MAN CHI HO (文志豪) by his next friend, SUN WAI MEI (孫惠媚) 對 廖志輝以志利棚業工程公司之名營業及另二人

DCEC 1412/2016

[2019] HKDC 1157

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1412 OF 2016

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JUDGMENT

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Background

1.  This is a claim by the applicant Mr Man Chi Ho (“the Applicant”) for employee’s compensation against the 1^st respondent (“R1”) and the 2^nd respondent (“R2”) in respect of an accident occurred on 13 February 2015, when he fell down from the external wall of Flat G, 5/F, Block 4, Ravana Garden, Nos 1-3 On King Street, Shatin, New Territories to the podium level (ie 3/F) of the same building (“the Accident”).

2.  It is the Applicant’s case that the Accident arises out of and in the course of his employment with R1 as a scaffolder.  R1 was, at the material time, a sub-contractor to R2, the principal contractor.

3.  The Applicant’s injury is pleaded as follows [A3]:-

(a) Head injury;

(b) Depressed right parietal skull fracture with underlying cerebral contusion;

(c) Acute right subdural haematoma with significant mass effect and midline shift and diffuse traumatic subarachnoid haemorrhage;

(d) Diplopia;

(e) Multiple site of skull base fracture;

(f) Bilateral fourth nerve palsy;

(g) Severely cognitive impairment;

(h) Organic affective disorder; and

(i) Small angle right esotropia and right hypertropia.

4.  Judgment on liability was entered against R1 on 1 March 2019.

5.  R2 has filed an Answer dated 4 July 2017 denying liability.  However, R2 did admit to be the principal contractor in the Answer [A29].

6.  The Employees Compensation Assistance Fund Board was joined as the 3^rd respondent (“R3”) pursuant to section 25A(1)(a)(v) of the Employees’s Compensation Assistance Ordinance, Cap 365 (“ECAO”) on 20 December 2017.

7.  Pursuant to Form 7 dated 24 October 2018 issued by the Employees’ Compensation (Ordinary Assessment) Board, the Applicant was assessed to have suffered from 100% loss of earning capacity permanently caused by “head injury resulting in organic brain syndrome, psychiatric impairment and visual impairment” (“LOEC”).  The maximum period of 3 years absence from duty was endorsed under Form 7. [F245]

8.  The Applicant claims compensation under section 7, section 9, section 10 and section 10 A of the Employees Compensation Ordinance, Cap 282 (“ECO”).  Mr Shum for the Applicant indicates that the section 9 compensation is an alternative to section 7 compensation.

9.  R3 seeks to appeal the 100% LOEC under Form 7 [A30].

Evidence

10.  The witnesses in this trial are the Applicant and his brother and next friend Mr Man Chi Chung (“Man”).  No witness was called by R3.

11.  They have both adopted their respective witness statements as their evidence in chief.

12.  I shall deal with their evidence in more details below.

13.  During the course of trial I learnt that the Applicant has resigned from his car washing job under the Salvation Army (since April this year) and is currently unemployed.  He is currently residing with his family after moving out of the half way house (which was the address adopted by the Applicant in his witness statement).

14.  So far as medical evidence is concerned, Mr Shum referred the court to 3 joint expert reports:-

(a) Joint neurological report prepared by Dr Brian Chao (for the applicant) and Dr Yu Yuk Ling (for R3) dated 26 September 2018 (“JNR”); [D126-137]

(b) Joint ophthalmologist report prepared by Dr Benedict Liang (for the applicant) and Dr Ng Wing Ho (for R3) dated 9 November 2018 (“JOR”); [D138-148] and

(c) Joint psychiatric report by Dr Li Cheuk Wing (for the applicant) and Dr Benjamin Lai (for R3) dated 3 December 2018 (“JPR”). [D149-169]

15.  Mr Shum drew my attention in particular to the JNR which has recited the various injuries suffered by the Applicant as a result of the Accident.

Liability

16.  Judgment on liability was entered against R1.  The only issue in terms of liability is whether R2 should be held liable as principal contractor to compensate the Applicant under ECO together with R1.

17.  Mr Shum refers to the Accident Report prepared by the Labour Department dated 31 July 2015, which is exhibited by Man in his witness statement of 26 November 2018 [B74 - 90].

