HUI PO CHI v. TRADE TRAVEL (HONG KONG) LTD

DCEC 406/2017

[2020] HKDC 723

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 406 OF 2017

________________________

________________________

________________________

J U D G M E N T

________________________

A. Trial on preliminary issue

A.1 Relevant statutory provisions

1.  This is a trial on affidavit of a preliminary issue concerning the statutory provisions of s 16 (1A)[1] and (4)[2] of the Employees’ Compensation Ordinance[3], sub-section (1A) of which provides that “an employer may require an employee who is in receipt of a periodical payment under section 10[4] to undergo a medical examination from time to time”.

2.  Section 16(4) provides that if the employee fails to undergo a medical examination at the time and place notified to the employee by the employer for a period of over 15 days from the date when the employee was required to undergo the medical examination, the employee’s rights to compensation may be extinguished “unless the Court is satisfied that there was reasonable cause for such failure”.

3.  This trial of a preliminary issue is to determine whether the right of the applicant in these employees’ compensation proceedings is extinguished by the operation of these statutory provisions.

A.2 The striking out application

4.  The applicant in these proceedings was a bus-captain.  It is alleged that the applicant met two separate accidents respectively in the course of employment with this respondent, Trade Travel, and New Lantao Bus Co (1973) Limited (New Lantao), both of which were subsidiaries of Kwoon Chung Bus Holdings Limited.  The first alleged accident was on 12 April 2015 (1^st Alleged Accident) while the applicant was in employment with the respondent.  On 25 November 2015, the applicant changed her employment to work with New Lantao and met the alleged second accident on 7 April 2016 (2^nd Alleged Accident) in the course of employment with New Lantao.

5.  The applicant did not attend a medical examination requested pursuant to s 16 through Cunningham Lindsey (Hong Kong) Limited (Cunningham), the loss adjuster of Falcon Insurance Company (Hong Kong) Limited (Falcon).

6.  In its Answer filed to oppose the applicant’s claim, the respondent relies on s 16(4) to dispute the applicant’s right to compensation, and on 1 March 2019, it issued a summons to strike out these proceedings.  The disposition of the said summons was ordered to be by a trial on the following agreed preliminary issue.

B. Agreed preliminary issue

7.  The preliminary issue (Preliminary Issue) for trial as agreed by the parties for the disposal of the respondent’s summons is as follows: -

“Whether no compensation under the [Employees’ Compensation] Ordinance shall be payable to the applicant, as a result of the applicant’s failure to undergo a medical examination scheduled for 6 December 2016 as required under Section 16(1A).”

8.  It is not in dispute that the medical examination scheduled on 6 December 2016 (Scheduled Examination) that the applicant failed to attend was to be conducted by Dr Chun Siu Yeung (an orthopaedic specialist).

9.  In this trial, the applicant was represented by her Legal-Aid assigned counsel, Mr Erik Shum, and the respondent by counsel, Mr Leon Ho.

10.  At the commencement of the trial, this court granted leave (by consent) to the respondent to amend its Answer by the adding of a new §(1A), in which it is asserted that the applicant received periodical payment from New Lantao on various dates from April to November 2016.  Albeit no amended reply was filed, this court was informed that the applicant admitted the receipt of the periodical payments from New Lantao for the duration of the periods stated in §(1A) of the Amended Answer.

11.  The applicant’s affirmation and the affidavits of Eileen Lou (the respondent’s solicitor) were admitted as evidence without cross- examination.  The only deponent who attended the trial for cross-examination was Mr Keung Ka Man Kelvin (Keung), the respondent’s transport officer.

C. Issues

12.  The issues set out in §34 of Mr Shum’s written Opening Submissions are agreed by Mr Ho, and I will adopt them as the issues of this Preliminary Issue.  They are: -

(1)  The identity of the person who requested the Scheduled Examination;

(2)  Whether the respondent was entitled to request the Scheduled Examination; and

(3)  Lastly, whether there was any reasonable cause for the applicant not to attend the Scheduled Examination.

13.  Before discussing these issues, I need to firstly outline in chronological order the main evidence, which is undisputed.

