CHEN ZIQIANG v. NEW HOME DESIGN LTD AND ANOTHER

DCEC 1018/2021

[2023] HKDC 495

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1018 OF 2021

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JUDGMENT

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Introduction

1.  On 6 September 2019, the applicant was injured in the course of employment by the 1^st respondent.

2.  By the present proceedings, the applicant claims compensation under ss 9, 10 and 10A of the Employees’ Compensation Ordinance (“the Ordinance”).

3.  The 1^st respondent has all along been absent and took no part in the proceedings.

4.  Interlocutory judgment on liability was entered on 5 January 2022 against the 1^st respondent.

5.  On 27 September 2022, I gave leave to join the 2^nd respondent in these proceedings to contest the issue of quantum.

6.  The order of Her Honour Judge Levy fixing the date for assessment of compensation dated 8 July 2022 was served on the 1^st respondent on 28 July 2022.

7.  I am satisfied that the 1^st respondent has had due notice of the hearing for assessment of compensation and has chosen not to appear.

Section 9

8.  It is common ground that the monthly earnings of the applicant exceeded the statutory maximum (ie $30,530) under the 6^th Schedule of the Ordinance.

9.  The applicant, born on 26 February 1975, was aged 44 at the time of the accident. Under s 7(1)(b) of the Ordinance, the multiplier is 72.

10.  By a Certificate of Review of Assessment issued by the Employees’ Compensation (Ordinary Assessment) Board dated 24 March 2021, the loss of earning capacity permanently caused by the injury was assessed at 59%.

11.  Accordingly, there is no dispute that the compensation under s 9 is $1,296,914.40 ($30,530 x 72 x 59%).

Section 10

12.  The real controversy is on the monthly earnings of the applicant.

13.  The applicant said in order to earn more money to support his family, he was very hardworking and seldom took rest. In or about the end of July 2019, he was introduced to one Kong Shing Chuen (“Kong SC”) (who was the husband of the director of the 1^st respondent company) and Ah Kong (who was a foreman). He was employed by Kong SC between 29 July 2019 and 11 August 2019, mainly working at Chi Lo in Clear Water Bay, 7 days a week. His daily wage was $1,500. However, Kong SC assigned him to work in a residential flat in Kai Tak on 2 and 9 August 2019 at the daily wage of $1,600.

14.  As the work in Chi Lo ceased after 11 August 2019. Kong SC employed him to work in Sun Lai Garden from 13 August 2019 onwards. As the works involved the laying of tiles, his daily wage was increased to $1,600.

15.  From 13 August 2019 onwards, he mainly worked in Sun Lai Garden but he would be assigned to work in other places by Kong SC.

16.  In order to earn more money, he requested Kong SC to give him job on Sundays as well.

17.  As he was in need of money, he asked Kong SC to lend him $20,000 on 24 August 2019, who deposited the sum of $20,000 into his account. After the accident, the 1^st respondent deposited another $20,000 into his account. He had, therefore, received a total of $40,000 on wages for 25 days from 13 August to 6 September 2019.

18.  According to the applicant, for the period between 29 July to 6 September 2019, his earnings were as follows:

Date (2019)	Wage ($)
29/7	1,500
30/7	1,500
31/7	1,500
1/8	1,500
2/8	1,600
3/8	1,500
4/8	1,500
5/8	1,500
6/8	1,500
7/8	1,500
8/8	1,500
9/8	1,600
10/8	1,500
11/8	1,500
12/8	Nil
13/8	1,600
14/8	1,600
15/8	1,600
16/8	1,600
17/8	1,600
18/8	1,600
19/8	1,600
20/8	1,600
21/8	1,600
22/8	1,600
23/8	1,600
24/8	1,600
25/8	1,600
26/8	1,600
27/8	1,600
28/8	1,600
29/8	1,600
30/8	1,600
31/8	1,600
1/9	1,600
2/9	1,600
3/9	1,600
4/9	1,600
5/9	1,600
6/9	1,600

19.  Section 11(1) of the Ordinance provides:-

“(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) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.”

20.  Miss Kay Seto, counsel for the applicant, submitted that s 11 of the Ordinance is designed to give a calculation of the monthly earnings in favour of the employee. Therefore, the applicant is entitled to elect the methods of calculation under s 11(1)(a) or (b), whichever is more favourable to him, citing Chan Kam Sau v Yee Hing Construction Transportation Co Ltd, DCEC 1361/2005, 19/1/2007 (unreported) in support of the proposition.

