LAM KAM HOI v. CHONG KONG LAU trading as 將軍澳環保廢料回收站

DCEC 1987/2020

[2025] HKDC 1200

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1987 OF 2020

-------------------------

-------------------------

----------------------------

JUDGMENT

----------------------------

Introduction

1.  This is the trial of the Application by the Applicant Lam Kam Hoi (“A”) against Chong Kong Lau trading as 將軍澳環保廢料回收站 (“R”) in respect of an accident arising out of and in the course of employment on 18 March 2020 (“Accident”) claiming employees’ compensation under the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

2.  A was allegedly employed by R at the time of the Accident.

3.  Both liability and quantum are in issue.

4.  R does not dispute that A was injured in the Accident, but denies strenuously that A was his employee.

5.  On quantum, R has filed a Notice of Appeal against the assessment set out in the Form 9 issued by the Medical Assessment Board (“MAB”) for the purposes of the ECO.

6.  A was represented by counsel Mr Wong Chi Kwong upon the instructions of the Director of Legal Aid, and R by counsel Mr Wong Ting Kwong.

7.  There is no documentary evidence in support of the disputed issues of employment or earnings of A. Determination of the issues turns on the factual evidence of A and R, the only witnesses called at trial.

LIABILITY

8.  At the closing submissions stage, counsel confirmed that the only issue on liability remains one of whether R was the employer of A.

9.  Whilst not disputing that A was at the time of the Accident working under employment, R contends that the employer was another company named Hang Hau Building Materials Ltd/坑口建材有限公司 (“Hang Hau”), and that A was working in Hang Hau’s business, not R’s.

Legal Principles

10.  It is a question of fact and law whether there exists an employment relationship, and on the identity of the employer.

11.  The approach for determining the issue of employment is well-settled and has been laid down by the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLRD 951 at §§17-18 (per Ribeiro PJ) which states:-

“17. The other influential first instance decision is that of Cooke J in Market Investigations Ltd v Minister of Social Security.[23] It earned the Privy Council’s accolade in Lee Ting Sang v Chung Chi-Keung,[24] where Lord Griffiths stated that their Lordships ‘agree with the Court of Appeal when they said that the matter had never been better put than by Cooke J’ in that case. The passage approved of runs as follows:

‘... the fundamental test to be applied is this: ‘Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’ If the answer to that question is ‘yes,’ then the contract is a contract for services. If the answer is ‘no,’ then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.’[25]

18. The modern approach to the question whether one person is another’s employee is therefore to examine all the features of their relationship against the background of the indicia developed in the abovementioned case-law with a view to deciding whether, as a matter of overall impression, the relationship is one of employment, bearing in mind the purpose for which the question is asked. It involves a nuanced and not a mechanical approach, as Mummery J emphasised in Hall v Lorimer[26] (in a passage approved by the English Court of Appeal[27]):

‘In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.’”

[emphasis added]

12.  The court should adopt an overall evaluative-impressionistic approach, referencing to these employment indicia in consideration, in deciding whether an employment relationship exists when determining employees’ compensation claims under the ECO: see Ho Wai Keung v Billion Rich Investments Ltd [2023] HKCA 929 at §25 (per Chow JA).

The Applicant’s Case/Evidence

13.  On the central issue of employment relationship with R, A’s evidence, as stated in his witness statement filed on 20 February 2025,[1] is as follows:

(1)  A and R had known each other and became friends since around 1988 or 1989 as they both worked in the building materials trading industry;

(2)  A had since 1 March 2014 been employed by R as a driver for the latter’s business, working all along at No. 25 Cha Kwo Ling Road, Yau Tong, Kowloon (“Site”);

(3)  The Site was a large flat land by the shore of Yau Tong, with wharf facilities and an office block converted from containers;

(4)  R’s business includes trading of construction materials such as cement, clay and sand bricks, and recycling of construction wastes and scrap metals;

(5)  No written employment contract was made or signed, and A had worked for R on the Site upon their oral agreement;

(6)  A had ever since for about 6 years been working for R until the time of the Accident, except for some short periods of a total of about 6 months in between when A returned to the PRC or quarreled with R and did not return to work. A did not know the official name of R’s business or company;

