TSOI CHUN YIN v. 楊潮明 AND ANOTHER

DCEC 541/2021

[2023] HKDC 1656

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 541 OF 2021

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JUDGMENT

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INTRODUCTION

1.  This is the application by the Applicant under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“Ordinance”) for compensation for the injury sustained by him in a traffic accident on 13 February 2020 (“Accident”).

2.  The Applicant also appeals, under section 18 of the Ordinance, against the assessment of Employees’ Compensation (Ordinary Assessment) Board (“MAB”) in Form 7 dated 11 August 2022 (“Form 7”). Pursuant to the leave granted by the Court, the Applicant has filed an expert report dated 11 October 2022 from Dr Lau Sing Ki Kenric (“Dr Lau”), a specialist in orthopaedics & traumatology, and an expert report dated 24 October 2022 from Dr Tsang Kin Lun (“Dr Tsang”), a specialist in neurology.

3.  The Respondents dispute both the liability and quantum. The Respondents deny that the Applicant was an employee at the time of the Accident. They also deny that the Accident was in the course of and arising out of the employment. There is no appeal against the Form 7 by the Respondents and they have not adduced any expert evidence.

THE PARTIES’ CASES

4.  It is the Applicant’s case that he was employed by the 1^st and/or 2^nd Respondent(s) as a renovation worker at the material time. On the date of the Accident, he was assigned to work in Sai Chuk Lam Monastery (“Monastery”) at Tsuen Wan. After finishing the work, his employer arranged one Li Yong Jing (“Li”) to drive a private car bearing registration mark WG5834 (“Car”) to pick him up at the Monastery and to bring him to work in another site in Tin Shui Wai in the afternoon. When the Car was travelling on Tuen Mun Road near lamppost W3529, it met the Accident and the Applicant sustained injuries.

5.  In the Amended Answer, the Respondents aver that the Applicant was an “outworker” within the meaning of section 2(1)(c) of the Ordinance or, alternatively, an independent contractor. The Respondents further allege that, due to heavy rain in the morning on the date of the Accident, no work was arranged in the afternoon and the Applicant decided to have lunch at Lam Dei, Tuen Mun, with some friends including the 1^st Respondent and one Mr Peng Qiudong (“Peng”). Peng therefore asked Li to use the Car, which was registered in Peng’s name, to pick up the Applicant at the Monastery and bring him to Lam Dei. It is the Respondents’ case that the journey from the Monastery to Lam Dei was for the Applicant’s “private agenda”. Therefore, the Accident was not arising out of or in the course of the Applicant’s employment even assuming that the Applicant was an employee.

THE ISSUES

6.  Based on the above, the issues that need to be decided are:-

(1)  Whether the Applicant was an employee, an “outworker” or an independent contractor when he worked in the Monastery in the morning of 13 February 2020?

(2)  If the Applicant was an employee, who was his employer?

(3)  If the Applicant was an employee, whether the Accident was arising out of and in the course of the Applicant’s employment?

(4)  If the Accident was arising out of and in the course of the Applicant’s employment, what is the compensation payable under sections 9, 10 and 10A of the Ordinance? Whether the Applicant’s appeal under section 18 should be allowed?

EVIDENCE

7.  The Applicant, the 1^st Respondent and the 2^nd Respondent give evidence at trial. The Respondents also call Li to give evidence. Their evidence is summarized as follows.

The Applicant’s evidence

8.  The Applicant was born in China in June 1956. He was 63 years old at the time of the Accident and is 67 at the trial. He came to Hong Kong in 2016. Prior to that, he had 10 years’ experience as a plasterer in China.

9.  According to the Applicant, he was employed by Ming Kee Engineering Company[1] (“Ming Kee”) in July 2017 to work in an optical fibre project (“Optical Fibre Project”). It was his understanding that the 1^st Respondent was the “boss” of Ming Kee and Peng was the foreman. Li was also an employee of Ming Kee. They always addressed the 1^st Respondent as “the Boss” and the 1^st Respondent had the authority to instruct Peng or other foremen to work. When working in Ming Kee, the Applicant always received his wages on a daily rate. He was paid once per month in cash by Peng.

10.  In addition to the Optical Fibre Project, the Applicant was also instructed to work in different projects of Ming Kee. Usually, Peng would inform him the night before where to work on the following day.

11.  Upon Peng’s instruction, the Applicant started working in the Monastery (“Monastery Project”) in December 2017. Since then, he had been mainly assigned to work in the Monastery Project but he also helped in the Optical Fibre Project occasionally.

12.  The Monastery is located in a remote area in Tsuen Wan and is not accessible by public transportation. Whenever the Applicant was instructed to work in the Monastery, Peng would use his private car to drop him there and would pick him up from the Monastery after work. There was only one occasion where Peng did not pick him up because he was not in Hong Kong.

13.  On 7 February 2020, Peng brought him to work in a warehouse in Tin Shiu Wai (“Tin Shiu Wai Project”). He continued to work there in the days that followed.

14.  On 12 February 2020, Peng instructed the Applicant to go to the Monastery on the following day to finish some outstanding works, ie patching up holes on a wall.

15.  In the morning of 13 February 2020, upon Peng’s instructions, the Applicant met the 1^st Respondent at Tai Wai Station. The 1^st Respondent used his private car to bring the Applicant to the Monastery. Peng and some other workers were also on the 1^st Respondent’s car. After dropping the Applicant, they left the Monastery and went to the site of the Tin Shui Wai Project.

16.  Later, Li arrived at the Monastery about 10 am. With the help of Li, the Applicant finished the work at around 11 am. According to the Applicant, when he intended to change into clean clothes, Li told him that it was unnecessary because the Applicant still needed to work in the Tin Shiu Wai Project.

17.  The Applicant says that Li did not mention about having lunch together at Lam Dei. He agrees that it would be lunchtime (which started at 12 noon) when they arrived Tin Shui Wai. The Applicant says that it was his habit to bring lunch to work. If other workers had gone out for lunch when he arrived Tin Shui Wai, he would have lunch by himself and begin working after lunchtime.

