HOSSAIN MOHAMMED SAJIB v. CHUEN KEE ENVIRONMENTAL RESOURCES RECYCLE (HONG KONG) LIMITED (in Liquidation) AND ANOTHER

DCEC 2689/2016

[2020] HKDC 1200

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2689 OF 2016

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BETWEEN

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JUDGMENT

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BACKGROUND

1.  The applicant arrived in Hong Kong illegally in 2014.  It is undisputed that at all material times, he was not permitted to work in Hong Kong.  Be that as it may, the applicant claimed that he had been employed by the 1^st respondent as a general worker since about November 2014. 

2.  He further alleged that he had met an accident on 28 April 2015 and injured his right thumb while he was operating a plastic cutting machine.  As a result, he commenced the employees’ compensation application herein against the 1^st respondent on 2 December 2016.

3.  As the 1^st respondent was subsequently wound up on 8 March 2017^[1], and there did not appear to be anything which suggested that any employees’ compensation insurance policy was in force in relation to the applicant’s alleged employment with the 1^st respondent, the Employees Compensation Assistance Fund Board (“the Fund Board”) applied and was granted leave to join these proceedings as the 2^nd respondent.

4.  The Fund Board does not admit the applicant’s claim and has put the applicant to strict proof.

THE ISSUES

5.  The issues on liability which this court has to resolve are as follows:-

(1) Whether the applicant was employed by the 1^st respondent at the material time;

(2) Whether there was indeed an accident which took place on 28 April 2015 in the manner as alleged by the applicant;

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

(4) If the answers to issues (1), (2) and (3) are all in the affirmative, whether the court should exercise its discretion pursuant to section 2(2) of the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”).

6.  The issues on quantum are as follows:-

(1) As far as section 9 compensation is concerned, what amount of earnings should be adopted, and what the applicant’s loss of earning capacity is; and

(2) Given the applicant was not a legally employable person, should he be entitled to any compensation under section 10 of the Ordinance.

7.  While there was initially a claim made pursuant to section 10A of the Ordinance for medical expenses, Mr Lam for the applicant informed the court after all evidence had been heard that such a claim shall be abandoned.

LIABILITY

Whether the applicant was employed by the 1^st respondent

8.  As Mr Lam for the applicant has rightly pointed out, the issue as to whether the applicant was employed by the 1^st respondent at the material time is a factual one, and the resolution of which depends on the assessment of the applicant’s credibility.

9.  The applicant’s case on his employment with the 1^st respondent is as follows:-

(a) Upon his arrival in Hong Kong (by speedboat from the Mainland), he met a person who spoke Bengali by chance in a park.  He did not know this person before.

(b) As the applicant did not even have money to buy food, the said Bengali person arranged him to work with the 1^st respondent.

(c) He was taken to the work place by somebody (the applicant did not mention whom), and when he arrived, he met Sohel Mohammad (“Sohel”), who is also a Bengali, who took him to see a Chinese person at the work place. The Chinese person, with the assistance of Sohel, then showed the applicant what to do.  The applicant started working there as a general worker.  That was in about November 2014.

(d) The work place was located at or around Lot Section 130A, Ha Pak Nai, Lau Fau Shan, Yuen Long^[2].

(e) On the day of the accident, he had been instructed by the manager of the 1^st respondent to cut plastic pieces by using a plastic cutting machine (“the Machine”), and in the course of which his right thumb “got cut between plastic and Machine”^[3].

(f) After the accident, the applicant was taken to Tuen Mun Hospital immediately by the 1^st respondent’s private vehicle^[4]. He was accompanied by the manager of the 1^st respondent and some other Chinese people, and they had spoken to the doctor at the hospital.

10.  There cannot be any dispute that the applicant has the burden to prove on the balance of probabilities that he was working for the 1^st respondent at the time when he was injured.

11.  In my view, the applicant has failed to discharge such a burden for the following reasons.

12.  Firstly, the circumstances under which the applicant said he found his job with the 1^st respondent was contradicted by the evidence of Sohel:  While the applicant stated that he, in November 2014, was taken by someone to the 1^st respondent’s work place at which he met Sohel, Sohel gave evidence in court that he only met the applicant for the first time in April 2015 in a MTR Station, and that it was he who brought the applicant to the work place.  I am aware that the applicant was giving evidence on matters which happened 5 or 6 years ago.  However, these are straight forward matters.  The fact that the applicant’s evidence on these matters are contradicted has cast great doubt on his credibility.

13.  Mr Lam argued that even though there were discrepancies as to when the applicant started to work for the 1^st respondent, both the applicant and Sohel’s evidence are consistent in showing that the applicant had been working for the 1^st respondent on 28 April 2015.  I am unable to accept such submissions, because it is undisputed that Sohel was in custody at the time of the applicant’s alleged accident, and that he could not give first-hand evidence as to whether and where the applicant was working at the material time.

