Hang Yue Engineering Ltd and Another v. Tse King Yuen

DCCJ 104/2022

[2025] HKDC 1048

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 104 OF 2022

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BETWEEN

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JUDGMENT

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A. Introduction

1.This is the Plaintiffs’ claim for full indemnity against the Defendant for loss and damage in a total sum of $393,745 pursuant to section 25 of the Employees’ Compensation Ordinance (Cap 282) (“ECO”) and/or section 3 of the Civil Liability (Contribution) Ordinance (Cap 377) (“CLCO”).

2.This matter arose from an incident which happened on 5 June 2018 at around 1:45 pm (the “Incident”), in which Madam Chan Lai (the “Employee”), who was employed by the 1^st Plaintiff, was allegedly assaulted by the Defendant and injured.

3.After the Incident, on 16 June 2018, the Plaintiffs gave notice of the Incident to the Commissioner for Labour pursuant to section 15 of ECO under case number 13-2018-02561 (the “EC Case”).

4.On 4 January 2019, the Defendant was convicted of “common assault” contrary to section 40 of the Offences against the Person Ordinance (Cap 212) and was fined $2,000 in the West Kowloon Magistrates’ Court in WKCC 4131/2018 (the “Criminal Proceedings”).

5.On 15 February 2019, the Employee made a declaration to the Labour Department in respect of the Incident in the EC Case, stating inter alia that her right orbital area and right cheek were injured as a result of the Incident.

6.On 28 May 2020, the Employee commenced legal proceedings against the Plaintiffs in DCEC 951/2020 (the “DCEC Proceedings”) and claimed compensation under ECO.

7.On 16 December 2020, in respect of the EC Case, the Employees’ Compensation (Ordinary Assessment) Board (the “Board”) issued a certificate of assessment (Form 7) and certified that the Employee suffered “head and face injuries resulting in post concessional syndrome and psychiatric impairment” and her loss of earning capacity permanently caused by the injury was 10%. The Board also certified various periods of sick leave between 5 June 2018 to 16 October 2020.

B. The Plaintiffs’ case

8.It is the Plaintiffs’ claim that during the Incident the Employee, who was at the material time in the course of employment with the 1^st Plaintiff, was assaulted by the Defendant (the “Assault”).

9.As a result of the Assault, the Employee sustained serious harm and injuries, including concussion to her head and face and psychological/psychiatric problem.

10.The 2^nd Plaintiff was the principal contractor of the 1^st Plaintiff.

11.On 2 March 2021, the Employee accepted an offer made by the Plaintiffs in the total sum of $303,745 (inclusive of interest) plus legal costs in the sum of $45,000 in full and final settlement of the Employee’s claims in the DCEC Proceedings.

12.The Plaintiffs themselves incurred legal costs in the total sum of $45,000 in defending the DCEC Proceedings.

13.The Defendant is wholly responsible for the injuries sustained by the Employee as a result of the Assault. The Plaintiffs therefore seek full indemnity against the Defendant in the total sum of $393,745 (ie $303,745 + $45,000 + $45,000).

C. The defence

14.The Defendant admits that there was a “slight body contact” between the Employee and the Defendant arising from an oral quarrel which occurred sometime in June 2018. He, however, maintains that he did not assault the Employee, who did not suffer any alleged injuries during the quarrel with the Defendant. As such, the Employee was not justified in instituting the DCEC Proceedings against the Plaintiffs.

15.In any event, the DCEC Proceedings is a matter entirely between the Plaintiffs and the Employee, in which the Defendant was never a party. Having failed to join the Defendant, the Plaintiffs are estopped from claiming the compensation amount against the Defendant.

D. The Criminal Proceedings

16.In the Criminal Proceedings, (a) the Defendant was charged with assault occasioning actual bodily harm (“Charge 1”) and (b) the Defendant and his father were charged jointly with assault occasioning actual bodily harm (“Charge 2”). The brief facts are as follows:

“[1.] [The Employee, being the victim of Charge 1, was a] cleaner, while [a Mr Cheng, being the victim of Charge 2, a Mr Ng[1], the Defendant and his father] were construction workers. All of the above parties worked at the Wah Ying Construction Site, 1 Yi Tung Road, Tung Chung, Lantau Island, New Territories (“the construction site”).

