MOHAMMAD RAFIQ v. KIN HONG TRANSPORTATION CO LTD

DCEC 2994/2018

[2021] HKDC 1109

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2994 OF 2018

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JUDGMENT

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Introduction

1.  This is the applicant’s claim for employees’ compensation.  The applicant suffered wrist injuries as a result of a fall at work.  The respondent is a company incorporated in Hong Kong carrying on business as a vegetable carriage and transportation company.

2.  The respondent disputes both liability and quantum.  The sole issue on liability is whether the respondent was the employer of the applicant at the time of the accident.  With regard to quantum, the respondent challenges the applicant’s monthly earnings.

The accident

3.  The accident is not disputed.

4.  The applicant was a part-time delivery worker engaged to deliver vegetables from a lorry with registration mark TH 8887 owned by the respondent (the “Lorry”).  On 14 March 2017, when the applicant was pulling a pallet trolley from the back of the Lorry onto the tailgate loading platform, he slipped, fell and landed with both hands on the ground below. As a result, he sustained fractures to both wrists. The applicant claims employees’ compensation against the respondent as his employer at the time of the accident. 

5.  It is not disputed that the respondent was the registered owner of the Lorry.

6.  It is not disputed that at the time of the accident, the applicant was also working as a part-time shop assistant at a shop called Ho Sheun Ho好上好(財記)有限公司 (“好上好”), which was owned by the respondent’s directors Lo King Hung (“Hung”) and Leung Siu Lan (“Lan”).  As the accident did not occur in the course of employment with his part-time employment with Ho Sheun Ho好上好, it was not joined as a party.

The applicant’s employment at the time of the accident

7.  It is the applicant’s case that in about mid-October 2016, both Hung and Lan, who were the directors of the respondent, interviewed the applicant and a co-worker named Khan and informed them that they would be paid $400 per day to work as delivery workers.  The applicant subsequently commenced work with the respondent in November 2016 and worked on the respondent’s Lorry.  He was paid salary every 15 days directly by the respondent in cash.  It was submitted that the respondent was therefore his employer.

8.  The respondent’s case is that it carried on business of supplying lorries to facilitate vegetable delivery service. It was not in the business of providing any labour force for the delivery service and therefore did not employ any workers, be it drivers or delivery workers.  The owner of the vegetables had to provide for the delivery workers to upload, offload and deliver the vegetable to retail vegetable stalls.  The drivers were also self-employed.  It is the respondent’s case that the applicant was one of the labourers arranged by one of the owners of the vegetables, Mr Chen Hongbiao (“Chen”), who was a citizen of the People’s Republic of China residing in Shenzhen.  Alternatively, the applicant may have been employed by a person named Fazal Subhan, who was also known as “Ah John”, who acted as Chen’s agent for engaging delivery workers in Hong Kong.

9.  At the time of the accident, Chen was the owner of the vegetables on board the Lorry.  The respondent relies on a written transport agreement made between the respondent and Chen to substantiate its defence.

10.  There is very limited documentary evidence in this case.  There is no employment contract and the applicant said Leung paid him salary by cash and he did not put the money into his bank account.  There is no record of any salary payment.  Both parties submit that this is a case that turns on the credibility of witnesses and whether each party’s case is inherently probable or improbable as the case maybe.

The witnesses

11.  Four witnesses gave evidence in this case:-

(1)  The applicant;

(2)  Xu Jintang (“Xu”), also referred to as “Tong”, the driver of the Lorry;

(3)  Mr Lo (“Hung” or “Hung Gor”), a director of the respondent; and

(4)  Ms Leung (“Lan”) the wife of Hung, also a director of the respondent.

12.  Originally, Chen was arranged to give evidence for the respondent and he had filed a witness statement. However, as a resident in Shenzhen, he would be subject to Covid-19 quarantine requirements. As by the time of trial, the relevant quarantine period was 21 days, he has decided not to attend court to give evidence. The respondent has not made any application for Video link.  In the circumstances, I give no weight to Chen’s witness statement.