D. Undisputed evidence

D.1 The payment of $23,704.94

14.  There is no dispute that after the applicant met the 1^st Alleged Accident in April 2015, the respondent made three separate payments (in the months of April, May and June 2015) to the applicant in the total sum of $23,704.94 (Said Payments).  As the respondent’s payment of the Said Payments is integral to one main contention in this trial on the question of whether the respondent has fulfilled one of the preconditions of s 16(1A) - whether an applicant was in receipt of a periodical payment under s 10 - Keung’s evidence in relation to the circumstances under which the respondent made the Said Payments should be set out below.  According to Keung,

(1)  The Said Payments were paid pursuant to s 33 of the Employment Ordinance for sickness allowances (the respondent’s internal policy: Keung’s affirmation §8) calculated at the rate of four-fifths of the applicant’s monthly salary.  They were not payments pursuant to s 10 as the respondent had no knowledge at the time of the payment of the Said Payments of the 1^st Alleged Accident. The respondent only knew of it for the first time on 18 July 2016 when it received a Notice of Accident given by the applicant.

(2)  When the 45 days of the applicant’s total accumulated sick leave calculated under the Employment Ordinance ended on 6 June 2015, the respondent forthwith stopped making any sick leave payments to the applicant notwithstanding that the applicant had produced sick leave certificates beyond 6 June 2015.

D.2 Cunningham’s Letter

15.  On 1 November 2016, Cunningham wrote to the applicant in Chinese, and requested the applicant, pursuant to s 16 (Purported s 16 Request) to undergo the Scheduled Examination.  The relevant part of the letter (November Letter) is re-produced as follows.

“相信閣下經已知悉，本公司乃受閣下之僱主—新大嶼山巴士（一九七三）有限公司—之僱員補償保險（俗稱勞工保險）之承保保險公司—富勤保險（香港）有限公司—委托，擬就閣下於2015年4月12日及2016年4月7日所發生之意外以及閣下目前之傷勢與復原狀況進行了解。

現保險公司在得到閣下意外時之僱主的同意及授權下，根據僱員補償條例（香港法例第282章）第16條所賦與僱主的權利，現安排閣下於下列時間及地點接受醫療檢查，以便了解閣下最近之復原狀況一事：

保險公司現安排閣下於下列時間及地點接受醫療檢查，以便了解閣下最近之復原狀況一事：

…。根據上述法例，閣下如無合理原因而拒絕或延誤接受檢查，則閣下獲取補償之權利將會被暫時中止，直至接受該等檢查為止。現附上有關法例之節錄，以供閣下參考。”

16.  In the November Letter, Cunningham stated that the Purported s 16 Request was made on the instructions of Falcon, the insurer of the applicant’s employer, New Lantao.  References were made to the 1^st Alleged Accident and the 2^nd Alleged Accident.

17.  Messrs B Mak & Co (B Mak), the applicant’s former solicitors, wrote on 28 November 2016 that the applicant would not attend the Scheduled Examination on the ground that the applicant’s medical condition had not yet stabilized.

18.  The failed Scheduled Examination was followed up by the letters of Falcon and Cunningham respectively on 7 December and 13 December 2016 to B Mak as well as to the applicant, requesting the applicant to attend another medical examination by Dr Chun on 30 December 2016.

19.  The request was similarly declined by B Mak in writing on 12 December 2016.

E. Issue (1): Did Cunningham make the Purported s 16 Request on behalf of the respondent?

E.1 The applicant’s arguments

20.  The first issue as agreed by the parties is not so much about “the identity of the person” as it is about, according to the applicant as pleaded in her Reply (at §3(c) and (f)[5]), the applicant’s denial that the Purported s 16 Request was made by the respondent by the November Letter.  It was alleged that the Purported s 16 Request for the Scheduled Examination in these proceedings was defective for the reason that the November Letter was written on behalf of New Lantao only.

21.  Underpinning Mr Shum’s arguments was the absence in the November Letter of any reference to Falcon being the respondent’s insurer or to Cunningham acting on behalf of the respondent.  The mention in the November Letter of the 1^st Alleged Accident, Mr Shum submitted, was not sufficient to show that the Purported s 16 Request was made by the respondent through Cunningham.  Thus, the entire letter, when read objectively, can only lead to one conclusion – that the Purported s 16 Request was made by New Lantao, not by the respondent.  The applicant, insofar as the 1^st Alleged Accident is concerned, had no obligation to attend the Scheduled Examination.  Section 16(1A) was therefore not engaged and the respondent cannot avail itself of the rights and protection under s 16 in these proceedings.