2. Earlier before 1345 hours on 2018-06-05, [the Employee] and [the Defendant and his father] ensued a dispute over the use of water outside the construction site. In the heat, [the Defendant] hit [the Employee’s] face once and [her] head twice with his hand (offence 1). Witnessed the incident, [Mr Cheng] approached them and intended to separate both parties but caused [the Defendant’s father] falling onto the ground accidentally. Subsequently [Mr Cheng] was pushed onto the ground by [the Defendant] and was punched by both [the Defendant and his father] for several times (offence 2). [The Employee] intended to stop [the Defendant and his father] but her right orbital area was punched by [the Defendant] twice (offence 1). [Mr Ng] witnessed the whole incident [ie the Incident]. Case was reported.

3. On the same day, [police officers] arrested [the Defendant and his father] at the scene. Under caution, [the Defendant] claimed that he assaulted [Mr Cheng] in order to protect [his father]…, while [his father] denied the offence… Under further caution, [the Defendant] denied having assaulted [the Employee and Mr Cheng] but admitted having jostled with [Mr Cheng]…, while [the Defendant’s father] denied having assaulted [the Employee and Mr Cheng]...”

17.According to the transcript of the verdict of the Criminal Proceedings (the “Transcript”)[2], on 4 January 2019, the learned magistrate ruled, inter alia, that:

(a) According to the evidence of the police officer who went to investigate at the scene, the Employee and Mr Cheng told the police officer that the Employee was accidentally hurt when Mr Cheng was jostling with the Defendant and his father. Such version of the Incident is different from what the Employee and Mr Cheng said in court.

(b) The Employee and Mr Cheng denied having mentioned such version of the Incident to the police officer and they did not offer any explanation for such version of the Incident.

(c) The learned magistrate found that this would affect the Employee’s and Mr Cheng’s credibility.

(d) When the Employee gave evidence, she did not directly answer some questions put to her and even remained silent at times. Despite repeated reminders from the court and the defence counsel, she still did not give any response. The learned magistrate found that the Employee was obviously avoiding the cross-examination of the defence counsel.

(e) The learned magistrate therefore could not entirely rely on the evidence of the Employee and Mr Cheng. The learned magistrate also could not be certain that when Mr Cheng intervened, whether (i) it was the Defendant and his father who jointly assaulted the Employee and Mr Cheng or (ii) the Defendant and his father jostled with Mr Cheng out of self-defence.

(f) Mr Ng’s evidence was that the Defendant hit the Employee once, and the Defendant, his father, the Employee and Mr Cheng all jostled and scolded each other. Mr Ng’s evidence that Mr Cheng jostled with the Defendant and his father was consistent with what the police officer heard from the Employee and Mr Cheng during his investigation.

(g) The learned magistrate could not rely on the evidence of the Employee and Mr Cheng as there were exaggerations and incorrectness.

(h) According to Mr Ng’s evidence, he clearly saw that when the Defendant was quarrelling with the Employee, he hit her face with his hand once. The learned magistrate was therefore certain that the Defendant did hit the Employee with his hand once.

(i) However, Mr Ng’s evidence did not indicate whether the said hitting caused any injury to the Employee. The learned magistrate also could not eliminate the possibility that the Employee’s injuries as shown in the medical reports were caused when the parties jostled against each other after Mr Cheng’s intervention.

(j) In respect of Charge 1, the learned magistrate acquitted the Defendant of assault occasioning actual bodily harm, but convicted him of common assault.

(k) In respect of Charge 2, the learned magistrate could not be certain whether Mr Cheng was injured when the parties were jostling against each other or was attacked and injured by the Defendant and his father. She therefore acquitted the Defendant and his father of Charge 2.

(l) The Defendant was fined $2,000 for Charge 1.

E. The law

18.Section 25(1)(b) of ECO 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 -

…

(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.”

19.Sections 3(1), (4) and (5) of CLCO provide as follows:

“(1) Subject to the following provisions of this section, any person [ie the Plaintiff] liable in respect of any damage suffered by another person [ie the Employee] may recover contribution from any other person [ie the Defendant] liable in respect of the same damage (whether jointly with him or otherwise).

…

(4) A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established.

(5) On assessing any contribution under this section the court shall disregard any part of the payment in respect of which the contribution is sought which appears to the court to be excessive.” [words in square brackets and emphasis added]

20.In respect of the concept of a person being liable in respect of certain damage suffered by another, section 2(3) of CLCO provides that:

“A person is liable in respect of any damage for the purposes of this Ordinance if the person who suffered it (or anyone representing his estate or dependants) is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise).” [emphases added]

21.In respect of the extent of contribution, there is no arithmetic formula for assessing the same. According to section 4(1) of CLCO:

“Subject to subsection (3), in any proceedings for contribution under section 3 the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.”