14.  I recognise that it might be argued that despite the discrepancies, there is uncontradicted evidence that the applicant had already started to work at the 1^st respondent’s place before the date of the accident.  However, I am not prepared to make such a finding of fact, because of the great discrepancies between the evidence from the applicant and Sohel on the aforesaid matters.

15.  Secondly, it was the evidence of the applicant that he was taken to Tuen Mun Hospital by the 1^st respondent’s manager, who is a Chinese, and he was accompanied by some other Chinese people at that time.  The applicant said they (the Chinese people) had all spoken to the doctor at the hospital.  The presence of those people at the hospital would support the applicant’s case that he was injured while he was working at a work place.  However, such a factual assertion is contradicted by the Progress Note of Tuen Mun Hospital which was printed at around 14:39 on the day of the accident (28 April 2015) (“the Progress Note”) which stated that there was “no informant”.

16.  Thirdly, the words “non-IOD” were written by hand on the Progress Note, presumably by the doctor.  This suggests that this is not an “injury on duty” case.  On this matter, Mr Lam counter-argued that:-

(1) As it was clearly marked “language barrier+” in the Progress Note, “it is questionable as to whether the description of the cause of the injury was caused by difficulty in communication”^[5];

(2) The interpretation of “non-IOD” was only given by the Fund Board’s counsel without anything in support;

(3) The words “non-IOD” were written by hand rather than printed.  There was no evidence as to who wrote them on the report.  As the doctor who prepared the Progress Note was not called by the Fund Board as a witness to explain the entries and the written words, the maxim of omnia praesummuntur contra spoliatorem should apply and, relying on the case of Tullett & Tokyo International Securities Ltd v APC Securities Co Ltd [2001] 2 HKLRD 356, an adverse inference should be drawn against the Fund Board; and

(4) Relying on the case of Lee Yam Kan v Ng Pui Kuen trading as Wing Sing Scaffolding Engineering and Another (HCPI 196/2014, unreported, 15 March 2016), the applicant’s explanation that no one had made any interpretation for him at the hospital on the day of the accident should be accepted, and therefore the words “non-IOD” should not be used against the applicant.

17.  These arguments are rejected:-

(1) The applicant’s argument on “language barrier” was made in total disregard of a material feature of the Progress Note, in that this document comprises two types of records, namely, (i) typewritten (printed) records, and (ii) handwritten records.  As far as the typed-up part is concerned, it was recorded that, among other things, there was “no informant”, there was “language barrier+”, and “await friend who speak english (sic) to come for consent for bedside exploration (sic)”.  There were then some handwritten words, which include, among other things, “at 1200 today – non-IOD” and “consent √ (with friend as interpreter)”.  I accept Mr Lim’s argument that it can be inferred that the information “non-IOD” was not obtained when there was still difficulty in communication between the doctor and the applicant because of the language barrier (that is, before the note was printed at 14:39), but only when the applicant’s friend who knew English had arrived later on and acted as his interpreter. 

(2) The Progress Report was a document produced by the applicant in support of his case, and I would presume, unless there is any evidence proving otherwise, that the handwritten words were already there when a copy of the Progress Report was obtained by the applicant from the Hospital Authority. 

(3) The term “IOD” has been widely used in medical reports and referred to in various judgments in personal injuries and employees’ compensation claims cases, and is well understood to mean “injury on duty”.  I have no hesitation to take judicial notice on the meaning of “IOD”.

(4) I am of the view that if the maxim of omnia praesummuntur contra spoliatorem is applicable at all, it would, in the circumstances of the present case, work to the applicant’s disadvantage.  The words “non-IOD” having been hand-written in the Progress Report, it is open to the parties to rely on these words in their submissions.  If any party is minded to suggest that Dr Chow who prepared the report may be able to give further explanation which would shed light on the reason why the words “non-IOD” are there, and/or that the court should not give much weight to these words, it is up to that party to call Dr Chow.  In the present case, I do not understand why the Fund Board has the obligation to call Dr Chow as suggested by Mr Lam.  The applicant himself should have done so if he so wished;

(5) The authority of Lee Yam Kan (supra) cannot assist the applicant at all.  In that case, the Learned Judge, having considered the evidence adduced therein, accepted the plaintiff’s explanation that there was miscommunication between him and the doctor, and as a result, did not reject the plaintiff’s evidence on the description of the accident even though it was inconsistent with that stated in the medical records.  The learned Judge did not lay down any legal principle at all.  He just made a factual finding on the basis of the evidence placed before him.  Hence, I do not understand why it was said that that case is relevant for our purpose.