E.2 Respondent: the applicant’s refusal to admit the obvious

22.  Taking great exception to Mr Shum’s submissions, Mr Ho contended that by Cunningham having expressly referred to not just the 2^nd Alleged Accident, but also explicitly the 1^st Alleged Accident (that concerns the respondent), it is plain and obvious that Falcon was also instructed by the respondent.  Mr Ho also highlighted the words in the November Letter stating that Falcon indeed had the consent and authorization of the respondent when it stated “閣下意外時之僱主” (the employer at the time of the accident).  Since the applicant had met two accidents, the “employer” at the time of the “accident” could only mean “employers” (the respondent and New Lantao) at the time of the 1^st Alleged Accident and the 2^nd Alleged Accident.

23.  Lastly, Mr Ho stated that Mr Shum’s construction of the November Letter was not supported by the correspondence exchanges after the failed Scheduled Examination.  In a letter to B Mak dated 7 December 2016, Falcon described itself as “the EC Insurers of the employers of the injured worker at the time of the alleged accidents” (emphasis by Mr Ho).

24.  When B Mak replied to Falcon on 12 December 2016[6] requesting the payment of periodical payments, they referred to “employers” in the plural rather than the singular.  Mr Ho therefore submitted that the applicant must have understood that the Purported s 16 Request had been on behalf of the respondent in relation to, among others, the 1^st Alleged Accident.

E.3 Court’s view

25.  This issue can be disposed of very quickly as I do not find any ambiguity in the November Letter that supports Mr Shum’s cherry-picking, only the express reference to New Lantao without reading the letter in its entirety.  Based on Cunningham’s reference in the November Letter that Falcon was interested to know more about the applicant’s injuries and recovery condition in relation to accidents that happened on 12 April 2015 (the 1^st Alleged Accident) and 7 April 2016 (the 2^nd Alleged Accident) (“擬就閣下於2015年4月12日及2016年4月7日所發生之意外及閣下目前之傷勢與復原狀況進行了解”), I find that it is plain that Falcon was the insurer of both the respondent and New Lantao.  Cunningham was instructed by Falcon to make the Purported s 16 Request in relation to the 1^st Alleged Accident and the 2^nd Alleged Accident.

26.  The subsequent correspondence exchanges between B Mak and Falcon after the failed Scheduled Examination, being “events subsequent” as Mr Shum described notwithstanding, I see no injustice in referring to them as further corroboration of my finding.  I find that the applicant (through B Mak) could not have been under any misapprehension that the Purported s 16 Request was made on behalf of the applicant’s respective employers at the time of the 1^st Alleged Accident and the 2^nd Alleged Accident, namely, the respondent and New Lantao.

27.  For these reasons, I find that the Purported s 16 Request was made on behalf of the respondent.  The applicant’s pleaded case stated in §3(c) and (f) of her Reply fails.

F. Issue (2): Whether the respondent was entitled to request the Scheduled Examination

28.  One of the requirements that an employer needs to meet before an employer can invoke its power to request an employee to undergo a medical examination is concerned with the payment of the s 10 periodical payment.  In this case, it means that the respondent has to prove that it has satisfied the condition that the applicant, according to the wording of s 16(1A), was “in receipt of a periodical payment under s 10”.

29.  The applicant’s case, as pleaded in §3(b) of the Reply, is straight-forward - the respondent was not entitled to request the applicant to attend the Scheduled Examination on the ground that it had failed to pay the applicant any s 10 periodical payments as from 6 June 2015.  As it is not in dispute that no payment of whatever nature was made by the respondent either at the time when the Purported s 16 Request was made or on the date of the Scheduled Examination, Mr Shum submitted that the pre-condition under s 16(1A) was not fulfilled.

30.  Mr Ho advanced two alternative arguments in contending that the respondent satisfied the s 10 periodical payment requirement by: (1) the Said Payments; and alternatively (2) the applicant’s admitted receipt of the periodical payments paid by New Lantao. Mr Ho has put forward lengthy submissions to support his arguments, and I will now discuss them below.

F.1 The respondent’s contention that the payment obligation was satisfied by the Said Payments

31.  In respect of this contention, Mr Ho advanced two inter-dependent arguments that (a) the sick leave payments could be used by the respondent as periodical payments; and (b) the periodical payment obligation under s 16(1A) can be met by one payment in the past.

