TALAT ARSLAN v. LI TAK CHEUNG

DCEC 1965/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1965 OF 2014

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JUDGMENT

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Introduction

1.  The applicant, an asylum seeker, seeks to claim compensation under the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”).

The applicant’s case

2.  The applicant came to Hong Kong in 2009.

3.  Since around 2011, he became the tenant of the respondent.  Since about that time, he was employed by the respondent as a general labourer.

4.  On 20 September 2013, he was employed by the respondent again at the daily wage of $450 inclusive of overtime allowance.

5.  On 21 September 2013, while he was knocking down a wall as instructed by the respondent, the wall suddenly collapsed and fell onto him. He sustained injuries as a result.

The respondent’s case

6.  The respondent denied that he had ever employed the applicant.  He said the respondent was his tenant only.

Issues

7.  The following are the issues for the determination by this trial:-

(1)   whether the applicant, being an illegal worker, is entitled to claim compensation under the Ordinance;

(2)   if so, whether the applicant was employed by the respondent;

(3)   whether the applicant was injured in the course of employment;

(4)   in the absence of any notice of appeal under s 18 of the Ordinance, whether the applicant has lost his right to appeal against the assessment of the Employees’ Compensation (Ordinary Assessment) Board (“the Board”); and 

(5)   what is the compensation payable under ss 9,10,10A of the Ordinance.

Whether the applicant, being an illegal worker, is entitled to claim compensation under the Ordinance?

8.  This issue can be disposed of briefly.

9.  The applicant is an asylum seeker. By reason of his status as such, he is not allowed to work in Hong Kong.

10.  S2 (2) of the Ordinance provides:-

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

11.  How the court should exercise the discretion under s 2(2) was considered by the Court of Appeal in great details in Yu Nongxian v Ng Ka Wing [2007] 4 HKLRD 159.  There, the deceased worker who came to Hong Kong on a two-way permit, fell to his death during the course of employment by the respondent.  Their Lordships unanimously held that the discretion should be exercised in favour of the deceased employee.  Tang, VP (as he then was) was of the view that having regard to the public policy regarding unemployable persons performing lawful work, allowing compensation claims by illegal employees was more conducive to serving such policy.  Cheung, JA was of the view that it would take an extremely cynical and indeed harsh view to say that public policy should deprive an employee who was physically injured or killed in an industrial accident from recovering compensation from an employer who knowingly employed him to carry out lawful work despite his lack of permission to work in Hong Kong.

12.  Although the applicant is not lawfully employable in Hong Kong, the work that he was doing at the time of the accident was by no means unlawful.

13.  Based on the authority of the above case, the answer to this issue must be in the affirmative.

Whether the applicant was employed by the respondent?

Whether the applicant was injured in the course of employment?

14.  These 2 issues can be dealt with together.

15.  The applicant said he was a tenant of the respondent since around 2011 and that he was also employed by the respondent as a general labourer around that time.  A few days before the accident, the respondent asked him if he wanted to work so as to make some money again as he was not working and was staying home all the times.  It was orally agreed that he would be paid $450 per day inclusive of overtime allowance as before.  He had worked for the respondent a few times before.

16.  On 20 September 2013, the respondent took him to work at a squatter which he learnt the address later as 1145 Ha Che Tsuen, Pat Heung New Territories, Hong Kong (“the site”).  After he finished his work on that day, he received $450 in cash from the respondent.

17.  On the following day, the applicant was again assigned by the respondent to work at the site.  He was instructed to knock down a wall which was 9 feet long by 10 feet in height made of bricks and mud.  The respondent instructed him to make a hole at the bottom of the wall.  While he was doing so, the wall suddenly collapsed and fell.  The bricks and the mud hit his eye, face and back and he sustained injuries as a result.

18.  After the accident, the respondent waived his rent for 6 months until April 2014.

19.  The respondent denied that he had ever employed the applicant.  He said he first came to know the applicant in the end of March 2013 when the applicant approached him asking whether there was any room for rent.  A tenancy agreement for 1 year was signed between them on 1 April 2013 at the monthly rent of $1,800.  However, the applicant failed to pay rent half a year later.  Because the applicant did not pay for the water and electricity charges, he turned off the water and electricity supplies.  When the applicant moved out, he was 5 months in arrears of rent and had owed more than $4,000 in water and electricity charges.