(7)  A was a daily paid worker, and got his pay only for the days he worked. His daily wage was initially $750, gradually increased to $950 at the time of the Accident. He was paid half-monthly on the 15^th and last day of the month;

(8)  Over the years, R did not arrange any MPF scheme or pay MPF for A, nor report salary paid to A for tax to the Inland Revenue Department;

(9)  A’s main duties were to drive a large 24-tonne skip loader truck with a demountable plate (環保斗車) with licence plate SC2564 (“Truck”), filled with construction wastes collected from customers, and transport them to be dumped at the landfills in Tseung Kwan O;

(10)  R was the one who gave A and all his other workers work instructions. Sometimes A would upon the instructions of R drive the crane and other trucks for collecting and transporting construction and building materials, and scrap metals for sale. He would return the money received from the sale of scrap metals to R;

(11)  When there was no driving duty, A would stay on the Site and R would assign him to help with odd jobs such as filling the sandbags, driving the forklift and assisting in handling building materials;

(12)  A worked for R for 25 to 27 days per month initially, later reduced to 23 to 24 days after the 2019 social events and COVID. The daily working hours of 8 am to 7 pm and occasional overtime work (with no overtime pay) were fixed by R;

(13)  A had marked down the dates he attended work in a calendar which he had left in the Truck. Unfortunately he did not get the chance to go to the Truck to get it back after the Accident hence could not adduce such evidence in this action;

(14)  A normally worked all days apart from 3 or 4 days off in a month and alternate Sundays. He had to notify R in advance when taking leave so that R could arrange another driver to work in his place;

(15)  On the day of the Accident, there was no driving duty. A was instructed by R to assist unloading of sand bricks from the barge at the pier;

(16)  R was the registered owner of the Truck. A knew about this because in 2014 and 2016 after he had committed driving offences in the course of work driving the Truck, R would receive the fixed penalty tickets as the owner, and he would tell A about it;

(17)  It was only after the Accident that A came to know (when trying to ascertain the name of R’s business in his report to the Labour Department) that the registered owner of the Truck had been changed to another company Hang Hau as at the date of the Accident;

(18)  A did not know the company Hang Hau. He only came to know recently in the course of this litigation through his lawyer that the directors of Hang Hau are R’s son and daughter whom A and other workers called Ah Wai/阿偉 (“Son”) and Ah Man/阿敏 (“Daughter”) respectively;

(19)  The Son and Daughter started working on the Site since around mid-2017 or early 2018. They mainly helped in office work of collecting money, weighing materials and paying workers;

(20)  A had always regarded R but no others to be his boss at work or employer. R, but not others, was the one who gave work instructions to A and other workers. Even when the Son and Daughter occasionally asked A to do something, they were just passing on the instructions of R, and would specify, “…Dad asks you to (do/go)…”;

(21)  Other than the Accident, A got injured at work at his right thumb when working for R in about 2015. R told A that he had no insurance, and paid A $3,500 only as compensation for the injury;

(22)  After the Accident, R paid A through the latter’s son $2,850 in cash, ie 3 days of wages (covering 16 to 18 March 2020, as A had been paid on the 15^th for the first half month’s work). After that, R denied that A was his employee, and refused to pay any sick leave payments;

(23)  A’s adult children helped him report the Accident to the Labour Department and contact R to enquire about insurance/compensation matters during April to June 2020. R initially said that he had insurance. He gave the children the contact telephone number of an insurance agent, a Mr Tung, and told them to contact him direct. WhatsApp evidence shows that Mr Tung had initially helped and replied to the children’s enquiry, but later Mr Tung told them that “your father’s boss Mr Chong”(“你爸爸老闆莊先生”) had told him not to follow up the case, and that they should contact the boss/Mr Chong direct;

(24)  A chased R further for compensation to no avail. He subsequently sought help from the Legal Aid Department, and commenced this action against R;