F.1(a) The Said Payments, though paid as sick leave payments, could be regarded as periodical payments

32.  Mr Ho relies on two common features of the sick leave allowance and periodical payment to argue that the real characteristic of the Said Payments was in effect periodical payments.

33.  The two alleged common features Mr Ho referred to are about the period (paid monthly) and amount of the payments (four-fifths of the applicant’s monthly earnings).  The fact that the respondent had used the Said Payments as payments for the applicant’s sick leave, Mr Ho submitted, would not affect the real characteristics of the Said Payments that they could also be periodical payments.  Mr Ho referred to the Court of Appeal’s rejection in Kan Wai Ming v Hong Kong Airport Services Ltd[7] of the respondent’s solicitors’ description of the periodical payments as “advance payments on account of periodical payments”[8], and submitted that a labelling or description of a payment by an employer will not alter the real nature of a payment.

34.  Despite the admitted evidence that the respondent had no knowledge of the 1^st Alleged Accident when the Said Payments were made, Mr Ho contended that knowledge of an accident is irrelevant.  An employer is obliged to make s 10 periodical payment to an injured employee irrespective of whether the employer admits or denies liability.

35.  Despite the length of Mr Ho’s submissions, they were entirely unsupported by any authority.  I respectfully reject these unsupported but bold assertions notwithstanding the apparent admission by the applicant in her pleaded case that the Said Payments were periodical payments.

36.  In §3(a) of the Reply, the applicant avers that she: -

“(a)… was granted continuous sick leave from 16 April 2015 up to 5 August 2015. The Respondent effected periodical payment to the Applicant from 16 April 2015 to 5 June 2015 and stopped periodical payment afterwards.”

37.  The applicant’s pleaded case, as evidenced by the part that I have underlined in §3(a) of the Reply above, seems to be admitting that the Said Payments were periodical payments. In spite of the applicant’s pleaded admission, Mr Shum however advanced an opposing argument disputing Mr Ho’s above contentions, and further submitted that Mr Ho’s arguments were erroneous and over-simplistic. It is trite that the applicant, unless she can obtain the respondent’s consent or be allowed to make corresponding amendment, would have been precluded from advancing arguments inconsistent with her pleaded case.  However, having regard to the lack of opposition from Mr Ho and also the fact that the Said Payments were paid as sick leave payments was only clarified by Keung’s evidence at trial, I believe there is no injustice in allowing Mr Shum to put forward his opposing arguments.

38.  I agree with Mr Shum’s criticism of Mr Ho’s arguments.  An examination of the two statutory regimes (respectively the Employment Ordinance and the Employees’ Compensation Ordinance) that respectively govern sickness allowance and periodical payment plainly shows that the common features Mr Ho identified, in my view, only go to the form but not the substance.  Whilst both payments concern absence from work for reason of “unfit for work”, their fundamentals in terms of the payment entitlement and the method of calculation are different.

39.  Insofar as the payment entitlement is concerned, under the Employment Ordinance, an employee is entitled to sickness allowance if he/she is certified to be “unfit for work” without the unfitness being the result of an accident caused in the course of employment provided he or she “has been employed by his employer … for a period of 1 month or more immediately preceding a sickness day”.

40.  By contrast, under s 10, an employee, regardless of the duration of employment (even if it is as short as one day), will be entitled to s 10 compensation for being “unfit for work” that was caused by an accident.

41.  As for the method of calculating payment, the calculation of the sickness allowance is based on s 35 of the Employment Ordinance, which is with reference to the daily rate, not monthly earnings, of an employee.  However, the method of calculating periodical payment is much more varied and complex than the calculation of the sickness allowance under the Employment Ordinance.  Broadly, the method of calculation set out in s 11 includes computing an employee’s earnings with reference to either the month immediately before the date of the accident or in a manner that is more favourable to the employee if an employee has been employed for a lesser period of 12 months.  In some circumstances, various other methods including the earnings of other persons in similar employment, or other persons of similar earning capacity, or an adjustment in accordance with the rate of increase in the Consumer Price Index, will also need to be adopted.

