Ng Kwok Hoi v. Hop Shing Lung Industrial Ltd

DCEC000792/2002

DCEC792/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 792 OF 2002

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Coram: H.H. Judge Carlson in Court

Date of Hearing: 9 - 11 September & 15 September 2003

Date of Judgment: 25 September 2003 (handed down)

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JUDGMENT

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Introduction

1.This is an application for employees compensation under Sections 9, 10 and 10A of the Employees Compensation Ordinance which I will refer to as the Ordinance. There is also an appeal under S.18 against the assessment of loss of earning capacity made by the Employees Compensation (Ordinary Assessment) Board ("the Board").

2.Although liability as well as the quantum of compensation are contested, Mr. Ramanathan who appears for the Respondents has not really pressed the issue of liability to any real extent, and rightly so in my judgment, because as will appear in a moment the evidence has clearly demonstrated that the Applicant had been injured by accident arising out of and in the course of his employment, as required by S.5(1) of the Ordinance. The real contest has been on quantum where the principal issue is whether the Applicant has feigned or, at the very least, grossly exaggerated his disability following his injuries.

The Accident

3.The Respondents operate a metal workshop at the San Po Kong Industrial Estate using what appears to be very modern metal-working machinery. The Applicant is an experienced metal-worker having acquired his skills and experience in factories in China as well as Hong Kong. He started this particular employment in August 2000 and was at first subject to supervision to ensure that he was sufficiently experienced and skilled in operating the particular machinery used by the Respondents.

4.The accident occurred at a little after 3 p.m. on 16th September 2000. The Applicant had been directed to plane and so smooth out a piece of metal measuring 2,400 mm x 45 mm x 30 mm, which I will refer to as the workpiece. In order to do so he was required to secure it to a milling machine and plane it down to the required depth. This type of machine operates to a high degree of precision. I have seen photographs of it starting at C30 as well as a technical pamphlet which is at E315. Although I have heard detailed evidence from the Applicant as to how he was operating it when he was injured, for present purposes, a brief summary will suffice. A more detailed consideration may have been necessary had this been a common law action for damages but as I am not required to make findings as to negligence or breach of statutory duty and the like I am spared the necessity of that sort of exposition.

5.The workpiece is placed within the electro-magnetic chuk, as it has been called, or vice which would secure it in place. Above the workpiece is an electrically driven milling-head which moves over the workpiece and planes it down to the desired pre-set level. Between both the workpiece and the milling head there is a transparent plastic shield which protects the operator, or is at least intended to protect him, from any shards of metal that may fly off the workpiece as it is being planed. There is an allegation that part of this plastic shield had broken off so that the Applicant was not getting the full extent of protection which the shield should have afforded him. At all events as the planing process was in progress the workpiece detached itself from the chuk and flew out of the machine at great speed striking the Applicant on the crown of his head causing him a very severe injury from which he lost consciousness.

6.These are the facts which give rise to the claim. The injuries which will need more elaboration in due course can be summarised as a closed fracture of the vault of the skull together with an epidural haematoma which required a craniotomy to exacuate the blood clot that had formed there and was pressing down on the brain.

7.I am completely satisfied on this evidence, uncontested as it is by the Respondents, that the cause of the accident and the resulting injuries were as have been described by the Applicant. It is perfectly clear that he was injured doing what he had been instructed to do by his employer in the course of his employment with them as a machine operator. It must also follow that his injuries arose out of his employment with the consequence that there must be judgment to the Applicant.

Quantum of Compensation

8.This being the case I must now examine the medical evidence as well as the Applicant's own evidence in order to quantify the amount of compensation payable to him under the Ordinance.

9.I have had evidence from two highly experienced neurologists, Dr. Y.L. Yu and Dr. Edmond Woo whose evidence has been largely directed to the question of the genuineness of the Applicant's symptoms since the accident. The parties have also jointly instructed Professor Lee, of Hong Kong University, who is a clinical psychologist, to provide a report on the Applicant. I have also got a number of reports from government doctors and therapists who have treated and managed the Applicant through his recovery. I will need to make repeated reference to all of this evidence in the course of this judgment.