(25)  When submitting the Notice of Accident (Form 2) to the Labour Department, A had initially reported the name of R/莊江流to be his employer. When asked by the Labour Department staff if there was any company name, he changed the name to “坑口環保公司” as he recalled that R’s company was referred as “坑口” or “將軍澳環保” in his previous dealings with the suppliers and customers. Later the Labour Department staff told him that there was no business registration record of “坑口環保公司”. A then asked a friend to do a vehicle registration search of the Truck, and came to know that Hang Hau was the registered owner and the company name shown in some of the company receipts. So A reported the name of Hang Hau to the Labour Department. After that he was told by the Labour Department staff that R had attended their office and brought with him a company chop of “將軍澳環保廢料回收站”, which name he adopted in the further amended Form 2 Notice dated 29 September 2020. That explains why A had reported and amended a few times the name of the employer in the Form 2 Notices submitted to the Labour Department; and

(26)  To A, R/莊江流 was all along the boss who employed him to work, no matter what company name or business R had used or whether he was the registered owner of the Truck.

14.  At trial, when cross-examined by R that A had left his employment after early 2015 and only returned to work for R as a casual worker occasionally, A replied firmly that his absence was only for a period of no more than 6 months in early 2015. In about July 2015 R had asked A to return to work for him after another driver Ah Kei (阿奇) had left. A had since then continuously worked for R for 4 to 5 years until the Accident.

15.  A denied strenuously R’s allegations that he had left R’s employment in early 2015 until 2018 when he was introduced by R and switched to work for another employer Hang Hau. He had all along worked for R on the Site, and did not ever know that there was another company Hang Hau.

16.  A’s main duties were still driving the Truck for collecting, transporting and disposing of construction wastes. The Truck was a massive vehicle with a large demountable plate (環保車斗), specifically built for loading and unloading massive construction wastes for recycling, and not suitable for trading/transportation of construction and building materials.

17.  A gave evidence that all workers on the Site including himself greet and refer R as “Mr Chong/莊生”. No one would address the Son as “Mr Chong/莊生”. They all called him “Ah Wai” (阿偉) because he was young and relatively new to the Site. There is no challenge by R on this.

The Respondent’s Case/Evidence

18.  R does not dispute that A met the Accident and suffered injuries in the course of work on the Site, but contends that A was not his employee.

19.  R’s evidence on the issue of employment is set out in his witness statement filed on 21 February 2025[2] as follows:

(1)  A was at the time of the Accident an employee of Hang Hau, another company of which the Son and Daughter were the directors and shareholders. R was neither a shareholder nor director of Hang Hau;

(2)  Hang Hau was incorporated sometime in 2016 and was engaged in the business of trading of construction materials, different from that of R’s in construction wastes recycling;

(3)  R had only briefly employed A to work for him as a casual worker back in 2014. In around early 2015, A resigned and had not worked for R anymore;

(4)  Much later sometime in 2018, A asked if R had work for him as he was out of job. R did not need more workers and introduced A to work as a driver for Hang Hau. A had since been working for Hang Hau until the time of the Accident;

(5)  R admitted that he was the previous owner of the Truck when A first worked for him in 2014 but he had later sold it to Hang Hau. As at the time of the Accident, Hang Hau was the registered owner of the Truck which R usually drove at work;

(6)  R and Hang Hau are separate companies and not related. Though their offices were both on the Site (in adjacent containers offices), they operate different businesses;

(7)  R did not pay A wages;

(8)  A was working in Hang Hau’s business at the time of the Accident, namely assisting in unloading of construction materials (sand bricks) by the shore. It was Hang Hau’s, but not R’s business;

(9)  R was at his office when the Accident occurred. He heard of the Accident and immediately went over to the shore to see A because A was his friend. He saw A injured, and helped summon the ambulance; and

(10)  As a result of the Accident, R was prosecuted, in his capacity as the employer of A, for the offences, inter alia, of Failing to pay compensation to employee contrary to section 10(10) of the ECO (KTS3208-15 & 3403/2021). The summonses were dismissed upon a ruling of no case to answer after trial.

20.  At trial herein, R changed his evidence that when A left his employment with R in early 2015, he did not formally resign as he was a casual worker who only worked sometimes on the Site when required. After a few months, he had returned to the Site to work occasionally since mid-2015 until 2017.