18.  During hospitalization, the Applicant became aware that his injury was serious and it might take a long time to recover. The Applicant worried about the livelihood of his family. After discharge from hospital on 25 February 2020, the Applicant called the 1^st Respondent and asked whether the 1^st Respondent had reported the Accident to the Labour Department. The 1^st Respondent requested the Applicant not to report the Accident to the Labour Department and promised to give the Applicant some money later.

19.  In late March 2020, the 1^st Respondent changed to say that the Accident was a traffic accident and it was not necessary to report it to the Labour Department.

20.  On 18 April 2020, the 1^st Respondent and Peng visited the Applicant. The 1^st Respondent gave the Applicant $30,000 in cash and said it was a loan to the Applicant.

21.  On 22 May 2020, the Applicant filed a Notification of Accident to the Labour Department (“Notification”). In the Notification, the Applicant named Ming Kee as his employer and gave an address in Ma On Shan (“Ma On Shan Address”) as Ming Kee’s address. He also named the 1^st Respondent as the contact person.

22.  A few days later, the Applicant received a call from Peng. According to the Applicant, Ming Kee had defaulted in paying his wages since October 2019. During the said telephone conversation, the Applicant and Peng confirmed that the outstanding wages owed by Ming Kee to the Applicant were 64 workdays (which was equivalent to $70,400 when applying the daily rate of $1,100).

23.  Subsequently, Peng informed the Applicant that, according to the 1^st Respondent’s instruction, the previous payment of $30,000 would be regarded as a partial payment of the outstanding wages and they would only pay the Applicant $40,400.

24.  On 26 May 2020, the Applicant received a cheque of $40,400 dated 21 May 2020 (“Cheque”). The Cheque was issued by Ming Kee drawing on Ming Kee’s account with Bank of East Asia (“BEA Account”) and signed by the 1^st Respondent.

25.  The Applicant admits that he rarely saw the 2^nd Respondent when he was working for Ming Kee and he does not know the relationship between the Respondents.

The 1^st Respondent’s evidence

26.  It is the 1^st Respondent’s evidence that he “borrowed” Ming Kee from the 2^nd Respondent to take up the Optical Fibre Project in 2017. He agrees that Peng and the Applicant were employed by Ming Kee to work in the Optical Fibre Project. He also agrees that the workers employed by Ming Kee received wages on a daily rate and their wages were distributed through Peng.

27.  The 1^st Respondent says that the Optical Fibre Project was discontinued in 2018 because the company which hired Ming Kee to carry out the Project was unable to pay the fee and Ming Kee had to use its own money to pay all outstanding wages to its workers. After settling the outstanding wages, Ming Kee terminated the employment of all workers. Since then, Ming Kee has not employed any employee.

28.  As for the Monastery Project, the 1^st Respondent says that he learned in around 2018 that some renovation work needed to be carried out at the Monastery. At first, the 1^st Respondent helped in the Monastery Project as a volunteer without any pay. Later, the work demand of the Monastery Project increased and the abbot of the Monastery (“Abbot”) asked the 1^st Respondent to find other workers to help. The 1^st Respondent introduced Peng to the Abbot and the Applicant was one of the workers recruited by Peng to work in the Monastery Project.

29.  The 1^st Respondent further says that the workers who worked in the Monastery Project were hired by the Abbot and work instructions were given by the Abbot to them directly. The workers received wages every day. The Abbot gave the wages to a representative, who then distributed them to the workers. At first, the 1^st Respondent was the representative who collected the money from the Abbot and distributed to other workers through Peng.

30.  According to the 1^st Respondent, he did not receive any wages in the Monastery Project. However, he leased some machinery to the Monastery and got a rental fee. The cost of materials required for the Monastery Project was usually paid directly by the Abbot to the suppliers. Sometimes, if the amount involved was small, the 1^st Respondent and Peng would pay first and seek reimbursement from the Abbott later.

31.  In end 2019 or early 2020, the 1^st Respondent was busy with the Tin Shiu Wai Project and rarely went to the Monastery. By January 2020, the 1^st Respondent completely “withdrew” from the Monastery Project, and the person in charge of collecting wages from the Abbot was changed to Peng.

32.  The 1^st Respondent agrees that Peng and the Applicant also worked in the Tin Shiu Wai Project. However, he maintains that he had no employment relationship with them and they were self-employed in both the Monastery Project and the Tin Shiu Wai Project.

33.  On 13 February 2020, the Abbot informed Peng that there was work to be done at the Monastery and Peng asked the Applicant to go. The 1^st Respondent denies that he was the person who dropped the Applicant at the Monastery. According to the 1^st Respondent, it was Peng.

34.  In the witness statement, the 1^st Respondent says that it was the Applicant who invited him and Peng to have lunch at Lam Dei. Peng then asked his co-worker Li to drive the Car to the Monastery to pick up the Applicant whereas Peng and the 1^st Respondent set off from the site of the Tin Shiu Wai Project.

35.  Under cross-examination, the 1^st Respondent changes to say that it was Peng and him who decided to go to Lam Dei for lunch, and Peng invited Li and the Applicant. He admits that the mobile signal at the Monastery was weak and he did not know whether the Applicant received Peng’s call or not. However, he says that Li would inform the Applicant of the lunch gathering in any event when he arrived at the Monastery.

36.  The 1^st Respondent admits that he contributed part of the purchase price of the Car even though the Car was registered in Peng’s name.

37.  The 1^st Respondent accepts that the Form 2 submitted to the Labour Department on 8 October 2020 (“Form 2”) was signed by him and the company chop of Ming Kee was affixed by him. However, he says that he was not aware of the content of the Form 2. According to the 1^st Respondent, someone prepared the Form 2 and gave it to him. He did not read the document very carefully. After signing and affixing Ming Kee’s chop, he returned the document to the same person but he cannot recall who that person was.

38.  The 1^st Respondent also accepts that the Reply submitted to the Labour Department on 8 October 2020 (“Reply”) was signed by him and the company chop of Ming Kee was affixed by him.

39.  It was handwritten in the Reply that Ming Kee had withdrawn from the Monastery Project in January 2020. Since then, the Applicant and other workers had worked in the Monastery as self-employed[2]. It was also stated that Li left Ming Kee in September 2019 and was not an employee of Ming Kee at the time of the Accident[3].