22.As held in Li Shiu To v Cheung Pik Ng and Li Sui Chee (in their capacities as executors of the estate of Li Shiu Tsang, deceased) & ors [2018] 1 HKLRD 934:

(a) Section 3(4) of CLCO confers a right or an entitlement on a settling defendant to seek contribution from a third party upon a bona fide settlement (§29).

(b) On a proper interpretation of sections 3(1) and (4) of CLCO, in the circumstances of the present case, the Plaintiffs must prove, among other things, that the Defendant is liable to the Employee (in the sense that the Employee is entitled to recover compensation from the Defendant) and that such damage is the same damage for which the Plaintiffs are allegedly liable to the Employee. Section 3(1) is subject to the following provisions of section 3, including section 3(4) which requires the settlement to be bona fide (§33).

23.In Liao Kuo Chun v Win Capital (HK) Ltd & ors [2010] 4 HKLRD 257, it was held at §§50-51 that:

“50. It is well established that the exercise of assessing the amount of contribution recoverable from any person, in such amount as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question, requires the court to assess blameworthiness as well as causative potency. Non-causative factors that also involve a breach of duty are relevant considerations. Greater causal impact by one party may be balanced against greater blameworthiness by the other. As Hobhouse LJ, as he then was, said in Downs v Chappell [1997] 1 WLR 426 at 445:

‘It is just and equitable to take into account both the seriousness of the respective parties’ faults and their causative relevance. A more serious fault having less causative impact on the plaintiff’s damage may represent an equivalent responsibility to a less serious fault which had a greater causative impact.’

51. The judge must apportion the damages between the parties who are actually before the court and he should not apportion damages between them and some other person or persons, not a party to the proceedings, whose fault may have contributed to the plaintiff’s damage (Mayfield v Llewellyn [1961] 1 WLR 119). In this case, I am concerned to apportion liability between the 1^st and 4^th defendants only. However, in apportioning liability between them, I attribute to each of them the acts and defaults of their respective contractors and sub-contractors. In my judgment, a person’s responsibility for the damage in question includes responsibility for the acts and defaults of that person’s contractors and sub-contractors, even though such acts and defaults of independent contractors may not create tortious personal or vicarious liability on the part of that person.” [emphases added]

24.In So Kai Hau v Ysk2 Engineering Company Limited (unrep, HCPI 1077/2006, 31 July 2018), Bharwaney J cited Lord Hobhouse in Dubai Aluminium Co Ltd v Salaam and Others [2002] 2 AC 366 at §143:

“Lord Hobhouse also provided guidance on section 4(1), quoted above, in Dubai Aluminium Co Ltd v Salaam and Others…:

‘71. In a simple case, say, injury to a passenger arising from a collision between two cars, both to blame, no problem arises. The court apportions the liability between the two drivers. But where, as in the present case, there has been a conspiracy to defraud involving a number of individuals, complications can arise. Only some of them may be before the court; some may be beyond the practical reach of the law; some may be insolvent; the routes by which liability has arisen may differ.

72. Section 2 of the statute requires the court to order contribution in an amount which is “just and equitable having regard to the extent of that person’s responsibility for the damage in question”, the “person” being the person being ordered to contribute and the “damage in question” being the damage suffered by the victim for which the persons claiming and paying contribution were both liable. The concept of what is just and equitable corresponds to the restitutionary principles applied elsewhere in the law, for example, contributions between sureties or between insurers. The right to a contribution arises from the fact that one person has borne a disproportionate burden which it is just that another should share or even bear in full, section 2(3)). Likewise responsibility includes both the degree of fault and the causative relevance of that fault. The power given to the court is principled but not otherwise restricted. It is this power which the court must use to solve any problems and arrive at a just and equitable outcome.’” [emphases added]

F. The issues

25.To succeed in their claim, the Plaintiffs have to prove that:

(a) Assuming the facts pleaded by the Employee in the DCEC Proceedings were established, the Plaintiffs would have been liable to the Employee;

(b) The Defendant is liable to the Employee “in respect of the same damage” as the Plaintiffs by reason of the Assault in that:

(i) The Defendant assaulted the Employee; and

(ii) The Assault caused the Employee’s injuries complained of in the DCEC Proceedings;

(c) The settlement between the Plaintiffs and the Employee in the DCEC Proceedings was a bona fide settlement; and

(d) The contribution of 100% (or full indemnity) sought by the Plaintiffs is just and equitable.