21.  The Son and Daughter began to work in R’s business in around 2013. Hang Hau was later incorporated in 2016 and was engaged in construction materials trading, different from R’s construction wastes recycling business.

22.  R initially gave evidence that in about 2017 as his recycling business was not good, he gradually stopped doing the business. Hence he sold the Truck to Hang Hau in 2017. R argues that it was thus unreasonable, as alleged by A, that he would engage A to work for him to drive the Truck. R had therefore introduced A to work for Hang Hau when A later came to him and asked for work in 2018.

23.  R had sold the Truck to Hang Hau for about $300,000 odd. He did not know the details nor have the documentary or payment proof because it was handled by the car dealing company.

24.  When cross-examined whether he had told A that R had sold the Truck to Hang Hau, R replied in the negative. However, after 2018 (when A returned to ask R for work on the Site) Hang Hau had become the registered owner of the Truck. A was introduced by R to Hang Hau and became a casual sundry worker employed by Hang Hau. A would do whatever work assigned and as instructed by Hang Hau.

25.  When asked whether R had ever told A that Hang Hau was A’s employer, R repeatedly said that since A was only a casual worker, it was not necessary for R to mention to him the employment details. It was the same as before: when A worked for R previously in 2014, they did not discuss the employment details.

26.  On the day of the Accident, A was unloading sand bricks at the pier. These were new construction materials for trading which was Hang Hau’s business, not a part of R’s construction wastes recycling business.

27.  When asked how R would know about A’s work duty at the time of the Accident when he did not assign A’s work, R replied that he happened to know as he was on the Site having tea that morning. He heard about the Accident to A and went to the pier to see A immediately, and later called the ambulance. When asked why people would report the Accident to R but not A’s employer Hang Hau, and why he would attend the scene of Accident, R replied that it was early about 9 to 10 am and the Son and Daughter were not back to the Site yet.

28.  R’s alleged time of the Accident is contradicted by the relevant ambulance record which states the call time for attending the Site to be 1547 hrs.[3] As stated in the Form 2 Notices of Accident,[4] A reported that the Accident had occurred at 2.50 pm.

29.  R agreed that A would still drive the Truck at work sometimes, but it was mainly for transporting construction materials for Hang Hau’s business.

30.  During the latter part of the cross-examination, when asked about his business after 2017 (after selling the Truck), R replied that he had less business and mainly transported scrap metal materials (五金廢鐵回收). When being pressed further about his manpower arrangement, R replied that he had since 2018 engaged 4 imported workers because they were cheaper; hence he did not require A to work for him.

31.  R gave evidence that the monthly wage of an imported worker was about $10,000, whilst that of a local worker was much higher at $20,000 odd.

32.  R did not know about A’s wages at the time of the Accident because A was engaged and paid by Hang Hau. R however agreed that he had heard about the $50 daily meal allowance paid to the workers on the Site.

33.  R agreed that A’s work duty was mainly driving the Truck when working on the Site since 2014 and until 2020, but he was working for Hang Hau after 2018.

34.  It was put to R during cross-examination that A worked most days on the Site except public holidays, and for 20 odd days a month. R agreed.

35.  R relies on the acquittal/verdict of the Labour Department summonses to challenge A’s credibility and argue that his evidence on the alleged employment relationship between A and R, or the identity of his employer being R, is incredible.

36.  R also seeks to rely on A’s criminal conviction back in 1999 of theft, an offence involving dishonesty, in impugning A’s credibility in the court’s evaluation of his testimony in this case.

Analysis

37.  R does not challenge A’s evidence that (i) he was a daily paid worker engaged to work on the Site; (ii) he worked at fixed hours; (iii) his main work duty was to drive the Truck but he also performed other sundry duties assigned to him when there was no driving work; and (iv) A’s main work duties were to drive the Truck in construction wastes recycling/disposal, and he also drove other trucks and the crane-truck in taking and making delivery of, and handled construction materials in trading.

38.  R accepts, as confirmed by his counsel at the closing submissions stage that there is no dispute on A’s position of working as an employee on the Site. The only dispute on the employment issue is that R was not the employer.

