 was fully formant and R1 only started to employ employees in January 2019. It is unknown who would “borrow” wages in advance from Rs. It is also unknown who would “borrow” wages from Lau Miu Sing personally.

81.  Another example is that Lau Miu Sing said that he bought the clock-in machine in 2017 and put it next to the sliding door inside Tung Fong District Office, but he did not use it until January 2019. He did not explain why he had not used it for about two years after he had bought it. The Accident happened on 26 December 2018, Lau Miu Sing and Rs knew that there was the Time Card of the applicant. The Time card had clearly recorded the working days and working hours of the applicant in December 2018 and those records ended on 26 December 2018. I find that in an attempt to challenge the Time Card, Lau Miu Sing barely asserted that there was no clock-in machine before 2019 and there were no time cards at all. He made up the evidence that the clock-in machine was only used in January 2019. Furthermore, Lau Miu Sing alleged that Miss Cheng falsely claimed for further sick leave by telling lies. Lau Miu Sing then demanded Miss Cheng to use a clock-in machine from January 2019 onwards. It should be noted that the substance of his complaint is the honesty of Miss Cheng in applying for further sick leave. It has nothing to do with unauthorized lateness or absence from work. It is hard to see how the use of the clock-in machine in January 2019 would address Lau Miu Sing’s concern about the false claiming of further sick leave by Miss Cheng. On balance, Lau Miu Sing made up his evidence in an attempt to show that Miss Cheng had grudges with him and she refused to use the clock-in machine and quitted; and that the clock-in machine was only used in January 2019.

82.  In conclusion, Lau Miu Sing is far from being a credible witness. His evidence cannot be relied upon and is rejected.

Analysis of Madam Ngan’s Evidence and Findings

83.  Madam Ngan had no direct knowledge about the business operation of R1 and R2. She was not the de facto decision maker of R1 and R2 despite the fact that she was a partner of R1 and reported as the sole director of R2. She learned about the business operation of Rs from Lau Miu Sing. She received an education below primary school. In her cross-examination, counsel for the applicant asked her if she knew the English words on the employee compensation insurance policy with effect from 8 February 2018, such as the English words of “cleaning” and “worker”, she answered in negative. She was only responsible for signing documents as instructed, receiving and depositing money and making payments for Rs as directed by Lau Miu Lung. This is largely consistent with the evidence of Miss Cheng who said that Lau Miu Sing would work in the Tung Fong District Office mainly and Madam Ngan stayed at home and she did not have a seat in Tung Fong District Office.

84.  The mere fact that Madam Ngan had not seen the Time Card before did not mean it was not the applicant’s Time Card with Rs in December 2018.

85.  I do not accept Madam Ngan’s evidence when she said there were no workers at Tung Fong District Workshop or Tit Hang Village Workshop. I accepted the applicant’s evidence that there were, at least, a pair of couples, Mr Chong and the applicant working Tit Hang Village Workshop. Lau Miu Lung also assisted in operating the breaking machine there. Furthermore, the applicant worked in Tung Fong District Workshop usually in the morning. Miss Cheng worked in Tung Fong District Office. Madam Ngan lived in 41A Tung Fong District, it is unbelievable that she did not know the applicant and Miss Cheng were working at Tung Fong District Workshop and Tung Fong District Office respectively which formed part of 41A Tung Fong District. Furthermore, I do not accept her evidence that R2 was fully dormant in 2018. First of all, Madam Ngan learned about it from Lau Miu Sing. She was not responsible for the business operation of the R1 and/or R2. Secondly, if R2 was in fact dormant, one would expect that she would tell the Labour Department in Rs’ written Reply dated 3 July 2019 that R2 had been fully dormant since March 2017.

86.  Hence, I do not find Madam Ngan a truthful and reliable witness. I attach no weight to her evidence about the operation of Rs which was mainly hearsay in nature, including the cease of business operation of R2 in March 2017 which was also told to her by Lau Miu Sing. What I accept is that she did not actively participate in the actual daily operation of R1 and R2, except singing documents as instructed and receiving money and making payments for R1 and R2; and that despite the fact that she was a partner of R1 and a director of R2, she did not seem to be the de facto decision maker of Rs.

