LUO JUNHAO v. KEN PLASTICS LTD AND ANOTHER

DCEC 1109/2021

[2024] HKDC 1622

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1109 OF 2021

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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1.  The applicant, a mainland resident, claims for compensation under sections 9 and 10 of the Employee’s Compensation Ordinance (“Ordinance”) arising out of an accident on 11 July 2019, when he was working illegally for the 1^st respondent at a recycling workshop located at DD125, Lot 618, Tin Ha Road, Yuen Long, New Territories (“Workshop”).

2.  The applicant also appeals against the assessment under the Certificate of Assessment (Form 7) issued by the Employees’ Compensation (Ordinary) Assessment Board on 24 August 2022 pursuant to section 18 of the Ordinance.

3.  At the time of the accident, the applicant, who was born on 17 April 1999 (ie 20 years of age), was handling the plastic waste processing work at the Workshop when his feet were crushed by the waste recycling machine (“Accident”). As a result, his right leg below his right knee was amputated. Also, the 2^nd and 5^th toes of his left foot were lost. He was initially treated at Tuen Mun Hospital and then Queen Elisabeth Hospital.

4.  The applicant was subsequently charged with and convicted of the offences of breach of the conditions of stay and use of a forged identification document. He was sentenced to 15 months of imprisonment which was suspended for 3 years. He was then deported to the Mainland where he continued to receive treatment and follow-up care.

5.  The 1^st respondent never filed an Answer or appeared at hearings of the present proceedings. On 2 March 2023, an interlocutory judgment on liability was entered against the 1^st respondent, with compensation to be assessed.

6.  Also on 2 March 2023, leave was granted to the 2^nd respondent (“Fund Board”) to join the present proceedings.

7.  The matters that require determination in the present proceedings are:

(a) Whether the Court should exercise its discretion under section 2(2) of the Ordinance in favour of the applicant to deem him as a person working under a valid contract of service or apprenticeship; and

(b) If the answer to the question at paragraph 7(a) above is positive:-

(i) Whether the applicant’s appeal under section 18 of the Ordinance should be allowed;

(ii) What should be the compensation under section 9 of the Ordinance; and

(iii) What should be the compensation under section 10 of the Ordinance.

Section 2(2) of the Ordinance

8.  The applicant was an illegal worker at all material times, and therefore pleads for the Court’s exercise of discretion under section 2(2) of the Ordinance to deem him as a person working a valid contract of service or apprenticeship during the Accident. The applicant maintains his plea notwithstanding that the judgment on liability has already been entered against the 1^st respondent.

9.  Section 2(2) of the Ordinance provides that:

“In 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.”

10.  In Yu Nongxian v Ng Ka Wing [2007] 4 HKLRD 159, at §§74-75 and 77-78, Hon Tang VP (as he then was) held that public policy would not be served by disallowing claims by illegal employees. On the contrary, to allow the claim of an unemployable person would be more effective for targeting and deterring greedy employers, and therefore be more conducive to public policy for stopping illegal employment.

11.  In Muhammad Dost v Hong Kong Ying Cheung Trading (Recycling) Limited [2019] HKDC 375, Deputy District Judge Elaine Liu (as she then was) observed that since the Court of Appeal’s decision in Yu Nongxian v Ng Ka Wing, discretion under section 2(2) of the Ordinance has often been exercised in favour of illegal workers doing lawful works in Hong Kong.

12.  The Fund Board has not advanced any legal arguments which is contrary to the authorities above.

13.  In the present claim, the work of the applicant during the Accident was processing plastic waste, which prima facie is a legal work. There is nothing on the evidence pointing to the otherwise. I therefore find the same accordingly.

14.  The Fund Board has also not suggested any reasons why the discretion should not be exercised in favour of the applicant in the present claim. Nor do I see any.

15.  I therefore hold that, pursuant to section 2(2) of the Ordinance, the applicant should be deemed as a person working under a valid contract of service or apprenticeship at the material times for the purpose of the present claim.

Appeal against the assessment in the Certificate of Assessment

16.  In the Certificate of Assessment dated 24 August 2022 (“Form 7”), the Employees’ Compensation (Ordinary Assessment) Board (“ECOA Board”) assessed the extent of the applicant’s loss of earning capacity permanently caused by the injury to be 73%, comprising of the following elements:

(a) Right leg amputation (65%);

(b) Left 2^nd toe amputation (3%);

(c) Left 5^th toe amputation (3%); and

(d) Left foot pain (2%).

17.  In the joint-report dated 6 May 2023 (“Joint-Report”), the medical experts instructed by the applicant, namely Dr Chan Wai Fu, and the Fund Board, namely Dr Wong Kwok Shing Patrick, jointly took the view that the loss of earning capacity permanently caused by the injury should be 74%, comprising of the following elements:

(a) Right leg amputation (65%);

(b) Left 2^nd toe amputation (3%);

(c) Left 5^th toe amputation (3%); and

(d) Left foot residual scars, pain and numbness (3%).