40.  The 1^st Respondent says that, Like the Form 2, the Reply was not prepared by him and he was not aware of the content when he signed it. He says that the content of the Reply is incorrect in that Ming Kee never participated in the Monastery Project and Li ceased to be an employee of Ming Kee when the Optical Fibre Project was discontinued.

41.  As for the payment of $70,400 to the Applicant, the 1^st Respondent says that it was calculated on the Applicant’s work records kept by Peng and it was the Applicant’s wages in the South Horizons project (“South Horizons Project”). The 1^st Respondent denies that he was in default of paying the Applicant’s wages.

42.  The 1^st Respondent explains that the South Horizons Project was different from other projects in that the contract sum would only be due 6 months after the completion of the Project. All workers participating in the Project agreed to delay receiving their wages until the contract sum was received and to take the risk of not having their wages in full if the contract sum fell short. On the other hand, they would get extra money on top of the wages if the full contract sum was received.

43.  According to the 1^st Respondent, after the Accident, the Applicant said he was in need of money. Even though the 1^st Respondent had not received the contract sum of the South Horizons Project at that time[4], the 1^st Respondent agreed to pay the Applicant’s wages first. Since he did not have sufficient money, he needed to borrow $40,400 from Ming Kee and that was the reason why the second payment of $40,400 was paid by the Cheque.

The 2^nd Respondent’s evidence

44.  The 2^nd Respondent admits that the 1^st Respondent had the full authority to represent Ming Kee from 2017 to 2020 such as signing documents on behalf of Ming Kee, using Ming Kee’s company chop, operating the BEA Account, employing workers on behalf of Ming Kee, giving instructions to workers and paying their wages, etc.

45.  After the end of the Optical Fibre Project in 2018, Ming Kee became dormant but the 2^nd Respondent renewed its business registration every year hoping that Ming Kee might get new business. The BEA Account also continued to be operative with money coming in and out. He agrees that the BEA Account contained both his money and the 1^st Respondent’s money.

46.  At the request of the Abbot, he worked in the Monastery on a few occasions in his personal capacity. The Abbot gave work instructions to him and paid his wages directly.

47.  The 2^nd Respondent confirms that the $40,400 paid from the BEA Account was a loan borrowed by the 1^st Respondent. The 1^st Respondent did not tell him why he needed the loan and there was no discussion on when the 1^st Respondent would repay the loan.

48.  The 2^nd Respondent says that he has no knowledge about the Form 2 and the Reply.

Li Yong Jing’s evidence

49.  Li says that he was involved in the Optical Fibre Project, the Tin Shui Wai Project and the Monastery project but he was not sure whether he was an employee of Ming Kee as he followed his father to work into these projects.

50.  When he is shown the Reply during cross-examiantion, he accepts that he might have been an employee of Ming Kee. According to Li, he worked in the Optical Fibre Project until early 2019 and no one informed him that his employment with Ming Kee was terminated.

51.  On the day of the Accident, Li was working with his father in Yeung Uk Tsuen in Yuen Long. They finished the work in the morning and were prepared to go home because there was no work in the afternoon due to the rain in the morning. When they were on their way home, Li received a call from Peng. Peng invited Li and his father to have lunch at Lam Dei and asked Li to pick up the Applicant at the Monastery.

52.  Li arrived at the Monastery and helped the Applicant finish the work. The Accident occurred when they were on their way to Lam Dei. Li was not sure whether the Applicant would need to work in the afternoon.

LEGAL PRINCIPLES

53.  The legal principles for determining whether one was a contractor or an employee are well settled in Poon Chau Nam v. Yim Siu Cheung (2007) 10 HKCFAR 156. In essence, the Court should examine all the features of their relationship against the background of the indicia of employment with a view to deciding whether, as a matter of overall impression, the relationship was one of employment. This involves a nuanced and not a mechanical approach: painting a picture from the accumulation of detail. The indicia included the degree of control exercised by the “employer”; whether the person performing the services provided his own equipment; whether he hired his own helpers; what degree of financial risk he took; what degree of responsibility for investment and management he had; and whether and how far he had an opportunity of profiting from sound management in the performance of his task.

54.  The legal principles for assessing the credibility of a witness are also well settled. In general, the court should take into account, inter alia, the inherent probabilities or improbabilities of one’s testimony, the contemporaneous documents or any evidence tending to support or contradict one account or the other, and the overall impression of the characters and motivations of the witnesses : see In re B (Children) [2009] 1 AC 11 at §31.

55.  The following guidelines summarised by DHCJ Eugene Fung SC in Hui Cheung Fai v Daiwa Development Ltd, HCA 1734/2009, 8 April 2014 are instructive:-

“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).

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

79. In determining a witness’s credibility, I have also attached importance to the consistency of the witness’s 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).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised 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.”

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination …...”

CREBIDILITY OF WITNESSES

56.  The Applicant impresses me as a credible witness. He gives evidence in a straightforward manner and is unshaken under cross-examination.

57.  On the other hand, for the reasons that I will elaborate below, I do not find the 1^st Respondent’s evidence to be reliable. His evidence is often contradicted by documentary evidence and defies common sense.

58.  As far as the 2^nd Respondent is concerned, his evidence is of limited probative value as it is his own case that he was not involved in the business of Ming Kee and had no knowledge about it. So is Li’s evidence as his involvement is limited to the Car journey on 13 February 2020.

WHETHER THE APPLICANT WAS AN EMPLOYEE

59.  It is the Respondents’ pleaded case that the Applicant was an “outworker” within the meaning of section 2(1)(c) of the Ordinance and therefore he was not an employee for the purpose of section 2.

60.  The term “outworker” is defined in section 3 as “a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, or repaired, or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the materials or articles”.

61.  Mr Ng for the Respondents has not explained or elaborated how the Applicant’s patching holes on the wall in the Monastery on the date of the Accident fits the above definition.

62.  It is the 1^st Respondent’s evidence that the materials required for the Monastery Project were provided by the Abbot. It is also not disputed that the patching work was carried out in the Monastery, instead of the Applicant’s own home or other premises, and the Monastery was “under the control or management” of the Abbott. In my view, it is clear that the Applicant was not an “outworker”; see Li Chung I trading as Electric Trading Manufacturing Co v Li Man Yuen [1987] 3 HKC 120.

