Chong Hing Fat v. Poon Wai Hung t/a Shek Pik Canteen Prison Staff Canteen

DCEC000414/2001

DCEC414/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 414 OF 2001

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Coram: H H Judge H C Wong in Court

Date of Judgment: 26 September 2002

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J U D G M E N T

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1.The applicant is claiming compensation against the respondent under sections 9 and 10 of the Employees Compensation Ordinance, Cap. 282, for injuries suffered in the course of duty on 25 August 2000.

2.The applicant was employed by the respondent to work as a bartender and assistant cook at the time of the injury at the Shek Pik Prison Staff Canteen on Lantau Island. Both liability and quantum are disputed by the respondent.

3.The respondent denies that the applicant sustained the injuries in the course of work. In the answer filed to the application in these proceedings, one of the respondent's original defences was that the applicant had falsely represented to the respondent that he had no previous criminal record at the time of the job interview. This defence of false representation has been abandoned by the respondent at the final submission stage of the hearing.

4.With this in mind, I shall come to the point on liability.

Liability

5.On the issue of liability, it is the applicant's case that he had started work at 4.30 am on the morning of the incident, 25 August 2000. After breakfast had finished at 9 am, he was in the process of cleaning up the utensils, such as coffee and tea pots, coffee and tea bags, etc. He was performing his duty at a sink in the kitchen when one of the respondent's other employees, Chung Leung-shu, the first respondent witness, started to quarrel with him over the use of the sink after the hours of 9 am. In spite of the intervention of the head cook, Chan Chi-keung, who was called as the second respondent witness, the quarrel between the applicant and Chung continued resulting in the first respondent witness, Chung Leung-shu, chopping the applicant on the head and his left arm.

6.The applicant sustained as a result of the assault two scalp wounds, a small linear depressed fracture on the head and a compound fracture on his left lateral condyle humerus. He was hospitalised from 25 August 2000 to 1 September 2000, followed by follow-up treatments and physiotherapy at the Pamela Youde Nethersole Eastern Hospital.

7.Much of the aforesaid facts are undisputed. The respondent disputed that the applicant was not in the course of employment when the incident of wounding took place, or alternatively the incident of wounding took place due to the provocation of the applicant and it was therefore a personal matter between the applicant and the first respondent witness, Mr Chung Leung-shu.

8.Both the first and second respondent witnesses were present at the scene at the time of the wounding incident and they gave detailed evidence in court. Their evidence may vary in minor details but they are not inconsistent with the main case of the applicant. In any event, the applicant produced under a hearsay notice the witness statements of the applicant, the second respondent witness, Chan Chi-keung, a transcript of the video cautioned statement of the first respondent witness, Chung, and the police record of the prosecution of Chung at the magistrate court of his assault on the applicant.

9.The first respondent witness, Chung, is now serving a term of imprisonment in Pik Uk Prison. He was brought to give evidence in court at the hearing under a body order.

10.Whatever the reasons given by Chung for assaulting the applicant, it is of course wrong to assault anyone with a chopper causing him serious bodily harm. Provocation is not a defence in the criminal prosecution, neither is it a defence at an employee compensation application.

11.The facts in this case are clear. Both the applicant and Chung were working in a kitchen when the incident took place. Both admitted they did not know each other until four or so days before 25 August, that is they only came to know each other when the applicant came and started work for the respondent which is either, according to the applicant, in the evening of 20 August 2000 or, according to the respondent, after work started on 21 August 2000.

12.There were no personal grudges between the two persons, the applicant and Chung. The issue of the quarrel on 25 August was over the use of the sink. The applicant had wanted to clean up the coffee bag while Chung also wanted to use the water tap and the sink to defrost frozen meat for the afternoon meal. I cannot see anything more obvious in this case that they were both in the course of employment when the assault took place and the quarrel was over the use of a sink for their work. I cannot see any valid defence on liability whatsoever.

Quantum

13.On the issue of quantum, the applicant has been assessed by the Employees Compensation (Ordinary Assessment) Board under section 16F of the ordinance to have suffered a loss of earning capacity of 9.5 per cent and the period of absence from duty was necessary as a result of the injury to be from 25 August 2000 to 28 June 2001, a total of 308 days. This is not disputed by the respondent. The only issue in dispute is the monthly salary of the applicant, whether it was $9,000 per month without any overtime allowance, or as the applicant claims, $9,000 plus $1,000 overtime allowance a month.

14.It is the applicant's evidence that he received a basic pay of $9,000 per month. He produced an Oriental Daily advertisement dated 18 August 2000, a Friday. In this advertisement the job that he applied for on the same day first by telephone enquiry and subsequently at an interview with the respondent, was for a basic pay of $9,000 per month. According to the applicant's own evidence, his working hours were 9.30 am to 2 pm which is a 91/2 hour schedule. Then he was asked to put in overtime to help the kitchen at the evening meal time between 6.30 pm and 9.15 pm, 23/4 hours more for which he would be paid an extra $1,000 per month.