Analysis of Lau Miu Lung’s Evidence and Findings

87.  I do not find the evidence of Lau Miu Lung reliable. I do not believe Lau Miu Lung’s evidence that at between 4 to 5 p.m., the applicant telephoned him that the applicant was in hospital. It is not shown that he had any close friendship with the applicant. It sounds unreasonable that the applicant would telephone Lau Miu Lung as soon as the applicant had sustained injury if the applicant was not the employee of Rs.

88.  Secondly, I also do not believe Lau Miu Lung’s evidence that he went to hospital ward and met the applicant there at about 6 to 7 p.m. According to the A&E Department’s record, the applicant was still in the A&E department between 6 p.m. to 7 p.m. The applicant was only taken to hospital ward in about 8 o’clock at night. In particular, record of the A&E Department contained the following information:-

(a) Triage time: 1648 hrs.

(b) Cubicle Time: 1743 hrs.

(c) Agreed for hospitalization: 6:50 p.m.

(d) Admission Decision Time: 6:53 p.m.

(e) Depart at: 2012 hrs.

89.  Hence, it can be shown that between 6:00 p.m. and 7:00 p.m., the applicant was still in the A&E Department. It is unbelievable that Lau Miu Lung could meet the applicant in the hospital ward on the 1^st floor as alleged by him. Lau Miu Lung made up the above allegation because he did not want to admit that he and Mr Chong sent the applicant to the A&E Department from Tit Hang Village Workshop. As such, he could distance Rs from the applicant and the Accident as well.

90.  I find that after the Accident, Lau Miu Lung went to Tit Hang Village Workshop to understand the situation of the applicant. Then, he and Mr Chong took the applicant to hospital by using the company car. He stayed with the applicant at the A&E department in the evening on 26 December 2018.

91.  Concerning the alleged personal loan, he learned from Lau Miu Sing about the reasons of making the HK$45,000 personal loan to the applicant. It is not proven that R2 or even Lau Miu Sing had ever deducted any wages from the applicant in 2013 in the first place. Even if there was the alleged incident of deduction of wages or non payment of sickness allowance as the case may be, R2 or Lau Miu Sing or Lau Miu Lung could simply return the money to the applicant who just lived adjacent to 41A Tung Fong District.

92.  I also do not believe his evidence that R2 had been wholly dormant since 31 March 2017. He had not given any evidence about the financial status of R2 after 31 March 2017, such as bank statements, books and accounts and etc. which might support R2’s case that it was really fully dormant. It is pertinent to note that despite the allegation of cessation of business since 31 March 2017, Lau Miu Lung admitted that he continued to receive salaries from R2 after 31 March 2017 without doing anything. It should be noted that according the R2’s auditor’s report for the financial year end 31 March 2017, it was stated that “the company incurred a net loss of HK$4,167.81 during the year ended 31 March 2017 (date of ceased) and, as of that date, the company’s liabilities exceeded its total assets by HK$4,219.24.” (quote). He had not explained if R2 really had no trading activities after 31 March 2017, then how R2 could generate income to pay for Lau Miu Lung’s salaries every month.

93.  Hence, I do not find Lau Miu Lung an honest and reliable person. I reject his evidence that Tit Hang Village Workshop was used by other people in 2018. I also reject his evidence that there was no Accident in Tit Hang Village Workshop.

Analysis of Mr Chong’s evidence and Findings

94.  Mr Chong is the current employee of R1 as alleged. He is authorized by both Rs to give evidence for them. His evidence is contradicted by the evidence of the applicant and Miss Cheng. I prefer the evidence of the applicant and Miss Cheng to that of Mr Chong. Mr Chong gave me an impression that he did not exactly know what had been stated in his witness statement. One of the examples was why he stated that both Rs were partly dormant after about 2017. He did not realize that he had stated that. This allegation was inconsistent with his testimony in the witness box that R1 had not been dormant and R2 had been fully dormant after 2017. He was given a full opportunity to explain the discrepancy, but he did not know how to explain.