42.  More importantly, since the respondent had no knowledge of the 1^st Alleged Accident when effecting the Said Payments, there is no basis on which this court can infer that the respondent had intended the Said Payments to be periodical payments.  Mr Ho’s suggestion that knowledge of accident is not a requirement of the s 10 periodical payment obligation, is, in my respectful view, plainly wrong.

43.  I also find that the statement Mr Ho cited of the Court of Appeal in Kan Wai Ming above (§33) undermines rather than assists his arguments.  By stating that the Said Payments were periodical payments, Mr Ho was doing precisely what Kan Wai Ming disapproved of – by trying to alter the substance of a payment by attaching a new label to it.

44.  Whilst a court, pursuant to s 10(6)[9], could probably take into account the Said Payments when the amount of the periodical payment payable by the respondent is being fixed, I conclude that the respondent is not allowed to deem the sick leave payments (the Said Payments) as periodical payments.

F.1(b) One past single payment is sufficient

45.  Since I have already rejected Mr Ho’s contention that the respondent could rely on the Said Payments to satisfy the periodical payment obligation, the discussion of the contention that a single payment to an employee made in the past could fulfil the payment obligation is merely academic.  That notwithstanding, I propose to, in deference to Mr Ho’s industry, briefly discuss it.

46.  This contention, in a nutshell, is that Mr Ho argued that the use of “is” and “a” (“…who is in receipt of a periodical payment…”) in s 16(1A), on proper construction, is intended to allow an employer to satisfy the payment requirement on the basis of a single payment.  In other words, there is no continuous obligation of making periodical payment as Mr Shum suggested.

47.  Mr Ho disagreed with Mr Shum that s 16 requires that an employee “is receiving” s 10 periodical payment, mandating that the periodical payment must be current, and not in arrears.  Mr Ho contended that “is” in s 16(1A), on its proper construction, should not denote a temporal element.  A better view is that it was used to “merely indicate a state of affairs that has arisen”: Public Service Association and Professional Offices’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Justice[10].  The state of affairs in the context of s 16(1A), Mr Ho suggested, should refer to an employee having actually received a periodical payment (as opposed to a mere promise that a periodical payment will come later).

48.  On any view, Mr Ho submitted, “is” could not have the meaning of being “current” as Mr Shum suggested, otherwise the tense would have been in the form of present continuous tense, and the wording would have been like this: “is ... receiving periodical payments under section 10” (as in s 16I (3) to be referred to in the following paragraph).

49.  As for the use of the singular “a” in s 16(1A), Mr Ho contended that it must have been an obvious variation of other  provisions such as s 10(8)[11], s 20(b)[12] and s 16I(3)[13], which all describe “periodical payment” in the plural.  This construction, Mr Ho stated, is consistent with a presumption in statutory interpretation that different words should be given different meanings: Gilroy & Another v O’Leary[14].  By allowing a “single payment”, Mr Ho contended, the injustice of overpayment of periodical payment alluded to in Kan Wai Ming may be partly mitigated.

50.  Mr Ho’s proposed interpretation, ingenious notwithstanding, cannot be accepted.  The decisions of Kan Wai Ming and of Liu Weiguang v Li Keng Ko[15] have already established that upon the production of sick leave certificates of an injured employee, an employer’s obligation to pay s 10 periodical payment, (subject to the express exceptions set out in s 20 mentioned in Liu Weiguang[16]) is automatically continuous for 24 months before the final assessment at trial in compensation proceedings: Kan Wai Ming at §29.

51.  Mr Ho’s one single payment argument on the basis of the injustice of overpayment mentioned in Kan Wai Ming, in my view, has completely overlooked the dictum stated in Kan Wai Ming at §33 that the burden of the risk of overpayment lies with the employer.

52.  Neither can I accept Mr Ho’s proposition that the word “is” in s 16(1A) connotes a state of affairs.  According to the Court’s construction in Public Service Association that Mr Ho referred to, I am unable to find a construction that Mr Ho put forward. In that case, Basten JA, in construing the meaning of the word “is” used in s 240(2)[17]of the Workers Compensation Act, stated that means being a continuing present tense.  It should be interpreted as “referring to [an injured] worker who receives an injury, for so long as the worker is entitled to receive compensation: Public Service Association at §10.