(6) In the present case, I would reject the applicant’s evidence that his friend had never acted as his interpreter for him at the hospital at around 4 pm on the day of the accident.  That is inconsistent with the handwritten records on the Progress Note and the 4 pm entry on another progress note which recorded “interviewed patient’s friend at bedside (who speak english (sic)), he acted as interpreter for patient”^[6]. Further, on the face of the aforesaid notes, the doctor had been careful enough not to ask the applicant to sign any consent form at around 2:39pm because of the language barrier, and preferred to wait until the applicant’s friend arrived.  That being the case, it is more likely than not that the doctor would only allow the applicant to sign on the consent form if he saw that the interpreter had really done the interpretation for the applicant.  

18.  Fourthly, while the 1^st respondent was stated to be the applicant’s employer in a Notification of Accident dated 24 June 2016 (“the Notification”) and its name and address were put down therein under Section B “Particulars of Employer” thereof, the applicant admitted during cross-examination that he:-

(1) could not remember whether anyone had assisted him in completing the form;

(2) had no idea that the Notification had been submitted to the Labour Department;

(3) did not know why the Notification was submitted to the Labour Department;

(4) could not recall whether he had signed on the Notification;

(5) did not know the full name of the 1^st respondent;

(6) did not know the full address of the 1^st respondent.

19.  When the applicant was asked how come the full name and address of the 1^st respondent were filled into the Notification if he himself did not have any such information, the applicant explained that he had told his lawyer where the business concerned was. However, this evidence does not sit well with his own admission that he did not know why the Notification was submitted to the Labour Department.  He could not recall anything about the Notification, and it was not his evidence that it was his lawyer who submitted this form for him.

20.  Under such circumstances, the court has to be cautious as to why the 1^st respondent’s name was put down as the employer of the applicant.  The applicant has simply not explained to the court in this respect.

21.  On the other hand, if the Notification was really filled in upon the instruction of the applicant, it is noted that the boxes of “Contact Person” and “Telephone No.” under Section B “Particulars of employer” in the Notification have been left blank.  According to the applicant’s evidence, he had called up the manager of the 1^st respondent several times (by calling his mobile phone number) in an attempt to get sick leave pay after the accident.  While he could not remember whether he had saved the manager’s phone number in the phonebook of his own mobile phone, he said that he could obtain the manager’s number again from other people he knew if he needed it.  That being the case, it is difficult to understand why such a number was not filled into the Notification.  Mr Lam explained that because of the language barrier, it is logical for the applicant not to know the name of the manager.  Even if he is right, this reason cannot explain why the applicant did not put down the manager’s mobile phone number in the Notification. 

22.  Fifthly, it was submitted by Mr Lam for the applicant that “Given the applicant could explain the details of the work, it seems clear that the applicant worked for R1”^[7]. With respect, I cannot accept this line of argument, because there is no evidence (apart from that coming from the applicant himself) as to the work involved in the 1^st respondent’s business.  I am not prepared to infer simply by reference to the name of the 1^st respondent (which has the words “environmental resources recycle”) that its business involved the cutting of plastics.  Indeed, even Mr Lam accepted that this court cannot make such an inference.

23.  To conclude, having considered the evidence adduced and submissions made, I find that the applicant is an incredible and unreliable witness, and do not accept the applicant’s evidence that he was working as an employee of the 1^st respondent on 28 April 2015 when he was injured. 

24.  By reasons of the above, the applicant’s claim should be dismissed.  However, for the sake of completeness, I would consider below the other issues identified at the beginning of this Judgment.

Whether there was any accident as alleged

25.  It is the applicant’s case that he was injured by a plastic cutting machine.  He said that the original size of the plastic box was very large, similar to the size of the shield surrounding the witness box in the court room.  He was required to cut it into 4 or 5 pieces.  Before the accident, he had finished cutting it into 2 halves.  The accident took place when he was cutting one of those 2 halves into smaller pieces.

26.  Mr Lim for the Fund Board challenged the applicant’s case by saying that, by the time when the accident happened, the plastic box was still quite large, and therefore the applicant’s hand should be quite far away from the circular saw of the Machine while he was pushing that big box along the work-table for it to be cut by the Machine, and there was no evidence as to how his right thumb/hand could get so close to the saw to get cut.

27.  I take the view that Mr Lim may have a point here if there is evidence that the applicant was cutting the half-size plastic box further into 2 more-or-less equal size halves.  In such a case, assuming that the applicant was pushing the plastic box by its 2 sides, his hands should be quite far away from the saw, or at least should not be close enough to get cut.  However, during cross-examination, the applicant only told the court that after he had made the first cut, the plastic box was cut into two halves.  He was not asked further (and as a result he did not elaborate on) whether he was cutting the half-size box further into two more-or-less equal size halves when he made the second cut.  There is therefore inadequate evidence to support Mr Lim’s submissions.  If the applicant was cutting the plastic box into a small piece, it is possible that one of his hands would be close enough to the saw to be cut.