95.  Another example is that Mr Chong stated in his witness statement that he worked for R2 from 2012 until 30 November 2018. However, he said in the witness box that between 2016 and 2017 he worked for R1. It seemed that Mr Chong did not realize what he had stated in his witness statement.

96.  If the applicant’s case is accepted by the court, that means Mr Chong had operated the forklift truck and caused injury to the applicant while the applicant was in the course of employment. Mr Chong alleged that he got the licence for operating forklift trucks in August 2019. Hence, at the time of the Accident, Mr Chong had no valid licence to operate the forklift truck. Hence, Mr Chong was not an independent witness.

97.  Considering all of the matters above, I have great hesitation in accepting his evidence or attaching any weight to his evidence. He is not a truthful and reliable witness.

(ii) Time Card

98.  Witnesses’ testimony should be assessed in the light of contemporaneous documentary evidence. Rs disputed the Time Card. The applicant and Miss Cheng gave evidence about the clock-in machine in December 2018. It is not suggested by Rs that the Time Card was a fabricated document and it was put in the Agreed Bundle for trial. The Rs argued that there was no clock-in machine in 2018. Hence, Rs argued that the Time Card was not their time card. They alleged that the applicant got the Time Card from somewhere else.

99.  I do not accept that the Time Card was made up by the applicant or Miss Cheng. It is the contemporaneous document of both Rs. It is because the Time Card recorded the on-duty and off duty time of each working day, without separating the time of work for R1 and that for R2. Likewise, the daily wage as recorded thereon represents the daily wage of the applicant for his work both in Tung Fong District Workshop and Tit Hang Village Workshop.

100.  That is to say, in normal working days, the applicant commenced his work by reporting duty at Tung Fong District Office first. Then he would usually work at Tung Fong District Workshop in the morning. Later on, the applicant would be directed to work at Tit Hang Village Workshop. He worked between the two workshops as required by his employers. When he travelled between the two workshops, he needed not report on-duty or off-day for R1 or R2 individually. In the evening, he would report off-day by using the same clock-in machine at Tung Fong District Office. This supports the applicant’s case that he was in fact employed by both Rs jointly. The daily wage marked on the Time Card represents the applicant’s daily wage for working for both Rs jointly, without distinguishing the hours of work for R1 or R2 separately. It is likely that the wages of the applicant would be shared by both Rs jointly.

101.  The Time Card actually recorded the on-duty and off-duty time on each working day. It showed that on 26 December 2018, the applicant reported on duty at 0751. The time was printed thereon by a clock-in machine. However, the off-day time was handwritten as “1800” in red colour. Next to the time of “1800” on the Time Card were two Chinese words of “工傷” (literally translated as “job injury”). They were also handwritten in red colour. With respect to the period from 27 December 2018 to 31 December 2018, there were no on-duty entry records anymore. The signs of ditto were handwritten in red colour immediately below the aforesaid two Chinese words of “job injury” in respect of 27, 28, 29 and 31 December 2018. 30 December 2018 was marked as Sunday.

102.  Further, at the heading of the Time Card, two Chinese words in brackets “(工傷)” (“(job injury)”) were also handwritten in red colour.

103.  It should be noted that the Time Card was in fact a double-paged time card. Its front page recorded the working days from 1 December 2018 to 15 December 2018. It showed that for the first half of December 2018, there were 12 working days. Regarding the back page of the Time Card, it purported to record the second half of December 2018 from 16 December 2018 onwards. For this period, the applicant had only worked for 8 days between 17 and 26 December 2018. However, the total number of working days as recorded at the end of the Time Card at the lower right hand corner was stated to be 12 days. Obviously, the wages of 27, 28, 29 and 31 December 2018 (i.e. the 4 dates marked as job injury) were counted as working days as well. That made a total of 12 working days (i.e. 8 days plus 4 days) for the latter half of December 2018. Hence, the Time Card showed that applicant had worked for 24 days in December 2018. It is a time card for one month, the wage period was one month.