20.  The respondent said from 1995 to May 2014, he was in the business of wholesaling wooden ladders under the name of Cheung Hing Wooden Co （長興木業）.  Due to the business was slow, he did not employ anyone between 2012 and 2014.

21.  There is no doubt that the applicant was injured on 21 September 2013.  The Medical Report of Pok Oi Hospital confirmed that he was admitted to the Accident & Emergency Department of the hospital on that day as 6:11 pm.  He was examined and found to have skin laceration over his right eyebrow and right face and suffered posterior displacement of lumbar vertebrae L2 over L3.  He was later that day admitted to the Department of Orthopaedic & Traumatology of Tuen Mun Hospital where he was diagnosed to have closed fracture of left acetabulum and fracture of lumbar spine (L2/3 and L5/S1 dislocation).  The question is whether he was working for the respondent when he sustained the injuries.

22.  It is not in dispute that the applicant was a tenant of the respondent in respect of a room at Ha Kuk Shan Tsuen, Kam Tin and that the applicant was an asylum seeker.  The respondent insisted that that was the only relationship he had with the applicant.

23.  From the available evidence, it seems the relationship between the applicant and the respondent is more than what the respondent has asserted.

24.  The applicant identified the structure shown in the bottom photograph at p 82 of the bundle was the place where, when he worked for the respondent, he picked up tools before going to work.  He also identified the white private car in the picture belonged to the respondent.  In cross-examination, the respondent confirmed that the structure was his storage place when he was wholesaling wooden ladders.  He also confirmed that the white private car in the picture was his.

25.  If the respondent was merely a tenant of the respondent, he would not have known the storage place of the respondent.

26.  In his answer, the respondent said he ran the business of Cheung Hing Wooden Co （長興木業） between 1995 and 2014 wholesaling wooden ladders.  He made no mention of another business in the name of Cheung Hing Eng Co （長興工程） which was opened by him on 1 December 2008, the business nature of which was wholesaling of wooden materials and decoration works.  On the other hand, Cheung Hing Wooden Co was in fact opened on 26 April 2006 and was closed on 10 March 2007.  The sole proprietor was Huang Jia Tian, not the respondent.

27.  When cross-examined, the respondent explained that because the business of wholesaling wooden ladders was operated at a loss, he closed down the business and opened Cheung Hing Eng Co at the end of 2014.

28.  The explanation of the respondent has raised more doubts.  Not only that it did not answer the question of why he was silent on Cheung Hing Eng Co, his explanation also did not tally with commencement date of the business.  

29.  It seems odd that the respondent only mentioned Cheung Hing Wooden Co, which was not opened by him and was closed long before the accident but kept silent on Cheung Hing Eng Co, which opened by him and was in operation at the time of the accident.  I am left with the impression that the respondent was intentionally hiding the fact that he owned the business of Cheung Hing Eng Co at the material time.  Its business nature is such that general labourers are normally required of and employed.  

30.  Under the tenancy agreement, the rent payable by the applicant was $1,800 per month.

31.  In cross-examination, the respondent acknowledged the fact that the applicant was not allowed to work in Hong Kong.  However, he said all he cared was to receive the payment of rent from the applicant.  He was not concerned with the fact that the applicant only received government’s rental subsidy of $1,200 only per month.

32.  I think as a Landlord, the main concern must be the ability of the tenant to pay rent punctually.  The applicant is an asylum seeker, the respondent should have known that he had no means to pay rent other than from the government's subsidy, which was insufficient to pay the rent in full.  On this note, the applicant must need to find means of earning money in order to make ends meet, including working as an illegal worker.  This would not have escaped the attention of the respondent.

33.  Although the applicant was not allowed to work in Hong Kong, to some unscrupulous employers, people like the applicant can be a cheap source of labour.  I note that the daily wage of $450 is below the market rate for general labourer in the construction sector.

34.  Having considered the evidence before me, I find evidence of the applicant is more credible than that of the respondent.  I find that it is more probable that the respondent did employ the applicant to work at the site and the applicant was injured during the course of the said employment.

In the absence of any notice of appeal under s 18 of the Ordinance, whether the applicant has lost the right to appeal against the assessment of the Board?