The analysis

13.  The applicant said that prior to November 2016 he was working as a delivery worker on a lorry and his then employer was Sung Kei (also referred to by other witnesses as So Kee).  The applicant’s counsel accepts that the applicant being a Pakistani gentleman may have mispronounced this company, but it is agreed that parties were referring to the same company.  For the purpose of consistency, this entity shall be referred to as So Kee (“So Kee”). 

14.  It is the applicant’s case that at the end of October 2016, So Kee went out of business.  The applicant and his co-worker, Khan was approached by Tong, who asked if they were interested to continue working as delivery workers and if so, the new owner would meet with them.  The applicant and Khan eventually had an interview with Hung and Lan, where it was agreed that the applicant and Khan would work on board the Lorry with a part time daily rate at $400 for each as from 1 November 2016.  

The October 2016 Interview

15.  The applicant speaks fluent Punjabi and Cantonese.  He said he cannot read or write Chinese, nor can he read or write English.

16.  The applicant recalled that during the interview, Hung said they needed to work 4-5 hours a day and will be paid $400 daily.  Hung further said he was also responsible for the delivery of other vegetable stalls to the market and Fanling.

17.  Tong, Lan and Hung all denied there being such a meeting with the applicant and Khan.  Tong gave evidence to the effect that he was merely a self-employed driver and hardly knew the applicant at the time.  The respondent’s case is that the applicant was engaged by a Pakistani contractor called Ah John who was the contractor of Chen.  Ah John helped Chen to provide other delivery workers and the applicant was one of them. 

The applicant’s phone number at the time of accident

18.  When asked how Tong contacted him for the interview, the applicant said Tong called his phone.  Since there are factual disputes as to whether Tong contacted the applicant by phone before the interview and whether the applicant had communications with Khan or Ah John over phone after November 2016, it was important to obtain the applicant’s phone statement record to ascertain the record of incoming and outgoing calls made during the relevant period.

19.  During cross-examination, the applicant was asked to provide his mobile phone number that he used at the time of accident.  This was apparently relevant to trace phone records as to whether there had been communication between the applicant and Tong before 1 Nov 2016 and whether the applicant had any contact with Ah John before and after the accident.

20.  The applicant however said he cannot remember his own mobile phone number that he used at the time.  At different stages of examination, he provided further information as to why he was not able to remember the phone number that he used at the time.  Initially, he said he had an old Nokia phone with no memory function.  He subsequently said he used a top-up sim card.  He also said he changed his phone number when he changed his phone to a different 3G or 4G plan.  When it was suggested to him that there was no need to change the phone number despite the change of phone plan, the applicant gave no explanation as to why he was not able to remember his phone number.  

21.  The applicant then went on to say that his phone broke and then he added that his sim card was damaged or lost.  He later said his phone fell into water.  That said, the applicant then said his son bought him a new phone in 2017 and he changed the phone number when he was given that phone.  However, he was not able to say why there was a need to change the phone number when he used the new phone. 

22.  Further, apart from stating that he was not sure if his family members saved his phone number, the applicant was not able to explain why his family members were not able to provide him with his phone number that they used to contact him at that time.  When asked whether he tried to ascertain from his friend about his phone number at the time, he said he did not have any friends to call.  The applicant nevertheless agreed that his phone records would be important and relevant to these proceedings and he did try to find records of it after the accident.

23.  As it transpires, the record shows that back in 27 April 2017, just about a month after the accident, the applicant was able to provide his own mobile number 57xx65xx to the Labour Department.^[1]  Further, in his first statement to the Labour Department dated 27 April 2017, he was able to provide Khan’s mobile phone number 562xx37x.

24.  Accordingly, I find the applicant’s evidence that he was not able to recall his own mobile phone number at the time of the accident and his case that he has made an effort to obtain his mobile phone communication records incredible.  I also do not accept his evidence that he lost his phone number because the phone broke or fell into water.  I find that these are all excuses made up by the applicant to avoid having to disclose his phone number and the relevant records of his phone communications. 

The applicant’s version to the Labour Department

25.  After the accident, the applicant reported the matter to the Labour Department where he gave two statements.  In his supplementary statement^[2] to the Labour Department dated 27 June 2017, in reply to the question “Please state how you got this job, the applicant answered:-

“through my previous employer and his brother. They are Chinese. His brother was also working for my this alleged accident employer.”

