LAW WAI CHEUNG v. HUASU INTERNATIONAL INDUSTRIAL (HK) LTD

DCEC 1314/2020

[2023] HKDC 10

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1314 OF 2020

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ASSESSMENT OF COMPENSATION

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Introduction

1.  This is a trial for the assessment of compensation under ss 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (the “Ordinance’). The respondent did not attend the trial. By an affirmation of Timothy Law, it is affirmed that a copy of, inter alia, the Notice of Assessment Hearing dated 2 September 2022 was served at the registered office of the respondent. I am therefore satisfied that proper service was effected.

2.  On 14 July 2020, the applicant applied for employees’ compensation against the respondent in relation to an accident at work which took place on 6 June 2019.  Interlocutory judgment was entered into against the respondent on 17 June 2022.

3.  The applicant was aged 46 at the time of the accident, and was employed by the respondent as a plastic pellet granulating machine operator.  On 6 June 2019, the applicant was instructed to operate a recycling machine (the “Machine”) which granulates the plastic waste materials into small plastic particles for recycling purposes in a factory.  Under the instructions of his supervisor, the applicant was asked to remove the plastic particles stuck on the inner surface of the iron tube of the Machine near its valve, and was using his right hand to gather the plastic particles.  In the course of doing so, the blades of the Machine suddenly moved due to an unknown reason.  The sharp edges of the blades cut the index and middle fingers of the applicant, and the applicant sustained serious personal injuries (the “Accident”).  As a result, the applicant had to amputate his left index and middle fingers.

4.  The respondent had previously been dissolved on deregistration pursuant to s 751(3) of the Companies Ordinance (Cap 622) on 11 September 2020.  The applicant had taken out an application to restore the same under HCMP 917/2021, and an order was made to that effect on 1 September 2021.

5.  For the purpose of this assessment of compensation, the following 3 pieces of factual finding are required to be made:-

(a) the applicant’s monthly income at the time of the Accident;

(b) percentage of permanent loss of earning capacity; and

(c) total period of temporary incapacity.

The applicant’s monthly income

6.  The applicant’s case is that he worked 25 days per month.  His daily wage was HK$900, and he earned about HK$22,500 in the month immediately preceding the date of the Accident.

7.  The applicant had filed a statement with the Labour Tribunal under case no LBTC 3215/2019 (the “Statement”) prior to the commencement of these proceedings.  In the Statement, the applicant stated that he was paid HK$900 per day, and he worked for 25 days in May 2019, the month before the Accident.

8.  However, the applicant later claimed in his witness statement in these proceedings that his actual daily wage should be HK$1,300.  He explained that his job referrer, Mr Choi Yu Wing (“Mr Choi”), took away a sum of HK$400 per day as referral fee, and only gave him the remaining balance of HK$900 as his daily wage.  I understand from the applicant’s legal representative that, as the applicant’s averment was not supported by any documentary evidence, the applicant agreed to adopt HK$900 in calculating his daily wage.

9.  The applicant had also confirmed his position by providing an undertaking to the same effect in the summons dated 28 September 2022 taken out by the Employees’ Compensation Assistance Fund Board (the “Board”) for joinder.  The applicant undertook that he would not contest his monthly income to be anything more than HK$22,500 (ie HK$900 x 25).  With this undertaking, the Board withdrew its joinder application.

10.  In a WeChat message from the applicant’s supervisor, Ms Chiang Ling (“Chiang”), to the applicant on 24 June 2019, an electronic bank transfer record was attached showing that the respondent transferred a sum of HK$22,500 to Mr Choi.  The sum was supposed to be passed on by Mr Choi to the applicant.  It is the applicant’s case that the sum represented his earnings in May 2019.

11.  To prove the applicant’s case, a set of WeChat messages purportedly between Chiang and the applicant from 24 June 2019 to 30 July 2019 was adduced.  At p 235 of the hearing bundle, it contains the WeChat message sending the said bank transfer record from Chiang to the applicant.  However, this document is somewhat different from the rest of the WeChat messages adduced.  First, the picture that represented the applicant changed from a smiling Buddha to a hand holding a heart with a butterfly on the upper right hand side of the heart.  Second, while in the earlier part of the chat, the applicant used traditional Chinese, at p 235, the applicant used simplified Chinese. Third, the formatting of the page is also different, as it stripped away all the information outside the ‘message box’, such as time, remaining battery, the button for the sending of voice messages etc.

12.  The applicant gave evidence that he screen-captured the messages shown on p 235 earlier than the rest of the messages.  When he screen-captured the remaining messages, he had already changed his picture from a heart shape back to a Buddha.  The court noted the applicant’s evidence earlier that he had all along used the Buddha as his picture.  It was only when his daughter played with his phone, she changed it to a heart shape, for which he changed back to a Buddha later. 

13.  The applicant’s legal representative, Ms Wong, pointed out that the cartoon with the caption ‘好的’ used at p 234 was also used at p  235.  Whilst the captions were the same, upon a closer look, the cartoons were subtly different.  Despite that, I accept that they are the same cartoon character.

14.  Ms Wong also pointed out that in the later part of the chain of the WeChat messages, the applicant used traditional Chinese and simplified Chinese alternately.  Further, the first message at p 235 repeated the last message at p 234.  I agree.

15.  Considering the WeChat messages in light of the applicant’s Statement to the Labour Tribunal on 26 September 2019, on balance, the court accepted that p 235 represented part of the WeChat messages between the applicant and Chiang. The court therefore accepted that the bank transfer record represented the applicant’s income in May 2019.

16.  I am satisfied that the monthly income of the applicant, in the month preceding the Accident, was HK$900 x 25 = HK$22,500.

Percentage of permanent loss of earning capacity

17.  Medical Assessment Board (“MAB”)’s assessment of the applicant’s percentage of permanent loss of earning capacity on review is 31%, and the applicant agreed to adopt it. 

Total period of temporary incapacity

18.  Up to the date of this trial, the applicant has obtained sick leave from 6 June 2019 to 8 January 2020 as certified by MAB to be necessary as a result of the injury.  It totals at 210 days (excluding 7 statutory holidays).

Medical expenses

19.  The applicant produced receipts in support of his claim for medical expenses in a total sum of HK$1,414.

Compensation

20.  The various limbs of compensation can be worked out as follows:-

(a) S 9 compensation in case of permanent partialincapacity

The applicant was aged 46 at the time of the Accident.  Applying the statutory multiplier of 72 (s 7(1)(a) of the Ordinance), and a multiplier of 31%, the relevant compensation is:-

 HK$22,500 x 31% x 72 = HK$502,200

(b) S 10 compensation in case of temporary incapacity:

 (HK$22,500/30) x 210 x 4/5 = HK$126,000

(c) S 10A compensation regarding payment of medical expenses:-

 HK$1,414

21.  The total amount of compensation is:-

S 9	HK$502,200
S 10	HK$126,000
S 10A	HK$1,414
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Total:	HK$629,614

22.  As there is no evidence of any advance payment made to the applicant, the total amount of compensation to be paid to the applicant by the respondent is therefore HK$629,614.  Interest shall accrue on the sum at half judgment rate from the date of the Accident on 6 June 2019 up to the date of judgment, and thereafter at judgment rate until payment in full.

23.  As to the costs, I make a costs order nisi that:-

(a) The costs of the applicant be borne by the respondent, to be taxed if not agreed;

(b) The applicant’s own costs be taxed in accordance with Legal Aid Regulations.

24.  The costs order nisi shall become absolute in 14 days from the date of this judgment if no application to vary the order is taken out.