21.  Miss Flora Lam, counsel for the 2^nd respondent, put forward no counter argument.

22.  By the clear wording of s 11(1), the employee is entitled to adopt the more favourable monthly earnings which is arrived at by applying either s 11(1)(a) or s 11(1)(b). It is therefore the duty of the trial judge to determine which calculation is more favourable to the employee. Rather than having an option of electing which limb to be used, the applicant in fact bears the burden of persuading the court which limb of s 11(1) would arrive at a more favourable figure. My view is shared by the learned judge in Cheung Chi Ping v King Tin Engineering & Transportation Ltd [2021] HKDC 2 at para 114.

23.  Miss Seto has rightly pointed out that there are 2 different interpretations of “the month” under s 11(1)(a). In Lau Yiu Yee v Tung Lee Engineering Co (a firm) [2003] 1 HKC 43, the court decided that it should mean calendar month whereas in Cheung Chi Ping (supra), a period of 31 days immediately before the date of the accident was adopted.

24.  S 2(1) of the Interpretation and General Clauses Ordinance provides:

“(1) Save where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument, the provisions of this Ordinance shall apply to this Ordinance and to any other Ordinance in force, whether such other Ordinance came or comes into operation before or after the commencement of this Ordinance, and to any instrument made or issued under or by virtue of any such Ordinance.”

25.  S 3 of the same Ordinance defines “month” as calendar month.

26.  Nowhere in the Ordinance shows any contrary intention on the definition of the word “month”.

27.  I am therefore in respectful agreement with the ruling of the learned judge in Lau Yiu Yee (supra) that under s 11(1)(a), the relevant month to be adopted is the calendar month immediately before the accident, ie the month of August 2019 in the present case.

28.  The 2^nd respondent disputes the daily wage as well as the number of working days of the applicant.

29.  There is no dispute that the applicant had received $40,000 from the 1^st respondent.

30.  The applicant said it was the wages for his 25 days of work between 13 August and 6 September 2019 at $1,600 per day. This was corroborated by the evidence of Kong SH in the criminal proceedings in which the 1^st respondent was prosecuted under the Occupational Safety and Health Ordinance.

31.  Miss Lam submitted that the said sum was inclusive of reimbursement of the costs of materials purchased on behalf the 1^st respondent in the sum of $3,401 between 22 to 24 August 2019 because when the applicant asked Kong SH for $20,000 on 24 August 2019, he did mention this sum.

32.  Miss Lam runs her argument in this manner. The applicant could not have worked on every day between 13 August and 6 September 2019 because 25 August and 1 September 2019 were Sundays. No work could be carried out in Sun Lai Garden on Sundays and there is no evidence that the applicant had worked somewhere else on Sundays. On 2 September 2019, the applicant could only arrive at the work site later in the day and because of that he had agreed not to take his wage for the day. The applicant was not doing tiling work between 13 and 31 August 2019, it was reasonable to draw an inference that his daily wage was lower than $1,600. Therefore, even accepting that the daily wage of the applicant was $1,600, the total wage of the applicant between 13 August and 5 September 2019 should only be $33,600 (according to Miss Lam’s calculation). Therefore, Miss Lam submitted that the applicant had received more than his entitlement on wages and the surplus of $6,400 was probably the reimbursement of materials costs.

33.  The applicant was indeed cross-examined on the issues argued upon by Miss Lam. In all fairness, the answers that he had given should be a topic of discussion and argument by counsel of both sides on their credibility and reliability and ultimately what weight should be attached thereto.

34.  In his evidence, the applicant readily agreed that no work was allowed to be carried out in Sun Lai Garden on Sundays. However, he did tell Kong SH of his family background, that he had to single-handedly support the living of 7 people. Therefore, he wished to work on Sundays and public holidays as well. Kong SH promised to arrange works for him. For that reason, he adamantly said that he did work on 25 August and 1 September 2019. He added that when he was in hospital, Kong SH visited him. They both agreed that his work days between 13 August and 6 September 2019 were 25. Kong SH is an astute businessman. He would not have agreed to pay him 25 days of work if he had only worked for 20.

35.  In respect of 2 September 2019, the applicant said originally he planned to take the skilled workers test on that day. But Kong SH requested him to work in Sun Lai Garden on that day urgently. He had to cancel his plan but could only arrive at the work site 2 to 3 hours late. That was why he said to Kong SH that he would not charge him for that day out of courtesy. However, he did work overtime up to 12 o’clock. It would only be reasonable for Kong SH to pay him for the day bearing in mind that he was entitled to double pay for overtime work.