G. The witnesses

26.The Employee was not called or subpoenaed as a witness. There is no dispute that she has left the Plaintiffs’ employment.

27.The Plaintiffs called Ms Ansophy Lui (“Ms Lui”), who is a director of the respective Plaintiffs.

28.Whilst Ms Lui gave evidence on the Incident, she did not witness the Incident and thus does not have personal knowledge of the same. Her evidence in this regard is therefore of little weight as she only learnt about what happened from the Employee, Mr Cheng and another worker, as well as the investigation report prepared by the 2^nd Plaintiff and the Employee’s declaration made to the Labour Department.

29.However, Ms Lui gave detailed evidence on the settlement payments made by the Plaintiffs to the Employee both before and in the settlement of the DCEC Proceedings, including the calculation of the amount of the sanctioned payment in the sum of $263,000 paid into court and accepted by the Employee. Such aspects of her evidence are well supported by contemporaneous documents, including cheques paid to the Employee, receipt of sanctioned payment and the certificate of assessment (Form 7) issued by the Board. I find her a credible witness and accept her evidence in this regard.

30.Although the Defendant attacks her credibility based on her evidence on the termination of the Employee’s employment in October 2018, given that such termination is irrelevant to any issues in dispute in these proceedings, I do not think Ms Lui’s forgetting about the termination of the Employee’s employment affects her credibility.

31.The Defendant called himself as a witness. He is an evasive witness. In many instances during cross-examination, when he did not want to answer a certain factual question, he would resort to saying that the burden of proof is on the Plaintiffs.

32.He gave evidence on how the Incident happened. He did not dispute that the forehead on the right side of the Employee’s face above the corner of her eye was injured as a result of the Incident. He admitted that he was convicted of common assault and was fined $2,000 in the Criminal Proceedings.

33.He placed heavy reliance on the Transcript in the Criminal Proceedings, in particular the part about the inconsistency between the Employee’s and Mr Cheng’s evidence and what they had told the police officer at the scene, and the fact that he was acquitted of assault occasioning actual bodily harm.

34.However, the Defendant gave no evidence as to how the Employee’s injuries were sustained during the Incident, nor did he say that such injuries were accidentally caused when the parties jostled against each other. He merely relied on the fact that there was no ruling in the Criminal Proceedings as to who had caused the Employee’s injuries.

35.In the premises, I find that his evidence does not assist the court in determining the crucial factual issue of whether the Assault had resulted in the injuries of the Employee complained of in the DCEC Proceedings.

H. Analysis

H1. Issue 1: Whether, assuming the facts pleaded by the Employee in the DCEC Proceedings were established, the Plaintiffs would have been liable to the Employee?

36.In the Application in the DCEC Proceedings, the Employee pleaded that:

(a) She sustained injury by an accident arising out of and in the course of her employment with the 1^st Plaintiff.

(b) The 1^st Plaintiff was a sub-contractor of the 2^nd Plaintiff within the meaning of section 2 of ECO.

(c) She had been assaulted in the Incident, as a result of which she sustained injuries, including but not limited to her head, face and psychological/psychiatric problems.

(d) She was granted intermittent sick leave.

(e) She sought compensation from the Plaintiffs.

37.Pursuant to the following sections of ECO:

(a) section 5(1) – the 1^st Plaintiff being the Employee’s employer is liable to pay compensation to the Employee in respect of any personal injury caused to the Employee by an accident arising out of and in the course of her employment in accordance with ECO;

(b) section 9 – the Employee is entitled to compensation for her permanent partial incapacity resulted from her injuries;

(c) section 10 – the Employee is entitled to compensation for her temporary incapacity resulted from her injuries;

(d) section 10A – the 1^st Plaintiff is liable to pay the medical expenses for the medical treatment in respect of the Employee’s injuries; and

(e) section 24(1) – the 2^nd Plaintiff, being the 1^st Plaintiff’s principal contractor, is liable to pay compensation to the Employee under ECO as if the Employee had been immediately employed by the 2^nd Plaintiff.

38.I am satisfied that assuming the facts pleaded by the Employee in the DCEC Proceedings were established, the Plaintiffs would have been liable to the Employee under ECO.