(iii) Equipment: The Forklift truck, Breaking Machine and Packing Machine

104.  With respect to forklift truck, the applicant filed a Request for Further Particulars. Rs filed their joint Answer. In Request 5, the applicant asked Rs to state the location the R1 and/or R2 placed the forklift truck at the time of the accident on 26 December 2018. By their joint Answer 5, Rs answered that “No. 41A, Tung Fong District, Kwu Tung, Sheung Shui and the workshop situated at 鐵坑村, Kwu Tung, Sheung Shui” (quote).

105.  In the present case, the applicant’s foot was injured by a forklift truck operated by Mr Chong. There was no direct evidence as to the ownership of the forklift truck. But it is not fatal to the applicant’s case. As a matter of reality, employees may not always know if all equipment was owned by their employers. It is especially so when they are employed by joint employers, it will be even harder for the employees to tell which of their employers own which particular equipment. Upon preponderance of evidence in this case, both Rs were so closely related to or connected with each other. I am satisfied that the forklift truck that caused injury to the applicant at Tit Hang Village Workshop was provided to Mr Chong by Rs jointly for the use of their business.

106.  Both parties spent considerable effort on the issue of the breaking machine. It should be emphasized that the applicant was actually injured by the forklift truck and not by the breaking machine. It is the applicant’s case that immediately before the Accident, he was talking to Mr Chong about job related issues, the environment there was noisy because of the noise generated by the breaking machine. Recycled materials would be processed by the breaking machine first. Then they would be packed by using the packing machine. The relevance of the breaking machine, as contended by Rs, was two folded. Firstly, Rs argued that there was no such breaking machine in December 2018. If the applicant said that there was a breaking machine at Tit Hang Village Workshop, he was not telling the truth. Secondly, Rs contended that the applicant made a mistake about the existence of a breaking machine in December 2018 because he had not been working at Tit Hang Village Workshop on 26 December 2018. Otherwise, he would have known that there was no such breaking machine there and then.

107.  However, Rs failed to produce any reliable evidence to show that R1 used the government fund to buy the breaking machine in 2019. Even if Rs were able to provide some documents about the purchase of a breaking machine with the government fund in 2019, that could only show that Rs bought a new breaking machine in 2019. Rs still need to show that there was no breaking machine at Tit Hang Village Workshop on 26 December 2018. Secondly, there is no evidence as to whether the alleged government fund in 2019 was a reimbursement of the purchase price of a breaking machine, say for example, in September or October 2018, or it was a government fund given to R1 first as a subsidy for future purchase of a breaking machine.

108.  Without providing any documentary evidence as proof, the court can only decide the issue on the breaking machine by assessing the witnesses’ credibility. As pointed out above, the applicant had provided details of his work at Tit Hang Village Workshop by referring to his colleagues, the forklift truck, the breaking machine, the packing machine and etc. He also said that sometime Lau Miu Lung would also operate the breaking machine. Miss Cheng also said she knew there was a breaking machine in Tit Hang Village Workshop because Lau Miu Lung and Lau Miu Sing had talked about it.

109.  On balance, I find that the forklift truck, the breaking machine and the packing machine were provided by both Rs jointly to their employees in connection with their businesses jointly. This further supports the finding of joint employment of the applicant by Rs.

(iv) Joint Employment

110.  I have made my findings on the credibility of the witnesses, the Time Card and Equipment hereinabove.

111.  In addition, I find that at the material times, Tit Hang Village Office had been rented to others, but not the Tit Hang Village Workshop. On the other hand, the Tung Fong District Office was the joint office of both Rs at the material times. This is evidenced by the fact that the working area of Tung Fong District Office contained three seats for Lau Miu Lung, Miss Cheng and Lau Miu Sing. When Lau Miu Lung gave job instructions to the applicant to work at both Tung Fong District Workshop and Tit Hang Village Workshop, he acted in joint capacity as manager of both Rs. Evidence in this case also shows that Lau Miu Sing was mainly responsible for the managerial work and financial matters of both Rs.