26.  The above answer was totally different from his case in court.  The applicant tried to explain the discrepancy by stating that it was due to his misunderstanding the question to be in reference to how he got his previous job with So Kee.

27.  The Labour Department’s question was straightforward and the phrase “this job” was clearly a question in reference to the job which the applicant worked at the time of the accident.  The applicant was accompanied by a friend who spoke Punjabi, Cantonese and English. This friend filled in the form for the applicant.  The question on how the applicant got “this job” leaves no room for misunderstanding, and I do not accept the applicant’s explanation that he thought the question was about his previous job with So Kee.

28.  This answer given to the Labour Department about how he got “this job” made no reference to getting the job through Tong.  The applicant’s own supplemental statement to the Labour Department contradicts his case that he was introduced by Tong to get the job as delivery worker on board the Lorry after So Kee ceased business.  I do not accept the applicant’s case that he got the job through Tong.  I also accordingly reject the applicant’s case that there was a job interview between himself, Khan, Hung and Lan. 

Was Chen the owner of the vegetables on board the Lorry?

29.  Tong said he was responsible for the custom clearance of the vegetables on board the Lorry.  He confirmed that the vegetables on board the Lorry on the date of accident belonged to Chen.  The applicant alleged that he saw the respondent’s name stated on the customs form.  Tong denied the respondent’s name was stated in the customs forms.  Tong stated that the custom clearance form was in Chinese and the custom clearance company was stated as Sun Ho Kee and Chen was stated to be the owner of the goods.  Since the applicant does not read Chinese, it is not likely that he would have been able to recognize the respondent’s name in the custom’s form.  I accept Tong’s evidence and find Chen to be the owner of the vegetables on board the Lorry.

Ah John being the contractor of delivery workers

30.  Tong said the applicant worked on an ad hoc basis as one of the delivery workers arranged by Ah John for Chen.  Tong stated that it was he who introduced Ah John to Chen to act as a contractor for Chen.  Ah John was a strong built Pakistani who spoke fluent Cantonese and Tong did not meet Chen often. He received instruction from Chen through WeChat and Tong in turn passed on the instructions to Ah John through WeChat.  He was able to communicate with Ah John through WeChat, as Ah John speaks fluent punti and they communicated via voice messages.  Ah John and his delivery workers’ salary was given by Chen to Tong through other PRC drivers in Mainland China.  Tong in turn handed their salary over to Ah John for further disposal among the delivery workers of the day.  The salaries were paid every 15 days.  Tong did not give Chen’s phone number or WeChat ID to Hung or Lan. He considered Ah John to be in charge of the delivery workers. 

31.  Tong was responsible for clearing customs.  He confirmed that the vegetables on board the Lorry on the day of accident were Chen’s supply to Hong Kong retailers, including Ho Sheun Ho好上好.  The goods for Ho Sheun Ho好上好will be left for delivery at the end.

The applicant’s relationship with Khan

32.  Khan has been the applicant’s co-worker since their previous employment with So Kee in 2015. According to the applicant, Khan was present at the employment meeting with Lan and Hung, as well as at the time of the accident.  Further, Khan was in the same shoes as the applicant and was also employed by the respondent and received salary direct from them.  Khan’s evidence would have been important to advance the applicant’s case.  He would also be able to give evidence on quantum, such as the applicant’s daily wages and number of working days. 

33.  Despite the fact that the applicant and Khan worked as a team of two since 2015 with So Kee, the applicant said he does not know Khan’s full name and apart from being colleagues working together on a lorry for So Kee, prior to working for the respondent, he had no other business with Khan.  He did not know Khan prior to working at So Kee and they had no social contact.  The applicant said they did not communicate or chat with each other during work. Even when they were waiting to be picked up by Tong, they sat separately.  They even sat separately when they were inside the Lorry.  The applicant then said they came from different parts of Pakistan and had language discrepancies, so they seldom chat with each other.  The applicant emphasized that he did not have Khan’s phone number and Khan almost never calls the applicant by phone.