39.  Having heard the evidence of A and R and observed their demeanor when testifying in court, I am of the view that A was a straightforward and frank witness who gave truthful evidence on the matters relating to his employment with R. His evidence on his employment relationship with R is firm and consistent. It is on the whole reasonable and not validly challenged.

40.  R’s case, as stated in his witness statement, is that A had only worked for R briefly during 2014 and until early 2015. There was then a gap of about 3 years, until A returned to work on the Site sometime in 2018, but as an employee of Hang Hau through the introduction of R.

41.  In court, R changed his evidence that A had after 2015 continued to work for him, though only part-time or occasionally during 2015 and 2016, as a casual worker – this sudden change in evidence is in my view R’s attempt to explain or deal with the contradicting evidence that A was convicted of the offence of careless driving committed when driving the Truck in the course of work on 16 June 2016.[5]

42.  The sole evidential basis for R to argue that Hang Hau was the employer of A seems to be that Hang Hau was at the time of the Accident the registered owner of the Truck which A usually drove at work. There is no other evidence adduced which would support the alleged employment with, work instructions from, or management or control by Hang Hau in A’s work.

43.  It is wholly unreasonable for R not to inform A of the change of employer to Hang Hau nor different work arrangements after A returned to work on the Site in 2018, had that really been the case.

44.  R initially said that he had sold the Truck to Hang Hau in about 2017 because recycling business was not good (“冇得做”), hence he had planned to close down the business, did not employ A and introduced him to work for Hang Hau in 2018.

45.  Such evidence cannot be true and is inconsistent with R’s later evidence given during cross-examination that he had engaged 4 imported workers for his business. R tried to explain that he had after selling the Truck changed his business to recycling of scrap metals mainly but not construction wastes. Upon being pressed further, he admitted that he dealt with recycling of waste concrete and soil as well.

46.  It is also inconsistent with his own evidence as stated in the witness statement[6] that at the time of the Accident, his business was wastes recycling (“廢料回收”).

47.  It is clear and the parties are not in dispute that the Truck is specifically designed for construction wastes disposal or recycling. Why would Hang Hau purchase the Truck from R if it was all along not engaged in construction wastes recycling business as alleged by R? The reason for the transfer of ownership of the Truck is inconsistent with R’s own evidence that R’s business was construction wastes recycling and that of Hang Hau was construction materials trading.

48.  In any event, it is clear from the evidence that R and Hang Hau are closely related: Company search records show that the Son and Daughter, the 2 directors and shareholders of Hang Hau, and R all have the same residential address of Flat B, 20^th Floor, Tower 3, Tsueng Kwan O Plaza (“Residence”). It was also Hang Hau’s first registered office at the time of incorporation in 2016.[7] R was the registered owner of the Residence until he transferred it to his other son Chong Kwok Tung in July 2019.[8] R and Hang Hau both operate their businesses on the Site and use it as their business address.

49.  Driving of the Truck had been the main work duty of A over the years until the time of the Accident according to A’s evidence. This is not disputed by R.

50.  There is no evidence to support that Hang Hau’s construction materials trading business would require the use of the Truck.

51.  Evidence shows that the Truck, which was the only demountable recycling truck of the vehicles on the Site, despite the change of ownership from R to Hang Hau in 2017, had all along been used by R in his construction wastes recycling business. Other than this business, R has not adduced evidence of any other business conducted by him.

52.  On the evidence, I reject R’s case that he had sold the Truck in 2017 because he had no construction wastes recycling business. He did not sell the Truck to outsiders, but to the company of his Son and Daughter. His later evidence reveals that he had continued with the business and even employed 4 imported workers for the work.

53.  I find on the overall evidence that A had been, upon the instructions of R, working in both businesses of construction wastes recycling and construction materials trading. I accept A’s evidence and find that R had been operating both businesses on the Site over the years.

54.  R’s case that A was employed by Hang Hau but not R is an artificial distinction used by him to hide the employment relationship with A.

55.  R’s explanation that he, but not the Son and Daughter of Hang Hau which was alleged to be the employer of A, had attended the Accident scene because they had not yet returned to work in the morning is contradicted by the ambulance record and A’s evidence that the Accident had occurred in the afternoon. Such an explanation was no doubt an untruthful excuse made up by R during cross-examination.