63.  Mr Ng also raises the concept of “Free Grouping Arrangement”. According to Mr Ng, the relationship between the Applicant and the Respondent were in the form “free grouping” arrangements without any intention to create any employment relationship. Under this “Free Grouping Arrangement”, a leader leads a loose collective labour pool of “members” who are frequently either relatives, entourages from the same native village in China where they come from, or long-standing workmates. The labour pool is comprised of a group of assorted workmen to bid for and compete for smaller jobs. The leader is not their employer because the leader’s only role is to liaise as a single point of contact with the job owner and the workers as well as to collect wages on behalf of the workers.

64.  It is trite that whether or not a person is employed under a contract of service is a mixed question of fact and law, and the relationship has to be determined by an investigation and evaluation of the factual circumstances in which the work is performed; see Lee Tin Sang v Chung Chi Keung [1990] 2 AC 374, 384. The fact that workers organize themselves in the manner described by Mr Ng does not necessarily mean that there is no employment relationship between the workers and the leader or the job owner. It all depends on the factual circumstances of the case.

65.  Under cross-examination, the 1^st Respondent says that the Applicant was one of the partners, rather than an employee, in the South Horizons Project. According to the 1^st Respondent, the owner of the Project would pay the project fee six months after the completion and all workers participating in the Project (including the Applicant) agreed to delay the receipt of their wages until after the payment of the project fee by the owner. They also agreed to bear the risk of not receiving their wages in full in the event of short payment of the project fee. However, the workers would receive extra money on top of their wages if the project fee was paid in full.

66.  Mr Ng has not made any submissions in his closing on the relevancy of this part of the 1^st Respondent’s evidence. I note that Mr Ng has not even cross-examined the Applicant on the South Horizons Project. On the other hand, it is the 1^st Respondent’s evidence that workers in the Monastery Project received wages on a daily rate only without any extra profit. Therefore, the Applicant’s role in the South Horizons Project has no bearing on the issue whether the Applicant was an employee in the Monastery.

67.  On the other hand, it seems to me that there is no dispute that when the Applicant was working in the Monastery Project on 13 February 2020:-

(1)  The Applicant received wages on a fixed daily rate;

(2)  The Applicant was asked by Peng, rather than by the Abbot, to work at the Monastery on 13 February 2020,

(3)  Transportation was provided to drop the Applicant at the Monastery for work and pick him up after work. The Applicant did not need to bear the cost of travelling;

(4)  The Applicant did not need to employ any worker to help him. Whilst Li did help the Applicant finish the work at the Monastery on the date of the Accident, there is no suggestion from Li or the Respondents that there was employment relationship between Li and the Applicant;

(5)  Apart from the risk of not receiving his wages, the Applicant bore no other financial risk in his work at the Monastery;

(6)  Apart from the agreed daily wages, the Applicant did not profit from the sound management of how he conducted his work in the Monastery;

(7)  The tools and equipment for the work were provided by the Monastery.

68.  Having considered the above features, I have no hesitation to reject the Respondents’ case that the Applicant was self-employed or an independent contractor in the Monastery Project. I find that the Applicant was an employee for the purpose of the Ordinance when he worked in the Monastery on 13 February 2020.

WHO WAS THE APPLICANT’S EMPLOYER

69.  Mr Fong for the Applicant submits in his closing that all the evidence points to the legal conclusion that the 1^st Respondent and the 2^nd Respondent were operating in partnership and therefore both of them were the Applicant’s employer.

70.  According to Mr Fong, the features that supports his conclusion include (a) both of them have free access to the BEA Account; (b) the 2^nd Respondent had total trust in the 1^st Respondent; (c) the 1^st Respondent soliciting projects (at least for the Optical Fibre Projects) which were carried out in the name of Ming Kee, evincing a common goal of business profit; (d) the 2^nd Respondent kept Ming Kee alive up to the date of the Accident and allowed the 1^st Respondent to represent Ming Kee; (e) both the 1^st Respondent and the 2^nd Respondent were responsible for dealing with the management and administration of Ming Kee; (f) the 1^st Respondent had actual and usual authority to look for business and new projects and make representation and agreements on behalf of Ming Kee; (g) the 1^st Respondent made declaration to the Labour Department on behalf of Ming Kee.

71.  With respect, I do not agree with Mr Fong. One of essential features of a partnership is that there must be a contract between the partners to engage in a business with a view to profit; see Yeung Wai Lun v Sin Suet Ping, HCA 1960/1993, 26 February 1996.

72.  In the present case, there is no evidence to show that there was a contract between the 1^st Respondent and the 2^nd Respondent to share the profit of Ming Kee. On the contrary, both Respondents testify that Ming Kee was “lent” by the 2^nd Respondent to the 1^st Respondent to conduct the latter’s business which the 2^nd Respondent had no involvement. I note that Mr Fong has not cross-examined the 1^st Respondent or the 2^nd Respondent about the sharing of profit of Ming Kee. At most, the evidence only shows that the BEA Account contained money belonging to both the 1^st Respondent and the 2^nd Respondent but there is no evidence of them sharing the money therein as profit. In fact, it is the 2^nd Respondent’s evidence that it was “messy” because their respective money was mixed in the Account. In my view, there is insufficient evidence to support Mr Fong’s contention that the 1^st Respondent and the 2^nd Respondent operated the business of Ming Kee in partnership.

73.  Having considered all the evidence, I am of the view that the Applicant was employed by Ming Kee to work in the Monastery on the date of Accident. The reasons are as follows.

74.  Firstly, I do not accept the 1^st Respondent’s evidence that Ming Kee never participated in the Monastery Project. His evidence is directly contradicted by the Reply (signed by him) which states that Ming Kee has withdrawn from the Monastery Project since 1 February 2020. In my view, it is simply against logic and common sense for Ming Kee to withdraw from the Project which it had never participated.