The Physical Injuries

10.This aspect is not in dispute. Following his injury shortly after 3 p.m. the Applicant lay unconscious on the factory floor until he was discovered at about 11 p.m. and moved to hospital. There are a series of reports from Dr. Tse of the Department of Neurosurgery at Queen Elizabeth Hospital which relate the course of his surgical treatment and post-operative recovery. The one at C11 dated 21st July 2003 provides a good summary. The Applicant was found to have a 1.5 cms. laceration on the right of his scalp. The CT brain scan revealed a left epidural haematoma. An emergency craniotomy was performed to evacuate the blood clot on his brain. His post-operative recovery has uneventful. His Glasgow Coma Scale reading returned to its optimum 15/15 and he is reported to be "up and about" following the surgery, although complaining of residual headache and neck pain on lying down. He was discharged on 12th October 2000 some three and a half weeks later and transferred to Kowloon Hospital for rehabilitation. The craniotomy has left a permanent and long surgical scar which can be seen in the photographs at D9 and 10. Fortunately the Applicant has a full head of hair, with no sign that he is likely to go bald. His hair completely hides the scar from view. Dr. Tse also reports that the Applicant has been regularly seen at the Queen Elizabeth Hospital out-patient clinic from November 2000 until the present time. He has complained of headache and dizziness so that he is unable to resume work. He was last seen there on 19th June 2003 complaining of occasional headache and dizziness but he was able to walk steadily without assistance and the power in his limbs was full.

11.One can fairly say therefore that his surgical recovery has been complete, as in his physical recovery, subject to the impact of the symptoms which he still complains of and which have occupied most of the trial.

The Rehabilitation Treatment at Kowloon Hospital

12.This has taken the form of occupational therapy to try and restore him to a level where he is able to return to work. Most of this has been done in the form of physiotherapy, to build up his physical condition, together with psychological assistance to improve his morale and sense of well-being. A helpful summary is provided by Mr. Kenneth Fong an Occupational Therapist in a report dated 31st July 2003 which starts at C143. This shows that he has attended the out-patient treatment program since 29th November 2000 receiving treatment on 129 occasions up to 31st July 2003. This has included what is described as a "work hardening program", which I presume refers to physical fitness exercises, and from 17th September 2002 attendance at the "cognitive remediation program", providing psychological assistance. Mr. Fong has recorded the Applicant's subjective complaints as being frequent headache, nausea and forgetfulness. On 30th July 2003 the Applicant underwent a standard post-concussion symptoms test and obtained a score of 49/64. There are indications from this test that he had experienced "severe problems of headache, noise sensitivity, restlessness, forgetfulness and feeling frustrated". Mr. Fong also notes that there was dizziness, fatigue, poor concentration, light sensitivity and sleep disturbance.

13.Cognitive testing was performed on 25th July 2003 which provides an up-to-date assessment together with the post-concussion syndrome questionnaire at the end of July. On cognitive performance he was normal in orientation, attention, comprehension, naming, constructions, calculation, similarity and judgment. Naming was mildly impaired, but repetition and memory was moderately impaired. This will, according to Mr. Fong, affect the Applicant's concentration span. From September 2002 to July 2003 he was noted to have had a mild improvement in punctuality, remembering appointments and performing tasks, although a difficulty "in every day memory" appears to have persisted throughout the whole of his treatment. A specialist test ("RBMT") showed that he was easily distracted and had difficulty in doing two or more tasks simultaneously. Other tests also showed a difficulty in maintaining concentration.

14.As to his physical capacity, Mr. Fong has produced a comparison table (C147) recording the results of tests carried out on 17th September 2002 and 31st July 2003. The overall result showed that he had gone backwards. As to the test in July Mr. Fong suggests that "this result was in doubt since he had not used his whole effort in doing the last dynamic lifting capacity evaluation". The test to show "motor speed" showed that the Applicant's motor speed was far below the competitive rate for that expected of manual workers.

15.As to his Activities of Daily Living he was shown to be independent. A test in July 2003 indicated that he could perform independent community living with occasional support from others.

16.Tests were conducted to measure his work performance. These showed his work speed to be far below the competitive rate. His work was also shown to be inaccurate which showed difficulty in concentration. Mr. Fong has concluded that it would not be possible for the Applicant to return to his previous employment given the demands of that job which require concentration and working with precise measurements and calibration. His assessment is that he can only cope with light physical work with low intellectual demands. He recommends that the Applicant should participate in support group activities and continued training to improve his independence in the activities of daily living.