18.  It is stated in the Report that R2 was the principal contractor of the site, ie “renovation works at Flat G, 5/F, Block 4, Ravana Garden, 1-3 On King Street, Shatin, NT”.  R2 subcontracted the bamboo scaffolding work to R1.  R1, as employer of the Applicant, assigned the Applicant to work at the site at the material time.

19.  It is said that the information contained in the report was taken from, inter alia, the owner of the premises, Leung Tak Nam Herrick, proprietor of the principal contractor (ie R2), and Liu Chi Fai (ie R1), direct employer of the Applicant.

20.  Mr Cheng for R3 does not take issue with the above findings.

21.  As said, R2 himself admitted to be the principal contractor in his Answer.

22.  I note that R2 filed Form 2 with the Labour Department on 23 April 2015 [B92-97: CCC-2].  Again R2 was stated to be the principal contractor.

23.  As there is no evidence to the contrary, I am satisfied, on balance of probabilities, that R2 was indeed the principal contractor at the material times and is therefore liable for compensation under s 24 of ECO.

Quantum

24.  Mr Shum’s primary case is the 100% LOEC as granted under Form 7, which would entitle the Applicant to compensation under section 7 of ECO for permanent total incapacity.

25.  R3 appeals against the assessment under Form 7.

26.  Alternatively, if the Court does not accept the said assessment, Mr Shum submits that the Court should adopt the revised Hong Kong Paper Mills Formula (see: Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] HKLR 556 and Lui Kwong Yan v Shui Hing Decoration Works & Anor [1993] 1 HKLR 168) and award the Applicant compensation under s 9 of ECO for permanent partial incapacity.

27.  Mr Cheng has no quarrel with the application of the revised Hong Kong Paper Mills Formula.

28.  In this regard, the dispute is over what figures the court should apply to the Formula, ie the Applicant’s pre-accident earnings and post-accident earnings.

29.  The issues in the present case are therefore:-

(a) percentage of LOEC suffered by the Applicant;

(b) the Applicant’s pre-accident earnings; and

(c) the Aapplicant’s post-accident earnings.

Loss of earning capacity

30.  Form 7 recognized the Applicant’s injury to include “head injury resulting in organic brain syndrome, psychiatric impairment and visual impairment”.

31.  As mentioned, there are 3 joint expert reports filed in this case: JNR, JOR and JPR.

JNR

32.  The experts agreed that the Applicant suffered a very severe brain injury with initial GCS score of 3/15.  He made a remarkable recovery with no physical impairment other than double vision and mildly impaired balance.

33.  However, he has significant cognitive impairment mainly affecting the memory domain.  His lifetime risk of development epilepsy is estimated at 4%.

34.  Dr Choa and Dr Yu opined that the Applicant will not be able to resume work as a scaffolder or take up any job in the construction industry.  His long term loss of earning capacity is said to be the difference in earnings between that of a scaffolding worker and that of a cleaner/deliveryman, which will be 50%.

JOR

35.  The experts concluded that the Applicant suffered from bilateral fourth cranial nerve palsy due to severe head trauma.  He suffers from binocular diplopia (double vision) that affects his daily activities.

36.  The prognosis is said to be poor.  Further surgeries to improve his diplopia are possible but the results are uncertain.

37.  Dr Liang and Dr Ng agreed that the Applicant suffered from 37.5% LOEC and he is unfit to return to his pre-accident employment as a scaffolding worker.

JPR

38.  It was noted by the experts that the Applicant had episodes of violence leading to his admission to the Tai Po Hospital.

39.  Dr Li opines that the Applicant has a major neurocognitive disorder whilst Dr Lai opines that he has a mild neurocognitive disorder.

40.  It is agreed that the Applicant requires long term psychiatric treatment and that he cannot return to the pre-accident job.

41.  Dr Li is of the view that it is doubtful whether the Applicant can cope in the competitive environment of open employment.  He might cope with a simple manual job with low stress level.  Dr Li estimated LOEC to be 29%.

42.  Dr Lai thinks that the Applicant  is mentally incapable to return to his pre-accident job.  His work efficiency and tolerance are likely adversely affected by his psychiatric condition to a mild degree.  Dr Lai opines that it is hopeful that in time he can be mentally capable of returning to a simple manual work that does not require work at a height with further training and progress in the supported environment.

43.  Dr Lai assessed LOEC to be about 15% to 29%.

Analysis

44.  Mr Shum submitted that the Applicant has no earning capacity at all since he cannot be competitive in the open labour market, as no employer would employ him given his conditions.  The LOEC is therefore 100% as stated under Form 7.