53.  Thus, applying the interpretation of Basten JA to the present s 16(1A), I’d be more inclined to think that “an employee” in the context of s 16(1A) is equivalent to the provision that “… an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation” in s 240(2) of the Workers Compensation Act.  A more suitable view of the wording of “is in receipt of a periodical payment” should be referring to identify a characteristic of the injured employee whose injury continues over time and who is entitled to receive periodical payment at the time when the employer requests him or her to undergo a medical examination.  This interpretation, in my view, is more in line with the words of “from time to time” following “to undergo a medical examination”. It definitely cannot be referred to an employee who has only received one periodical payment in the past or at the point in time when he or she suffers the injury.  Given the employer’s automatic on-going obligation I discuss above, Mr Ho’s arguments clearly cannot stand.  A more suitable construction should be referring to an employee who receives an injury, and for so long as he/she is entitled to receive and is receiving periodical payments, an employer has the right to require the latter to undergo a medical examination whenever the employer deems necessary (from time to time).

54.  In the circumstances, I am in respectful agreement with the reasoning of HHJ Carlson stated in Yu Yau Choi v Ming Sang (HK) Engineering Limited[18], in which (at p 3) it was held that the “right to a medical examination [under s 16] only arises if the employee is being paid periodical payments”.

55.  On the facts of this case, the periodical payment was paid by New Lantao but not by the respondent.  The fact of this non-payment however is complicated by the occurrence of two accidents (the 1^st Alleged Accident and the 2^nd Alleged Accident) within the period of 24 months.  Thus, when the Purported s 16 Request was made, both the respondent and New Lantao would have still been subject to the 24 months’ obligatory period of periodical payments imposed by s 10(5) if the applicant was still on sick leave in relation to the injuries of the 1^st Alleged Accident and the 2^nd Alleged Accident.

56.  On the undisputed evidence, since the periodical payment the applicant was in receipt was from New Lantao, the payment, prima facie, would have been in relation to the 2^nd Alleged Accident. Nonetheless, the November Letter, as referred to above, made express reference to both the 1^st Alleged Accident and the 2^nd Alleged Accident.  Since the respondent wanted it to be a requesting party of the Purported s 16 Request, I’m inclined to the view that the respondent had likely believed that the applicant’s temporary incapacity (sick leave) at the material time was also in relation to, apart from the 2^nd Alleged Accident, the 1^st Alleged Accident otherwise it would not have made the Purported s 16 Request.  The respondent would therefore be required to meet the s 10 payment obligation under s 16(1A).

57.  It is trite of course that the applicant was not allowed to have double recovery for the same period of sick leave that entitled her to s 10 periodical payments.  In this case, owing to the happening of two accidents within the period of two years, there is likely an issue of overlapping injuries that require suitable apportionment of the amount of the periodical payments payable respectively by the respondent and New Lantao.  Since no evidence was adduced in relation to the issue of overlapping injuries and the attendant apportionment, the respondent was required to fulfil the pre-condition of the s 16(1A) by making periodical payments.  As no payment was made, the respondent, subject to Mr Ho’s alternative argument to be discussed below that the periodical payment New Lantao paid could be treated as periodical payments by the respondent, the respondent should not be entitled to make the Purported s 16 Request.

F.2 Whether the periodical payment by New Lantao satisfied the s 16(1A) precondition

58.  It is admitted that the respondent, since 6 June 2015, did not make any payment, be it sick leave allowance or periodical payment.  The respondent advanced an alternative case by relying on its new §4(1A) in the Amended Answer, alleging that the periodical payment the applicant admittedly received from New Lantao satisfies the s 16(1A) precondition.

59.  Mr Shum submitted that the respondent’s newly amended case only pleaded an admitted fact that New Lantao paid the applicant a periodical payment at the time of the Purported s 16 Request.  There was neither an averment that the periodical payment was paid on behalf of the respondent nor any evidence to the same effect.  Mr Shum therefore submitted that it is an undeniable truth that the periodical payment the applicant was in receipt of at the time of the Purported s 16 Request was not from the respondent.

60.  Mr Ho however argued that Mr Shum’s submission was too restrictive, ignoring the protection mechanism of s 16 this court discussed in Liu Weiguang (at §§41-44[19]). To give effect to the intention of s 16, Mr Ho stated that the obligation should be more liberally and loosely interpreted by allowing a broader category of persons to satisfy the s 16 payment obligation of periodical payments.