28.  Mr Lim further drew this court’s attention to the Progress Note in which the following was typewritten: “left hand cutting thing with knife”.  It was submitted that such a description is totally different from the applicant’s assertion and therefore the applicant’s evidence in this respect should be rejected.

29.  As I have explained above, the Progress Note shows that when the doctor saw the applicant before 14:39, there was still “language barrier” between the doctor and the applicant, and that was the reason why the doctor had to wait for someone to arrive who could act as interpreter before the applicant was asked to sign a consent form for the purpose of an operation.  Therefore, I would not place any weight on the typewritten information which seems to be coming from the applicant on the Progress Note.

30.  Mr Lim also submitted that if the applicant was really injured by the saw as alleged, he would not have suffered a clean cut with bone fracture, and the injury should have been far more serious and his thumb would have been cut off completely.

31.  With respect, this argument is rejected.  It can be seen in the Patient Initial Assessment Record which was filled in at around 13:25 on the day of the accident that the injury was described as “nearly amputation”.  This is consistent with an injury caused by a saw rather than a knife.

32.  While I do not accept Mr Lim’s aforesaid arguments, it does not necessarily mean that I have to accept the applicant’s evidence on how the accident happened.  It depends on this court’s assessment of the applicant’s credibility.

33.  I have already referred hereinabove to some aspects of the applicant’s evidence which are contradicted by his own witness or other evidence placed before the court.

34.  There are other matters which show that the applicant was an incredible witness:-

(1) When he was first asked how many cuts he had made to the big plastic box before he got injured, he said he could not remember.  He only answered subsequently that he was doing the second cut when he was injured.  I find it difficult to understand how come he could not remember this in the first place, and how come he could remember it shortly afterwards.  In my view, he was making up his evidence along the way.

(2) While the applicant knew that he did not pay the entirety of the Hospital Authority’s bills in the total sum of $43,110, he instructed his counsel to claim the whole sum at the beginning of the trial, and he still maintained that he would claim the whole sum when he was cross-examined by the Fund Board’s counsel.  This shows that the applicant was incredible, and he was simply trying to obtain the maximum amount of compensation he could even though he knew that he was not entitled to it.  In my view, his subsequent admission in the witness box that he did not pay the whole sum could not save his credibility.  Neither could his eventual abandonment of the claim change my assessment on his credibility.

35.  As I find that the applicant was an incredible witness, I am not prepared to accept his evidence on how he got injured.  I have not lost sight of the applicant’s argument that the injury suffered is consistent with his case that he was injured by the evolving blade of a plastic cutting machine.  Even if it is, this is just one of the matters which this court has to take into account.  The court is not bound to accept the applicant’s case for this reason per se.

Whether the applicant was injured in the course of employment

36.  By reasons of the aforesaid, I do not accept that the applicant was injured in the course of employment.

Discretion under s 2(2) of the Ordinance

37.  Section 2(2) of the Ordinance reads:-

“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.”

38.  By virtue of the said section 2(2), this court has the discretion to deal with the applicant’s application as if he was working under a valid contract at the material time despite the fact that he was not a lawfully employable person. 

39.  It had been held by the Court of Appeal in Yu Nongxian v Ng Ka Wing & Another [2007] 4 HKLRD 159 that public policy would not be served by disallowing employees compensation claims made by illegal employees and that what is most important, for the purpose of exercising the discretion in favour of the employee, is whether the employee was doing lawful work under the contract in question.  Cheung JA also had this to say:-

“101. In my view, in the context of a modern Hong Kong which is by all accounts a caring society, 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.

102. How would an exclusion of the claim in such a situation protect the local work force? On the other hand, if compensation is allowed, how would the integrity of the legal system be affected? It is said that to allow compensation will encourage more illegal workers to work here. But how many of these workers were injured or killed in the course of their employment which was the prerequisite before they could claim compensation?

103. These questions are asked to show that one cannot simply say ‘public policy requires the claim to be rejected’, it is necessary to go further and ask what is the mischief that the public policy wishes to avoid? The situation is quite different from the case of an illegal worker claiming wages from his employer where, without expressing a concluded view on the matter, because of the rice bowl consideration, public policy may require the claim to be excluded. In my view it is precisely because the so called public policy does not provide the justification for exclusion of employees compensation that this Court in Chan Cheuk-ting held that

‘there is no consideration of policy of such weight that it would require the Court to refuse to exercise its discretion.’

104. In that case the employer had effected an insurance for his employees but I do not regard the presence of insurance coverage to be the distinguishing feature which resulted in this Court overturning the decision of the first instance and exercising the discretion in favour of the employee. Irrespective of whether an employer has provided insurance coverage for his employees or not, he is still personally responsible towards the employees for the compensation.  In this case the deceased like the worker in Chan Cheuk-ting was doing lawful work.  I cannot see why this Court should not follow the previous decision in Chan Cheuk-ting and exercise the discretion in favour of the applicant.”