56.  R makes no challenge to A’s evidence that he had after the Accident paid A in cash through the latter’s children $2,850 in respect of 3 days of work covering 16-18 March 2020. The 3 days of outstanding wages is consistent with A’s evidence of a daily wage of $950 and that he received his pay half-monthly on the 15^th and last day of the month working for R.

57.  R also did not challenge the evidence of WhatsApp messages with the insurance agent Mr Tung which evidence according to A shows that R in his capacity as the employer had initially dealt with A’s claim. A’s evidence, not challenged by R, is that the reference to “the boss/老闆/老細/Mr Chong (莊生)” meant no others but R.

58.  A’s firm evidence is that R was all along the person who gave him all work instructions. R makes no challenge to nor adduces any evidence in support of the defence case that A was employed by Hang Hau, and for that matter who (instead of R) gave work instructions to A or supervise/manage/control his work.

59.  I reject R’s case that there was a change of A’s employer from R to Hang Hau in 2018, particularly bearing in mind his own evidence that A was not even informed by R of the change.

60.  The change of ownership (from R to Hang Hau) of the Truck is not determinative as to who the employer was. It would not make Hang Hau the employer; it is in my view nothing but an artificial distinction used by R to evade liability as the employer.

61.  I do not consider R’s acquittal in the Labour Department summonses would have the effect of impugning or negating A’s credibility and evidence on the matters in issue in the present case. The Magistrate’s ruling of no case to answer was based mainly on his finding that A was not even certain of the identity of his employer, as shown in the repeated amendments on the name and identity of the employer in the Form 2 Notices of Accident submitted to the Labour Department.[9]

62.  The criminal summonses require for conviction a much higher standard of proof. The acquittal was apparently premised on A’s uncertainty of the name of his employer, hence inability, to prove beyond reasonable doubt that R was his employer.

63.  I accept A’s explanation as stated in his witness statement[10] regarding the amendments made to the name of his employer in the Form 2 Notices. His evidence is clear and firm all along in that he always regarded R to be his boss and employer. The amendments were resulted from his lack of knowledge and uncertainty of the official business or company name of R, and in my view do not impugn credibility of his evidence herein on the issue.

64.  Taking an overall evaluative-impressionistic approach in evaluating the evidence in the present case, I find it reasonable to conclude, on a balance of probabilities, that A had all along since 2014 and up to the time of the Accident been working for and employed by R. He took work instructions at work in the businesses conducted by R be it under the name of R or Hang Hau.

65.  Determination of the employment issue is fact sensitive. The conclusion above is based on all evidence adduced in this action. I accept the submission of A’s counsel that the conviction of A of the criminal offence of theft back in 1999 would not affect my assessment of A’s overall credibility and reliability of his evidence adduced herein on the central issue of employment.

Conclusion

66.  Following from the above analysis, I find that A was an employee of R at the time of the Accident. He suffered injuries arising out of and in the course of his employment with R, who is liable to pay employees’ compensation under section 5(1) of the ECO.

QUANTUM

67.  A claims employees’ compensation under sections 9, 10 and 10A of the ECO.

68.  There is no dispute that A was aged 60 at the time of the Accident, hence the appropriate multiplier would be 48 for assessing section 9 compensation.

69.  A was assessed by the MAB to have suffered from “sternal wall injury resulting in chest wall pain” with 1% permanent loss of earning capacity (“LEC”) as set out in the Certificate of Assessment (Form 7) issued on 18 May 2021.

70.  Upon review assessment conducted on 7 September 2021, the injuries were certified to be “sternal wall and left shoulder injury resulting in (1) chest wall pain (1%); (2) left shoulder pain and stiffness (2.5%), ie total LEC at 3.5% as set out in the Certificate of Review of Assessment (Form 9) issued on 21 September 2021. The sick leave certified covers a period from the date of the Accident of 18 March 2020 to the date of review on 7 September 2021.

71.  A’s case is that he was granted sick leaves beyond the date of review up to 20 October 2021 (a total of 583 days), as supported by sick leave certificates issued by his treating doctors.

