WONG PING KUN v. LIANG ZHI WEI AND ANOTHER

DCEC 1538/2023

[2026] HKDC 1418

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1538 OF 2023

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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A. INTRODUCTION

1.  This is the trial of the Employees’ Compensation Application brought by the Applicant, Mr Wong Ping Kun (“the Applicant”), pursuant to sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“ECO”) in respect of personal injuries which he alleges were sustained in an accident (“the Accident”) on 3 August 2021 at a metal recycling facility situated at the Remaining Portion of Lot No 4, DD 134, Lung Kwu Tan, Tuen Mun, New Territories (“the Site”).

2.  In brief, the Applicant’s case is that, at the material time, he was employed by the 1^st Respondent, Mr Liang Zhi Wei (“R1”), as a forklift truck driver, and that the Accident arose out of and in the course of that employment. As a result of the Accident, the Applicant sustained severe bilateral lower-limb injuries, including open fractures of both ankles and a subsequent left below-knee amputation.

B. BACKGROUND

3.  The following background facts are undisputed or cannot reasonably be disputed on the evidence before the Court.

B1. The Accident

4.  The Applicant, born on 6 August 1958, was 62 years old at the time of the Accident. He had been working as a forklift truck driver performing manual labour at the Site. He brought no tools or equipment of his own to the Site.

5.  The Site was a metal recycling facility and the Applicant worked there as a forklift truck operator in the weeks leading up to the Accident. The forklift truck he used was provided at the Site.

6.  On 3 August 2021, at around 10:00 am, the Applicant was instructed to transport a bundle of metal waste into a container using a forklift truck.[1] After completing the task, he parked the forklift in front of the container and stepped onto the unloading platform to take photographs of the completed work.

7.  While he was doing so, the unattended forklift truck suddenly moved forward. An iron plank placed on the fork pushed the Applicant towards the container, trapping and crushing both of his lower legs between the iron plank and the container.[2]

8.  The Applicant was taken by ambulance to Tuen Mun Hospital on the same day. The Labour Department’s accident investigation documents and the medical records also corroborate that the Accident occurred at the Site on that date.

B2. Injuries and Medical Treatment

9.  The Applicant sustained severe bilateral lower limb injuries in the Accident. The Single Joint Expert Report of Dr Arthur Chiang (“Dr Chiang”) dated 23 January 2025 (“SJE Report”) and the findings are not in dispute. In summary: [3]

9.1 The Applicant suffered an open fracture-dislocation of the left ankle with comminuted fractures of the left foot, accompanied by complete transection of the posterior tibial artery and thrombosis of the dorsalis pedis artery, resulting in acute vascular compromise.

9.2 He also sustained an open fracture of the right ankle, with a 2 cm open wound over the distal fibula and fractures of the distal tibia, fibula, and medial malleolus.

9.3 Despite attempted revascularisation on 3 August and again on 5 August 2021, the left foot developed progressive gangrenous change, with loss of sensation and poor arterial opacification on CT angiogram. A left below-knee amputation was performed on 20 August 2021.[4]

9.4 The right ankle fracture was treated initially by external fixation on 3 August 2021, followed by open reduction and internal fixation (ORIF) with plates and screws on 20 August 2021. Post-operative imaging confirmed fracture union and satisfactory implant positioning.[5]

9.5 Following discharge on 8 November 2021, the Applicant commenced a prolonged course of prosthetic rehabilitation. He experienced recurrent stump abrasions, particularly after prolonged walking, requiring repeated socket adjustments and self-managed dressings.[6]

9.6 He attended 20 sessions of outpatient physiotherapy between November 2021 and September 2022. Initial assessments recorded significant pain, limited walking tolerance (15 minutes with frame), and restricted right ankle range of motion. By discharge, his walking tolerance had improved to 20 minutes with a stick, and right ankle motor power had returned to grade 5, though tenderness persisted over the talofibular and deltoid ligaments.[7]

9.7 He also attended occupational therapy between September and October 2022. Work simulation revealed pain on right-foot pedalling, limited standing and walking tolerance (5 minutes), and restricted ankle dorsiflexion. He was assessed as not matching his pre-injury job demands due to bilateral lower limb weakness, limited ankle range of motion, and inadequate functional tolerance.[8]