40.  In the event I were wrong on my findings above, and if the correct finding is that the applicant was really injured by the Machine while he was cutting plastic as a general labourer for his employer, he would be doing lawful work at the material time.  Under such circumstances, I am of the view that the court should exercise its discretion in favour of the applicant under section 2(2) of the Ordinance.

QUANTUM

Section 9 compensation

41.  If I were wrong to dismiss the applicant’s claim, then I would accept his case that the monthly earnings of $10,400 should be adopted when calculating the amount of compensation.  

42.  Mr Lim for the Fund Board accepted that this would be the correct approach if the court accepts that the applicant had actually started to work for the 1^st respondent since November 2014.

43.  However, Mr Lim argued that in the event Sohel’s evidence that he only brought the applicant to the work place on the following day after they had met in April 2015 is accepted, then this would show that the applicant could not work for 26 days a month as alleged.

44.  I am afraid I cannot accept this line of submission.  All Sohel was saying was that after they had met, he took the applicant home, and brought the applicant to the work place on the following day.  There was no evidence that the work place did not need workers.

45.  If the applicant had really only started to work in April 2015, then he would have worked for less than a month for the 1^st respondent.  In such a case, the court should rely on section 11(2) of the Ordinance when considering the applicant’s monthly earnings: see Or Wing Ming v Ho Bing Chi [2008] 4 HKLRD 337 at paragraph 26(2) thereof.

46.  The only evidence that was placed before the court on the earnings of “a person of similar earning capacity in the same grade employed at the same work by the same employer” was Sohel’s evidence. Yet, he did not say much on his earnings.  He just told the court that he earned $450 a day, and that he had worked for the 1^st respondent for a long time.  He also said that there was a large demand of asylum seekers at the work place and there were 30 to 40 asylum seekers working there. 

47.  What Sohel told the court shows that he was earning slightly more than the applicant, because the applicant’s case, if accepted, was that his average daily rate was $400 ($10,400 / 26).  Be that as it may, Sohel’s evidence may be used to infer that he had worked there for 26 days a month, and would only take one day off each week as his rest day.  On this basis, the total figure of $10,400 as suggested by the applicant should be adopted.

48.  The remaining question which this court has to consider is the applicant’s appeal against the Certificate of Assessment issued by the Employees’ Compensation (Ordinary Assessment) Board on 28 September 2018, in which the applicant’s permanent loss of earning capacity was assessed at 2%.  His injury was described as “right thumb laceration resulting in right thumb pain, stiffness and weakness” in the said Form 7.

49.  In the Joint Medical Report dated 3 January 2020, Dr Chan Sai Keung concluded that:-

“The whole body impairment is assessed to be 4% for the right thumb stiffness and MCPJ subluxation and 2% for the thumb hypersensitivity and weakness. The combined whole body impairment is 6%. The loss of earning capacity is estimated to be 6%.”

50.  Dr Arthur Chiang Si Chung, on the other hand, opined that:-

“The 6^th edition of the Guide to the Evaluation of Permanent Impairment digital impairment from fracture of proximal phalanx class 1, residual symptoms, consistent objective findings and/or functional loss with normal motion (p.393, table 15-2), and the thumb range of motion parameter (p.468, table 15-30) are used as references. The whole person impairment is estimated to be about 3%.

The loss of earning capacity was estimated with reference to the whole person impairment and Cap.282, First Schedule of the Employees’ Compensation Ordinance.  The closest reference is ankylosis (total loss of motion) of the interphalangeal joint of the thumb.  The percentage loss of earning capacity is estimated to be of about 3 to 4%.”

51.  Having considered the assessment afresh, I would allow the applicant’s appeal.  I accept Dr Chiang’s opinion and assess the applicant’s loss of earning capacity at 4%. 

52.  I do not agree with Dr Chan that such loss should be assessed at 6%, for he had taken, among other things, the following matters into account inappropriately in his analysis:-

(1) “the radial side of the thumb tip had hypersensitivity which is due to the damage of the radial neurovascular bundles”^[8];

(2) “impaired handgrip and pinch power resulted from the right thumb stiffness, hypersensitivity (it is well known that complete cut of the neurovascular bundle cannot have full recovery of the sensation and hypersensitivity is common residual deficit) and narrowing of the first web space”^[9].