H2. Issue 2a: Did the Defendant assault the Employee?

39.Although in his Defence the Defendant denies “the allegation that the [Employee] was assaulted by the Defendant and sustained alleged serious harm and injuries”, the Defendant no longer denies that he had assaulted the Employee when he gave evidence at the trial of these proceedings.

40.Further, given the finding in the Criminal Proceedings that it is beyond reasonable doubt that the Defendant did hit the Employee with his hand once, ie the Assault, there can be no serious dispute, and I have no hesitation in finding, in these proceedings that the Defendant did assault the Employee in the Incident. See also section 62 of the Evidence Ordinance (Cap 8). In light of the above, I do not find it necessary to consider the Incident in two stages as suggested by the Defendant.

H3. Issue 2b: Whether the Assault caused the injuries complained of in the DCEC Proceedings?

41.As explained above, there can be no serious dispute that the Assault happened. The remaining question is whether the Assault had caused the injuries complained of in the DCEC Proceedings.

42.For the reasons below, I find on the balance of probabilities that the Assault had caused the Employee’s injuries complained of in the DCEC Proceedings:

(a) There is/can be no dispute that the Employee sustained injuries to the face near her eye as a result of the Incident. See Defendant’s witness statement, §§10-11, photos of the Employee’s injuries after the Incident and the medical reports referred to below.

(b) Although the Defendant pleaded in his defence that the Employee testified in the Criminal Proceedings that “she suffered no injuries except a redness then on her face”, this is not supported by any evidence – whether the Transcript in the Criminal Proceedings or the Defendant’s own evidence in these proceedings.

(c) According to the police statement made by the Employee on the day of the Incident, ie 5 June 2018, the Employee was assaulted by the Defendant. The Incident caused her bruises, swelling and pain in her right eye corner and injury in her right forehead. She did not say that she was (accidentally) injured during the jostling between the parties, being what she allegedly told the police officer who investigated at the scene.

(d) Similarly, in the police statement made by the Employee on 30 June 2018, she said that she was injured in the Incident and was hit by the Defendant in her right eye. She did not say that she was (accidentally) injured during the jostling between the parties.

(e) According to the incident report dated 12 June 2018 prepared by the 2^nd Plaintiff shortly after the Incident, the Defendant assaulted the Employee, which had resulted in injuries to the Employee’s head and face. It also does not say that the Employee was (accidentally) injured during the jostling between the parties.

(f) According to the notice of the Incident given by the Plaintiffs to the Commissioner for Labour pursuant to section 15 of ECO (Form 2) dated 16 June 2018, the Employee was being hit and injured (“被打傷”) in the EC Case.

(g) According to the declaration made by the Employee to the Labour Department in respect of the EC Case on 15 February 2019, the Employee was hit by the Defendant and sustained injuries on her face as a result. She did not say that she was (accidentally) injured during the jostling between the parties. Contrary to the Defendant’s submissions, given that there is no challenge to the authenticity of such document, such evidence is admissible as evidence of what the Employee had told the Labour Department even though the Employee did not give evidence in court.

(h) According to a medical report dated 19 July 2019, the Employee attended the Accident & Emergency (A&E) Department of North Lantau Hospital on 5 June 2018. She “was assaulted by a person on the day of attendance. She sustained injury to her head and face in the incident”. Upon examination, “[s]he was alert and conscious. An abrasion was found over the right eyebrow. Mild swelling and tenderness were detected on the right cheek”. The provisional diagnosis was minor head injury.

(i) According to the same medical report dated 19 July 2019:

(i) The Employee “had several subsequent attendances following the aforementioned head injury. She mainly complained of dizziness related to the incident”.

(ii) “For the attendance on 08/06/2018, … the provisional diagnosis was dizziness (post-head injury)…”

(iii) “For the attendance on 11/06/2018, … the provisional diagnosis was dizziness (post-head injury)…”

(iv) “For the attendance on 23/06/2018, … the provisional diagnosis was dizziness (post-head injury)…”

(v) “For the attendance on 22/10/2018, … the provisional diagnosis was post-concussion syndrome…”

(j) According to a medical report dated 1 June 2020, the Employee attended the A&E Department of the Prince of Wales Hospital for dizziness. She said she was “[h]it by someone with fist on right side head on 5/6/2018. Felt dizziness on and off since then…” The diagnosis was post concussion syndrome.