35.  By a Certificate of Assessment in Form 7 dated 16 March 2015, the Board assessed the loss of earning capacity permanently caused by the injury at 14%.  The applicant objected to the said assessment.  By a Certificate of Review of Assessment in Form 9 dated 20 July 2015, the Board assessed the loss of earning capacity permanently caused by the injury at 17%.

36.  At the trial, the applicant's legal representative sought to adduce medical evidence on the loss of earning capacity of the applicant, presumably in an attempt to seek an upward adjustment of the loss of earning capacity.  However, as confirmed by Miss Amanda WY Lee, counsel for the applicant, no notice of appeal in any form has been filed.

37.  S 18(2) of the Ordinance provides:-

“(2) No appeal shall lie after the expiry of 6 months from the date of the decision or, in the case of an assessment, of the date of issue of the relevant certificate under section 16A, 16F, 16G or 16GA, as the case may be;

Provided that the Court may, if it thinks fit, extend the time within which to appeal under this section notwithstanding that the time has elapsed.”

38.  The Form 9 was issued on 20 July 2015, the time limit for an appeal against it expired on 20 January 2016.  There was no application for an extension of time after the expiry of the said time limit.

39.  That being the case, the applicant has lost his right to appeal against the assessment of the Board.

40.  I should add that even if the applicant through his counsel applied for an extension of time at the trial, I would decline the request for reason that this would have taken the respondent by surprise and is unfair to him.

What is the compensation payable under s 9 of the Ordinance?

41.  This issue necessitates a consideration of the monthly earnings of the applicant at the time of the accident.

42.  The applicant alleged that he was working 6 days per week and hence earning $11,700 per month.  No documentary proof whatsoever was produced by the applicant in support.

43.  In his statement, the applicant stated that a few days before the accident, the respondent asked him if he wanted to work and to make some money again as he was not working and staying home all the times.  Obviously, the applicant was not employed by the respondent all the time.  In court, the applicant said the respondent was his only employer.

44.  I bear in mind that the applicant as an asylum seeker, the chance of employment is low.  Therefore, I do not accept that the applicant was working 6 days per week as he alleged.

45.  There is indeed no evidence on the actual earnings of the applicant other than his own words, which I have already rejected.  Adopting a broad brush approach, I am of the view that 10 working days per month is reasonably probable.

46.  The applicant was aged 24 at the time of the accident.  The multiplier under s 7(1)(a) of the Ordinance is 96.

47.  The compensation under s9 of the Ordinance is:-

$450 x 10 x 96 x 17% = $73,440

What is the compensation payable under s 10 of the Ordinance?

48.  According to the Form 9, the applicant’s periods of absence from duty necessary as a result of the injury were:-

21/9/2013 to 18/10/2013

3/1/2014 to 4/1/2014

10/1/2014 to 17/2/2015

A total of 434 days.

49.  The compensation payable under s10 of the Ordinance is:-

$450 x 10 x 434/30 x 4/5 = $52,080

What is the compensation payable under s 10A of the Ordinance?

50.  The respondent was granted waiver of medical expenses and there was no claim under s10A of the Ordinance.

Conclusion and order

51.  Accordingly, I order that the respondent shall pay the applicant compensation in the sum of $125,520, which is made up of the following sums:-

(1) s 9 compensation	$73,440
(2) s 10 compensation	52,080
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Total:	$125,520

Interest

52.  The applicant is entitled to interest at half judgment rate from the date of the accident (ie 21 September 2013) to the date of judgment and thereafter at judgment rate until the date of payment.

Costs

53.  The applicant has incurred costs unnecessarily on his supposed appeal against the assessment of the Board.  Such costs should not be allowed.

54.  Therefore, I make an order nisi that save and except the costs of the medical evidence, the respondent shall pay the costs of these proceedings to the applicant, with certificate for counsel, to be taxed if not agreed.

55.  The applicant’s own costs shall be taxed in accordance with Legal Aid Regulations.

56.  In the absence of any application by summons to vary the same within 14 days from the date of this judgment, the order nisi shall become absolute.

Interpretation of this judgment

57.  As the respondent does not understand English, I direct that the respondent may request that this judgment be interpreted to him orally by a court interpreter.