TSE CHI WAI v. JUHANG INTERNATIONAL HOLDING LTD

DCEC 1828/2017

[2026] HKDC 1434

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1828 OF 2017

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IN THE MATTER OF AN APPLICATION BETWEEN:-

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JUDGMENT

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INTRODUCTION

1.  This is the trial of an application by the Applicant under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“ECO”).[1] The Applicant’s claim against the 2^nd Respondent has been discontinued.[2]

2.  The application arises from an accident taking place on 23 February 2017, in which the Applicant suffered injuries after falling off a loading platform at the warehouse where he worked after being assaulted by Chan Kwan Ho (“Chan”), his supervisor at work, during a fight between them (“Accident”).

3.  The 1^st Respondent was absent at trial and did not lodge any opening submissions despite directions from the Court. Having considered the affirmation of service filed on behalf of the Applicant, I ordered the trial to be proceeded in its absence.

BACKGROUND

4.  The factual and procedural background of the case has been set out in paragraphs 1 to 27 of the Judgment given by the Court on 10 July 2025 (“Judgment”) under the personal injuries action commenced by the Applicant in respect of his injuries sustained in the Accident (“PI Action”).[3] After trial, the Court entered judgment in favour of the Applicant with damages assessed at HK$1,865,740.[4]

5.  On the issue of liability, the Applicant at trial relied on vicarious liability as the only cause of action. A material issue before the trial judge in the PI Action was therefore whether the Applicant was an employee of Juhang International Holding Limited,[5] the 1^st Respondent herein, at the time of the Accident.[6] On this issue, the trial judge found in favour of the Applicant.[7] The trial judge also found that the 2^nd Respondent was not the employer of the Applicant.[8] In arriving at this conclusion, I note that the trial judge in the PI Action was guided by the principle laid down by the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung t/a Yat Cheung Airconditioning & Electric Co (2007) 10 HKCFAR 156,[9] a decision made under the context of the ECO.

LIABILITY

6.  In view of the above, the trial judge’s finding on the existence of an employment relationship between the Applicant and the 1^st Respondent must be conclusive and binding on this Court and the same issue cannot be re-opened for litigation: Phipson on Evidence (21^st Edition), 43-15. In any event and even if I am wrong, I agree with the analysis of the trial judge in the PI Action as to why the Applicant was the employee of the 1^st Respondent (but not the 2^nd Respondent) at the time of the Accident[10] and I will so find if I have to.

7.  In view of the above, I find that the Applicant has established liability against the 1^st Respondent in this application. The only remaining issue, insofar as the Applicant’s application against the 1^st Respondent is concerned, is the quantum of compensation which he is entitled to under ECO.

EVIDENCE

(1) The Applicant

8.  The Court has heard evidence from the Applicant. His evidence was contained in two witness statements filed in this application and the PI Action. His evidence was unchallenged at trial. I accept his evidence in general, subject to the following observation:-

(1) Regarding the injuries sustained as a result of the Accident, the Applicant claimed, apart from fractures over his right wrist, that he also suffered from back pain (which radiated to his left lower limb);

(2) Since it is the Applicant’s position at trial that his claim would only be confined to his injury to his right wrist,[11] I shall disregard the Applicant’s evidence relating to the injury on his back.

(2) Experts’ Evidence

9.  Pursuant to the Order of the Court dated 14 April 2026, the following reports were also adduced as evidence without calling the makers thereof:-

(1) The Joint Orthopaedic Expert Report of Dr Chan Yu Sing (“Dr Chan”) and Dr Ngai Wai Kee (“Dr Ngai”) dated 7 August 2023 (“Joint Report”); and

(2) The Supplemental Expert Report of Dr Chan dated 19 October 2023.

(3) Assessments and Review by the Board

10.  The Applicant’s injury was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“Board”) on 17 July 2019. According to the Certificate of Assessment (Form 7) dated 31 July 2019 (“Form 7”), the Applicant has suffered from “multiple injuries resulting in right wrist pain and stiffness, right hand numbness”. Sick leave was granted from 23 February 2017 to 17 July 2019. Loss of earning capacity permanently caused by the injury (“LOEC”) was assessed at 3%.