(k) According to an occupational therapy progress note dated 2 June 2020, she attended the Prince of Wales Hospital on 10 October 2019. She said she “[h]ad IOD [i.e. injury on duty] in June 2018: hit on head, … complain of persistent headache, dizziness and memory impairment after the incidence”, “[r]eported could not remember what others’ said and could not catch up if they spoke fast”, “[c]hanged to work in restaurant after the IOD issue settled, but not coping. Being scolded for poor memory and mistakes”, “[r]eported incidence of forgetting to turn off stove”, “[o]ccasionally forgot to bring keys”, “[f]orgot to turn off tap once”. On assessment, there was “difficulty noted in categorization due to declined cognitive inflexibility” and “difficulty noted due to retrieval problem”. She “reported memory decline” and the intervention suggested was “cognitive assessment and training”.

(l) According to a medical report issued by the Department of Psychiatry of the Prince of Wales Hospital dated 3 June 2020, the Employee had “been having follow-up in the Psychiatric Clinic since [September] 2019. She presented with lowish mood, insomnia, autonomic arousals symptoms with persistent headache and dizziness after she was allegedly hit on the head with fist by a person while working in a construction site in June 2018. She was diagnosed to suffer from Post-concussion Syndrome”, “she has been treated with psychiatric medications to improve the symptoms”, “she has been referred to Occupational Therapist Clinic for cognitive assessment”, “she still complained of on and off dizziness” and “she requires continual psychiatric care from the Psychiatric Clinic”.

(m) According to the certificate of assessment (Form 7) dated 16 December 2020, in respect of the EC Case, the Board certified that the Employee suffered “head and face injuries resulting in post concessional syndrome and psychiatric impairment” and her loss of earning capacity permanently caused by the injury was 10%. The Board also certified various periods of sick leave between 5 June 2018 to 16 October 2020.

(n) The above contemporaneous documents are all consistent with and support the Plaintiffs’ case that the Assault had caused the Employee’s injuries complained of in the DCEC Proceedings.

(o) Whilst the Defendant denies that the Assault had caused the Employee’s injuries, he merely relies on the Transcript in the DCEC Proceedings, which says that Mr Ng’s evidence did not indicate whether the Assault had caused any injury to the Employee, and that the learned magistrate could not eliminate the possibility that the Employee’s injuries as shown in the medical reports were caused when the parties jostled against each other after Mr Cheng’s intervention.

(p) The Defendant gave or adduced no evidence as to how the Employee’s injuries were sustained. He did not give or adduce any evidence to the effect that the Assault did not cause the Employee’s injuries or that such injuries were caused when the parties jostled against each other after Mr Cheng’s intervention or by someone else (eg Mr Cheng).

(q) The Defendant did not even call his father (who was in court at the trial of these proceedings) as a witness even though according to him his father could have given evidence as to the Incident and what had happened to the Employee during the Incident as his father was situated very close to the Employee at the material time of the Incident. The Plaintiffs invite the court to draw adverse inference against the Defendant on the fact that (i) the Defendant assaulted the Employee, and (ii) such Assault caused the Employee’s injuries which she complained of in the DCEC Proceedings for which the Defendant should be responsible. Clearly, the Defendant’s father’s evidence is material in this regard. I am satisfied that the drawing of such adverse inference is justified on the basis of the other evidence that is before the court. See: Liao Zhiqiang & ors v Cheung Sin Ling, Vickki & ors [2022] HKCFI 892, §§74-75.

(r) The police officer to whom the Employee and Mr Cheng allegedly said that the Employee was accidentally injured during the jostling between the parties was not called as a witness in these proceedings; nor is his evidence in the Criminal Proceedings (whether what is written in his notebook or a transcript of his evidence given in court) adduced in these proceedings. In the premises, the reference to his evidence in the Transcript, which is not corroborated by any other evidence, is of little probative value.

(s) There is no dispute that the learned magistrate made no finding as to who had caused the Employee’s injuries, which remains a finding of fact which the court has to make in these proceedings on the balance of probabilities.

(t) The fact that the Defendant had been acquitted of assault occasioning actual bodily harm in the Criminal Proceedings simply means that the learned magistrate was not satisfied beyond reasonable doubt that the Assault caused the Employee’s injuries. It does not preclude this court from finding on the balance of probabilities that the Assault had caused the Employee’s injuries. See Chan Kai Man v Baiqian International Holding Limited (unrep, DCEC 1612/2012, 28 October 2016), para 24, citing Lord Diplock in Hunter Appellant v Chief Constable of the West Midlands Police & ors [1982] AC 529 at 543A-C.