34.  No reasonable explanation was provided by the applicant as to why they had so little contact during and outside work, save and except they spoke different Pakistani dialect.  He nevertheless accepted that they both spoke good punti and was able to use punti to communicate.

35.  I find it rather unusual that despite both the applicant and Khan having worked as a team since 2015, and both from Pakistan that they did not exchange phone numbers.  From the applicant’s account that he saw Khan crying after the accident and attempted to perform Cardiopulmonary resuscitation (CPR) on the applicant, it was apparent that they were close and Khan cared about the applicant.

36.  From the way the applicant answered under cross-examination on the subject of his relationship with Khan, I have formed the impression that the applicant was rather defensive on his link with Khan and made every effort to disassociate himself from Khan to a point that it has become peculiar and unnatural.  I am not convinced that the relationship between the applicant and Khan is as distant as described by the applicant to the extent that the applicant does not even have Khan’s mobile phone number.

The connection between Ah John and Khan?

37.  It is the respondent’s case that the applicant was engaged by Ah John as a contractor of Chen and Ah John was the go-between.  Ah John’s evidence would have been vital to both parties’ case.  The applicant nevertheless denied any knowledge about Ah John.  It is the respondent’s case that they called the applicant “Ali” and the other Pakistani worker “Ah John”.  Whilst the applicant agreed that Tong and Lan called him Ali, he said he did not notice if they called his Pakistani co-worker Ah John. 

38.  The applicant said when his Pakistani co-worker chatted with the boss, they acted mysteriously, so he had little opportunity to hear what they said. He said Tong called his co-worker Khan and has never heard Tong call him Ah John. 

39.  The applicant said on the day of accident, the applicant and Khan were the only two delivery workers on board the Lorry.  On the other hand, it had been Tong’s testimony throughout, as set out in his witness statement on 28 October 2019, that Ah John and the applicant were the only two delivery workers on board the Lorry on the day of accident.[3] Since at the time of the accident, it is agreed that there were only two Pakistini delivery worker on board the Lorry, by elimination, I find that although both parties referred to the only Pakistani co-worker worker by different names, in fact they were referring to the same person.  I find that Ah John and Khan were in fact the same person with the full name Fazal Subhan.

The events immediately after the accident

40.  After the accident, according to the applicant he fainted by the roadside.  He said that he was subsequently told by Khan that he lost consciousness for about 30 minutes.  The applicant said while he was unconscious, Khan carried him from the roadside to the front compartment Lorry seat. When the applicant asked Khan to call for an ambulance, Tong said he needed to call the boss and later Tong said the boss told them that they should go back to the shop first.  It then took about 6 to 7 hours before they finished the delivery work to reach the shop. 

41.  In the meantime, the applicant sat at the front compartment of the Lorry.  The applicant said he did protest and ask why they did not call for an ambulance first but Khan and Tong said they should go back to the shop first, as Hung wanted to see if the injury was serious.  When he asked to speak to the boss direct, Khan and Tong kept making excuses for not calling Hung.  Even when the applicant eventually saw Hung at the shop and asked for an ambulance, he said Hung refused.  As a result, the applicant had to walk to the hospital which was nearby the shop.

42.  Tong said that after the accident, there appeared to be no external injuries and there was no facial expression from the applicant.  He did not appear to be in pain and he appeared to be alright.  Tong nevertheless did ask the applicant 3 times whether the he wanted to call the police or ambulance, which the applicant refused.  Tong stated that the applicant was conscious throughout and he and Ah John helped him to rest at the front cabin seat of the Lorry after the accident.

43.  Tong also denied having called Hung immediately after the accident, as he did not think it was necessary as there were no external injuries.  Tong confirmed that the applicant was conscious throughout.  He added that they would not have been able to move the applicant if he was unconscious.  After 10-20 minutes rest, the applicant and Ah John continued to work and delivered the rest of the vegetables.

44.  Tong described Ah John to be about 5’ 9” and muscular.  Tong was about 40-45 kgs and Tong denied that he stepped in to help deliver the remaining vegetable with Ah John after the applicant’s injuries.