17.I also have a recent report from Miss Florence Lai a psychologist at Kowloon Hospital. It is dated 19th July 2003 (C65). She administered a series of tests and found him to be generally co-operative throughout the assessment sessions. She says that he was able to understand and follow test instructions. Retrograde memory was slightly reduced when he was asked to recall his past history. She notes - "He seemed to put forth effort on the examinations and the results represented a valid sampling of cognitive abilities". She assessed his intellectual functioning in the Borderline range. She has carried out a series of tests to measure Attention, Learning and Memory, Visuo-spatial skills and Mood. He attended 22 follow-up sessions following his discharge from Kowloon Hospital on 29th October 2000. She has found deficits in several cognitive "domains" consistent with "mild to moderate decline in his overall cognitive functioning from presumed pre-morbid levels". She says that problems in memory and problem solving hinder him to lead a fully independent existence and to resume his previous job. She discovered him to be suffering from depression which holds back his intellectual capacity and which causes his progress to be "slow and static". Her view is that he might be able to do simple manual tasks or light duties.

18.The final report I wish to refer to from the Government Hospitals is that of Dr. Chu dated 1st August 2003 which has the merit of being very recent. He has observed that the Applicant still had memory impairment. He had reported going to the wrong flat occasionally when going home. Clinical depression was diagnosed and tricyclic anti-depressants have been prescribed since 2nd December 2002. This has shown some improvement - he mixes better socially, and sleep and mood are improved. Dr. Chu says that maximal medical improvement has been reached. His conclusion is that there is mild memory deficit and that he has suffered mild depression for which he is being treated.

19.One of the features of this case is that the treating doctors and other professionals, from Kowloon Hospital in particular, have been prepared to take the Applicant's complaints for which independent imperical support is to be obtained from the various tests that they have been administered at face value and accept them,. This view was supported by the Applicant's expert Dr. Y.L. Yu. Dr. Woo, the Respondent's neurological expert and Professor Lee, the jointly instructed clinical psychology expert, have been highly critical of the Applicant's performance. They are of the opinion that he has been feigning symptoms or grossly exaggerating them so as to obtain a good result in court. The Government doctors might be expected to be quite unaffected by this litigation in providing their opinions but the point is made on behalf of the Respondents that as treating doctors and therapists they are far more likely to approach the Applicant's claimed complaints uncritically and proceed to treat him on that basis.

20.Dr. Y.L. Yu, called on behalf of the Applicant, has put in a series of extremely helpful reports which are at C77 to 115. They are full in themselves and he has elaborated on them in his evidence in chief and also under cross-examination. He performed the "gross" Mini - Mental State Examination (MMSE) on the Applicant and judged the score of 22/30 to be on the low side. A test on Current Knowledge and Abstract Thinking was also impaired. The Applicant's response was slow. His examination of cranial nerves showed these to be normal. There was no impaired hearing, nystagmus (rapid moments of the eye balls) and motor and sensory functions of the upper and lower limbs, tendon reflexes and gait were normal. These findings were based on Dr. Yu's examination on 18th October 2002. By way of opinion at that time Dr. Yu accepted the Applicant's complaints of dizziness and headache and found impairment of higher mental functions as well as emotional and behavioural disturbance. He considered that his neurological deficits would be permanent having regard to the fact that patients with head injuries achieve maximum recovery within 2 years. Taking all of this into account he considered that he would be unable to return to his pre-accident work operating machinery. An undemanding occupation such as that of a cleaner would be appropriate for him.

21.Dr. Yu also considered the risk of post-traumatic epileptic seizures (PTES) which has become something of an issue between him and Dr. Woo. Having regard to the nature of the head injury and the resulting loss of consciousness and amnesia for more than 24 hours the Applicant would have a 17-fold risk of developing seizures compared to the normal population. This would reduce from 95-fold within the first year down to 4-fold at 10 years. The 30 year cumulative incidence (risk) would be 16.7% compared to 2% for the normal population. This, says Dr. Yu, needs to be taken into account in assessing the Applicant's medical needs which includes all the care that he is getting from the Kowloon Hospital. He should also be seen at regular intervals by a neurologist to check on his progress, particularly having regard to the elevated risks of PTES. Dr. Yu has not shifted his ground on these basic opinions in the course of later reports that he prepared in answer to the views of Dr. Woo and Professor Lee, nor has he done so in evidence before me although he very properly observed when cross-examined by Mr. Ramanathan for the Respondents that his views on the Applicant's complaints on memory loss would have been different had he been aware that the Applicant had been able to give a very clear and detailed account of the accident to the Loss Adjusters. This statement appears at E307 - 313 and is dated April 2001, some seven months after the accident.