75.  Under cross-examination, the 1^st Respondent alleges that he was not aware of the content of the Reply when he signed the document and he cannot recall who gave the document to him to sign. At the end of the 1^st Respondent’s cross-examination, I ask him whether he can think of any person who might possibly have given the Reply to him to sign and the 1^st Respondent maintains his answer that he cannot recall. I find his evidence unbelievable.

76.  I note that the Reply contains the following printed words:-

“	回條
檔案編號：17-2020-14061
致：	勞工處僱員補償科（執行）第三分處
	新界荃灣西樓角路38號
	荃灣政府合署6字樓
本人/本公司未有於工傷意外發生/僱員因職業病而喪失工作能力後14日內向勞工處呈報的原因如下。現附上已填妥一式兩份的呈報表格以便 貴處跟進。”

77.  It is admitted by the 1^st Respondent that he had worked in the construction field for more than 20 years and he had handled work-related accidents before. In my view, even a quick glance of the Reply would reveal that it was a document to be submitted to the Labour Department for employment-related accident. Coupled with the Applicant’s unchallenged evidence that he had asked the 1^st Respondent in late February 2020 about reporting the Accident to the Labour Department, I find it unbelievable that the 1^st Respondent would have just signed the document and affixed Ming Kee’s company chop on it without looking at the content of the Reply.

78.  Further, I note that the reference number on the Reply is the same as the one shown on the Notification (ie 17-2020-14061). The inference to be drawn is that, after the Labour Department had received the Notification from the Applicant, it prepared the blank Reply and sent it to Ming Kee for enquiry.

79.  It is also reasonable to infer that the blank Reply must have been sent to the Ma On Shan Address in accordance with the information provided in the Form 2. Despite his allegation of having no knowledge about the Form 2 and the Reply, the 2^nd Respondent confirms that the Ma On Shan Address was his residential address. The blank Reply must have been successfully delivered to the Ma On Shan Address for otherwise it would not have been submitted to the Labour Department later on 8 October 2020. It is also the 2^nd Respondent’s evidence that the 1^st Respondent had the full authority to represent Ming Kee even up to 2020. Therefore, when the 2^nd Respondent received the letter from the Labour Department addressing to Ming Kee, one would expect him to pass it to the 1^st Respondent for further handling. It is inherently improbable that the 2^nd Respondent would by-pass the 1^st Respondent and give the blank Reply to another person who then prepared the content and asked the 1^st Respondent to sign.

80.  Secondly, the 1^st Respondent’s evidence that Ming Kee never participated in the Monastery Project is also inconsistent with his conduct of acting as the representative to collect wages on behalf of the worker whom, he claims, to be self-employed.

81.  In Feng Jianzhu v Ho Sze Yee [2021] HKDC 1355[5], Deputy District Judge Charles Wong observed §68 that:-

“Payment of wages and collection of payment of wages would in normal circumstances be a matter between the worker and the employer. I find it illogical for R1 to have assumed the responsibility of paying the Applicant’s wage had he been a co-workers or a mere go-between. I find R1 paying the Applicant’s wages in this case shows that R1 was not just an intermediary and co-worker, but was more consistent with the practice of an employer”.

82.  In my view, the same observation applies to the 1^st Respondent in the present case. I find it illogical for the 1^st Respondent to take the trouble to collect the wages from the Abbot and passed it to Peng for distribution to workers when he had allegedly no interest in the Monastery Project, apart from leasing machinery to the Monastery. If the workers who worked in the Monastery were recruited by the Abbot directly as alleged, there was no reason why the wages could not have been paid directly by the Abbot to the workers, just like the case of the 2^nd Respondent. The 1^st Respondent’s conduct of collecting wages on behalf of the workers supports the conclusion that Ming Kee did participate in the Monastery Project.

83.  Thirdly, I do not accept the 1^st Respondent’s evidence that Ming Kee went dormant after the end of the Optical Fibre Project. It is not disputed that the business registration of Ming Kee was renewed every year after 2018. It is also not disputed that the 1^st Respondent still kept the company chop of Ming Kee and remained one of the authorized signatories of the BEA Account at least up to 2022.

84.  More importantly, it is the 2^nd Respondent’s evidence that the BEA Account was still operative after 2018 with money coming in and out. The BEA Account is Ming Kee’s business account and one would expect that only money belonging to Ming Kee (such as cheques payable to Ming Kee) would be deposited into the Account. According to the 1^st Respondent, the only project that Ming Kee had participated is the Optical Fibre Project but the company which hired Ming Kee to carry out the Project had failed to pay the fee. Therefore, Ming Kee should not have had any income after the end of the Project. In such circumstance, why there was still money going into the BEA Account and there was still at least $40,400 kept therein in May 2020? In my view, the inference to be drawn from the above evidence is that Ming Kee remained active in carrying out its business after 2018.

85.  Fourthly, I do not accept the 1^st Respondent’s evidence that the Applicant’s employment was terminated after the end of the Optical Fibre Project. There is no evidence from the 1^st Respondent that he had informed the Applicant or any employee about the termination of the employment. In fact, Li, who admittedly also worked in the Optical Fibre Project, was not aware of the alleged termination of employment.

86.  Moreover, it is the Applicant’s unchallenged evidence that he had mainly been assigned to work in the Monastery Project since December 2017 but also helped in the Optical Fibre Project. In other words, there was overlapping between the Optical Fibre Project and the Monastery Project. In my view, it was against commercial sense for Ming Kee to terminate the employment of all workers at the end of the Optical Fibre Project when the Monastery Project was still on-going.

87.  By reason of the aforesaid, I find that the Applicant had been employed by Ming Kee since 2017 to work in various projects (including the Monastery Project and the Tin Shui Wan Project) and he remained an employee of Ming Kee when he worked in the Monastery on the date of the Accident.

88.  It is not disputed that the 2^nd Respondent was the sole proprietor of Ming Kee at all material times. It is also not disputed that the 1^st Respondent had been authorized by the 2^nd Respondent to use Ming Kee to take up the projects. Therefore, regardless of whether the 2^nd Respondent was personally involved in the business of Ming Kee or not, the 2^nd Respondent was liable for the Applicant’s employees’ compensation claim.