9.8 At the time of Dr Chiang’s examination on 7 November 2024, the Applicant continued to experience on-and-off stump pain (NPRS up to 6/10), recurrent stump abrasions after prolonged walking, and daily right ankle pain exacerbated by walking and weather changes. His walking tolerance was 15-30 minutes, and he required a stick for outdoor activities.[9]

9.9 On physical examination, the Applicant walked with a mild limp and slow gait, could stand single-legged on the right, and demonstrated satisfactory stump contour without neuroma tenderness. Right ankle range of motion remained limited, particularly inversion and eversion. X-rays confirmed a united trimalleolar fracture with implants in satisfactory position and preserved joint spaces.

9.10 Dr Chiang concluded that the Applicant had reached maximal medical improvement, with permanent functional limitations arising from the left below-knee amputation and residual right ankle deficits. These findings formed the basis of his assessment of permanent loss of earning capacity.[10]

B3. Procedural History

10.  The Applicant commenced these proceedings against R1 on the basis that he was the employer responsible under the ECO. No Answer was ever filed by R1.

11.  R1 has taken no part in these proceedings. No Answer was filed by him and he did not attend the trial notwithstanding service effected by the Applicant’s solicitors.

12.  The 2^nd Respondent, the Employees Compensation Assistance Fund Board (“the Fund Board” or “R2”), was joined to the proceedings by order of HH Judge Levy dated 30 May 2024 pursuant to section 25A of the Employees Compensation Assistance Ordinance (Cap 365) (“ECAO”).[11] The Fund Board does not admit the Applicant’s case and puts him to strict proof, particularly on the identity of his employer and the nature of the alleged employment relationship.[12]

13.  The trial took place before me on 27 January 2026. I am satisfied that R1 was notified of the proceedings and the trial date, and that the trial proceeded in his absence. The parties further filed their respective written closing submissions on 30 January 2026.

B4. Core Issues for Determination

14.  It is common ground that the Accident occurred on 3 August 2021 and that the Applicant sustained the injuries described in the medical evidence. Having considered the submissions of counsel, the core issues that fall for my determination are as follows:

14.1 Whether the Applicant was an employee at the material time of the Accident.

14.2 If so, whether R1 was the Applicant’s employer.

14.3 If the Applicant was employed but not by R1, what consequences follow, including whether any judgment may be entered against the Fund Board.

14.4 If liability is established, what compensation is payable under sections 9, 10 and 10A of the ECO.

C. THE APPLICANT’S CREDIBILITY AND EVIDENCE

15.  The Applicant was the only factual witness who testified at trial. R1 did not appear and did not call evidence. R2 likewise called no factual witness.

16.  The Applicant adopted his witness statement dated 16 February 2025 as his evidence-in-chief. He confirmed that the contents had been read to him before signing, and that he understood the statement. His evidence was that he had been referred by a former colleague 吳世源 (“Ng”) to work as a forklift truck driver at a metal recycling facility at the Site. He said he worked there daily, received instructions from persons present at the Site, and operated a forklift truck provided there. He brought no tools or equipment of his own.

17.  As to the Accident, the Applicant stated that after loading metal waste into a container, he parked the forklift truck in front of the container and stepped onto the unloading platform to take photographs of the completed work. While doing so, the forklift truck suddenly moved forward, pushing him against the container and crushing both ankles, ultimately resulting in a left below-knee amputation.

18.  The Applicant was cross-examined at length by Mr Shek, counsel for the Respondent. I note that his answers on certain matters were at times hesitant or unclear, and he occasionally stated that he could not remember or did not fully understand the questions put to him. While the Applicant’s position was that any such difficulties reflected his age, limited education, and the after-effects of the Accident rather than any intention to mislead, these features nevertheless affected the reliability of his evidence. In particular, he gave differing answers as to when he first heard of R1’s name, whether he had been in contact with his colleague Ng after the Accident, and who had provided information for the Labour Department declarations. He frequently stated that he could not remember or did not understand the questions put to him. A number of areas emerged in which the Applicant’s evidence during cross-examination was not consistent and his evidence was far from clear:-

18.1 As highlighted by the Fund Board[13], it is noted that the Applicant gave several different accounts as to when he was told that R1 was his employer, eg

18.1.1 In his witness statement[14], the Applicant claimed that he learnt that R1 was his employer after the Accident.

18.1.2 In his solicitors’ letter[15], it was suggested that Ng told the Applicant about the identity of [R1] as well as his contact information after the Accident.