22.Dr. Edmond Woo examined the Applicant on 20th March 2002. He noted his complaint of 'giddiness' usually occurring on waking in the morning. There is also occasional vertigo and nausea, but no vomiting. He told Dr. Woo that he suffered from headaches, sometimes lasting for hours which could disturb his sleep. His memory was impaired. By way of example he cited instances of forgetting his keys, forgetting medical appointments or collecting his change after purchases. On one occasion forgetting $92 change when presenting a $100 note on a $8 purchase.

23.Dr. Woo's tests showed a mild degree of impairment in tests of orientation and planning/executive functions. Tests on calculation, concentration, registration, memory, general knowledge and abstract thinking were normal. In respect of his limbs, muscle tone was normal with no muscle wasting. A moderate degree of diffuse weakness was found in all 4 extremities with, what for Dr. Woo is a very significant, equal involvement of the agonist and the antagonist muscle at each joint. His gait was normal. Dr. Woo's comments on his examination, which he has summarized from C32 to 35, and adhered to in his oral evidence, are that the Applicant had either feigned or grossly exaggerated his complaints for the purposes of Dr. Woo's examination. In coming to his conclusion Dr. Woo accepts that the Applicant had sustained a very severe head injury although the neurological examination showed unusual features. Dr. Woo's point is that neurophysiological principles require that motor deficits associated with brain injury take on pyramided distribution in which muscle weakness is characterised by differential involvement of the agonist and the antagonist muscle at each joint in which the weakness is associated with an increase in muscle tone together with hyperactive deep tendon reflexes (See C33 paragraph 3). In the Applicant's case there was equal involvement of the agonist and the antagonist muscles at each joint with no associated increase of muscle tone on the one hand and hyperactive tendon reflexes on the other. These reactions to the tests by the Applicant defy neurological explanation - hence Dr. Woo's conclusion as to feigning or gross exaggeration. From that conclusion Dr. Woo says that it is simply not possible to make a true assessment of his residual neurological handicap. All he can say therefore is that with this type of head injury the usual natural history is one of gradual recovery over one to two years. The headache, dizziness, irritability might remain as well as some impaired memory. Having examined the Applicant 18 months after the accident Dr. Woo expected to see further improvement up to the 2-year mark. Dr. Woo expected and still sees no reason why the Applicant cannot return to his pre-accident employment. Loss of earning capacity should not succeed 5%.

24.In addressing the risks of PTES Dr. Woo is fairly sanguine about the risk of this in future. He points to the fact that this decreases over time. The medical statistics are common to both himself and Dr. Yu. His approach differs. He says at present the risk is 0.58%. After 4 years it will reduce to 0.42% and after 9 years down to 0.14%. He suggests that it is not right to take a cumulative risk figure, which may be helpful for the purposes of Government statistics in trying to gauge medical needs and budget to care for the community or, for an insurance company in calculating its premiums but, for an individual, the more realistic assessment is to look at the risk now in the particular year post-accident. That risk is small and will get smaller as the years go by.

25.It is useful to take stock of the medical dispute so far. Dr. Yu says that these complaints are real and, broadly speaking, accurate subject to his observation on memory impairment now that he has learnt for the first time of the full statement given by the Applicant to the loss adjuster. This means that all he his capable of is light manual work with no realistic prospect of going back to his old job. Dr. Woo says these symptoms are feigned or at least grossly exaggerated symptoms. Subject to some residual headaches and some dizziness he should really be back to his old self and can return to operating factory machinery.