45.  I have considered the applicant’s evidence in his witness statement that he saw Khan crying when the applicant suffered injuries and he also saw Khan operate CPR on him.  Further, after he regained consciousness, he later found himself sitting inside the Lorry’s front cabin seat.  The applicant confirmed that CPR was not done at the front seat compartment.  I find it unbelievable that the applicant could have seen Khan crying and doing CPR on him if he was unconscious.  Further, when taking into account the fact that the applicant was about 170 cm in height and at least 80 kgs in weight whereas Tong weighed about 40-45 kgs, plus the fact that the front cabin was approximately 4 feet in height from the ground, it would have been extremely unlikely, if not impossible, for Khan and Tong to have carried the applicant from the roadside, climbed the vertical stairs of the front compartment and drag the applicant into the front cabin.

46.  Given the fact that Khan’s obvious concerns about the applicant’s injuries and further taking into account the fact that Khan had been working with the applicant as a team and both Pakistani, it made no sense for Khan to turn down the applicant’s request to call for an ambulance.  There is no reason why Khan should refuse such a request.  So far as Tong is concerned, he was self-employed and had nothing to gain by refusing to call for an ambulance.  In fact, by leaving him at the front cabin, according to the applicant’s case, Tong had to help to offload and deliver the remaining vegetable and all the while take care of him until they finished work.  This does not make any sense.

47.  I accordingly reject the applicant’s evidence that he was unconscious after the accident.  I also reject his evidence that he had requested for an ambulance and that Tong and Khan had refused to call for an ambulance after the accident.

The transport contract

48.  Counsel for the applicant challenges the transport contract between Chen and the respondent on the basis that it was only made after the accident. Hence, it was a bogus claim and ruse to avoid liability.

49.  Under the transport contract, the respondent was not responsible for employing any delivery workers and did not have any control over them. 

50.  The writ of this action was dated 6 December 2018.  About 18 months prior to the commencement of these proceedings on 25 May 2017, the respondent have already informed the Labour Department that they were not the employer and provided two contact telephone numbers of Chen, the employer, to the Labour Department.[4]

51.  Lan was crossed-examined at length as to why she did not disclose the transport contract to the Labour Department.  Lan said she did not know that she had to send it to the Labour Department and it was only when she received the applicant’s solicitor’s letter that she knew she had to produce this transport contract.

52.  The letters from the Labour Department did not contain any request for the transport contract.  The respondent nevertheless has provided sufficient information regarding Chen being the employer of the applicant and the means of contacting Chen to the Labour Department.  I find that whilst it would have been ideal if Lan had provided the transport contract to the Labour Department, the failure to do so did not render Lan’s actions at the time unreasonable.

53.  It is important to note that despite the fact Lan did not provide the transport contract to the Labour Department, she had disclosed it to the applicant’s solicitors at a very early stage of the proceedings.  On 1 February 2019, the applicant’s solicitors Messrs. Lo Wong & Tsui for the first time requested for a copy of the transport agreement and the respondent on the same day, through its then solicitors Messrs. Zhong Lun Law Firm provided the applicant with a copy of the transport contract.[5]

54.  The transport contract shows that it was Chen, the vegetables owner, who was responsible for engaging delivery workers to deal with his own vegetables under the contract.  This contract contained Chen’s full name, his signature and thumb print along with his PRC identity card number.  This contract not only shows that Chen is not a fictitious person, but also a person that can be traced. 

55.  The transport contract contained eight clauses dealing with the rights and liabilities of the parties under the transport agreement.  There is nothing before me to suggest that this transport contract is not a genuine contract.  The authenticity is not challenged.  I reject the submission of Mr Lim, the counsel for the applicant, that it is inherently improbable that the alleged agreement existed at that time.  There is no basis to substantiate such submission. 

56.  I find the transport contract to be a genuine contract between the respondent and Chen.  I accept the respondent’s case that it only carried out transportation service business by providing the Lorry and was not required to employ any delivery workers under the contract.  Chen was responsible to engage his own delivery workers to handle his vegetables.

