Secretary for Justice v. Au Kin Chuen

DCCJ 2152/2020

[2023] HKDC 836

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2152 OF 2020

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BETWEEN

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ASSESSMENT OF DAMAGES

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Introduction

1.This is an assessment of damages of the plaintiff’s claim against the defendant for an indemnity for the compensation paid by the HKSAR Government (the “Government”) to its employee in circumstances where the defendant is liable to pay damages to the employee in respect of the latter’s injury.

2.No notice of intention to defend has been given by the defendant.

3.Interlocutory judgment was entered against the defendant on 29 June 2021 with damages to be assessed.

4.The defendant was absent from the hearing on 8 June 2023.

The Plaintiff’s case

5.The plaintiff instituted these proceedings for and on behalf of the Commissioner of Police pursuant to section 13 of the Crown Proceeding Ordinance (Cap. 300).

6.On 20 June 2014, a police officer who was under the employment of the Hong Kong Police Force was injured by the defendant whilst he was on duty. The police officer’s left knee was injured, resulting in pain in the left knee.

7.On 7 July 2014, the defendant was charged and convicted of an offence of resisting a police officer.

8.According to various sick leave certificates, the police officer was granted a total of 158 days of sick leave.

9.Further, according to the Certificate of Compensation Assessment dated 24 December 2015, the Commissioner for Labour assessed that the police officer’s loss of earning capacity permanently caused by the injury is 0.5%.

10.By reason of the above, and according to the Employees’ Compensation Payments in respect of Government Servants for Non-fatal Cases Form dated 14 October 2015, compensation in the total sum of HK$164,294.75 was paid by the Government to the police officer. The said sum is particularised as follows:

	Item	Calculation	Amount (HK$)
1.	Full-pay sick leave	158 days of basic salary - 4 days of statutory holiday = HK$159,830.83 - HK$4,024.88	155,805.95
2.	Loss of earning capacity permanently	HK$23,580 x 72 x 0.5%	8,488.80
		Total:	164,294.75

11.The plaintiff claims against the defendant for an indemnity for such compensation paid to the police officer.

12.At the assessment hearing, the plaintiff called Mr. Jonathan Yung (“Mr. Yung”) of the Hong Kong Police Force as a factual witness.

Relevant legal provisions

13.Section 25(1)(b) of the Employees’ Compensation Ordinance (Cap. 282) (the “Ordinance”) provides that :-

“(1) Where the injury in respect of which compensation is payable was caused in circumstances creating a legal liability in some person other than the employer (in this section referred to as the third party) to pay damages to the employee in respect thereof-

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(b) the employer by whom compensation is payable…shall have a right of action against the third party for the recovery of any sum which he is obliged to pay as a result of the accident, whether by way of compensation or indemnity, or by virtue of any agreement made with the employee prior to the accident, and may exercise such right either by joining in an action begun by the employee against the third party or by instituting separate proceedings:

Provided that the amount recoverable under this paragraph shall not exceed the amount of damages, if any, which in the opinion of the court would have been awarded to the employee but for the provisions of this Ordinance.”

Findings

14.Mr. Yung’s evidence was supported by documentary evidence. I find him a credible witness and accept his evidence in full.

15.I find that pursuant to section 25(1)(b) of the Ordinance, the plaintiff is entitled to be indemnified by the defendant for the compensation paid to the police officer in the sum of HK$164,294.75, which is particularised in paragraph 10 above.

Interest

16.The plaintiff shall be entitled to interest on the said sum at prime plus 1% from the date of Writ (i.e. 21 May 2020) to the date of this assessment and thereafter at judgment rate.

Costs

17.I order the defendant to pay the plaintiff’s costs of this action, which is summarily assessed at HK$42,736.93, and to be payable forthwith.

Ms Annie Lam, instructed by Department of Justice, for the plaintiff

The defendant was not represented and did not appear