Professor Peter Lee

26.Of all the experts he is the most critical of the Applicant for feigning and/or exaggerating his situation. Professor Lee is a leading clinical psychologist in Hong Kong. His report is one that had been jointly commissioned with the result that the Applicant is rather struck with its conclusions. Ideally, I suppose, the Applicant's solicitors might have preferred to have been given the opportunity to seek other psychological opinion but the constraints of modern case management and the desire to pare down expert opinion to what is really necessary has meant that the Applicant is going to have to live with Professor Lee's views.

27.Professor Lee has provided a very detailed main report based on assessments made by him on the 11th and 27th February this year (C116). The criticisms start at C120. Professor Lee speaks of answers of variable quality, sometimes responding adequately and appropriately, on other occasions being seemingly unable to respond to even simple questions. Professor Lee has gone through all of the Applicant's complaints relating to poor memory, headaches, mood, dizzy sensation and difficulties associate with daily living and his social life. He then administered what he has described as a battery of psychological tests, 'to more systematically understand the nature of his difficulties'. Having carried out these investigations Professor Lee sets out his Opinion starting at C138. He has found that the Applicant's complaint of his symptoms were both inconsistent and vague. There were complaints of different intensities of pain which changed from one session to another as well as being inconsistent in his clinical presentation. Professor Lee says that the Applicant does not present with significant emotional and/or psychological symptoms of any kind and was not noted to present with any symptoms that are suggestive of any clinically intense psychological or psychiatric disorder including that of anxiety, depression or post traumatic stress disorder (C140 paragraph 66). The conclusion is that the Applicant is largely putting all of this on so that he, rather like Dr. Woo, could not accurately assess the Applicant's current degree of psychological impairment and disability. He does not discount a mild degree of physical distress and psychological and cognitive memory impairments. Nevertheless, he says that these are likely to be 'mild at best'. Professor Lee says that the Applicant has now become used to his sick role and ends with the very strong comment that this 'allows him to conduct an idled and listless way of life together with much unwarranted attention from treatment and rehabilitation personnel'.

The Applicant

28.He has given a full account of the accident as best he now recollects it. For the purposes of this trial the major part of his evidence has focused on his disabilities which he has recounted in some detail in addition to what appears in his witness statement. He has come over as a rather irritating witness simply because he appears not to understand even the most basic questions. Mr. Jones has drawn attention to this, although that is not a matter which I have, in any way, held against him. He has described his headaches, his dizziness, his poor memory and the other complaints which he made to the medical experts who have been able to comment on these, with the differing conclusions which I have already drawn attention to. I have listened to his account with care. As to the genuineness and extent of his symptoms, which is the real issue in the case, I must largely be guided by those parts of the medical evidence which I am prepared to accept. In the final analysis this is a neurological/psychological issue and although the Applicant's own performance in the witness box and his evidence before me is important the view of the medical experts must assume even greater significance in the circumstances of this case.

My Conclusions

29.Mr. Jones in the course of a very full and helpful final speech on behalf of the Applicant has understandably sought to rely on the 'neutral' evidence from the hospital doctors and other professionals whose reports paint a picture of a man with an on-going disability which they are continuing to treat, albeit now, more restrictively given the passage of time. None of these doctors have been asked to address the question of whether the symptoms which the Applicant complains of may be feigned or at least exaggerated, although I have observed a hint of this from Mr. Fong on the question of the dynamic weight lifting tests. Dr. Yu, who knows much about such matters, supports the general conclusion that these symptoms are real, subject to the question of memory impairment having regard to what he had not been aware of in respect of the Applicant's apparently full recollection of the accident when he was seen by the insurance loss adjuster to whom he gave a long witness statement.

30.Ultimately, I have decided that on this occasion Dr. Yu's evidence cannot survive the analysis of the Applicant's presentation by Dr. Woo and Professor Lee very much for the reasons which they have both given in their evidence. Dr. Woo was I thought most helpful in his conclusions as to the inexplicable reaction of the agonist and antagonist muscle at the joints where the only explanation must be that this was being put on by the Applicant in an attempt to demonstrate a disability that was simply not there. That finding must reflect badly on the general credibility of the Applicant. Professor Lee has for his part presented a very cogent case on exaggeration or, worse still, feigning for the reasons which he has given. I am therefore left with a situation where the Applicant, through his own fault, by not being frank and open with these experts has done himself an injustice. These experts cannot provide an accurate assessment of the Applicant's disability save to say that they are likely to be mild in terms of residual disabilities relating to his cognitive functions with some lapse of memory, some headaches and dizziness. I must now demonstrate how I will take this into account in my assessment of what the Applicant should be awarded by way of compensation.