53.  In relation to hypersensitivity of the radial side of the applicant’s thumb tip, Dr Chiang had the following to say:-

“Mr Hossain complained of hypersensitivity over the radial side of the right thumb. In referring to the later part of the orthopaedic follow-ups, and on discharge from physiotherapy and occupational therapy, the sensation of the right thumb was noted to be intact and there was no hypersensitivity complaint. The current sensory complaint over the right thumb could not be fully verified.”^[10]

54.  Mr Lam for the applicant submitted that it was incorrect for Dr Chiang to state that there was no previous hypersensitivity complaint on the part of the applicant, because it was recorded in the Orthopaedic & Traumatology Orthopaedic (Team C) Consultation Summary of Tuen Mun Hospital dated 31 March 2016 (“the Consultation Summary”) that the hypersensitivity of the right thumb had increased.

55.  I do not think Mr Lam’s criticism of Dr Chiang was justified.  It can be seen from the Consultation Summary that the “hypersensitivity” was related to the “firm nodule over dorsal IPJ” on the right thumb.  In the same document, it was also recorded “thumb tip sensation intact”, which supports Dr Chiang’s view that there was no hypersensitivity at the thumb tip. 

56.  As far as the alleged impaired handgrip and pinch power are concerned, as Dr Chiang pointed out, it was likely that the applicant had underperformed the strength tests.  I set out Dr Chiang’s observations below:-

“In the current examination, on testing the grip strength, on various trials, the right hand grip ranged from 11 to 18 kgf (minimum to maximum), which was much weaker than the left hand (from 36 to 48 kgf). With reference to the grip strength at the end of the physiotherapy and occupational therapy, the average power grip range for the right hand was 34kgf for the right hand and 58 kgf for the left hand (POH occupational therapy), and 46 kgf for the right hand and 62 kgf for the left hand (TMH occupational therapy). The right hand grip strength test was likely underperformed, and a better actual grip power of reasonable strength of the right hand, though with some, but likely mild decrease as compared with the left hand, was expected.

The lateral pinch (pinching power of the thumb with the index finger) in this examination was 2.5 kgf for the right hand (7 kgf for the left hand). The lateral pinch in mid-2016 as noted in the occupational therapy examinations was of a much better pinch power of the right hand at 6 to 8 kgf, and left hand at 11.5 to 12 kgf. The much better earlier lateral pinch power than the currently noted lateral pinch power also suggested that the test was underperformed. The lateral pinch grip would also likely be reasonably satisfactory.”^[11]

57.  I should add that, in fact, the Occupational Therapy Report dated 6 August 2019 prepared by an Occupational Therapist in Pok Oi Hospital shows that the grip strength of the applicant’s left and right hands were 55 kgf and 50 kgf respectively as at 2 February 2016.  In other words, there was just a slight difference between the strength of the applicant’s two hands, and the grip strength of his right hand was much better back then. While I note that it was also recorded in the said report that the applicant had complained of increased pain over his right thumb interphalangeal joint after his right thumb had hit against a table in mid-March 2016, it should be borne in mind that when the applicant was assessed on 20 June 2016, his left and right hand grip strength were found to be of 62 kgf and 46 kgf respectively.  Hence, the mid-March 2016 incident should not affect the applicant much.

58.  I therefore find that the higher loss of earning capacity suggested by Dr Chan should not be adopted. 

59.  By reasons of the aforesaid, in the event liability is established, section 9 compensation is assessed at $39,936 ($10,400 x 4% x 96).

Section 10 compensation

60.  It is undisputed that the applicant had been given sick leave for a total of 158 days.

61.  On the above basis, the applicant claimed section 10 compensation for a sum of $43,819 (HK$10,400 x 4/5 x 158/30).

62.  However, Mr Lim relied on the case of Abu Bakkr Shiddik v M M & Co Auto Parts, Dismantling and General (A Firm) (DCEC 903/2009, unreported, 12 January 2011) and submitted for the Fund Board that no claim under section 10 should be allowed because of the status of the applicant.  In that case, it was held by the learned Judge that:-

“55. …The fact was that Shiddik had no employment obviously during his detention after the accident and even after his release from detention. Not only that, the question is really whether Shiddik would have been lawfully employable, but for the temporary incapacity.

56. In fatal cases, such as Chan Cheuk Ting and Yu Nong Xian (above), compensation is awarded in a lump sum calculated in accordance with the statutory formulae pursuant to section 6 of the ECO. No issue of compensation for temporary incapacity arises.

57. In non-fatal cases, compensation under section 9 of the ECO is awarded for the degree of permanent loss of earning capacity suffered by the employee. It matters not whether the employee could have lawfully worked after the accident. Compensation under section 10 of the ECO is different.

58. The statutory scheme of compensation under section 10, in particular subsections (1) and (2), is this: [the provisions were quoted].

59. Section 10(1) makes clear that compensation is awarded on the basis that the employee would at least have been capable of earning in some suitable employment or business but for the temporary incapacity after the accident. If the person is not lawfully employable, he could not be said to be capable of earning income from any suitable employment or business during the period of temporary incapacity. That was the situation of Shiddik when he was detained first by the police and then by the Immigration Department after the accident.