61.  Mr Ho’s arguments go like this.  Since s 10 does not specify who should pay “periodical payments”, any party, including “the legal personal representative of a deceased employer”[20], “the employer of the employee of the employee at the time of the accident”[21], a previous employer, an insurer, principal contractor and sub-contractor can make payment in satisfaction of the payment obligation.  It matters not, Mr Ho suggested, who makes the payment, otherwise, the court in Yu Yau Choi (supra) would not have expressly used a passive form when referring to periodical payment (“the employee is being paid periodical payments”).

62.  To prevent the risk of double recovery of periodical payments and the injustice suffered by an employer discussed in Kan Wai Ming at §32 due to the prohibition against recovery or setting off of the overpaid periodical payments against other heads of compensation, Mr Ho contended that once New Lantao had paid a periodical payment at the relevant time, the respondent need not pay any more periodical payment to the applicant in addition to the periodical payments already paid by New Lantao.  Otherwise, it would fall foul of the principle against double recovery.

63.  Since it is admitted that the applicant was in receipt of “a periodical payment” from New Lantao at the time of the Purported s 16 Request, New Lantao was deemed to be the “employer” in the context of s 16(1A).  The precondition, Mr Ho concluded, would have been satisfied.

64.  I respectfully disagree with Mr Ho’s contentions.

65.  Section 10, as discussed in Kan Wai Ming above, imposes an automatic obligation on an employer to pay periodical payments to an injured employee for a period of 24 months.  Given that s 10(10) imposes criminal sanction in the event of a failure of an employer to comply, without reasonable excuse, with this payment obligation, I am of the view that the obligation of “an employer” in the context of s 10 is a personal one, vis-à-vis the employer in the course of whose employment an employee sustained an accident while at work.

66.  Since s 16(1A), as discussed in §60 above, is a statutory protective mechanism provided to an employer, I am of the view that all the requirements it stipulates should not be cut down but rather should be strictly complied with before an employer can invoke this provision to exercise the statutory right.

67.  I entirely agree with Mr Shum that the respondent has neither pleaded in the Amended Answer nor adduced any evidence to show that the periodical payment the applicant received from New Lantao was made on behalf of the respondent.  In the circumstances, I reject Mr Ho’s submissions, and find that the “periodical payment” the applicant was in receipt of was not from the respondent.

F.3 Conclusion

68.  For the reasons stated above, I find that the respondent had failed to satisfy the precondition in s 16(1A) of paying periodical payments to the applicant when Cunningham issued the Purported s 16 Request for the applicant to be medically examined.  In conclusion, I am not satisfied that the respondent was entitled to make the Purported s 16 Request.

G. Issue (3): Was there any reasonable cause?

69.  Having reached the above conclusion, the answer to Issue (3) must be in the negative.  For completeness, I wish only to state by way of obiter dictum that the applicant’s explanation, given through B Mak, for refusal to attend the Scheduled Examination on the ground that “the condition is not stabilized” will not constitute reasonable cause.

70.  In the recent decisions of this court (Liu Weiguang) and of HHJ Leong (Cheung Sau Lin v Tsui Wah Efford Management Ltd[22]), the claimants’ similar excuses also given through B Mak were all rejected resulting in the dismissal of their employees’ compensation claims.  It is hoped that this practice of refusal to attend a s 16 medical examination on the same pretext (that the condition of the injured employee has not stabilized) will forthwith cease.  Practitioners should properly advise their clients when they receive a request under s 16(1A).  Hence, I direct the solicitors for the applicant to send a copy of this judgment to B Mak and the Director of Legal Aid for their attention.

H. Order

71.  For the reasons foregoing, the respondent’s summons to strike out is dismissed.  I grant an order nisi that the respondent do pay the applicant the costs of the trial on the Preliminary Issue, including the costs of the summons and all costs reserved.  There shall be certificate for counsel.  These costs are to be taxed if not agreed.  This costs order nisi shall be made absolute unless an application for variation is made by summons within 14 days of the handing down of this judgment.

72.  The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

73.  The parties shall within 28 days submit a joint written application to this court, unless otherwise directed, for further case management directions.

74.  Looking ahead, I will further direct any employees’ compensation application involving the applicant and New Lantao be brought before this court.

75.  Lastly, I wish to thank both counsel for their assistance in this trial.