112.  Furthermore, there was only one clock-in machine for both Rs and it was placed next to the sliding door at the reception area of the Tung Fong District Office. As pointed out hereinabove, there was no distinction of working dates, working hours or daily wage between R1 and R2. Hence, the Time Card is the contemporaneous record of the applicant for working for both Rs jointly.

113.  Hence, the wages received by the applicant represented his entitlement as an employee of both Rs jointly.

(v) Cause of Accident

114.  According to the Admission Note, the doctor recorded in English that “Right foot injured by metal goods falling from ~1m height at ~4pm”. Rs argued that such record, together with the record of the Occupational Therapy Report about the cause of injury, was inconsistent with the applicant's case and evidence.

115.  The first record in this case about the cause of injury was the A&E Department’s record. The cause of injury was recorded as “R foot rolled over by 剷車 [forklift truck]” (quote).

116.  The creation date of the Admission Note was stated as “26-Dec-2018 21:41” (quote). There is no evidence that when the doctor had ever shown the Admission Note or his own records to the applicant at the hospital ward for the applicant's verification. The applicant had already explained that it was Lau Miu Sing who told the doctor as such. I accept the applicant’s explanation. Likewise, there is no evidence that the occupational therapist had shown the occupational therapy report to the applicant for his confirmation. I also accept the applicant’s explanation for not rectifying the cause of Accident as recorded on his Occupational Therapy Report. On balance, it is possible that the Occupational Therapy Report adopted the cause of evidence from the Admission Note.

117.  According to the applicant’s own declaration provided to the Labour Department dated 15 June 2019, the applicant stated that he was injured by a forklift truck while he was in the course of his employment. Hence, it can be seen that the cause of injury as stated by the applicant himself at the A&E Department or in his declaration for the Labour Department were consistent.

(vi) The Applicant’s Former Employment with Rs before 2013

118.  Both parties spent a lot of time and effort in their cross-examination on the applicant’s former employment with Rs before 2013. It must be emphasized that whether the applicant was an employee of R1 and/or R2 must be decided by the evidence of the current employment.

119.  The applicant contended that the Rs might not be honest in the former employment before 2013. It is because in the former employment before 2013, the employer’s MPF contribution records did not match the old time card. That means the Rs had reported a lesser sum as the wages of the applicant.

120.  On the other hand, Rs contended that they had duly complied with the legal requirements in the past by providing MPF contribution to the applicant for his former employment before 2013. Hence, Rs argued, if the applicant was really employed by R1 and/or R2 in December 2018, there was no reason why Rs did not contribute to the applicant’s MPF. For this reason, the Rs seriously cross-examined the applicant on his former MPF contribution, employee’s insurance policy and matters concerning other employees’ wages. Rs further argued that the reason why there was no MPF contribution and no employee’s insurance policy in 2018 for the applicant was because there was no employment by Rs. I find that the applicant’s personal view or comment on those issues is inadmissible opinion evidence. Alternatively, it serves very little probable value in assisting the court to dispose of the real issues in dispute in any event. I do not accept that the absence of MPF contribution and/or the absence of employee’s insurance policy can be regarded as the evidence of no employment of the applicant in this case.

121.  The evidence about the former employment with R1 and then R2 before 2013 is remotely relevant. In the present case, the current employment of the applicant in 2018 was totally independent of the former employment in 2013. The current employment was not a continuation or a reinstatement of the former employment.