:

:

65. I have no basis to believe that Shiddik was permitted to take employment while he remained in Hong Kong on the recognizance during the period of temporary incapacity. As it is not shown that Shiddik was capable of being lawfully employed during the period of temporary incapacity, the premise for awarding section 10 compensation is lacking.

66. For the above reasons, I decline to make an award under section 10 of the ECO…” (emphasis added)

63.  The above approach was followed in at least two other cases, namely, Qadir Sher v Siddiqui Muhammad Faisal & Others (DCEC 404/2011, unreported, 13 August 2012) and Shahzad Ajmal v Chakwal Auto Traders (HK) Limited & Another [2019] HKDC 876 (5 July 2019). 

64.  However, a different approach was adopted in the case of Muhammad Dost v Hong Kong Ying Cheung Trading (Recycling) Limited [2019] HKDC 375 (30 December 2019), in which the learned Deputy Judge had the following to say:-

“71. The discretion under section 2(2) of ECO is ‘in the widest terms and is necessarily to be exercised on the facts of each case, involving its own mixture of discretionary factors.’ [Yu Nongxian v Ng Ka Wing, FAMV 64/2007, unreported, 17 January 2008 at §5]

72. Once the court has decided to exercise its discretion in favour of an illegal worker applicant, on the express provision of section 2(2), the court may deal with the matter as if the applicant had, at the time of the accident, been a person working under a valid contract of service. The matter referred to in the provision must include the issues of liability and quantum. The contract of service must then be regarded as a lawful one for all purposes under the ECO. [Chan Cheuk-ting v Analogue Engineering Co Ltd. [1986] HKLR 935 at 942C]

73. The Court of Appeal in Yu Nongxian and Chen Xiu Mei had thoroughly considered the question on the exercise of discretion under section 2(2) of ECO in the case of an illegal worker applicant, and the public policy considerations relevant to contract tainted with illegality. I highlight the following remarks and rulings :-

(1) There was a long line of authorities where ‘the courts maintained the principle that while the refusal of the court to enforce illegal contracts often leads to injustice and unjust enrichment of the defendant, the justification is not based on any principle of justice but rather of policy.’  [Yu Nongxian §98]

(2) ‘The application of the rule ought to be narrowly watched, and ought not to be carried a step further than the protection of the public requires.’ [Yu Nongxian §99]

(3) The court’s approach to illegality, as illustrated in cases for recovery of loss of earnings from unlicensed hawking (which was illegal), was that the court must examine all relevant circumstances, and decide in these circumstances, whether it would affront the public conscience or offend the ordinary right-thinking citizens if compensation for the loss is awarded. The board (sic) question seems to be: would it be more offensive to the notion of justice held by right-thinking people generally to allow the recovery in light of the actual illegality involved or would it be more offensive to such notion to refuse them a remedy. [Yu Nongxian §65 quoting Chung Man Yau & Anor v Sihon Co Ltd [1997] HKLRD 1221]

(4) ‘[i]n order to stop illegal employment, it is important to target the employers. Unlike illegal employees who are likely to be driven by necessity, employers are usually driven by greed. A good deterrent for a greedy person is to hit him in his pocket.’ If the employee was not allowed to recover from the employer, the employer would have got scot-free, especially when the employee has no incentive to testify against the employer. [Yu Nongxian §§77-78]

(5) Hong Kong is a caring society, ‘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.’  [Yu Nongxian §101]

(6) ‘Irrespective of whether an employer has provided insurance coverage for his employees or not, he is still personally responsible towards the employees for the compensation.’   [Yu Nongxian §104]

(7) ‘Having regard to the public policy regarding illegal employment, I believe allowing recovery is also conducive to serving such public policy.’  [Yu Nongxian §87]

74. Both Yu Nongxian and Chen Xiu Mei are fatal cases, section 10 compensation was not engaged. Nonetheless, one can discern from the Court of Appeal decisions that, as a matter of public policy, the ECO protection given to illegal workers doing lawful works was not intended to be more restrictive than the protection given to the other workers legally employable in Hong Kong.

75. The applicant’s legal capability to work must have been considered at the stage when the court determined whether discretion under section 2(2) was to be exercised. Once the court decided to exercise discretion in favour of the illegal worker applicant under section 2(2), the corollary is that the applicant’s lack of legal capability to work would not disentitle his claim for compensation under the ECO.

76. The intention of the ECO is to provide a quick financial relief to injured employees in a no-fault scheme. [LKK Trans Ltd v Wong Hoi Chung [2006] 9 HKCFAR 103].

77. In the context of considering whether an employee bears the burden of proving that he had no earnings that he was earning, or was capable of earning, in a suitable employment during the period of temporary incapacity so that there should be no reduction under section 10(1), the Court of Appeal held that the employee does not bear the burden, and clearly stated that there was an assumption that the employee would have continued in the same type of employment receiving the same earnings had the accident not occurred. [Yu Tat Kam v Chu Tung Shing and other CACV25/2008, unreported, 8 October 2009].