36.  In my judgment, the applicant had answered the queries of Miss Lam persuasively and I believe his evidence.

37.  $40,000 is the exact multiple of $1,600. If that sum is inclusive of materials costs, it is highly unlikely that the figure is not an odd number. More likely than not, that sum is for payment of the applicant’s wages only.

38.  Common sense dictates that the 1^st respondent as an employer would not pay their workers more than they were entitled to. By paying the applicant the total sum of $40,000, the 1^st respondent must have accepted that the applicant did work on 25 August, 1 and 2 September 2019. I therefore find as a fact that the $40,000 the applicant received was his wages for 25 days of work for the period from 13 August to 6 September 2019 at the daily rate of $1,600.

39.  As a matter of fact, the applicant is not saying that his daily wage was $1,600 throughout. He said if he was doing plastering work, his daily wage was $1,500 only. Also, Kong SH promised to pay him $1,600 per day instead of $1,500 for his good performance.

40.  I find the evidence of the applicant credible and sits well with logic.

41.  Miss Lam sought to argue that the applicant had only worked for 27 days in the month of August 2019. To this end, Miss Lam has made a convoluted submission which touched upon the number of working days in Chi Lo; the way by which the applicant received his wages and whether the applicant had worked on 25 August 2019. In the end, Miss Lam submitted that the applicant did not work on 2, 9, 12 and 25 August 2019. As the applicant is not saying that he worked on 12 August 2019, Miss Lam is in effect challenging the remaining 3 working days.

42.  In relation to 2 and 9 August 2019, the applicant said he was assigned by Kong SC to work at a work site in Kai Tak and he was paid immediately after work.

43.  Suffice it to say, I find the applicant a credible witness and I believe his evidence. I do not accept Miss Lam’s submission that his evidence is self-serving and is therefore unbelievable. As the wages were received in cash, naturally such payment would not be supported by documentary evidence. That, however, does not vitiate the credibility of the applicant.

44.  In relation to 25 August 2019, I have already considered the applicant’s evidence as a whole and accepted that he did work on that day.

45.  For the above reasons, the challenges of Miss Lam to the daily wage and number of working days of the applicant are rejected. I accept as a fact the number of working days and the wages of the applicant for the period from 29 July to 6 September 2019 as particularised in paragraph 18 above.

Calculation under s 11(1)(a)

46.  The monthly earnings of the applicant for the month of August 2019 is therefore $47,100.

Calculation under s 11(1)(b)

47.  S 11(1)(b) of the Ordinance necessitates the computation of the earnings of the injured employee in a manner so as to give the best rate per month.

48.  To my mind, the rate of monthly earnings can be calculated in the following ways:

(1)  the sum total of the applicant’s wages from 7 August to 5 September 2019 (“the 1^st calculation”); or

(2)  the average per month of the applicant’s earnings during the period he was employed by the 1^st respondent, ie from 29 July to 6 September 2019 (“the 2^nd calculation”).

49.  Hence, the rate of earnings according the 1^st calculation is $46,000 and according to the 2^nd calculation is $45,900 ($61,200 x 1/40days x 30 days).

The most favourable monthly earnings under s 11(1)

50.  It can be seen that the calculation under s 11(1)(a) yields the most favourable monthly earnings of $47,100.

51.  The applicant was granted 520 days of sick leave.

52.  Accordingly, the compensation under s 10 is $653,120 ($47,100 x 520 days/30 x 4/5).

Section 10A

53.  There is no dispute that the compensation under s 10A is $9,683 and I so award.

Part payment

54.  There is no dispute that the 1^st respondent had paid the applicant $3,000 in cash.

Conclusion and award

55.  By reasons of the aforesaid, the applicant is entitled to compensation in the sum of $1,956,717.40 ($1,296,914.40 + $653,120 + $9,683 - $3,000) and I so award.

Interest

56.  The applicant is entitled to interest at half judgment rate from the date of the accident (ie 6 September 2019) to the date of judgment and thereafter at judgment rate until the date of payment.

Costs

57.  I make the following costs orders nisi that:

(1)  the 1^st respondent shall pay the applicant the costs of the assessment including the costs of and occasioned by the 2^nd respondent’s joinder, with certificate for counsel, to be taxed if not agreed. The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations;

(2)  the 1^st respondent shall pay the 2^nd respondent the costs of the assessment, with certificate for counsel, to be taxed if not agreed; and

(3)  there be no order as to costs between the applicant and the 2^nd respondent (including all costs reserved).

58.  In the absence of any application for variation by letter within 14 days from the date of this judgment, the costs orders nisi shall become absolute.