WHETHER THE ACCIDENT OCCURRED ARISING OUT OF AND IN THE COURSE OF THE APPLICANT’S EMPLOYMENT

89.  The main dispute between the parties is whether the purpose of the Car journey was to bring the Applicant to Lam Dei for lunch (as alleged by the 1^st Respondent) or to bring him to the site of the Tin Shui Wai Project to work in the afternoon (as alleged by the Applicant).

90.  I prefer the Applicant’s evidence. Firstly, the 1^st Respondent’s evidence on who initiated the lunch gathering at Lam Dei is confusing. As indicated above, he says in his witness statement that it was the Applicant who invited him and Peng to have lunch at Lam Dei for lunch. Under cross-examination, the 1^st Respondent changes to say that it was Peng and him who decided to go to Lam Dei for lunch, and invited the Applicant. The 1^st Respondent has not provided an explanation for the stark differences between his witness statement and oral testimony. The lunch in Lam Dei plays an important part in the Respondents’ case and the 1^st Respondent’s last-minute change of evidence has seriously undermined his credibility.

91.  Secondly, there is no evidence to show that the Applicant and the 1^st Respondent/Peng were personal friends and they had previously gathered for meals during leisure time. As confirmed by Li, it was the Applicant’s habit to bring lunch to work. In other words, the Applicant used to have lunch by himself, instead of joining the 1^st Respondent and Peng, even when they were working in the same site. The 1^st Respondent and Peng must have known the Applicant’s habit and it is unlikely, in my view, that they would invite the Applicant for lunch at Lam Dei. It is also unlikely that the Applicant would accept the invitation if he knew that there would be no work in the afternoon, bearing in mind that he was then living in Kwun Tong.

92.  Thirdly, I find it unbelievable that Peng would ask Li to go the Monastery to pick up the Applicant for lunch without confirming with the Applicant whether he would accept the invitation or not bearing in mind that the Applicant had the habit of bringing his own lunch. It would be a waste of time and petrol if the Applicant turned down the invitation when Li arrived the Monastery. On the other side, Peng’s conduct makes perfect sense if the purpose of picking up the Applicant at the Monastery was to bring him to work in the Tin Shiu Wai Project in the afternoon because the Applicant could not refuse the instructions.

93.  By reason of the aforesaid, I find that the purpose of the Car journey was to bring the Applicant to the Tin Shiu Wai Project for work.

94.  For the sake of completeness, even assuming that I were wrong and the Car journey was for the Applicant’s “private agenda” as alleged by the Respondents, I am of the view that the Accident was one arising out of and in the course of the Applicant’s employment by reason of section 5(4)(d) of the Ordinance.

95.  Section 5(4)(d) provides that for the purpose of the Ordinance:-

“an accident to an employee shall be deemed to arise out of and in the course of his employment if it happens to the employee while he is, with the express or implied permission of his employer, travelling as a passenger by any means of transport to or from his place of work and at the time of the accident, the means of transport is being operated—

(i) by or on behalf of his employer or by some other person pursuant to arrangements made with his employer; and

(ii) other than as part of a public transport service” (emphasis added)

96.  It is important to note that there is no requirement for the destination of the journey in section 5(4)(d). The presumption will arise as long as the journey is “to or from his place of work”. It does not matter whether the journey is for personal purpose (such as bringing the employee to lunch or home) or work purpose (such as bringing the employee to another place of work). This is contrasted with section 5(4)(f) where the presumption only arises if the employee “is travelling between his place of residence and his place of work”.

97.  In the present case, there is no dispute that (a) the Applicant was travelling as a passenger at the time of the Accident; (b) the Car journey was from his place of work, ie the Monastery.

98.  I have already found that Ming Kee was the Applicant’s employer when he worked in the Monastery on the date of the Accident and there is no dispute that the 1^st Respondent still had the authority to represent Ming Kee at that time. For the purpose of section 5(4)(d), I further find that Peng was still employed by Ming Kee as a foreman on the date of the Accident and the Car was arranged pursuant to the arrangements between Peng (on behalf of Ming Kee) and Li which was not part of the public transport service. By reason of the aforesaid, I am satisfied that the presumption arises and the Accident is deemed to arise out of and in the course of employment.

99.  It is Mr Ng’s submissions that section 5(4)(d) does not apply because the Respondents were not the Applicant’s employer. Given my finding that Ming Kee was the Applicant’s employer, it follows that Mr Ng’s submissions cannot get off the ground.

100.  As the Respondents have not been able to adduce evidence to rebut the presumption, I find that, by operation of section 5(4)(d), the Accident was one arising out of and in the course of the Applicant’s employment with Ming Kee.

INJURIES AND TREATMENTS

101.  After the Accident, the Applicant was taken to the Accident & Emergency Department of Yan Chai Hospital. Examination showed 1.5 cm diameter swelling over the forehead. There was tenderness over the neck and decreased range of movement. X-ray of cervical spine showed mild spondylolisthesis at C6/7 and C7/T1. He was given a neck collar and referred to the Department of Orthopaedics & Traumatology.

102.  Physical examination on admission to the Department of Orthopaedics & Traumatology showed neck tenderness with upper limbs weakness. There was evidence of cervical myelopathy. There was diffuse tenderness on both hands. CT cervical spine showed C6 fracture with posterior column involvement and intact anterior / middle column. He was treated conservatively with a neck collar.

103.  The Applicant showed progressive improvement during subsequent follow-ups. At the consultation on 13 January 2021, his neck pain was improving. MRI showed mild stenosis at C-spine with cord signal change. He also had knee pain and x-ray showed mild degeneration.

104.  From October 2021 to January 2022, the Applicant attended 25 sessions of work hardening programme in Prince of Wales Hospital and showed positive progress after training. In view of the residual limitation, he still had certain difficulty to return to his pre-accident job. As the Applicant planned to retire, service was stopped and he was discharged on 10 January 2022.

105.  According to Form 7, the MAB diagnosed that the Applicant suffered from neck injury resulting in (a) residual neck pain and neck stiffness (1.5%); and (b) upper limb numbness and weakness (2.5%). MAB considered that the period of absence from duty necessary as a result of the injury should be from 13 February 2020 to 25 July 2022 and the loss of earning capacity permanently caused by the injury should be 4%.