11.  The assessment under Form 7 was subsequently reviewed by the Board on 20 November 2019. According to the Certificate of Review of Assessment (Form 9) dated 4 December 2019 (“Form 9”), the duration of sick leave was extended to 20 November 2019 but other than that the other assessments by the Board under Form 7 remained unchanged.

12.  With the above in mind, I now proceed to assess the Applicant’s application under sections 9, 10 and 10A of ECO.

COMPENSATION UNDER SECTION 9 OF ECO

(1) Applicant’s monthly salary prior to Accident

13.  The Court found in the PI Action as unchallenged that the pre-Accident average monthly income of the Applicant was HK$16,888.90.[12] At trial, I have been presented by Mr Yip, counsel for the Applicant, as to how this sum was arrived at and I agree with his calculation. I find the Applicant’s pre-Accident average income to be HK$16,888.90.

(2) Loss of earning capacity

14.  The injury suffered by the Applicant on his right wrist is not an injury listed in the First Schedule of the ECO.

15.  Both Dr Chan and Dr Ngai agreed that the Applicant had suffered LOEC as a result of his right wrist injury. Dr Chan and Dr Ngai respectively opined the LOEC to be 4.5% and 3%.

16.  Despite Dr Ngai’s assessment is consistent with that of the Board under Form 9, I prefer Dr Chan’s assessment over that of Dr Ngai. The Applicant has suffered from fractures over right wrist and displacement in right forearm as a result of the Accident. Movement of his right wrist remained impaired to a certain degree almost 6 years after the Accident.[13] At the time of the Accident, the Applicant was 50 years old and working as a warehouse supervisor. His job required intensive use of his arms and wrists. It is the finding in the PI Action that the Applicant would unlikely be able to return to his pre-Accident job as a result of his injuries.[14] This comes as no surprise to me especially where the Applicant is right-handed.

17.  In my view, the nature and implication of the impairment brought by the injuries to the Applicant and his inability to return to his pre-Accident job should be better reflected by a higher LOEC of 4.5% (as assessed by Dr Chan) instead of 3% (as assessed by Dr. Ngai and the Board).

(3) Quantum

18.  The Applicant was 50 years’ old at the time of the Accident. A multiplier of 72 months should be adopted.

19.  In the premises, the amount of compensation which the Applicant is entitled to under section 9 of ECO should be HK$54,720.04 (HK$16,888.90 x 72 x 4.5%).

COMPENSATION UNDER SECTION 10 OF ECO

(1) Duration of periodical payments

20.  Under section 10 of ECO, the maximum periodical payments which the Applicant is entitled to receive are 24 months from the date of the Accident or for such further period being not more than 12 months as the Court may allow in any particular case.

21.  For the purpose of assessing compensation under section 10 of ECO, I will allow a sick leave period from 23 February 2017 to 20 November 2019 for the following reasons:-

(1) This was the sick leave period assessed by the Board under Form 9 (having reviewed its assessment under Form 7). The assessment was supported by Dr Chan’s opinion under the Joint Report;

(2) The Court in the PI Action also endorsed the same period of sick leave.[15]

(2) Adjustment of Applicant’s earnings

22.  The Applicant invited this Court to consider adjustment of the Applicant’s monthly earnings in accordance with the relevant rates of increase in the Consumer Price Index (A) (“CPI(A)”) at the ends of both the 12-month and 24-month periods after the date of Accident when calculating the appropriate amount of compensation.[16]

23.  Having considered the evidence and the statutory scheme of section 11 as explained by the Court in Cheung Man Kit v Chiu Lok Yan t/a New Luen Lik Engineering Co & Ors [2024] HKDC 330,[17] I am of the view that the Applicant’s situation falls within sections 11(1A)(b) and 11(1B)(b) of ECO and his monthly earnings should be adjusted in accordance with CPI(A) for the years starting from February 2018 and from February 2019 in the following manner:-

Month of the year	CPI(A)	Percentage of Adjustment (year-on-year)
February 2017	94.0	-
February 2018	96.8	+3.1%
February 2019	99.4	+2.6%

24.  With the above percentage of adjustment in mind:-

(1) The Applicant’s adjusted monthly earnings from February 2018 to February 2019 should be HK$17,412.46 (HK$16,888.90 x 103.1%);

(2) The Applicant’s adjusted monthly earnings from February 2019 to November 2019 should be HK$17,865.18 (HK$17,412.46 x 102.6%).