122.  In the present case, the former employment of the applicant before 2013 is the only relevant to the extent that the applicant knew Rs, Lau Miu Sing, Lau Miu Lung and Madam Ngan; and that the applicant had some experience in processing recycled materials and he might not need the same specific work instruction from his employers when comparing with a new or unskilled worker. In conclusion, whether the applicant was an employee of R1 or R2 or both Rs must be decided by the evidence of this case, i.e. the evidence from about August 2018 onwards.

(vii) Conclusion

123.  In conclusion, I accept the applicant’s evidence that he was employed by both Rs. Both Rs jointly employed the applicant from August 2018 onwards. The applicant worked for both Rs on 26 December 2018. The applicant had to follow the instructions of both Rs while he was employed by them. The applicant has to discharge his duties according to the instructions of both Rs. He had to work at Tung Fong District Workshop and Tit Hang Village Workshop as required by both Rs. In particular, when Lau Miu Lung instructed the applicant to work, Lau Miu Lung was actually giving the instructions on behalf of both Rs. It is against the totality of evidence to suggest that Lau Miu Lung gave the applicant his job instructions on behalf of R1 only.

124.  The applicant’s wages was paid in cash. I find that the wages of the applicant were paid by both Rs. In this case, Rs had not fully disclosed the details of their business relationship to the court, such as how they shared the employees’ wages between themselves, how they shared their business profit between themselves and etc.

125.  I find that the Accident did occur in the manner testified by the applicant.

126.  As a summary, I set out the most salient parts of the above findings:

(a) The applicant had been employed by both Rs since about 19 August 2018 as a labour worker.

(b) On 26 December 2018, a breaking machine and the forklift truck mentioned hereinabove were placed at the Tit Hang Village Workshop by Rs. They were the equipment provided by Rs to their employees to use for the purpose of Rs' trade and business.

(c) The applicant was working at Tit Hang Village Workshop at about 4:30 p.m. on 26 December 2018 for both Rs. In the course of his work, the applicant's right foot was rolled over by a forklift truck operated by Mr Chong. As a result, the applicant sustained personal injury.

(d) After the applicant had been injured, Lau Miu Lung went to Tit Hang Village Workshop. Mr Chong and Lau Miu Lung took the applicant to the A&E Department of Northern District Hospital.

(e) The applicant told the A&E Department that his right foot was rolled over by a forklift truck. After the applicant was admitted to hospital ward on that day, Lau Miu Sing came to visit him. Lau Miu Sing told a doctor that he was the boss of the applicant and that the applicant was injured by the falling of metal goods from 1m in height.

(f) After the Accident, Rs paid the applicant a total sum of HK$78,000 by five instalments as employee’s compensation.

(g) From January 2019 onwards, the payments to the applicant were not a personal loan from Lau Miu Sing and the amount of such payments was not HK$45,000 as alleged by Rs. Any money given to the applicant through Lau Miu Lung was in fact part of the abovementioned HK$78,000 being the employee’s compensation.

(h) Rs had paid the applicant his wages of December 2018. Hence, the wages of 26, 27, 28, 29 and 31 December 2018 had been paid by Rs to the applicant. The total wages of these 5 days were HK$3,000.

(i) The daily wage of the applicant was HK$600. The wage period was one month.

(j) The Time Card was the applicant’s time card when he was employed by Rs in December 2018. The applicant’s working time at Tung Fong District Workshop and that at Tit Hang Village Workshop were not separately marked on the Time Card because the applicant was in joint employment by both Rs at the same time. The Time Card recorded the working dates and hours that the applicant had worked for both Rs in December 2018. Likewise, the daily wage of HK$600 marked on the Time Card represented the applicant’s daily wage for his employment by both Rs jointly.

(k) Regarding another old time card for November 2012, I accept that it was the old time card of the applicant when he worked for R1 and/or R2 previously. It is a contemporaneous document accurately reflecting the applicant’s working dates and wages in November 2012. If there are any discrepancies on the amount of the applicant’s wages as recorded in his employer’s MPF contribution records, I prefer the figures stated on this old time card. It is possible that employers reported lesser wages for their employees out of many reasons.