18.1.3 During cross-examination, he claimed that Ng had first mentioned R1 when Ng introduced him to the job over the phone before the Accident. When the court sought to clarify with him, he confirmed again that he knew that R1 was the employer before the Accident.

18.1.4 In the cross-examination and re-examination, he, however, claimed that his partner at work (「拍檔」) told him that R1 was his employer only after the Accident.

18.1.5 When further cross-examined, he once said he still did not know who his employer was, even on 6 August 2021. These differing accounts were explored extensively during cross-examination.

18.2 In relation to whether he had any contact with Ng after the Accident, under cross examination the Applicant initially stated that he had no contact with Ng.[16] When shown the letter from his own solicitors dated 24 May 2024, which recorded information said to have been provided by Ng after the Accident, he then altered his evidence and said he could not remember whether any such contact had taken place.

18.3 As to who provided the employer information appearing in the Notification of Accident and the Labour Department declarations[17], again the Applicant gave varying answers under cross-examination. He said at different times that the doctor had filled in the forms and those R1’s information therein was also provided by the doctor. Later on, he then said that it was Ng who had supplied the information. When asked how he knew Ng had provided the information, he said he did not know.

18.4 When asked whether he knew who the forklift truck belonged to, he first suggested that it belonged to R1. When Mr Shek suggested to him that the licence plate on the Forklift Truck was actually registered under another vehicle of Ng[18], and the Court asked about the basis of his belief, the Applicant then said he could not remember.

18.5 In relation to “Miss Huang” who allegedly paid him salary via bank transfer[19], he first said he believed she was R1’s staff, but when he was questioned about the basis of his belief, the Applicant just said that he “could not remember” and that he could not explain the basis of his belief beyond the appearance of deposits made into his bank account.

19.  Throughout the cross-examination, the Applicant at times had difficulty understanding certain questions, and on a number of occasions responded that he could not remember matters put to him. Even when the Court sought to clarify or simplify the questions, he often maintained that he was unable to comprehend or recall the matters raised. By the conclusion of his evidence, his answers frequently consisted of assertions of forgetfulness or inability to understand. Mr Shek submitted, and I agree, that these features were consistent with the Applicant being an evasive witness.

D. ANALYSIS AND FINDINGS

D1. Liability

D1.1 Issue 1 - Whether the Applicant was an employee at the material time

20.  The first question is whether, at the time of the Accident on 3 August 2021, the Applicant was working as an employee rather than as an independent contractor or volunteer.

21.  The applicable approach is well-established. In Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156, Ribeiro PJ emphasised that the Court must examine all the features of the relationship and form an overall evaluative impression, bearing in mind the purpose for which the question is asked. The indicia commonly considered include the degree of control, provision of equipment, financial risk, opportunity for profit, integration into the alleged employer’s business, and the parties’ own understanding of the relationship.

“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 & Another, [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.’” [20]

22.  The Fund Board did not contend that the Applicant was an independent contractor. As I understand, its case was that the Applicant had failed to prove who his employer was, and that without identifying the employer, the indicia of employment could not be meaningfully applied. The Fund Board did not suggest that the Applicant was working on his own account, nor that he bore any financial risk or had any opportunity to profit from sound management.

23.  Having considered the evidence as a whole, I am satisfied that the Applicant was working as an employee at the material time. I take into account the following:-

23.1 The Applicant’s uncontradicted evidence was that he received daily instructions at the Site on what tasks to perform, including the movement of metal waste and the operation of the forklift truck. He did not decide what work to undertake, when to undertake it, or how it should be carried out. His role was plainly subordinate.

23.2 The Fund Board did not suggest that the Applicant exercised any autonomy over the manner or timing of his work. There is no evidence that he negotiated the scope of work, set his own hours, or had discretion to refuse tasks. This points towards employment.