(u) The learned magistrate’s findings in the Criminal Proceedings relied on by the Defendant, including her findings that:

(i) she could not entirely rely on the evidence of the Employee and Mr Cheng;

(ii) she could not be certain as to whether when Mr Cheng intervened, it was (1) the Defendant and his father who jointly assaulted the Employee and Mr Cheng or (2) the Defendant and his father jostled with Mr Cheng out of self defence;

(iii) Mr Ng’s evidence did not indicate whether the Defendant’s hitting caused any injury to the Employee;

(iv) she could not eliminate the possibility that the Employee’s injuries as shown in the medical reports were caused when the parties jostled against each other after Mr Cheng’s intervention, are not inconsistent with any finding by this court, and do not preclude this court from finding on the balance of probabilities, that the Assault had caused the Employee’s injuries.

(v) The Defendant relies on the small fine of $2,000 imposed by the learned magistrate and contends that the Assault did not cause the Employee’s injuries. However, it is clear from the Transcript that the fine was imposed based on a variety of factors, including the facts of the case, mitigating factors, absence of criminal record of the Defendant, and the fact that the Assault was not a serious one and was originated from a minor incident. Although the Defendant was acquitted of assault occasioning actual bodily harm, there was clearly no finding by the learned magistrate that the Assault did not cause the Employee’s injuries.

(w) The Defendant contends that the injuries and sick leave certified by the Board in Form 7 over two years after the Incident and/or those relied on in the DCEC Proceedings did not have anything to do with the Incident. This cannot be right. The Form 7 expressly refers to the EC Case which concerns the Incident, and the application in the DCEC Proceedings also expressly refers to the Incident.

(x) The Defendant disputes that his hitting the Employee once could result in the injuries complained of by the Employee. However, such injuries were clearly evidenced by the medical reports and certified by the Board. The Defendant has adduced no evidence or called any medical expert to contradict or challenge the same.

(y) Further, pursuant to section 16H of ECO, the certificate of assessment issued by the Board under section 16F “… shall be admitted in evidence without further proof on its production in any court and … (ii) shall be evidence of the matters stated therein”.

(z) In any event, the Defendant has not adduced any evidence to contradict the matters stated in the certificate of assessment issued by the Board in respect of the Employee’s injuries in the Incident.

(aa) Finally, the Defendant invites the court to draw adverse inference against the Plaintiffs for failing to call the Employee and Mr Ng as witnesses. However, as mentioned above, there is no dispute that the Employee’s employment was terminated by the Plaintiffs in around October 2018. As to Mr Ng, there is no evidence as to whether (i) Mr Ng is currently employed by the Plaintiffs, or (ii) the Plaintiffs could have called him as a witness. In the premises, I refuse to draw any adverse inference from the absence of the Employee and Mr Ng.

43.For all the reasons above, I find on the balance of probabilities that the Assault had caused the Employee’s injuries complained of in the DCEC Proceedings and certified in the certificate of assessment (Form 7) by the Board. Accordingly, the Defendant is liable to the Employee “in respect of the same damage” as the Plaintiffs by reason of the Assault.

44.The Defendant complained that he had not been joined in the DCEC Proceedings and should therefore not be bound by the settlement sum paid to the Employee. Alternatively, he argues that the present contribution claim against him is barred by the doctrine of estoppel.[3]

45.However, there is no requirement under section 25 of ECO or section 3 of CLCO that the Defendant be joined in the DCEC Proceedings before contribution or indemnity can be sought against him. On the contrary, section 25(1)(b) of ECO expressly provides that the employer may exercise his right of action against the third party “either by joining in an action begun by the employee against the third party or by instituting separate proceedings” [emphasis added].

46.Further, as explained above, section 3(4) of CLCO confers a right or an entitlement on a settling defendant to seek contribution from a third party upon a bona fide settlement.

47.In the premises, the Defendant’s ground of objection on the basis that he was not a party in the DCEC Proceedings and did not have any say on the settlement sum must be rejected.

48.As to the estoppel argument, there is simply no basis on which estoppel could arise given that the Plaintiffs were not parties to the Criminal Proceedings. The learned magistrate had no jurisdiction over the Plaintiffs at all. Further, other than the question of whether the Defendant had assaulted the Employee, the issues in these proceedings as set out in section F above either did not arise or was not decided in the Criminal Proceedings. As such, I do not accept the Defendant’s submissions based on the doctrine of estoppel.