(l) After the applicant had reported the Accident to the Labour Department, the breaking machine was transported from Tit Hang Village Workshop to 41A Tung Fong District.

127.  The applicant has proven his case. I give judgment in favour of the applicant against both Rs.

(I) Quantum of Damages

Monthly Earning of the Applicant

128.  I accept the applicant’s evidence that his daily wage was HK$600 and he had to work from Monday to Saturday. Hence, in the preceding month immediately before the Accident, the applicant had earned HK$15,600.

Section 9 Permanent Partial Incapacity

129.  The applicant was 49 years of age at the time of the Accident.

130.  The Employees’ Compensation (Ordinary Assessment) Board assessed that the applicant’s loss of earning capacity as 2.5%. in Form 7. Upon review, the percentage remained unchanged in Form 9. The applicant appealed against the assessment of the board.

131.  A Joint Medical Examination Report was provided by Dr Chan Tun Kit and Dr Fu Wai Kee for the applicant and Rs respectively. Both Dr Chan and Dr Fu were specialists in Orthopedics and Traumatology. Dr Chan referred to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (6^th edition) and opined that an overall whole person impairment should be 10%. It is not clear if Dr Chan had considered the prognosis and recovery of the applicant as stated in paragraphs 64 to 67 of the Joint Medical Examination Report when he made his assessment by reference to the said Guide to the Evaluation of Permanent Impairment. In particular, in paragraph 67 it is stated that:-

“67. Dr Fu: For the right ankle, physical examination by us revealed he had near full range of movement of right ankle. There was no significant muscle wasting in his right lower limb so the pain, even if really present, should be a mild one. In fact according to Mr Chan the pain mainly appeared after two hours of standing. He also did not need any painkiller for the pain now so it cannot be severe. X ray also revealed the fracture healed well with normal alignment. There is no sign of any joint degeneration. The fractures in ankle should have well recovered. The prognosis should be good.” (quote)

132.  Having considered the whole Joint Medical Examination Report, the applicant’s medical reports and occupational therapy report, I prefer the opinion of Dr Fu in this regard. Hence, the applicant’s appeal against the assessment of permanent incapacity fails.

133.  Thus, compensation under Section 9 of the ECO is HK$28,080 (HK$15,600 x 72 x 2.5%).

Section 10 Compensation for Temporary Incapacity

134.  According to Certificate of Review of Assessment, i.e. Form 9, the period of absence from duty necessary as a result of the injury was assessed as 17 months from 26 December 2018 to 25 May 2020. Loss of earning capacity permanently caused by the injury was assessed as 2.5%.

135.  Mr Wong for Rs submitted that even if the sick leave was certified as 17 months, it did not mean the court must necessarily adopt the certified sick leave period. Mr Wong cited Ko Wai Fan v Tung Wah Group of Hospital [2022] HKDC 1086 at paragraphs 9 to 17 thereof; and Cheung Sau Lin v Tsui Wah Efford Management Ltd [2018] 3 HKLRD 865 at paragraphs 20 to 22. The burden is on the employer to prove that the employee was in fact capable of earning money in suitable employment.

136.  Regarding the duration of sick leave, Dr Chan opined that the sick leave were granted within reasonable limits. He stated that the applicant had received surgery open reduction and internal fixation for his right distal fibula, right os calcis and right navicular fracture on 2 January 2019 and removal of right calcaneal-cuboid plate on 16 April 2019. Besides to two surgeries, medication, regular physiotherapy and occupational therapy were given during the period of sick leave. Hence, Dr Chan opined that the duration of sick leave granted by the applicant’s treating specialists who assessed him from time to time was reasonable and should be endorsed.

137.  Dr Fu, however, pointed out that the applicant had finished all rehabilitation sessions in February 2020. Dr Fu opined that the applicant should be able to resume work in February 2020 and no sick leave was need after February 2020.