72.  He claims sections 9 and 10 compensation based on LEC of 3.5% in accordance with the Form 9 and total sick leaves of 583 days.

73.  R argues that the left shoulder injury, not featured in the Form 7, was not caused by the Accident. He contends for assessment of sections 9 and 10 compensation based on LEC of 1% and a shorter sick leave period for the chest injury only.

Injuries sustained in the Accident/LEC %

74.  A salient question is whether A had sustained left shoulder injury in the Accident.

75.  A’s pleaded case as stated in the Application[11] is that when assisting unloading of bricks in the Accident, two piles of bricks fell towards him, as a result of which he sustained chest injury.

76.  Contemporaneous ambulance record states that immediately after the Accident, A reported contusion of chest injury (by falling bricks). Examination showed chest pain and injury (red marks) (“心口痛及胸口受傷 (紅印)”).

77.  In the Form 2 Notice dated 27 April 2020, A reported chest injury only.

78.  There is no mention of “shoulder injury” in the medical records and sick leave certificates in the initial 6 months after the Accident. In all the medical consultation notes and sick leave certificates, injury or diagnosis of “chest injury/sternal wall contusion/chest pain” was recorded.

79.  Medical Reports for Employees’ Compensation[12] issued in June 2020 by the Employees’ Compensation Division of the Labour Department records chest wall injury only.

80.  A first complained of “left shoulder pain” when he attended the Department of Family Medicine of Prince of Wales Hospital on 21 July 2020.[13] In a subsequent follow up on 15 September 2020, he reported “left shoulder pain and stiffness since around May 2020”. The treating doctor recorded “imp (impression) Left frozen shoulder”.[14] However, sick leave was granted in respect of “chest pain” only as recorded in the sick leave certificate.[15] On the same day, A was referred for physiotherapy treatment of left frozen shoulder.

81.  There is no mention in any of the medical records that the left shoulder condition was resulted from any injury sustained in or related to the Accident.

82.  The first record of “sprained left shoulder injury” is found in the sick leave certificate issued by Dr Poon Tak Lun (“Dr Poon”) on 23 September 2020.[16] Prior to that date A had consulted Dr Poon on 3 previous occasions on 15 April 2020, 27 May 2020 and 29 July 2020. Apparently he did not report to Dr Poon any shoulder injury other than chest injury all along until 23 September 2020.

83.  Subsequently, A amended the Form 2 Notice dated 29 September 2020 by inserting the notes (in Chinese) under “F. Nature of Injury” of “left upper arm and right shoulder weakness and numbness one odd month after the Accident” other than chest injury.

84.  The MAB assessment on 4 May 2021 was conducted on the basis that A had sustained chest injury only in the Accident, hence the Form 7 issued on 18 May 2021 certifying “sternal wall injury resulting in chest wall pain” and LEC of 1% only.

85.  On the overall medical evidence, I accept R’s submission and conclude also upon a reasonable inference that A’s left shoulder condition was not an injury resulted from the Accident but a condition developed a few months thereafter.

86.  The burden lies on A to prove his injuries sustained in the Accident. The presumption in accordance with section 16H of the ECO of the evidence of “sternal wall and left shoulder injuries” and 3.5% LEC set out in the Form 9 issued subsequently on 21 September 2021 is in my view rebutted by the contemporaneous medical records analysed above.

87.  Following from my conclusions above, I should disregard the assessment of 2.5% LEC in respect of left shoulder pain and stiffness certified in the Form 9. I allow R’s appeal against the Form 9 and shall adopt 1% LEC in assessing section 9 compensation in this case.

Length of Sick Leave

88.  Section 10(2) of the ECO provides that for the purposes of the section a period of absence from duty certified to be necessary by, inter alia, a registered medical practitioner, shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.

89.  There is no dispute that the total length of sick leave, as certified by the treating doctors and supported by sick leave certificates, is 583 days.

90.  R’s counsel submits that a shorter length of sick leave, discounting those granted in respect of the left shoulder condition, should be adopted in assessing compensation. He has however not made any suggestion of the appropriate (shorter) sick leave period to be adopted on account of the chest injury only. He also confirms that R has no evidence to contradict the length of sick leave granted by the treating doctors.