EXPERTS’ OPINIONS

Dr Kenric Lau

106.  Dr Lau examined the Applicant on 6 October 2022. The Applicant complained of (a) bilateral hand weakness; (b) bilateral leg weakness; (c) finger cramps; (d) reduced ability of carrying weight. The Applicant was able to manage the activities of daily living with adjustment and could use transportation.

107.  It is Dr Lau’s diagnosis that the Applicant suffered (a) acute whiplash injury of the neck; (b) fracture lamina of C6 with central cord syndrome (spinal cord injury at C6 level); (c) pre-existing mild cervical spondylosis.

108.  Dr Lau takes the view that the Accident is the sole cause of the acute injury of the neck, fracture of C6 and central cord syndrome which would lead to pain and stiffness of neck with numbness and weakness of the upper and lower limbs. The pre-existing cervical spondylosis is not related to the Accident but would be exacerbated during the acute sprain injury and led to the residual pain.

109.  Dr Lau considers that sick leave granted up to 28 July 2022 is adequate and reasonable.

110.  Dr Lau opines that due to the weakness of limbs and poor endurance, it would be unsafe for the Applicant to resume his pre-accident duty. Dr Lau recommends 6% Whole Person Impairment be given to the Applicant as related to the Accident. Considering the Applicant’s job demand, status before injury, severity of injury and the present status, Dr Lau recommends “1 to 6% loss of earning capacity in view of his orthopaedic injury permanently related to the accident”.

Dr Tsang Kin Lun

111.  Dr Tsang examined the Applicant on 10 October 2022. The Applicant complained of (a) persistent tingling (paresthesia) of both thumbs and both index fingers with moderate severity; (b) weakness and clumsiness of both hands; (c) walking endurance being limited to 20 minutes for level ground due to leg weakness; (d) low mood and loss of interest. The Applicant said the limb weakness and tingling had limited his activities of daily living. He could not carry heavy objects or walk for long.

112.  It is Dr Tsang’s diagnosis that the Applicant suffered head and neck injury in the Accident. The Applicant has no residual symptom referrable to the brain which means that the initial concussion was mild and resolved. For the neck injury, the Applicant suffered fracture of single segment at C6. The current symptoms are from cervical myelo-radiculopathy. He has been suffering from persistent weakness of hand muscles with sensory disturbance, leading to loss of dexterity and impaired fine motor skills. Other complaints are weakness of both legs, loss of balance at times and reduced endurance of mobility. These have changed and limited his advanced daily activities. Dr Lau estimates that the Whole Person Impairment is 20%.

113.  Insofar as the Applicant’s working capacity is concerned, his muscle weakness, loss of dexterity and lack of endurance would impact his performance. His previous duty in construction sites required high intensity manual work and intact balance. He is unable to return to his previous job and the loss of earning capacity is estimated to be 30%.

114.  Dr Tsang considers that sick leave up till the expert report, ie 24 October 2022, is appropriate.

APPEAL UNDER SECTION 18

Legal principles

115.  The legal principles governing appeal under section 18 is well settled. The Court’s approach is to start afresh, relying not only on the certificate of the Board but also on any other evidence, especially medical evidence, adduced before it to assess the loss of earning capacity permanently caused by the injury suffered in an accident at work; Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246.

116.  The relevant consideration is not the seriousness of the injuries but the effect of the injuries on the earning ability of the injured employee; Yung Chi Man v Tang Kan Fu t/a Yun Shing Motor Service, DCEC 770/2004, 6 February 2006.

Discussion

117.  Mr Fong submits in his closing that the assessment in Form 7 and by Dr Lau have not taken into account (a) weakness in the lower limbs; (b) poor endurance in walking and poor dexterity in hands; (c) central cord syndrome; (d) myelo-radiculopathy; (e) intervertebral disk hemiations and/or alteration of motion segment integrity; (f) structural damage of the neck spines. Mr Fong invites the Court to accept Dr Tsang’s assessment and allow the appeal.

118.  However, Mr Fong does not only urge the Court to accept Dr Tsang’s estimate of 30%. Mr Fong also asks the Court to add the highest end of Dr Lau’s estimate (ie 6%) to Dr Tsang’s estimate and adopt the aggregate percentage of 36% for the purpose of section 9.

119.  With respect, Mr Fong’s approach is flawed. It is self-contradictory to, on one hand, allege that Dr Lau has failed to consider certain conditions of the Applicant when he assessed the Applicant’s loss of earning capacity and, on the other hand, ask the Court to adopt the highest end of his assessment.

120.  Further, it appears to me that the conditions that Mr Fong says Dr Lau has missed out relate to injuries and symptoms. As mentioned above, the relevant consideration is not the seriousness of the injuries but the effect of the injuries on the earning ability of the injured employee.

121.  It is Mr Ng’s submissions that the assessments of Dr Lau and Dr Tsang are “mile away” and this calls for explanation. I find force in Mr Ng’s submissions. The examinations by the two experts took place within a week’s time[6] and it is puzzling why their assessments are so different.

122.  I note that Dr Lau’s assessment (1-6%) is comparable to that in Form 7 (4%). It is Dr Tsang’s assessment which is “at odds” with the assessment made by Dr Lau and the MAB. However, save for saying that the Applicant’s “muscle weakness, loss of dexterity, and lack of endurance would impact his performance” and his “previous duty in construction sites required high intensity manual work and intact balance”, Dr Tsang has not explained why his assessment is so much higher than Dr Lau and the MAB. In the absence of explanation, I cannot accept Dr Tsang’s even though the Respondents have not adduced any expert evidence.

123.  Insofar as Dr Lau’s assessment is concerned, its medium (ie 3.5%) is even lower than the assessment in Form 7.

124.  By reason of the aforesaid, I am not satisfied with the evidence adduced by the Applicant and would dismiss the Applicant’s appeal against Form 7.

COMPENSATION

Section 9

125.  The Applicant was 63 years old at the time of the Accident. The applicable multiplier is 48.

126.  It is the Applicant’s case that his income for the month immediately preceding the Accident was about $15,950 and his average income during the 12 months prior to the Accident was about $16,581.