138.  Having considered the applicant's injury in this case, the issue is whether it is unreasonable for the applicant's doctors/specialists to grant him sick leave from March 2020 to 25 May 2020. According to the occupational therapy rehabilitation assessment report dated 20 February 2020, it was found that, inter alia, the applicant still had pain over right ankle. The recommendation of the said assessment report was that the applicant was "ready to resume previous job without major work adjustment" (quote). However, whether a patient needs to attend medical consultation or therapy session is only one of the factors for the court should consider. It does not mean that once a patient has finished his therapy sessions, any further sick leave would become unnecessary. In the present case, having consider the fact that a series of medical treatments and a series of therapy sessions were given to the applicant; and the fact that the applicant still had pain on his right ankle on 20 February 2020, I prefer the opinion of Dr Chan.

139.  The applicant relied on s.11(1)(a) of ECO which provides that:-

“Method of calculating earnings

11(1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings--

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

(b) ...

whichever calculation is more favourable to the employee.”

140.  Mr Lau submitted that in November 2018, i.e. the month immediately preceding the date of the Accident, there were 26 working days. Hence, the applicant had earned HK$15,600 (HK$600 x 26 days). Mr Wong for Rs argued that the applicant’s wages were only HK$10,000 in 2012. I find that the applicant’s wages in his former employment between 2007 and 2013 had no relevance in this case in determining his monthly wages in 2018. It is because the employment of the applicant in 2018 is not a continuation or reinstatement of the former employment. Even in a case of continuation or reinstatement of employment, the court still needs to determine the monthly wages of the employee by reliable evidence.

141.  Thus, the compensation under Section 10 of the ECO is HK$212,160 (HK$15,600 x 17 x 4/5).

Section 10A Payment for Medical Expenses

142.  Parties did not take issue on the amount of medical expenses incurred by the applicant. Thus, compensation under Section 10A of the ECO is HK$1,993.

Deduction

143.  The applicant conceded that he had received his wages for 26 to 29 and 31 December 2018 in a total sum of HK$3,000. The applicant also admitted that he had received employee compensation of HK$78,000. These two sums should be deducted from the compensation to be awarded.

144.  The quantum of damages is as follows:

(a)	Section 9	HK$28,080
(b)	Section 10	HK$212,160
(c)	Section 10A	HK$1,993
	Sub-total:	HK$242,233
(d)	Minus Advance Payment	-HK$81,000
	Total:	HK$161,233

145.  The applicant’s appeal against the assessment of the Employees’ Compensation (Ordinary Assessment) Board as set out in the Certificate of Review of Assessment dated 2 November 2020 is dismissed.

146.  There be a costs order nisi that the applicant is entitled to 90% of his costs in this action, including any costs reserved (if any), to be taxed if not agreed, with certificate for counsel. It is because the applicant fails in his appeal against the assessment of the Employees’ Compensation (Ordinary Assessment) Board which was fully argued at the trial. The costs order nisi will become absolute 14 days after this judgment. The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

147.  The applicant is entitled to interest. Interest is awarded at half judgment rate from the 26 December 2018 until judgment and thereafter at judgment rate until full payment.

148.  For completeness sake and in deference to the arguments of both counsel, if I were wrong in finding that the applicant was jointly employment by both Rs, and that the applicant was employed by R1 alone on the ground that R2 was fully dormant, then I shall make a Sanderson costs order in this case that the costs between the applicant and R2 be paid by R1. It is because R1 and R2 were so inter-related and inter-connected. Both Rs gave evidence for each other. Furthermore, the Accident occurred in Tit Hang Village Workshop being a place owned by R2 as admitted by Lau Miu Sing, Madam Ngan and Lau Miu Lung. But R2 had not explained why its Tit Hang Village Workshop was used by R1 on 26 December 2018. In addition, both Rs only made limited disclosure of documents in this case. It is reasonable for the applicant as a labour worker to sue both Rs in the first place. Under these circumstances, it is also reasonable for the applicant to proceed his claim against both Rs.

149.  I thank counsel for their assistance to this court.