‘25. Does the employee bear the burden of proving that he had no earnings that he was earning, or was capable of earning, in a suitable employment during the period of temporary incapacity so that there should be no reduction under s.10(1)? Although the employee is the applicant for compensation, we are of the view that he does not bear that burden. The intention of the Ordinance is to provide quick financial relief to employees incapacitated by work-related injury in a no-fault scheme (LKK Trans Ltd v Wong Hoi Chung [2006] 9 HKCFAR 103, 114). It is assumed that had the accident not occurred, the employee would have continued in the same type of employment receiving the same earnings. ...’ (emphasis by bold type added)

78. Section 10(1) is a formulation for calculating the amount of compensation. The first sentence of section 10(1) provides that the compensation shall be the ‘periodical payments hereinafter mentioned or a lump sum calculated accordingly, having regard to ‘the probable duration, and probable changes in the degree of the incapacity.’

79. The second sentence in section 10(1) provides the formula for calculating the ‘periodical payments’ referred to in the first sentence: that is four-fifth of the differences between two parameters, (a) the applicant’s monthly earnings at the time of the accident (“Parameter A”); and (b) the monthly earnings which the applicant was earning (“Parameter B1”) or was capable of earning (“Parameter B2”), in some suitable employment or business during the period of temporary incapacity after the accident. Parameters B1 and B2 are factors in the formula that give a reduction to the actual amount of compensation an injured employee may obtain under section 10.

80. Given the objective of the Ordinance, the proper construction of section 10(1) and the underlying policy considerations for illegal workers’ claims, section 10(1) is not to be construed as a section to introduce once again a hurdle for obtaining compensation by reason of the applicant’s legal incapability to work.”

65.  I agree with the analysis of the learned Deputy Judge in Muhammad Dost (supra) as quoted above.  In my view, the question of whether the court should exercise its discretion pursuant to section 2(2) of the Ordinance is a question on liability as far as the entire employees’ compensation claim is concerned.  Once the court has decided to “deal with the matter as if the injured person had at the time been a person working under a valid contract of service”, the court should consider the quantum of the injured person’s claim without reference to his status of not being lawfully employable again.

66.  I do not agree that the wordings of section 10(1) of the Ordinance “the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident” require the court to take into account the injured person’s aforesaid status.  In my view, the word “suitable” in section 10(1) of the Ordinance has nothing to do with the legality of the claimant’s employment, or whether he could be employed again legally after his recovery.  The adjective “suitable” is only describing the kind of work which can be done by the claimant in light of his physical condition.

67.  If the word “suitable” has anything to do with the status of the employee, the formula provided by section 10(1) of the Ordinance would produce a strange result.  As the learned Deputy Judge appointed out in paragraph 79 of the Judgment in Muhammad Dost (quoted above), the actual amount of compensation an injured employee may obtain under section 10 of the Ordinance is subject to deduction, and the extent of such deduction would be affected by the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of temporary incapacity after the accident.  If the “suitability” of employment would depend on the legality of status of the claimant, it would create a situation where the periodical payments to be received by an illegal worker would not be subject to any deduction even if he has worked illegally during the sick leave period.  That cannot be right.

68.  Mr Lim submitted that public policy should not go so far as to compensate the applicant for what he is not entitled, ie future earnings from illegal employment.  However, if he is right, I wonder why the injured employee would be allowed to receive compensation under section 7 or section 9 of the Ordinance, under which the employee would, depending on his age, be entitled to receive 48, 72 or 96 months’ earnings or a percentage thereof.  As Mr Lim accepted, the compensation paid under sections 7 and 9 of the Ordinance is also meant to compensate the employee for his incapacity to earn due to his injury.  In other words, given the illegality status of the employee, sections 7 and 9 would also be compensating the employee for future earnings from illegal employment.  I cannot see the rationale why, if the legality of the employment is a relevant matter to be taken into account at the “quantum stage”, such a matter should only be considered when section 10 compensation is considered. 

69.  This demonstrates that the legality of the employee’s employment should not be taken into account again at all once the court has decided to exercise its discretion in favour of the employee pursuant to section 2(2) of the Ordinance.

70.  I therefore hold that, in the event liability is established, section 10 compensation should be assessed at $43,819.

ORDER

71.  By reasons of the aforesaid, I dismiss the applicant’s claim.

COSTS

72.  I make a cost order nisi that the applicant shall bear the costs of the Fund Board (including all costs reserved, if any), with certificate for one counsel, and of the 1^st respondent, to be taxed if not agreed.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.  The above order nisi shall become absolute in the absence of application to vary within 14 days hereof.