127.  In his witness statement, the Applicant listed out his monthly incomes from January 2019 to February 2020. The Applicant also produces copies of monthly calendars on which the workdays were marked. The Applicant’s evidence on pre-accident income is not challenged by Mr Ng.

128.  Based on the Applicant’s evidence, his total income from February 2019 to January 2020, being the 12 months periods prior to the Accident, was $197,525 which is equivalent to $16,460 per month. Since the 12-month average income average is higher than the income in January 2020 (ie $15,950), I adopt the former, which is more favourable to the Applicant, in the assessment.

129.  Alternative to the appeal against Form 7, Mr Fong urges the Court to adopt “paper mills” formula when assessing the compensation under section 9.

130.  In Kwan Yee Chor v Hung Fau Metal Construction Co Ltd [2002] 2 HKLRD 768. In that case, although the Applicant’s injuries might not appear to be serious, he could not return to his pre-accident job which involved great physical demands, and he had little education and other special skills. The loss of earning capacity assessed by the MAB and expert were 6% and 8% respectively. His Honour Judge Lok (as he then was) said at paragraph 11 that:-

“…In my judgment, there is ample justification for this court to invoke s 9(1A) of the Ordinance and to assess a higher loss of earning capacity. The injuries suffered by the Applicant may not appear to be very serious. However, as the Applicant's pre-accident job would involve a great physical demand on the use of the right wrist, both for the welding operations and the other ancillary tasks such as moving various heavy metal objects in the work sites, the Applicant certainly cannot return to his former employment. Coupled with the fact that the Applicant has only received little education and he does not possess other special skills apart from working as an iron-work worker, the percentage of loss of earning capacity assessed under s. 9(1) of the Ordinance would be substantially less than the percentage of actual loss of earning capacity suffered by the Applicant. Based on the aforesaid, I allow the Applicant's appeal and assess the compensation for permanent partial incapacity in accordance with the provisions contained in s.9(lA) of the Ordinance and the formula laid down in Hong Kong Paper Mills Ltd v Chan Hi Wu [1981] HKLR 556, which was later modified in Lui Kwong Yan v Shui Hing Decoration Works & Anr [1993] 1 HKLR 168….”

131.  I am of the view that the Applicant’s situation is similar to that in Kwan Yee Chor. Both Dr Lau and Dr Tsang opines that the Applicant is unable to return to his pre-accident job because of the residual disabilities caused by the Accident. He has never received any formal education and can only read or write simple Chinese. He had been working as a construction worker since 2006 and has no other skills. Taking also into account the Applicant’s agree, I agree that, because of the Applicant’s disability and limitation in work capacity, he would likely be the first one to lose his job (if he is able to find one) in the event of any downturn in the economy: Mak Tin Chun v Yeu Sing Construction Co Ltd [1991] 2 HKLRD 460, at 466I.

132.  Whilst employment prospect is a relevant consideration for assessing one’s earning capacity, the two are not to be equated. Instead of focusing on the Applicant’s prospect of employment, it is more pertinent for the Court to ask, for the purpose of s 9 and s 9(1A), to what extent, if any, the employee concerned is capable of being gainfully employed in an alternative employment which he was capable of undertaking at the time of the accident and what is the difference in earning capacity as a result of the injury; Lau Tat Wai v Ma Kim Chuen previously trading as Hop Tai Co, DCEC 629/2012, 13 June 2013, §19.

133.  Evidence shows that the Applicant attended a security guard training course in November 2020 and successfully obtained a security personnel permit in December 2020. Although the Applicant’s experts have not made any recommendation on the alternative employment, I note that the Applicant’s working capacity is mainly affected by his poor endurance and inability to meet the high physical demand. I take the view that security guard is a suitable job for the Applicant.

134.  According to the Quarterly Report of Wage and Payroll Statistics (for June 2020), the average income of male building attendant/guard was $13,571. When compared with the Applicant’s pre-accident income, I agree that the assessment in both the Form 7 (ie 4%) and by Dr Lau (ie 1-6%) are substantially less than the percentage of loss and this is an appropriate case to invoke section 9(1A). Adopting the average income of $13,571, the compensation under section 9 is assessed as follows:-

$16,460 x 48 x ($16,460 - $13,571)/$16,460 = $138,672

Section 10

135.  The sick leave period endorsed by the MAB (ie up to 25 July 2022 or 894 days) and Dr Lau (ie up to 28 July 2022 or 897 days) are almost the same. Dr Tsang however suggests that sick leave should be granted up to the date of his report (ie 24 October 2022 or 985 days). Once again, it is Dr Tsang who is “at odds” with Dr Lau and the MAB. In light of my comments on Dr Tsang’s opinion on loss of earning capacity, I have reservation on his opinions on sick leave period as well.

136.  As I have dismissed the Applicant’s appeal against Form 7, I would adopt MAB’s assessment and assess the compensation under section 10 as follows:-

$16,460 x 894/30 x 4/5 = $392,406

Section 10A

137.  The Applicant’s claim under section 10A is $5,005. The claim is not challenged by the Respondents and I allow it in full.

Summary of assessment

138.  The total amount of compensation is therefore:-

Section 9:	$138,672
Section 10:	$392,406
Section 10A:	$5,005 ________
Total	$536,083 =======

139.  It is accepted by the Respondents that the payment of $70,400 is unrelated to the Accident and therefore no credit should be given to the said sum.

ORDER

140.  I therefore order that:-

(1)  The 2^nd Respondent do pay the Applicant the sum of $536,083 with interest at half of the judgment rate from the date of the Accident to the date of judgment and thereafter at the judgment rate until payment; and

(2)  The Applicant’s claim against the 1^st Respondent be dismissed.

141.  Having considered the circumstances of the case, I am of the view that it is reasonable for the Applicant to sue the 1^st Respondent. I therefore make the following costs order nisi that:-

(1)  The 2^nd Respondent do pay the Applicant’s case of the Application (including the costs of the Applicant’s claim against the 1^st Respondent), with certificate for counsel, to be taxed if not agreed;

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

142.  The above costs order nisi shall become absolute in the absence of application to vary within 14 days.

143.  Lastly, I thank both Mr Fong and Mr Ng for their assistance in this matter.