23.3 The Applicant brought no tools or equipment of his own. The forklift truck was provided at the Site. The Fund Board did not suggest otherwise. The provision of essential equipment by the putative employer is a recognised indicator of employment.

23.4 The Applicant was paid a fixed daily wage of HK$1,100.[21] There is no evidence that he bore any financial risk, invested capital, or had any opportunity to profit from sound management. He was remunerated for his labour alone, which is consistent with employment.

23.5 The Applicant consistently described himself as a worker earning a daily wage. He did not suggest that he was self-employed or operating a business. He believed he was working “for the employer” at the Site. While the identity of that “employer” is disputed and addressed separately, his understanding of his own status was clear.

23.6 The Fund Board did not suggest that the Applicant regarded himself as an independent contractor. Nor is there evidence that he issued invoices, negotiated rates, or undertook multiple concurrent engagements.

24.  Taking all the circumstances into account, I find that the Applicant was an employee at the material time of the Accident.

D1.2 Issue 2 - Whether R1 was the Applicant’s employer

25.  This issue lies at the heart of the present case. While I have found that the Applicant was an employee at the material time, it remains for the Applicant to prove, on a balance of probabilities, that R1 was his employer.[22] While Mr Cheung, counsel for the Applicant, submits that adverse inference should be drawn against R1 who has failed to come forward to rebut the Applicant’s factual statements and evidence, the burden of proving R1 was his employer nevertheless rests squarely on the Applicant. The absence of R1 at trial simply does not reverse or lighten that burden: Tsui Ming Ki v Aman Group Ltd [2022] HKDC 306 per DDJ Norman Nip SC at §34.[23]

26.  Having considered the totality of the evidence, I am unable to find, on the balance of probabilities, that R1 was the Applicant’s employer. My reasons are as follows:

26.1 The Applicant gave multiple inconsistent accounts as to when and how he first heard of R1. At various points he said (1) he only learnt of R1 during the Labour Department investigation; (2) that he learnt of R1 from Ng after the Accident; (3) that he learnt of R1 from Ng before the Accident; and (4) that even after the Accident he still did not know R1 was his employer. These contradictions relate directly to the central question of who employed him. His frequent resort to “I cannot remember” substantially undermines the reliability of his evidence on this issue.

26.2 The Applicant accepted that he had never met R1. While limited contact between a worker and an employer is not impossible, the complete absence of any interaction is unusual, particularly in a small-scale metal recycling operation such as this. Here, the Applicant’s evidence rests almost entirely on what he says he was told by Ng, who was not called. While the identity of the employer is plainly a central and controversial issue, as confirmed by Mr Cheung, it is the Applicant’s own “informed decision” not to call Ng or other co-workers as witnesses, as he considered that his evidence was sufficient and it was unnecessary to call them to give further evidence.

26.3 The Applicant had the contact details of at least two co-workers[24], Ng and one Mr Wan Yuk Lung (“Wan”), whose Labour Department declarations he relied upon. These individuals were plainly material witnesses on the identity of the employer. While the Fund Board, by letter dated 1 August 2025, invited the Applicant to call Ng:-

“[…] As the employment relationship is in dispute, and it appears that the Applicant’s coworker, namely Ng Sai-yuen (Ng), is capable of assisting the Court in giving evidence on the employment status, since it is the Applicant’s case that he learnt about the identity of the 1st Respondent through Ng. As the Applicant has known Ng during his previous employment and that Ng’s contact details are clearly stated in his declaration to the Labour Department, please let us know if the Applicant would call Ng as a witness at the trial of these proceedings. […]”

The Applicant, by his solicitors’ letter dated 4 August 2025, declined such invitation, stating that it was unnecessary.[25] As fairly confirmed by Mr Cheung, there was nothing to prevent the Applicant from calling the co-workers as witnesses in these proceedings and there was no explanation was given for not calling either witness. While the Fund Board invite this Court to draw adverse inference against the Applicant for not calling the co-workers,[26] I do not consider it necessary to resort to any adverse inference, as the Applicant has failed to discharge his burden of proof. If, however, an adverse inference were required, the conditions for drawing one would in any event be satisfied: Wisniewski v Central Manchester Health Authority [1998] PIQR P324.