45.  Mr Cheng, on the other hand, suggested that the Applicant should be able to earn at least the minimum wage in the open market. 

46.  In particular, Mr Cheng noted that only Dr Li (the applicant’s own psychiatric expert) doubted the Applicant’s suitability to work in the open market, and he did not exclude the possibility of working in the open market if stress level is low enough.

47.  Apart from the medical evidence, I also considered the Applicant’s evidence in assessing LOEC.

48.  The Applicant said, as highlighted by Mr Cheng, he quitted his car washing job for the Salvation Army because he did not want to work alongside other inmates with mental issues.  He considers himself of higher intellect than those inmates.

49.  The Applicant agreed that he was able to work independently (though slowly) after long term training and supervision.

50.  It is the Applicant’s own evidence that other jobs (or at least job interviews) were arranged by his social workers after he quitted the car washing job.  Such jobs include cleaning work at hostels and answering telephone.  He did not want to take up those jobs because:-

(a) he is not allowed to work if he wants to keep the CSSA that is available to him;

(b) he does not want to do the jobs which do not really pay, and those jobs should be taken up by regular staff.

51.  I have observed the Applicant carefully when he gave evidence in Court.  He was able to understand the questions put to him and was able to give coherent answers (though after much thought and effort).

52.  I have no reason to doubt his honesty in his answers, particularly after considering the medical evidence.

53.  Apart from his obvious difficulties in recalling details, he appears to be physically healthy and in good spirits.

Conclusion

54.  As said by Sir Alan Higgins, VP in Hong Kong Paper Mills, an Applicant who is not totally paralyzed or permanently bedridden and not suffering from total disablement, cannot be entitled to demand an assessment on the basis of 100% LOEC.  The workman’s own expert in Hong Kong Paper Mills was not prepared to say that he was either unemployable or “virtually unemployable”.

55.  I must add that the medical experts’ assessment of LOEC has no bearing on my assessment of the same.  It is their opinions regarding the Applicant’s injuries and the effects on his work capacity that are relevant to my determination.  None of the experts formed the view that the Applicant was either unemployable or “virtually unemployable”.  He is not totally paralyzed or permanently bedridden and not suffering from total disablement.

56.  Considering all the evidence before me (medical evidence as well as evidence from the factual witnesses), I find, on balance, that the Applicant is capable of taking up employment (at least within sheltered facilities) despite his conditions.

57.  I find, on the balance of probabilities, that the Applicant did not suffer 100% LOEC as stated under Form 7.

58.  The Applicant is therefore not qualified for a claim under s 7 ECO for permanent total incapacity.

59.  I allow the s 18 appeal by R3.

60.  As to what percentage the court should adopt in applying the revised Hong Kong Paper Mills Formula, it depends on the Applicant’s pre-accident earnings and post-accident earnings.

Pre-accident earnings

61.  The Applicant’s pleaded case is that he made on average HK$20,000.00 per month at the time of the Accident.[A4]

Evidence

62.  As stated in his witness statement, the Applicant claims that he earned HK$720 per day and worked 24 to 26 days per month at the material time.  His daily wage would be HK$1,080 if he worked overtime.  It is also said that he would be entitled to double pay if he were to work on Sundays and public holidays.  The average monthly earnings claimed was HK$20,000.00. [B102-103]

63.  There is no documentary evidence of any kind to support the same.  It is purely a matter of oral evidence from witnesses.

64.  Man in his witness statement said that he believes the Applicant worked no less than 24 days a month.  He provided a table of daily salary produced by Hong Kong Construction Industry Employees General Union, which shows that the daily salary for bamboo scaffolding workers as at 2014 was HK$1,600.00. [B99, CCC-2]

65.  Mr Shum said that the $1,600.00 is applicable to “master scaffolder” (師傅).  As the Applicant  has not attained the level of “master scaffolder” but a “mid-level scaffolder” (中工), the claimed daily wage of HK$720 is a reasonable one.

66.  The Accident Report prepared by the Labour Department [B74-90, CCC-1], states that “[R1] acted as the prime scaffolder to dismantle the truss out scaffold while [the Applicant] took a role of an assistant of [R1]”.