The respondent’s audited report[6]

57.  From the respondent’s audited financial statements for the year 31 March 2017, it revealed that the respondent did not incur expenses for the employment of employees.  This is in line with the respondent case that they did not employ any workers.

Adverse inference to be drawn against Chen and Ah John?

58.  Mr Lim submits that Chen’s absence due to the COVID-19 situation was not a good excuse.  The respondent did not make any application to the Court in that regard, and failed to arrange Chen to testify via video link.  Chen’s witness statement was made on 28 October 2019 and the respondent had ample time to sort out the arrangement of Chen’s live evidence despite the COVID-19 situation.  Chen’s evidence is especially important as Hung and Lan allege Chen to be the applicant’s employer.  Mr Lim urges the court to draw adverse inference against the respondent for failing to secure the attendance of Chen: Wisniewski v Central Manchester Health Authority [1998] PIQR 324.

59.  On the other hand, Mr Lim submits that it is not the applicant’s duty to call Khan/Ah John.  The applicant had explained that he did try to locate Khan by going to the pickup spot of the Lorry in San Wan Road after the accident but to no avail. He also tried to locate Khan in his circle of Pakistanis but also to no avail. Mr Lim submits that it was the respondent’s duty to call John as a witness and it is an appropriate case for adverse inference to be drawn against the respondent: Tjang Siu Thu v Profield Construction Engineering Limited and anr CACV no 156 of 2013 judgment 27 May 2015.

60.  Chen being a PRC citizen at the time of trial would have been subject to a period of 21 days quarantine in Hong Kong plus 14 days quarantine in PRC.  In light of these special circumstances, I do not find it appropriate to draw adverse inference against Chen’s absence.

61.  As to Khan or Ah John’s absence, he did not give a witness statement for either side.  Whilst his evidence is relevant to the core issues, both sides have proceeded their case without him.  No adverse inference is drawn against either side for failing to call Ah John or Khan.

Assessing credibility of the witnesses

62.  In assessing the credibility of the witnesses, I have reminded myself of the legal principles summarized in Hui Cheng Fai and another v Daiwa Development Limited, HCA 1734/2009, dated 8 April 2014at para 77-81

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility:Onassis v Vergottis[1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce). It is right to point out, however, that some of the documents in this case are alleged by the Son to be shams and those documents obviously cannot be used to assess the credibility of the parties.

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George(unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen(2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC[2007] 3 HKLRD 439 at §135 (Stock JA)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarized by the words of Robert Goff LJ, as he then was, in The Ocean Frost[1985] 1 Lloyd’s Rep 1 at 57:

“Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities.  It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”

63.  For the reasons stated, I find the applicant’s case full of contradictions and is incapable of being believed and improbable.  I accordingly find that he has failed to prove on balance of probabilities that he was under the employment of the respondent at the time of the accident. 

64.  On the other hand, I find the respondent’s witnesses Hung, Lan and Tong to be honest and reliable witnesses.  They were unshaken during cross-examination.  In particular, Tong, who was a self-employed driver at the time of accident, who worked with the respondent on a profit sharing basis per carriage. Tong now no longer drives the respondent’s lorries and have not had any working relationship with the respondent for the past two years.  He now drives for another company called Hing Luen transportation on a profit sharing basis.  Tong does not socialize with Lan and Hung and has no interest to serve in these proceedings and is not affected either way by the outcome of this action.  I find Tong to be an independent witness.  Tong gave straightforward answers during examination. He may have mixed up minor details in the course of his examination, but he impressed me as a witness trying his best to answer the questions.  I find him to be honest and trustworthy and I accept his evidence.  When there are conflicting evidence between Tong and the applicant, I have no hesitation in preferring Tong’s evidence to the applicant’s.

65.  Moreover, the respondent’s case is supported by the transport contract, which in my judgment does substantiate the respondent’s case of not having employed any delivery worker and that the respondent was not the employer of the applicant. 

66.  The applicant’s case is accordingly dismissed.

Quantum

67.  Had the respondent been found liable, I would have assessed the award for compensation as follows.

68.  The claim for compensation is made under ss 9, 10, 10A and 11 of the ECO.  There is also an appeal[7] against the reassessment by the medical assessment board of LOEC of 4.25%[8].