15.It is also the applicant's evidence that he would get three days off in a month whilst, according to the respondent's evidence, the applicant was hired either at $9,000 per month without overtime pay or that he was hired at $300 per day as a casual worker. There is a difference between hiring the applicant at a monthly salary of $9,000 and hiring him as a casual worker at $300 per day because for a casual worker he would only be eligible to get paid for each day he had worked. There would therefore be no rest days or other benefits. This is usually intended for a short-term or temporary worker or rather as a temporary measure. On the other hand, hiring someone at a monthly salary denotes that the job is a long-term job and is not intended for a short-term nature.

16.Both the respondent's pleading and witness statements refer to the applicant as a casual worker at $300 per day. But his evidence in court is very different, nothing about the applicant being introduced by the former bartender, Mr Ting, had been mentioned by the respondent in his evidence-in-chief. When he was cross-examined on his witness statement, he said it was the same, that Mr Ting may have known the applicant beforehand or that Mr Ting had originally intended to take a few days leave and that the applicant was introduced or intended to be his substitute for a few days but there was a change of plan later on.

17.However, none of these had been substantiated by the respondent. The documents in support of the applicant's evidence on the other hand, including the newspaper advertisement, clearly indicated the job was meant to be a long-term position and only the monthly salary has been referred to in the newspaper advertisement.

18.Mr Tang, counsel for the applicant, also referred me to the evidence of the colleagues of the applicant employed by the respondent at the staff canteen. The head cook, Mr Chan, the second respondent witness, was paid $12,000 a month with three rest days a month. The first respondent witness, Mr Chung, was paid $12,300 or $12,000 a month. According to Mr Chung, he had four days off in a month. It means Chan, the head cook, worked 91/2 hours a day while Mr Chung worked 101/2 hours a day. Compared to the applicant's hours of work, he would work from 4.30 am to 2 pm, and again from 6.30 pm to 9.15 pm. That is a 121/4 hour day.

19.Clearly the disparity is much too large. Applying simple mathematics, one would be able to work the hourly rate of each. Chan, the head cook, working 91/2 hours for 27 days worked 2561/2 hours a month. Chung, assistant cook, worked 101/2 hours a day for 26 days in a month so he worked 273 hours a month. Whereas Chong, the applicant, the bartender, he worked a 121/4 hour day for 27 days a month and therefore he worked 330.75 hours a month. The hourly rate therefore of Chan is $12,000 divided by 256.5 which is $46.78. For Chung, $12,000 divided by 273 works out to be an hourly rate of $43.95. For the applicant, if the respondent's evidence is correct that he is paid a flat $9,000 a month including the 121/4 hour day, his $9,000 is divided by 330.75 hours and that comes to $27.21 an hour.

20.If the applicant's evidence is to be accepted and his pay should be increased by $1,000 for the overtime he put in, his hourly rate would become $10,000 divided by 330.75 hours and therefore his hourly rate is $30.23. On the other hand, if he did not have to work the 23/4 hour a day overtime, and based on the basic 91/2 hours at $9,000 a month, his hourly rate would have been $35.08.

21.I asked the question, is it possible for the respondent to require the applicant to work for 23/4 hours more than Chan on a daily basis or 13/4 hours more than Chung at $3,000 per month less pay. Is it reasonable for the applicant to be paid $27.21 per hour while the first respondent witness, Chung, was getting paid $43.95 an hour? I can ask the question another way; is it reasonable or is it possible for the applicant to accept the respondent to require him to work an extra 23/4 hours a day without overtime pay? I do not think so.

22.If an employee has to get up and start working at 4.30 am in the morning, work a full 91/2 hours, it is unlikely that he would be required to help out at the evening meal preparation for 23/4 hours more without pay.

23.I find the respondent's evidence in general to be highly unsatisfactory. He has been evasive and inconsistent, inconsistent not only with his own pleading but with his own witness statement in a large number of aspects. He is entirely unreliable.

24.I find the applicant's evidence well-supported by documentary evidence and he was consistent in his evidence in the police statement and in his own witness statement filed in these proceedings. I accept his evidence on the balance of probability.

25.I further accept the calculation by Mr Tang, applicant's counsel, based on the salary of $10,000 a month and the calculations set out in paragraph 27 and 28 of his written opening. The section 9 compensation is $10,000 times 96 times 9.5 per cent which comes to $91,200. The section 10 compensation comes to $10,000 times 1/27 times 308 days multiplied by 4/5 and it comes to $91,259. The total compensation under sections 9 and 10 is $182,459.

Interest

26.I have been invited by Mr Tang for the applicant to apply the rate of half the current month's judgment rate of interest as the basis for the calculation of the interest from the date of accident to the date of judgment and this rate suggested is 4.0625 per cent per annum. This is not my usual practice, nor is it usual for most judges in these courts. However, since Mr Lee, the respondent's counsel, has no objection to using this flat rate for ease of calculation by the parties, I shall accede to Mr Tang's request. The interest calculated is therefore $182,459 multiplied by 4.0625 per cent multiplied by 25/12 which comes to $15,442.

27.Costs follow the event. I grant costs to the applicant with certificate for counsel.

28.Lastly, I thank counsel for both parties for their assistance.

Representation:

Present: Mr Ronald Tang, instructed by the Legal Aid Department, for the Applicant

Mr Lee Yiu-chung, instructed by Louis K Y Pau & Co., for the Respondent