49.Finally, the Defendant suggested that the Employee’s employment was terminated by the Plaintiffs because she had exaggerated her injuries and employee’s compensation claim against the Plaintiffs. However, this is a bare allegation unsupported by evidence. I do not accept such an allegation.

50.The Defendant also relies on the Employee’s allegation to the Labour Department that the termination of her employment with the 1^st Plaintiff on or about 20 October 2018 was unlawful and contends that the DCEC Proceedings in fact concerns compensation for her unlawful termination, but not her personal injuries.

51.Such contention is a non-starter. It is clear from the documents filed in the DCEC Proceedings that such proceedings concern compensation for her personal injuries sustained in the Incident.

H3. Issue 3: Whether the settlement between the Plaintiffs and the Employee in the DCEC Proceedings was a bona fide settlement?

52.As mentioned above, I accept Ms Lui’s evidence on the settlement payments made by the Plaintiffs to the Employee both before and in settlement of the DCEC Proceedings.

53.In paragraph 10 of Ms Lui’s supplemental witness statement, she set out in details the calculation of the compensation which the Plaintiffs are liable to pay under sections 9, 10 and 10A of ECO based on the Employee’s monthly earnings, age, loss of earning capacity and sick leave periods as certified by the Board.

54.The amount of the sanctioned payment was calculated based on the above, the advanced payment made to the Employee (which is supported by cheques paid to the Employee) and the interest calculation set out in Ms Lui’s supplemental witness statement.

55.As to legal costs, it was held in China Ping An Insurance (Hong Kong) Co Ltd v Chong Pin To (unrep, DCCJ 3525/2010, 29 July 2011), §§20-21, citing Wah Kwong Construction Material v Wong Man Yip [1995] 1 HKLR 85 and Hong Kong Red Cross v The Hong Kong Federation of Youth Groups (unrep, DCCJ 2233/2007, 12 February 2010), that a claim based on section 25(1) of ECO and section 3 of CLCO can include costs paid to the claimant and his own legal costs in defending the claim.

56.I find that the amount of legal costs claimed by the Employee in the sum of $45,000 is supported by contemporaneous documents, including correspondence between the solicitors and receipt issued by the Employee’s solicitors, and is reasonable.

57.I also find that the amount of legal costs incurred by the Plaintiffs in the DCEC Proceedings in the sum of $45,000 is supported by a bill of costs issued by the Plaintiff’s solicitors and is reasonable.

58.By reason of the above, I find that the settlement between the Plaintiffs and the Employee in the DCEC Proceedings was a bona fide settlement.

H4. Issue 4: What is the extent of contribution which the Defendant should be liable to contribute?

59.For reasons explained above, I find that it was the Defendant who assaulted the Employee and caused the injuries she sustained. The Plaintiffs played no part in this and could not be blamed. They did not cause the Assault or the Employee’s injuries. Further, it is not the Defendant’s case that the Plaintiffs had caused or contributed to the Assault or the Employee’s injuries.

60.This is not a case in which (i) there are more than one contributory causes of the Employee’s injuries or (ii) the Employee’s injuries were caused by her own negligence. In the premises, the authorities[4] cited by the Defendant are completely distinguishable.

61.Applying the legal principles set out in section E above and having considered the blameworthiness of the Plaintiffs and the Defendant (being the only parties before the court) and their causative potency, I find that the Defendant should be 100% responsible for the Employee’s injuries and the loss and damage claimed by the Employee in the DCEC Proceedings.

62.In the premises, I find that the contribution of 100% (or full indemnity) sought by the Plaintiffs is just and equitable.

I. Conclusion

63.For the reasons above, I find that the Plaintiffs are entitled to recover $393,745 from the Defendant.

64.The Plaintiffs are entitled to interest on the said sum at prime rate plus 1% from the date of Writ (ie 10 January 2022) to the date of this judgment and thereafter at judgment rate until the date of payment.

65.I make a costs order nisi that the Defendant do pay the Plaintiffs’ costs of the action (including all costs reserved), to be taxed if not agreed, with certificate for counsel. Any application to vary such costs order nisi should be made within 14 days from the date of this judgment.

Mr Thomas Yeon, instructed by Christine M. Koo & Ip, Solicitors & Notaries LLP, for the 1^st and 2^nd plaintiffs

The defendant appeared in person