91.  Neither was A cross-examined or challenged on the (shorter) length of sick leave required on account of the chest wall injury only.

92.  A review of the sick leave certificates shows that all the sick leaves granted from the date of the Accident up to 20 October 2021 were for chest injury/pain due to the Accident, with an additional reason/diagnosis of left shoulder injury recorded in the sick leave certificates issued as from 23 September 2020.

93.  Without medical or expert evidence in support, this Court does not have the expertise and is not able to apportion what (shorter) sick leave should reasonably be required for the chest wall injury only, discounting the left shoulder condition.

94.  There is no evidence to rebut the presumption under section 10(2) of the ECO. I accept the submission of A’s counsel that it would be wrong in law and in fact to cut short the duration of sick leaves on the basis that some sick leaves were granted also in respect of the left shoulder condition. I allow the total sick leave of 583 days as certified, following the approach adopted in the judgment of Pak Sai Ming v JV Fitness Limited (unreported, DCEC 494/2014, 17 June 2016) cited by A’s counsel.

A’s Monthly Earnings

95.  A pleads his pre-accident monthly earnings at $17,100 (subject to discovery) in the Application.[17]

96.  No documentary evidence in support of A’s earnings has been adduced.

97.  A claims in his witness statement[18] that his average monthly earnings in the 12-month period prior to the Accident was no less than $23,167 – this is the figure reported by A in his reply slip dated 2 July 2020[19] submitted to the Labour Department. The figure of $23,167 was calculated from approximate monthly earnings provided by A covering a period from 3/2019 to 2/2020 as shown in the reply slip.

98.  R argues that A’s pleaded case and evidence on his pre-accident monthly earnings is inconsistent, unreliable and should not be accepted. R’s counsel has however not made any suggestion on the appropriate figure to be adopted for assessing compensation.

99.  R raises no challenge to A’s evidence that (i) A’s daily wage was $950 at the time of the Accident; and (ii) he would be paid $50 meal allowance if he worked out of the Site and did not take the lunch box provided by the employer. R confirmed during cross-examination that he had heard of the $50 meal allowance.

100.  A gave evidence in court that on the days when he took the lunch box provided by the employer, he regards the value to be the same at $50 (“……佢拎飯俾我，計落去都係50蚊……”).

101.  The $950 daily wage is consistent with A’s evidence, not challenged by R, that after the Accident, R paid him (through the latter’s children) $2,850 for 3 days of work.

102.  I accept A’s daily wage inclusive of meal allowance, as defined under “earnings” in section 3 of the ECO, to be $1,000.

103.  As regards the number of working days in a month, I have considered the following:

(i)  A’s evidence that he used to work 25 to 27 days, but reduced to 23 to 24 days after COVID;

(ii)  R’s evidence that an imported worker’s monthly pay was $10,000, as opposed to $20,000 odd of a local worker; and

(iii)  R agreed during cross-examination that A worked 20 odd days in a month on the Site.

104.  On the above evidence, I consider it reasonable to adopt, and find A’s monthly earnings at the time of the Accident to be $23,000.

Medical Expenses

105.  The amount of medical expenses paid by A and claimed under section 10A of the ECO, capped under the Third Schedule, is agreed at $5,005.

Computation of Compensation

106.  I assess employees’ compensation under the ECO as follows:

Section 9:  $23,000 x 48 x 1%	$11,040
Section 10:  $23,000 x 583/30 x 4/5	$357,573
Section 10A:  Medical expenses (agreed)	$5,005
	________
Total:	$373,618
	=======

107.  Total employees’ compensation is thus assessed at $373,618.

Interest

108.  Interest is awarded on the compensation adjudged at half judgment rate from the date of the Accident to the date of judgment, and thereafter at full judgment rate until payment.

Costs

109.  Costs should follow the event. I make the following order nisi on costs:

(1)  A do have costs of the action, payable by R, with certificate for counsel, to be taxed if not agreed; and

(2)  A’s own costs be taxed in accordance with the Legal Aid Regulations.

110.  In the absence of application from the parties to vary this costs order within 14 days, the costs order nisi will become absolute.

111.  Lastly, I thank counsel for their assistance.