26.4 The Applicant relied on the Labour Department investigation documents, which contain statements from co-workers naming R1 as the operator of the Site. However, as pointed out by the Fund Board, the Labour Department declarations[27] are hearsay (or multiple hearsay), and the makers were not called for cross-examination. Under section 49 of the Evidence Ordinance (Cap 8), hearsay may be admitted, but its weight depends on circumstances.[28] Here, it would have been reasonable and practicable for the Applicant to call the makers, namely Ng and Wan, and their statements involve multiple hearsay. Where the identity of the employer is a highly controversial and central issue, and the makers are not produced for cross-examination, the circumstances do not permit proper evaluation of the accuracy of these statements. These matters significantly diminish their probative value.

26.5 Further, the Form 2 dated 9 August 2021[29] is also irregular. It bears no signature of R1, contains no business registration number and the address is incomplete.[30] The Applicant could not explain who filled in the Form 2, nor could he shed light on how it came to be submitted. While the Fund Board submits that no weight should be attached to the Form 2 because “it could have been filled in by anyone”, the more fundamental difficulty is that its provenance is entirely unknown. In the absence of any evidence identifying its maker or confirming that it emanated from R1, I am unable to make any finding on who made or filed it. The document therefore carries no probative value.

26.6 The Applicant also relied on deposits into his bank account bearing the reference “FPS/MISS” as evidence of payment by R1.[31] However, both in his witness statement[32] and under cross-examination he accepted that he did not know who “Miss Huang” was, nor could he explain the circumstances in which these deposits were made. In the absence of any evidence linking “Miss Huang” to R1, or showing that she was acting on R1’s behalf, I am unable to find, on a balance of probabilities, that these deposits represented wages paid by R1. The evidence simply does not establish any nexus between the deposits and R1.

26.7 I also note that there is no business registration for R1.[33] When the Applicant’s solicitors attempted to contact R1 in November 2023, one of the landlords of the Site confirmed that R1 was not a tenant and that she did not know him.[34] Likewise, during a visit by the legal executive of the Applicant’s solicitors in December 2023, a man encountered at the Site said he had never heard of R1.[35] By contrast, the forklift truck bore a licence plate belonging to Ng[36], not R1, which suggests that Ng, rather than R1, may have been operating at the Site. The Applicant’s case therefore requires the Court to accept that R1 operated the metal recycling business, employed multiple workers, paid wages through a person unknown to the Applicant, never met the Applicant, left no documentary footprint, and was unknown to persons present at the Site. Viewed collectively, these matters render the Applicant’s account inherently less likely.

27.  Having considered these matters, I am unable to find, on balance of probabilities, that R1 was the Applicant’s employer.

28.  However, this conclusion does not mean that the Applicant was not employed. As I have found under Issue 1, he was employed. The question is what consequences follow when he was employed by someone other than R1, including whether any judgment may be entered against the Fund Board.

29.  That issue is addressed next.

D1.3 Issue 3 - Consequences if the Applicant was employed but not by R1

30.  Having found that the Applicant was an employee at the material time (Issue 1), but that he has failed to prove that R1 was his employer (Issue 2), the question arises as to the legal consequences of such findings.[37]

31.  Mr Cheung submitted that, if the Court is unable to identify the employer, it should consider whether judgment may nevertheless be entered against the Fund Board under section 25 of the ECAO. Accordingly, the Court must consider whether, in these proceedings, judgment may be entered against the Fund Board, and whether sections 25 or 25A of the ECAO provide any basis for such relief.

32.  The ECAO provides two distinct statutory routes through which the Fund Board may become involved in employees’ compensation proceedings, and it is important to keep the distinction clearly in mind.

33.  Section 25 provides a mechanism for cases where the employer cannot be identified, cannot be found, is insolvent, is deceased, or cannot be served, and where no insurance policy is known to be in force.[38] In such circumstances, and with leave of the Court, the employee may sue the Fund Board directly, and the Fund Board may be held liable “as if it were the employer”.[39] The section is therefore exceptional in nature because it permits the Fund Board to stand in the shoes of an absent employer.