18.  Section 18(3) of the Ordinance provides that:

“On an appeal under this section, the Court may confirm or reverse any decision, or confirm or vary any assessment, of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board, or may substitute its own assessment, and may determine the amount of compensation payable and may make such order in respect thereof, including any order as to costs, as it thinks fit.”

19.  As held in Chan Kit v Sum Wo Industrial Manufactory [1989] 2 HKLR 230, at p 232G-H, the appeal under section 18 of the Ordinance is not a regular appeal. Since the ECOA Board would not provide any reasons for its assessment, the District Court has to conduct its own assessment based on the evidence adduced in the Court.

20.  The 1% difference between the medical experts’ opinion and the ECOA Board’s assessment arose from the inclusion of scars and numbness in the Joint-Report, whereas the ECOA Board only took the pain into account.

21.  I accept the joint-medical experts’ opinion to include the scars and numbness into the assessment of the permanent loss of earning capacities. The applicant was examined by the joint-medical experts on 18 April 2023. During the examination, which took place almost 4 years after the Accident, the applicant still felt numbness at the left foot. The symptom has practically become permanent in nature. And numbness is capable of affecting the mobility of a person, which is related to earning capacity.

22.  I therefore allow the applicant’s appeal under section 18 of the Ordinance and find the applicant’s permanent loss of earning capacity as 74%.

Compensation under section 9 of the Ordinance

23.  The applicant was 20 years old at the time of the Accident. He should be entitled to a lump sum of equal to 96 months’ earnings pursuant to section 7(1)(a) of the Ordinance.

24.  The applicant and the Fund Board differed on the monthly salary of the applicant for the purpose of the compensation under section 9 of the Ordinance.

25.  The applicant submitted that his relevant monthly income should be $14,500, whilst the 2^nd respondent submitted that it should be $14,400. There is a difference of $100 per month.

26.  The applicant referred to Ma Siu Fai v 高占遠 t/a 利來裝飾設計 & Ors [2021] HKDC 682 and Lam Kwok Ling v 陳偉倫 [2021] HKDC 1176 and argued that the monthly income should be:

$17,600[1] / 36 days[2] x 30 = $14,500

27.  The Fund Board disagreed with the applicant’s proposed formula, and argued that the monthly income should be:

$600[3] x 24 days = $14,400

28.  The Fund Board has put forward an expansive and elaborated argument in support of the adoption of 24 days as the notional number of work days per month in assessing the monthly income of the application pursuant to section 11 of the Ordinance. To explore the definition of a “month”, reference was made to high level jurisprudence including Lord Diplock’s judgment in Dodds v Walker [1981] 1 WLR 1027 (HL) and Patrick Chan PJ’s judgment in Far East Drug (BVI) Co Ltd v First Pacific Co Ltd (2006) 9 HKCFAR 224, as well as various authorities directly relevant to section 11 of the Ordinance.

29.  As interesting as it sounds, I shall not dive into the jurisprudential nuances underneath various conceptual possibilities for the interpretation of the meaning of “month”. The bottom line of the jurisprudence is that it is all a matter of statutory interpretation: Far East Drug (BVI) Co Ltd v First Pacific Co Ltd, at §13.

30.  For the immediate purpose, the Fund Board has put forward two bases to justify adopting 24 as the number of work days per month for the applicant’s monthly income. Both justifications referred to the applicant’s evidence that, shortly after he started working in June 2019, there was a 7-day period when the work was halted given the machinery was broken down. The Fund Board argued that:

(a) The applicant’s earnings for “the month immediately preceding the date of the accident” under section 11(1)(a) of the Ordinance should be calculated on the basis of 31 days minus 7 days, ie 24 days; and

(b) The applicant’s “rates per month” under section 11(1)(b) of the Ordinance should be calculated on the basis of 29 days (being the actual number of work days the applicant had totally worked before the Accident) to be divided by 36 days (being the total duration between the first day the applicant started the work and the date of the Accident) times 30 days (being the median number of days in a month), which also results in 24 days. The Fund Board specifically referred to Chao Ming Fau v Hang Cheong Design & Decoration Engineering Co Ltd [2015] HKDC 723 as an example of such formulation being adopted.

31.  I reject the Fund Board’s proposed formula under section 11(1)(a) of the Ordinance for lacking in evidential basis. The applicant could not remember the exact dates during which the work was halted. Notwithstanding the elaborate legal argument in support, there is simply no evidential basis to regard that 7-day period to be completely within the 31-day period immediately before the Accident.