69.  The applicant was born on 25 November 1969 and aged 47 at the time of the accident.

Monthly earnings

70.  The applicant had two part-time jobs at the time of the accident. He worked as a part-time lorry delivery worker and store assistant at好上好.  He started working before Chinese New Year, ie from mid-December 2016 as confirmed in his re-examination.  The applicant’s evidence is that he worked every day of the month on the Lorry and at the shop as vegetables were delivered over the border daily, and the shop was opened daily.   

71.  For his earnings, the applicant was paid $400 a day for the delivery work and $450 a day as store assistant. Mr Lim relies on section 11(7) of the ECO as these were concurrent employment by 2 employers and the earnings from both employment should be taken into account.  Thus it should be $850 per day.  The respondent admits the applicant’s daily wage as store assistant to be at $450.  The daily wage as a delivery worker at $400 is not seriously challenged.

72.  On the basis that the delivery of vegetables took place every day and the shop was open for business every day, Section 11(1) (a) states that the earnings shall be the month immediately preceding the accident, which was February and there were 28 days in February 2017.

73.  Section 11(1) (b) states that the earnings shall be computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer. The more favorable calculation to the employee should be used.

74.  The concurrent employment commenced in mid-December say between 16 December 2016 and 28 February 2017 there were 16 + 31 + 28 = 75 days x $850 = $63,750.  It was 2.5 months and dividing $63,750 by 2.5 months it becomes $25,500 per month.  This would be equivalent to working 30 days per month.  I find doing two jobs non-stop for 30 days per month is not realistic.  Given the strenuous nature of work of the applicant, I accept the respondent’s case that there were replacement workers.  That said, the fact that on my findings, the applicant continued to work after the accident and refused to call for an ambulance shows that he was a hard working person. In absence of work record or salary record, doing the best in the circumstances and taking into account the strenuous work of delivering castors of vegetables, I find it reasonable that the applicant takes one rest day per week and find it reasonable for him to have worked 26 days per month.  $850 x 26 = $22,100.

Section 9 compensation

75.  The respondent seeks to rely on section 9 (1A) of the ECO and submits that the percentage of loss of earning capacity assessed is substantially less than the applicant’s loss by reason of the special circumstances, that is his low level of education.  Further, the applicant experienced pain when he worked as a cleaner and Dr Lee opines the applicant may have difficulties scraping tapes off windows.  The applicant worked as a shopkeeper at his brother’s grocery store and as an interpreter.  For the purpose of applying the Hong Kong Paper Mills formula, the mean between the applicant’s salary as an interpreter and as a shopkeeper at his brother’s grocery store is adopted: (14,000 + 15,600) / 2 = $14,800.

76.  Applying the Hong Kong Paper Mills formula, compensation under this head is assessed at: (22,100 – 14,800) / 22,100 x 100% x 22,100 x 72 months = $525,600.00 with interest.

Section 10 compensation

77.  Counsel for the respondent seeks to dispute the length of sick leave period by cross-examining Dr Lee.  Although Dr Lee commented that the normal period would be 9 to 12 months, he did not hold any strong opinion against the sick leave period granted.  The respondent adduced no evidence to displace the presumption under section 10(2), thus the sick leave certificates should be allowed: Tse Tsz Chong v Law Sze Man[2015] 1 HKLRD 1120.

78.  Sick leave was from 15 March 2017 to 27 September 2018.  The compensation is assessed at: $22,100.00 x 4/5 x 18 months 12 days = $325,312.00 with interest.

Section 10A compensation

79.  The total medical expenses claimed is $3,170.00^[9]. According to the schedule of medical expenses^[10],item for hospitalization at Yan Chai Hospital for A&E attendance and 4 days in hospital, total $500.  This is below the daily cap of $200 as per the Third Schedule of the ECO.  I would have allowed $3,170.00 under this head with interest.

Orders

(1)  The applicant’s claim be dismissed.

(2)  The costs of this action be paid by the applicant on a nisi basis and to be made absolute in 14 days, to be taxed if not agreed with certificate for counsel.

80.  I thank counsel for their assistance.