67.  The Applicant gave evidence in court that he earned a daily wage of HK$700 at the time of Accident.  He said this figure “suddenly pops up in his mind” when he was under cross-examination and it is this figure that Mr Cheng seeks to rely upon.

68.  On the average working days per month, the Applicant said in Court that he has one day off per week (ie Sunday) and that he would not have to work on public holidays.

69.  Further, he would not have to work on rainy days and days with thunders as it would be dangerous for scaffolding work.

70.  In Court, Man was unable to tell the average monthly working days of the Applicant nor his average monthly earnings.  He could only recall that the Applicant mentioned to him that his daily wage was HK$1,000.00.

71.  Pausing here, I agree with Mr Cheng’s observation that Man’s evidence in this regard has little evidential value.  What Man said about the Applicant’s daily wage and his average earnings per month is at best hearsay from the Applicant.  Man is a carpenter by profession and he has no personal knowledge of the work and the earnings of scaffolders.

Analysis

72.  Regarding the daily wage, the Applicant in his own witness statement stated that it was HK$720 whereas he said that it was HK$700 in Court.

73.  The Applicant admits (which is consistent with the medical evidence) that his memory was poor.

74.  According to the Accident Report by the Labour Department, on the day of the Accident, the Applicant was acting as an assistant to R1, who was the prime scaffolder.

75.  In his witness statement, the Applicant said that he started working as a scaffolder since he was 17 (ie 2011).  He would have had 4 years of experience as a scaffolder as at the day of Accident.

76.  In his witness statement, the Applicant also stated that there are 3 levels of scaffolders, namely, “master scaffolder” (師傅), “middle level scaffolder” (中工) and “beginner scaffolder” (靚仔).  He was working as a “middle level scaffolder” at the time of the Accident.

77.  As there is no evidence suggesting otherwise, I accept, that it is more probable than not that the Applicant, as R1’s assistant and with several years of experience, was a “middle level scaffolder” (as supposed to a “beginner scaffolder”) at the time.

78.  Given that the daily wage of “master scaffolder” was HK$1,600 as at 2014 and the he worked as a “middle level scaffolder” at the material times, the claimed daily wage of HK$720 is a reasonable figure.  I find, on balance, that his daily wage was indeed HK$720 (as stated in his witness statement) as supposed to HK$700 (as he said in court).

79.  In any event, I agree with Mr Shum that the difference is nominal.

80.  In relation to the average working days per month, there is much dispute between Mr Shum and Mr Cheng.

81.  Mr Cheng relies on the meteorological records for the 12 months prior to the Accident [F326-331] and submits that it is reasonable to find that the Applicant would be prevented from working for around 6 days each month because of weather.

82.  Mr Cheng also says that most of the rainy days “must be weekdays” and he therefore suggests that the Applicant  could at most work for 18 to 20 days per month.

83.  In response, Mr Shum argues that the methodology of the said records is far from clear.  It does not take into account that rainfall could be regional and the rainy days stated thereunder might not have affected the Applicant’s work at all.

84.  Only 3 locations were mentioned in those records: Hong Kong Observatory, King’s Park and Waglan Island.  No explanation was found on the records as to whether it represent the entire area of Hong Kong.

85.  On the face of it, I have to agree with Mr Shum that it is possible that the rainfall recorded could be regional.  I am also puzzled as to how Mr Cheng can deduce from the records that rainy days “must be weekdays”.

86.  I do not find those records to be of assistance in deducing the number of working days.  I should also add that they were not put to the Applicant under cross examination (although it might not have yielded any useful answer).

87.  Going back to the Applicant’s evidence, it is said in his witness statement that he worked on average 24 to 26 days per month and he would be required to work overtime as well as on Sundays and public holidays.

88.  Under cross examination, the Applicant agreed that he did not have to work on Sundays and public holidays, nor days with rains and thundering.

89.  Although I do not find the meteorological records to be helpful, I accept that there must be have days with unfavourable weather conditions when the Applicant  was not required to work.

90.  On the other hand, the Applicant would be asked to work overtime (it was not challenged under cross-examination).  He was also asked to work on Sundays and public holidays (though in cross-examination he said that he did not have to work on Sundays and public holidays).

91.  Without documentary evidence, it is not possible for the Court to arrive at a precise figure for the average monthly working days.

92.  Doing the best that I could in the light of all the evidence before me, I would deduct the days with unfavourable weather condition but at the same time would take into account the possibility of working overtime and working on Sundays and public holidays.