34.  Section 25A operates on a different footing. It applies where proceedings have been commenced against an employer in the ordinary way, but no policy of insurance is known to be in force at the time of the accident. In such cases, the Fund Board may apply to be joined as a party so that it may take over the defence. The circumstances in which this may occur are broad. They include situations where the employer cannot be identified or found, is insolvent, is deceased or dissolved, cannot be served, or fails to attend the hearing, leaving the claim uncontested. Section 25A also permits the Fund Board to be joined where the employer is present but uninsured, and where the relevant insurer is insolvent. In all such situations, the Fund Board’s role is to defend the employer’s position and to ensure that liability and quantum are properly tested.

35.  The distinction is fundamental. Section 25 creates a pathway to liability against the Fund Board. Section 25A does not. It merely allows the Fund Board to be heard, and no judgment may be entered against it under that provision. This distinction has been affirmed by the Court of Appeal in Tu Zhiqiang v Hap Sang Co (a firm) [2012] 1 HKLRD 1075. As stated by Cheung CJHC (as he then was) at §§48-51:-

“Section 25A(a): no judgment against the Board

48. Thirdly, this does not, however, mean that the employee can enter judgment directly against the Board simply on the ground that the Board has taken over the defence “as if it were the employer in the proceedings”. In this regard, although the same phrase “as if it were the employer” is used in s 25A(a) as it is used in s 25(2), the context is entirely different.

49. In s 25(2), with the leave of the court, the employee may issue proceedings “against the Board as if it were the employer”. One is concerned with the commencement of proceedings against the Board as a respondent/defendant. In s 25A(a), however, one is only concerned with a joinder by the Board as a party to an existing set of proceedings against the employer “to take over the defence as if it were the employer in the proceedings”. The emphasis is on the taking over the defence of the employer, similar to the situation where an insurer takes over the defence of the insured in a claim. Whatever judgment that the employee may be able to obtain, it will be a judgment against the employer, rather than against the Board even though it has, by definition, taken over the defence from the employer.

50. This is made abundantly clear by the presence of the provision in sub-s (4) of s 25 and its corresponding absence in s 25A(a). It may be remembered that under s 25(4), where proceedings are brought against the Board under that section, the rights and liabilities of the employer in respect of the compensation claimed “are vested in and transferred to the Board”. That is the basis for entering judgment against the Board in a s 25 claim.

51. No such provision can be found in s 25A(a). That reinforces my point that under s 25A(a) where the Board has taken over the defence as if it were the employer in the proceedings, no judgment may be entered against the Board as such. Any judgment would be entered against the employer.” (Emphasis added)

36.  Thus the effect of section 25A is clear. In these proceedings, when the Fund Board is joined under that provision, it assumes the employer's defence but does not become the employer. The employer remains the only party against whom judgment may be entered. Section 25A does not create any liability on the part of the Fund Board, as its function is simply to ensure that the claim is properly tested even if the employer does not participate. The absence in section 25A of any provision equivalent to section 25(4), which transfers the employer’s liabilities to the Fund Board, reinforces this point. Section 25A allows the Fund Board to defend, it does not expose the Fund Board to judgment.

37.  The above principle was applied in Yu Chun Kit v Wong Wing Yau (the Bankrupt) formerly t/a Viewbond Cargo Service Company and Anor (Unrep, DCEC 1787/2015, 5 June 2017), where HHJ KW Wong held at §49 that even if the Fund Board conducts the defence entirely on behalf of the employer, judgment must still be entered against the employer, not the Fund Board:-

“49. Even if this issue were to be pursued by Mr Yim this Court would no doubt have refused to make such order. As stated in the preceding paragraph, this is not a case in which the Applicant issued proceedings directly against the Board under s 25 of the ECAO as if the Board is the employer. The Applicant chose to pursue after R1 who, though insolvent, could be identified, found and served. It is a case in which the Board joined in as intervener by reason of s 25A(b) of ECAO on the ground R1 was insolvent and took out no policy of insurance covering his liability under the ECO [38]. The Board considers, and this Court accepts, that it has an interest in the outcome of the assessment because whatever quantum that may be assessed against R1 is likely to be met by the Board. It is noted that the Board did not intervene by virtue of s 25A(a) which provides that it takes over the defence as if it were the employer. Even if it were the case, judgment is still to be entered against R1 in that scenario because the appearance would have been entered into by R2 for R1. As said above, it is not a case in which the Applicant issued proceedings against the Board direct under s 25(4) of the ECAO as if the Board were the employer. If that is the case, judgment will be entered against the Board. By reason of Tu Zhiqiang v Hap Sang Co (a firm) [39], particularly [27] to [30], [41], [42], [48] to [50] thereof, no judgment should be entered against R2. Judgment should be entered against R1. The Applicant can then seek payment from the Board under s 16 of the ECAO.”