32.  Between the formula as contended by the applicant and the second formula as contended by the Fund Board, the difference is whether the Court should work out a notional average daily wage (as suggested by the applicant) or a notional average number of work days per month (as suggested by the applicant).

33.  Upon closer consideration of the authorities referred to by both the applicant and the Fund Board, all of them supported the formula proposed by the Fund Board. The Courts in all cases anchored the calculation on the daily wages, which is clearly established under the evidence, and multiply the same on a notional number of work days per month. I respectfully agree with such approach, which is more rational and more adherent to facts as established by evidence.

34.  I therefore find that the applicant’s monthly earning should be $600 as multiplied by 24 days, i.e. $14,400. The total compensation under section 9 of the Ordinance should therefore be $14,400 x 96 months x 74%, ie $1,022,976.

Compensation under section 10 of the Ordinance

35.  The applicant claims $259,700 for the compensation under section 10 of the Ordinance, whilst the 2^nd respondent submitted that it should only be $134,720.

36.  The main disagreement is on the duration of the applicant’s temporary incapacity. The applicant contends for the 2-year maximum, whilst the Fund Board argued that the applicant’s temporary incapacity lasted for 1 year, after which the applicant had attained stability and maximal medical improvement.

37.  The parties’ respective stances are based on the respective opinions of Dr Chan Wai Fu and Dr Wong Kwok Shing, who jointly assessed that the applicant has suffered 34% of whole person impairment as a result of the Accident:

(a) Dr Chan Wai Fu was of the opinion that the sick leave for 2-3 years was appropriate for the applicant to receive treatment and rehabilitation; and

(b) Dr Wong Kwok Shing took the view that the a sick leave of 1 year should be adequate for the applicant’s injuries to attain maximal medical improvement.

38.  Between 11 July 2019, ie the date of the Accident, and 30 July 2019, the applicant was hospitalised in Tuen Mun Hospital where he received two surgeries and follow up treatment.

39.  On 30 July 2019, the applicant was transferred to Queen Elizabeth Hospital, where he received another surgery, physio therapy and follow up treatment of the wounds.

40.  On 17 October 2019, the applicant was discharged from Queen Elizabeth Hospital and was deported to the Mainland.

41.  After the applicant returned to the Mainland on 17 October 2019, he attended Xiamen University Hospital for further examinations and treatments.

42.  Starting from 22 October 2019, the applicant had spent about 40 days at a prosthesis company in Xiamen to receive treatment for the pre-fitting of prosthesis. Such period of treatment was intended to be 60-day long originally, but the applicant applied for early discharge after about 40 days to save costs.

43.  On or about 4 November 2019, the prosthesis was produced and fitted for the applicant. Originally, the prosthesis company had planned a 90-day treatment period for the applicant.

44.  Again, out of the concern of costs, the applicant applied for discharge about 3 to 5 days after the prosthesis was fitted, and continued with some training by himself afterwards. The applicant also attended the prosthesis company to adjust the prosthesis on various occasions afterwards.

45.  The prosthesis company issued a certificate (undated) recommending that the applicant should rest at home for 2 years and attend the prosthesis company for adjusting the prosthesis (“Prosthesis Company Certificate”).

46.  In or about March 2020, i.e. about 9 months after the Accident, the applicant applied for administrative support positions[4] at two companies in Xiamen but failed. The applicant believed that the failure was owing to his disability which might affect the morale and image of those companies. Under cross-examination, the applicant accepted that he felt comfortable enough to apply for clerical jobs at the time.

47.  In April 2020, the applicant started to work as a “computer gaming broadcaster”, ie the applicant would play certain computer games and broadcast the process online. The income was derived from the tips from the audience viewing the videos which showed the applicant playing. According to the applicant, he had spent about 2 to 3 months for such work, during which he needed to work for 12 hours a day, comprising 5 hours of actual playing time, and 7 hours of video editing. He stopped doing such work after 2 to 3 months because it was demanding with very low income. He only managed to make around RMB 4,000 throughout the whole period.

48.  After the Chinese New Year in 2021, the applicant worked as a hawker to sell snack for around 15 days, making about RMB 1,000.

49.  Between April 2021 and January 2022, the applicant worked as a computer gaming companion, making an average of RMB 3,250 per month during that period.

50.  In early 2022, the applicant started to work at a restaurant owned by a relative at a monthly salary of RMB 3,000. Because of his physical condition, he needed to rest for 10 days or more per month.

51.  On 20 June 2022, the applicant was certified by the relevant authority in the Mainland as tier-3 disabled.

52.  Since April 2023, the applicant has become unemployed.

53.  From the applicant’s own evidence, he felt comfortable enough to resume working in or about March 2020. Given the permanent disability, he of course was not fit for any physically demanding job. However, in April 2020, the applicant managed to work 12 hours a day for computer gaming broadcast.