93.  I find, on balance of probabilities, that he could have worked at most 24 days a month.

94.  The Applicant’s pre-accident earnings was therefore:-

                   HK$720 x 24 days = HK$17,280.00

Post-accident earnings

95.  It is trite that it is the notional income that the Applicant can earn, and not what he actually earns, should be taken into account.

Evidence

96.  All medical experts agreed that the Applicant is unfit to return to his pre-accident job.  I shall highlight the following:-

(a) The neurological experts agreed in JNR that the Applicant could work as a cleaner/deliveryman [D136];

(b) Dr Li, the applicant’s own psychiatric expert, said that the Applicant “is coping well in his current job as car wash worker in a supported environment.  Given his cognitive impairment and history of impulsive violence, it is doubtful if he can cope in the competitive environment of open employment.  He might cope with a simple manual job with low stress level” [D163];

(c) Dr Lai in JPR stated that “with further training and progress in the supported employment, it is hopeful that he can be mentally capable of returning to a simple manual work that does not require work at a height” [D164].

97.  As said, the Applicant has resigned his car washing job with the Salvation Army and he is currently unemployed.

98.  Under cross examination, he agreed that he could perform his job without supervision though at a slow pace.

99.  He has been assigned by the Salvation Army to do simple cleaning work at hostels like polishing floors, cleaning windows and tables, as well as working in the laundry room.

100.  He agreed that he could perform those duties on his own after sufficient training and supervision.

101.  The Church has also assigned him to answer telephone but that was not a paid job.

102.  He gave several reasons as to why he could not take up employment.  For the car washing job, he mentioned that he did not want to work along aside other persons with mental issues.  He suggested that he was not allowed to take up employment as he was under CSSA.  He also does not want to do unpaid jobs (of answering telephone) as the regular staff should attend to those duties.

103.  When cross-examined as to whether he could take up a job in the open market, he considered himself unable to take up the responsibility.

Analysis

104.  The medical evidence as a whole clearly shows that the Applicant is able to take up simple manual job.

105.  The real question is whether he an take up a job in the open market.

106.  The medical experts have not expressly ruled out this possibility.  At the same time, they have not shown any positive recommendation of employment in open market.

107.  Given his psychiatric condition and how the Applicant described his work experience at the supported/sheltered facilities, I agree with Mr Shum that it is unrealistic to say that he is capable of taking up employment other than in supported/sheltered environment.

108.  Considering all the evidence before me, I find, on balance, that the Applicant  is able to take up employment in supported/sheltered environment rather than in the open market.

109.  The average monthly earnings of the car washing job at Salvation Army was HK$2,095 [F294-299].  I have no evidence of the salary of those other jobs that have been offered to the Applicant.

110.  As there is no evidence suggesting otherwise, I find, on balance, that the notional post-accident earnings would be $2,095.00 on average.

Conclusion

Loss of Earning Capacity under the revised Hong Kong Paper Mills Formula

111.  The permanent loss of earning capacity is thus:-

                   ($17,280 – $2,095) / $17,280 x 100% = 87.88%

Compensation under s 9 ECO

112.  Having found that the LOEC is 87.88%, compensation under s 9 is thus:-

                   $17,280 x 96 x 87.88% = $1,457,823.74

Compensation under s 10 ECO

113.  Applying the maximum 36 months, compensation under s 10 is thus:-

                   $17,280 x 4/5 x 36 = $497,664.00

Compensation under s 10A ECO

114.  Medical expenses is agreed at HK$15,901.00.

Summary of compensation

115.  I order total compensation as follows:-

116.  Mr Shum asks for costs against R1 and R2 for the whole proceedings, and also costs against R3 as from 20 December 2017.

117.  Mr Cheng asks for no order as to costs between the Applicant and R3, and that R1 and R2 do pay R3’s costs.

118.  I have referred Counsel to Jiang Zhong v Yeung Chun Leung [2018] HKCA 48 and Li Fuk Keung v Yik Fat Removal Ltd [2019] HKDC 831.

119.  Mr Cheng submits, in the light of the statutory scheme under ECAO, the proper approach is for the Applicant to apply for payment of the judgment sum under s 16 of ECAO and seek to recover his costs from R3 at the same time.  A costs order against R3 is not the right course.