38.  The Fund Board only becomes liable “as if it were the employer” when proceedings are properly brought under section 25, which requires a separate application, leave of the Court, and satisfaction of the statutory preconditions. The rationale is straightforward. Section 25A prevents injustice to the Fund Board. If an employee could sue an employer, allow the employer to default, and then obtain judgment against the Fund Board without the Fund Board having the opportunity to defend, the statutory scheme would be undermined. Section 25A ensures that the Fund Board may defend the claim, but it does not render the Fund Board liable unless the employee has invoked section 25 and satisfied its stringent requirements.

39.  In this case, the Applicant did not invoke section 25. He did not apply for leave to sue the Fund Board directly. The Fund Board was joined solely under section 25A. Its role is therefore confined to defending the claim, it is not a party against whom judgment may be entered.

40.  In light of the statutory scheme and the authorities, the Court has no jurisdiction to enter judgment against the Fund Board in these section 25A proceedings. The only party against whom judgment could be entered is the employer. As the Applicant has failed to prove that R1 was his employer, no judgment can be entered against any party in these proceedings.

D1.4 Conclusion

41.  The Applicant has therefore failed to establish liability. Although I find that he was an employee at the material time, he has not proved, on the balance of probabilities, that R1 was his employer. In the absence of such proof, his claim cannot succeed.

D2. Quantum

42.  At the outset, I note that the scope of the quantum dispute was significantly narrowed at trial. In Mr Cheung’s oral opening submissions and in the written closing submissions[40], the Applicant has reasonably accepted the Fund Board’s figures and quantum is no longer in dispute. Accordingly, if liability were established, the Court would assess the basis for the figures advanced by the Fund Board, as set out hereinbelow.

43.  The Applicant claims employees’ compensation under sections 9, 10 and 10A of the ECO.

44.  According to the Form 7 dated 18 December 2023[41], the following was assessed: (1) Applicant’s loss of earning capacity was 29%; and (2) Applicant’s sick leave period was from 3 August 2021 to 12 October 2022. The Applicant lodged an appeal against the assessment pursuant to section 18 of the ECO.[42]

45.  Mr Shek has referred me to Wong Wai Man v Concord Express (Hong Kong) Limited [2021] HKDC 196, in which HHJ Herbert Au-Yeung (as he then was) has succinctly summarised the relevant principles:-

“15. It is trite that an appeal under section 18 of the Ordinance in fact is not an appeal proper, because the Board did not give any reasons for its assessment and the court hearing the appeal has to form its own view by reference to all the evidence, and in particular the medical evidence, in arriving at its own conclusion as to the permanent loss of earning capacity and the period of temporary total incapacity resulting from the injury. In Chan Kit v Sam Wo Industrial Manufactory [1989] 2 HKLR 230 at 232G-H, Hunter JA, who gave the judgment of the Court of Appeal, said:-

“… the court’s jurisdiction appears to be appellate. But one has then to remember that these Boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons. So that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the court is so minded; it is plain that a Court approaching this matter has really got to start afresh.”

16. The paragraph quoted above had been referred to by the Court of Appeal in Tsang Kwong Tong v Tennille Decoration & Design Limited & Others (CACV 42/2006, unreported, 10 October 2006), in which Tang JA (as his Lordship then was) added:

“Where no reasons are given by the Board, as is usually the case, the court hearing an appeal under section 18 ought not to speculate and ‘can only judge an assessment by testing the validity of its conclusions against the total available evidence’ (Chan Kam v Standard Chartered Bank Hong Kong Trustee Ltd, supra at 458)” (at paragraph 47).