31.The risk of PTES is a discrete issue because it is something to be viewed objectively as everybody agrees that the Applicant has suffered from a severe head injury. Although Dr. Yu and Dr. Woo strove to disagree with each other they did so from common and agreed material. Both are of course correct in their statistical analysis. The cumulative incidence risk propounded by Dr. Yu is correct as a figure and as a means of measuring risk. Dr. Woo's annual assessment of risk is more readily understandable so that one is able to say what, at a particular moment of time, a person's risk of PTES actually is. Clearly that risk diminishes with the passage of time. Both neurologists agree on that. Now, three years after the accident, the risk is small and will get less but it is something which I need to recognise even as the years go on which is what Dr. Yu stresses. I must take the risk of PTES into account and somehow factor it in when assessing loss of earning capacity, although I fear that this must ultimately be in a rough and ready way by doing my best in all the circumstances. It is simply not possible to judge this with more precision.

The Award

Section 9

31.The Applicant's earnings at the time of the accident were $7,000 a month, which is an agreed figure. Mr. Jones has made a number of helpful submissions in regard to loss of earning capacity. The Applicant says that he tried to become re-engaged by the Respondents but they merely put him off. He was given advice by those treating him not to undertake dangerous or stressful employment. Since the 14th July this year he has found work as a messenger/cleaner for a kitchen design company who pay him $3,600 a month. He says this is all that he can manage at present. Mr. Jones submits that is entirely reasonable having regard to his difficulties in terms of cognitive ability, concentration and memory, headaches, dizziness and the risk of PTES. It is therefore submitted that I should take these 'special circumstances' into account under S. 9 (1) A and apply the modified Paper Mills formula. This would produce a 49% loss of earning capacity. The calculation would be $3,600/$7,000 = 51%. He now earns 51% of his pre-accident earnings producing a 49% loss. Nevertheless, that submission is simply not tenable on the basis of my findings that he is either feigning or at the very least grossly exaggerating his symptoms. I do not accept that this sort of work is all that he is capable of. Dr. Woo says that he can return to his old job. On that basis he suggests a modest loss of earning capacity of just 5%. It seems to me that the Applicant, who is after all an experienced machine operator, should be able to return to employment of this sort without too much difficulty. I have followed his evidence about the need for a high degree of concentration which all machine operators require and whilst one must not understate the skill and mental requirements for such employment it should also be remembered that the Applicant brings many years of experience to this type of work. Day in day out for over ten years he has operated these machines. I would have thought that this must come about almost as second nature to him. I am not satisfied that he has tried hard enough to get back into this line of work. I will assess loss of earning capacity on the basis of mild deficits as described by Dr. Woo and Professor Lee whose evidence I accept. I need to apply a degree of 'feel' to this - it simply can't be dealt with as a precision exercise. Making every allowance in favour of the Applicant against the background of the findings that I have made as to his residual deficits I am of the view that he has suffered a 16% loss of earning capacity. This being the case his appeal against the assessment made by the medical board must succeed. The Section 9 award therefore is 96 months (the Applicant was 33.4 years old at the time of the accident) x $7,000 x 16% = $107,520.

Section 10

32.This is agreed. He should receive $140,373 less $120,213.60 which is what the Respondents have already paid him. The award under this Section is therefore $20,159.40.

Section 10A - Medical Expenses

33.This figure is also agreed. The claim is $10,839 less $1,396 which was the amount spent by him on medical expenses after the expiry of sick leave, giving a balance of $9,463.

Total Compensation

34.The total amount of compensation payable is therefore $137,143.40.

Interest

35.I will award interest at 4% per annum on these amounts from the date of the accident until judgment and thereafter at the judgment rate until payment.

Costs

36.There will be an order nisi that the Respondents do pay the Applicant's costs of this application on a party and party basis together with Legal Aid taxation of his costs. There will also be Certificate for Counsel, to whom I express my gratitude for their considerable assistance.

Representation:

Mr. Douglas Jones instructed by the Director of Legal Aid for the Applicant.

Mr. Kumar Ramanathan instructed by Messrs. Chik & Lau for the Respondents.