120.  Mr Shum, on the other hand, argues that it is not a must that R3 would definitely allow all the awards and costs.  The Court of Appeal in Jiang Zhong expressly stated that the Court has jurisdiction of award costs against the Board after it has joined as a party.  The general rule is costs follow the event (unless in exceptional circumstances).  The Applicant should be entitled to costs as against R3.

121.  Section 16 of ECAO provides:-

“(1) A person who is unable to recover from an employer payment of an amount of compensation for which the employer is liable may apply for payment of that amount from the Fund.

(2) For the purpose of this section an employer is not to be regarded as liable for the payment of an amount of compensation unless-

(a) the amount is payable-

(i) pursuant to a judgment or order of a court or tribunal of competent jurisdiction in Hong Kong; …

(3) For the purpose of this section a person is not to be regarded as being unable to recover from an employer payment of an amount of compensation for which the employer is liable unless the person has taken such proceedings to recover payment of the amount-

(a) from, wherever applicable-

(i) the employer;

(ii) the principal contractor who is liable to pay compensation to the person under section 24 of the Employees’ Compensation Ordinance (Cap. 282); and

(iii) an insurer who has issued a policy of insurance … and

(b) as are reasonable in the circumstances, having regard to the likely cost of such proceedings, the resources available to the person and the amount likely to be recovered from, wherever applicable, the employer, the principal contractor and the insurer.”

122.  Section 23(1) of ECAO provides:-

“Where the Board has determined an application under section 16 in favour of an Applicant then in addition to any amount of compensation to be paid from the Fund the Board shall, subject to this section, agree to pay from the Fund-

(a) The costs incurred by the Applicant in making the application; and

(b) An amount equal to any costs payable to the Applicant pursuant to an order of a court for costs against the employer or the employer’s insurer in proceedings claiming the compensation.”

123.  Mr Cheng is correct in saying that the Applicant can apply for costs from the Board.  However, as pointed out by Mr Shum, all the steps under s 16 has to be satisfied before he can invoke s 23(1).

124.  Mr Cheng repeated the argument advanced by the Board in Jiang Zhong that a direct costs order against the Board is not the correct approach.  This point is due to be argued before the Court of Final Appeal.

125.  However, at present, this court is bound by the Court of Appeal’s decision in Jiang Zhong. 

126.  The Court of Appeal held that the Court has discretion to award costs against the Board after it has joined as a party.

127.  The same stance is adopted by the District Court in Li Fuk Keung, where the Board was ordered to pay the applicant’s costs.

128.  Mr Cheng further argues that R3 is justified in joining in to filter out exaggerated claims.  Its role in the present case is mere administrative rather than adversarial as in Li Fuk Keung, where both liability and quantum were disputed.  Li Fuk Keung is therefore distinguishable.

129.  I agree that the scope of dispute in the present case is far narrower than that in Li Fuk Keung.

130.  However, as submitted by Mr Shum, R3 challenges LOEC, the Applicant’s pre-accident as well as post-accident earnings.  Even if liability is not disputed, a trial is necessary.

131.  The Applicant’s (and Man’s) evidence was tested by Mr Cheng in details.  I do not agree that the Board has adopted a mere administrative role in the present proceedings.  Mr Cheng’s concern can be suitably dealt with during taxation.

132.  Although I have allowed R3’s appeal under s 18 and liability was not actually contested, the Applicant is still, on the whole, the successful party, and R3 the losing party.  I see no exceptional circumstances to depart from the general rule that costs should follow the event.

133.  I agree with Mr Shum that the Applicant should be entitled to his costs as against R3.

Summary

134.  I enter Judgment in favour of the Applicant against R1 and R2 in the sum of HK$1,971,388.74, together with interest at half judgment rate from date of Accident to date of judgment and thereafter at judgment rate until payment.

135.  I make the following costs order nisi:-

(a) R1 and R2 do pay the Applicant’s costs of this proceedings, including all reserved costs (if any), with Certificate for Counsel, to be taxed if not agreed;

(b) R3 do pay the applicant’s costs as from 20 December 2017, including all reserved costs (if any), with Certificate for Counsel, to be taxed if not agreed;

(c) R1 and R2 do pay R3’s costs, with Certificate for Counsel, to be taxed if not agreed;

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

136.  Costs orders shall become absolute unless parties apply to vary within 14 days.

137.  I thank both Mr Shum and Mr Cheng for their valuable assistance.