54.  On the other hand, the applicant has not adduced any evidence that he had received any substantial treatment after his fitting of prosthesis was done in early November 2019. The applicant suggested that he needed to adjust the prosthesis time and again, but there was no mention of any other treatments required. It was also recorded in the Joint-Report (paragraph 54) that the applicant did not receive further rehabilitation since the fitting of the prosthesis.

55.  I cannot accept the recommendation as stated on the Prosthesis Company Certificate’s that the applicant should rest at home for 2 years on its face value. There is no evidence as to the medical expertise of the person issuing the said certificate. Also, there is no explanation as to the basis/bases of the said recommendation, eg records as to what examinations or treatments were performed.

56.  Similarly, the opinion of Dr Chan Wai Fu that sick leave of 2-3 years was appropriate for the applicant to receive treatment and rehabilitation was without elaboration. For example, Dr Chan did not suggest what treatment(s) should the applicant have received and why it would take 2-3 years for the applicant to complete those treatments, such that he would be fit to return to work on the “low ambulatory demand jobs” that both experts agreed the applicant was fit to do as at the date of the Joint-Report.

57.  On the other hand, the opinion of Dr Wong Kwok Shing Patrick that the applicant would need 1 year of sick leave to attain maximal medical improvement was more consistent with the evidence of the applicant about the timing and the work he has done since the Accident.

58.  I therefore prefer the opinion of Dr Wong Kwok Shing Patrick and find that the temporary incapacity of the applicant lasted for 1 year. The compensation under section 10 of the Ordinance should therefore be:

($14,400[5] x 12 months[6] - $4,400[7]) x 4/5 = $134,720

59.  For completeness, I wish to address three further matters.

60.  First, I am not unsympathetic to the situation of the applicant, particularly to the severity of the injuries and permanent disability that he suffers. Psychological suffering would not be any less serious than the physical ones. Also, the applicant’s financial need would be a major motivation for him to resume work even though he might not be entirely fit to do so. I have already taken all these factors into account when I accept Dr Wong Kwok Shing Patrick’s opinion that the applicant needed 1 year of sick leave to attain stability and maximal medical improvement. His opinion is still more reconcilable with the evidence even though I have given allowance to the possibility that the applicant might have pushed himself to resume work in April 2020 prematurely.

61.  Second, the Fund Board has referred to Chan Pak Leung v Lee Kin Tak, HCPI 118/2004, 11 January 2006 (unreported), Wong Man Kit Michael v Wong Fong Woon, HCA 283/1985, 21 December 1988 (unreported) and Chan Wai Chung v China Travel Service (Hong Kong) Ltd [2022] HKCFI 3718, and compared the sick leave and the extent of impairment in those cases with the facts of the present case. The Fund Board pointed out that in those cases, the plaintiffs suffered injuries that resulted in whole body impairment between 25% to 32%, and parties therein agreed on sick leaves between 6 months to 316 days. Facts in all cases differ from one to another, and there is no standard duration of sick leave with reference to the degree of whole body impairment. Those authorities are no more than references insofar as the duration of sick leave is concerned. I must arrive at the decision based on the evidence before me, as I have done so in the present case.

62.  Finally, I reject the invitation of the Fund Board to draw any adverse inference based on the non-production of the detailed records of treatments at Queen Elizabeth Hospital and the prosthesis company by the applicant. This argument has unfortunately taken up disproportionate length in the closing submissions of both parties. As a start, the Fund Board did not exactly suggest what adverse inference I should draw. It would be a misconception of the relevant rules of evidence to suggest that the Court can choose between 1 year and 2-3 years for the sick leave simply by drawing an adverse inference. Also, neither of the medical experts have indicated any difficulty in forming their respective opinions on the appropriate sick leaves in the absence of any of those records. Finally, as those representing the applicant has rightly pointed out, the Fund Board has confirmed to the Court in the Joint Written Application and Joint Appendix on 11 August 2023 that no further discovery was necessary. To criticise the applicant for not producing the relevant detailed treatment records at the trial is a forensic point that is unnecessary and unfair in the present case.

Disposition

63.  I grant a judgment of $1,157,696 in favour of the plaintiff, comprising the following:

Heads under ECO, Cap 282	Amount
Section 9: Partial incapacity	$1,022,976
Section 10: Temporary Incapacity	$134,720
	Total: $1,157,696

64.  Interest on the sum awarded under paragraph 63 above should run at half of judgment rate from the date of the accidence to the date of judgment, and at judgment rate thereafter.

65.  Costs of the action should be paid by the 1^st respondent to the applicant, to be taxed if not agreed. There be no order as to costs between the applicant and the 2^nd respondent. The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.