(3) Quantum

25.  Taking into account the adjusted monthly earnings of the Applicant, the total amount of compensation which the Applicant is entitled to under section 10 of ECO should be HK$456,630.19. The calculations are set out below:-

Period	Duration	Amount
23 February 2017 – 22 February 2018	12 months	HK$162,133.44 (HK$16,888.90 x 12 x 4/5)
23 February 2018 – 22 February 2019	12 months	HK$167,159.62 (HK$17,412.46 x 12 x 4/5)
23 February 2019 – 20 November 2019	271 days	HK$127,337.13 (HK$17,865.18 x 12 x 271/365 x 4/5)
TOTAL:		HK$456,630.19

COMPENSATION UNDER SECTION 10A OF ECO

26.  Under Schedule 3 of ECO, where an employee is given medical treatment as an in-patient in hospital, the amount of medical expenses payable is capped at the total amount of medical expenses incurred or at the rate of HK$300 per day, whichever is less.[18] Where the employee is given medical treatment other than as an in-patient, the amount of medical expenses payable is capped at the total amount of medical expenses incurred or at the rate of HK$500 per day, whichever is less.[19]

27.  The following table set out the medical expenses incurred by the Applicant for receiving in-patient treatments since the Accident (at the lesser rate):-

Hospital	Period	Amount
Tuen Mun Hospital	23 February 2017 – 5 March 2017	HK$1,100
Tuen Mun Hospital	24 March 2017 – 31 March 2017	HK$800
Tuen Mun Hospital	1 April 2017 – 9 April 2017	HK$612
TOTAL:		HK$2,512

28.  As for the medical expenses of all out-patient treatments received by the Applicant since the Accident (at the lesser rate), they are set out in the table below:-

Hospital	Number of treatments	Amount
North Lantau Hospital	177	HK$14,560
North Lantau CHC	165	HK$8,217
Tuen Mun Hospital	26	HK$1,500
TOTAL:		HK$24,277

29.  In the premises, the total amount of medical expenses which the Applicant is entitled to under section 10A of ECO is HK$26,789 (HK$2,512 + HK$24,277).

SUMMARY

30.  For the reasons given above, the Court grants compensation to the Applicant under sections 9, 10 and 10A of ECO in the total sum of HK$538,139.23, being:-

(1) Compensation under section 9 in the sum of HK$54,720.04;

(2) Compensation under section 10 in the sum of HK$456,630.19; and

(3) Compensation under section 10A in the sum of HK$26,789.

CONCLUSION

31.  In the circumstances, the Court makes the following orders:-

(1) The 1^st Respondent do pay the Applicant compensation under sections 9, 10 and 10A of ECO in an aggregate sum of HK$538,139.23; and

(2) There shall be interest on the above judgment sum at half the judgment rate from 23 February 2017 (ie the date of the Accident) to the date of this judgment, and thereafter at judgment rate until payment in full.

COSTS

32.  Costs should generally follow the event as between the Applicant and the 1^st Respondent.

33.  As for the 2^nd Respondent:-

(1) It was deregistered but was ordered to be restored on 3 January 2023 to enable the Applicant to proceed against it;

(2) It was joined as a party to this application because of the 1^st Respondent’s allegation in its former solicitors’ letter dated 11 August 2020 that the 2^nd Respondent was the employer of the Applicant.[20] Given my finding on liability above, I am of the view that any costs incurred by the Applicant arising from the joinder of the 2^nd Respondent should be borne by the 1^st Respondent;

(3) Since the 2^nd Respondent was absent throughout these proceedings, no costs should have been incurred by it in defending the Applicant’s application.

34.  Accordingly, the Court makes the following costs order nisi:-

(1) The 1^st Respondent do pay the Applicant’s costs of the action (including the Applicant’s costs of his action against the 2^nd Respondent) and all costs reserved, to be taxed if not agreed, with certificate for counsel;

(2) There be no order as to costs between the Applicant and the 2^nd Respondent;

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

35.  Any application to vary the above costs order should be made within 14 days from the date of this judgment.