Muhammad Fida v. San Kee Logistics Ltd and Others

DCEC 790/2024

[2026] HKDC 1458

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 790 OF 2024

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JUDGMENT

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Introduction

1.This is the trial of the Applicant’s claim under ss 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

2.The Applicant’s case is that he was employed by the 1^st Respondent at the time of the accident which happened on 8 August 2023 (“Accident”). It is also alleged that the 2^nd Respondent was the principal contractor of the 1^st Respondent at the time of the Accident.

3.By a Notice of Proceedings dated 29 April 2024 served on the 3^rd Respondent (“Fund Board”) pursuant to s 25B(1)(a) of the Employees Compensation Assistance Ordinance, Cap 365.

4.There was no employees’ compensation insurance policy known to be in force at the time of the Accident. As such, the Fund Board applied to be joined in as the 3^rd Respondent, which was granted by Deputy District Judge B. Mak on 1 December 2025 to litigate both issues of liability and quantum.

5.On 25 April 2025, Interlocutory Judgment on liability was entered against the 1^st Respondent.

6.This is the trial of the Applicant’s claim.

7.The Applicant and the 1^st Respondent were absent from the trial. The 2^nd Respondent was represented by Mr Ho, and the Fund Board was represented by Ms Lam.

The claim against the 2^nd Respondent

8.As the Applicant did not appear at the trial to pursue his claim against the 2^nd Respondent, I have dismissed the same pursuant to O 35, r 1 of the Rules of the District Court, Cap 336H, upon the 2^nd Respondent’s application.

9.I shall order the Applicant to pay the 2^nd Respondent’s costs of the proceedings, with certificate for counsel, to be taxed if not agreed.

The claim against the 1^st Respondent

10.What remains to be dealt with is the assessment of compensation in relation to the Applicant’s claim against the 1^st Respondent.

11.In Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643, Cheung JA explained the three approaches in determining and calculating monthly earnings under s 11 of ECO:-

“3. 第一種是根據《條例》第 11(1) 條：

‘11(1) 除本條另有規定外，為施行本條例，僱員在意外發生時的每月收入須按以下方法計算──

(a) 以緊接意外發生日期的上一個月的收入為準；或

(b) 如在以往的12個月，僱員一直由同一僱主僱用，則按最能顯示該段期間僱員的每月報酬額的方法計算，但如並非如此，而僱員受僱於同一僱主的期間較短，則按最能顯示該段較短期間僱員的每月報酬額的方法計算，

兩種計算方法以對僱員較有利者為準。’

4. 第二種是根據《條例》第 11(2) 條的前半部分條文：

‘11(2) 凡由於僱員受僱於某一僱主的僱用期過於短暫、由於受僱屬臨時性質或由於僱用條款，以致計算該僱員在意外發生日期時的報酬額並非切實可行，則可顧及一名在相同職系中具類似賺取收入能力的人，在意外發生前12個月，受僱於同一僱主擔任相同工作每月所賺取的平均款額；……’

5. 第三種是根據《條例》第 11(2) 條的後半部分條文：

‘11(2) …… 但如無人如此受僱，則可顧及一名在相同職系中具類似賺取收入能力的人，在意外發生前12個月，受僱於同一地區以擔任同類工作每月所賺取的平均款額。’”

12.Although documentary evidence has been placed before this Court for assessment, Ms Lam submits that, based on the current state of the evidence and without the Applicant’s viva voce testimony, it is extremely difficult to fairly determine the Applicant’s applicable monthly earnings.

13.The main point made by Ms Lam is that there is conflicting evidence on when the Applicant began his employment with the 1^st Respondent. In the Applicant’s 2^nd Affirmation dated 2 October 2025, he affirmed that he started working for the 1^st Respondent from July 2023 to and until the date of the Accident. However, in the letter from the Applicant’s solicitors to the Fund Board’s solicitors dated 7 November 2025, it was alleged that the Applicant started working for the 1^st Respondent in around June or July 2022. The year “2022” seems to be a typographical error, as it was stated in the next sentence that the Applicant worked for the 1^st Respondent for approximately 1 month before the Accident. Be that as it may, there is a question mark as to whether the Applicant had worked for a full month with the 1^st Respondent prior to the Accident.

14.This is not helped by the fact that the Applicant’s HSBC bank account statements dated 3 August 2023 and 2 September 2023 showed one San Kee Logistics having made deposits into that Applicant’s account in the following amounts:-

(a)  HK$1,000 on 30 July 2023.

(b)  HK$2,000 on 31 July 2023.

(c)  HK$500 on 8 August 2023.

15.The Applicant’s claim was that he worked around 10 to 20 days a month, and earned around HK$20,000 per month. The calculation of the Applicant’s monthly earnings remains to be tested.

16.It is not practicable to make a calculation under s 11(2) of ECO either:-

(a)  The parties have not adduced any evidence on the average monthly earnings during the 12 months preceding the Accident of a comparable worker of the 1^st Respondent.

(b)  The parties have adduced no evidence of the average monthly amount which, during the 12 months previous to the Accident, was being earned by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district. Although the data published by the Census and Statistics Department is usually referenced for this purpose, the antecedent factual questions as to the grade, class and district of the Applicant’s work has to be answered first. This does not seem possible in the absence of the Applicant’s viva voce evidence.

17.It is noted that s 11(5) of ECO provides that:-

“Where the earnings of an employee calculated under any of the provisions of this section amount to less than the amount specified in the second column of the Sixth Schedule shown opposite section 11(5) specified in the first column of that Schedule per month, the earnings of such employee shall, for the purposes of this Ordinance, be deemed to be the amount specified in the second column of the Sixth Schedule shown opposite section 11(5) specified in the first column of that Schedule per month.”

18.However, in Or Wing Ming v Ho Bing Chi [2008] 2 HKCLRT 20, Yuen JA said at paragraph 26(3):-

“… the Judge erred in applying section 11(5). For reasons that the Court of Appeal has canvassed in [Lai Cheung Kwong v Lo King Sum [2008] 3 HKLRD 643], the legislative intent of section 11(5) is not to provide a notional earnings figure that the court may adopt in the absence of evidence required under section 11(2).”

19.For these reasons, I agree with Ms Lam’s submission for the Fund Board that in order to ensure fairness to all interested parties, it is more desirable to adjourn the hearing of the assessment of compensation sine die, with liberty to restore.

20.I shall make such an order, and order that costs of the present trial be reserved.

Conclusions

21.For the above reasons, I shall make the following orders:-

(a)  The Applicant’s claim against the 2^nd Respondent be dismissed.

(b)  The Applicant shall pay the 2^nd Respondent’s costs of these proceedings, with certificate for counsel, to be taxed on an inter partes basis if not agreed.

(c)  The assessment of compensation in relation to the Applicant’s claim against the 1^st Respondent be adjourned sine die, with liberty to restore.

(d)  Costs of the present trial be reserved.

22.It remains for me to thank Mr Ho and Ms Lam for their assistance.

The Applicant was not represented and did not appear

The 1^st Respondent was not represented and did not appear

Mr Leon Ho, instructed by John Lam, Law & Co, for the 2^nd Respondent

Ms Flora Lam, instructed by Cheng, Yeung & Co, for the 3^rd Respondent