17. In Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246, at 248G-I, Deputy District Judge Bharwaney (as his Lordship then was), also said: “In fact, whether an appeal is lodged pursuant to s 18(1) or application made for compensation under s 9 or, indeed, both procedures resorted to at the same time, it is clear that a court approaching the matter has 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 (Chan Kit v Sum Wo Industrial Manufactory [l989] 2 HKLR 230 at 233 and Yip Fong Ming v Joint-Effort Engineering Co & Anor (ECC 128/88, 17 May 1989 p 3, unreported)).” (Emphasis added)

46.  Bearing the above in mind, I have gone through Dr Chiang’s report.

47.  Dr Chiang assessed the Applicant’s permanent disability as comprising a 23% whole person impairment from the left below-knee amputation and 3% whole person impairment from the right ankle pilon fracture, combining to 25% whole person impairment[43]. Yet for ECO purposes, Dr Chiang assessed the Applicant’s combined permanent loss of earning capacity (“LOEC”) at 68%,[44] comprising: (1) 65% for the left below-knee amputation[45]; and (2) 3% for the right ankle Pilon fracture. It is also his opinion that the Applicant’s sick leave period of 436 days, as running from 3 August 2021 to 12 October 2022, is appropriate.[46]

48.  Both parties accepted the assessment and in the absence of any contrary medical evidence, I agree and accept Dr Chiang’s assessment in full.

Section 11 Earnings

49.  The Applicant’s claimed that the deposits with “FPS/MISS” as reference were his earnings from his employment and the relevant deposits are as follows:-

Item	Date of Deposit	Amount
1	19 June 2021	$3,500
2	5 July 2021	$14,720
3	20 July 2021	$17,160
4	4 August 2021	$19,060
5	20 August 2021	$11,856
6	8 September 2021	$11,856
7	23 September 2021	$11,856

50.  The Fund Board contested the above figures, saying that the deposits did not reliably reflect wages.[47]

51.  However, for the purpose of assessing quantum, the Fund Board submitted, which I agree with and which is no longer disputed by the Applicant, that, as there was no evidence of the Applicant’s earnings for the full calendar month of July 2021, section 11(1)(a) ECO could not be applied.

52.  By applying section 11(1)(b) ECO and calculating the Applicant’s earnings by reference to the deposits received between 19 June 2021 and 3 August 2021, being the period that best reflected the rate at which he was remunerated, the total of the relevant deposits (items (2) to (4)) was $14,720 + $17,160 + $19,060 = $50,940. When averaged over 46 days, the Applicant’s monthly income was $33,221.74.

Section 9 Compensation

53.  The Applicant was 62 years old at the time of the Accident. The applicable multiplier under section 7(1)(c) of the ECO is therefore 48.

54.  If liability was established, the Compensation under section 9 would be:

HK$33,221.74 × 48 × 68% = $1,084,357.59

Section 10 Compensation

55.  Using monthly earnings of HK$33,221.74 and a sick leave period of 436 days, the compensation would be:

HK$33,221.74 × (436 ÷ 30) × 4/5 = $386,258.10

Section 10A Compensation

56.  The Fund Board accepted the medical expenses supported by receipts under sections 1 and 2 of the Applicant’s schedule[48] totalling $12,549.

57.  As it is no longer disputed, I consider these medical expenses reimbursable under section 10A.

Computation of Compensation

58.  On the above basis, I assess employees’ compensation under the ECO as follows:-

Section 9:	$1,084,357.59
Section 10:	$386,258.10
Section 10A:	$12,549.00
(Less Advance Payment)	($35,568.00)
TOTAL:	$1,447,596.69

59.  Had liability been established, the total employees’ compensation would have been $1,447,596.69.

E. DISPOSITION AND ORDERS

60.  For the reasons set out above, the Applicant’s claim is dismissed.

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

61.1 The Fund Board do have costs of the action, payable by the Applicant, with certificate for counsel, to be taxed if not agreed;

61.2 There be no order as to costs between the Applicant and R1.

62.  In the absence of application from the parties to vary costs order within 14 days, the costs order nisi shall become absolute.

63.  Lastly, I express my gratitude to Mr Cheung and Mr Shek for their focused and helpful submissions.