Leung Pok Sang v. Chan Kwong t/a Yau Lee Transp Hong

DCEC1192/2003

IN THE DISTRI­CT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1192 OF 2003

------------------------

BETWEEN

------------------------

Coram : H H Judge Marlene Ng in Court

Dates of Hearing : 30^th and 31^st July and 1^st August, 2007

Date of Handing Down Judgment : 13^th November, 2007

------------------------

JUDGMENT

------------------------

I. Introduction

1.Since October 2001 the Applicant was employed by the Respondent as a China-Hong Kong container truck driver (“CT Driver”). The Respondent was the proprietor of Yau Lee Transp Hong (“Yau Lee”) that carried on business of China-Hong Kong cargo transportation. He had been in the trade for 30 odd years, but had never been a CT Driver. At the material time, Yau Lee’s manager was a CT Driver known as Chan Wai Lun (“Chan”).

2.Lee Kin Keung (“Lee”) was the director responsible for daily operations at Dongguan Wah Shing Plastic Company Limited (“Wah Shing”). Wah Shing usually retained the Respondent to transport plastic materials from Hong Kong to its factory in Dongguan, Mainland China (“DG”) by container trucks.

3.The Applicant in his Application (and in the Further and Better Particulars thereof) claimed that between about 8:30pm and 11:00pm on 1^st November 2001 he suffered personal injuries by an accident (“Accident”) arising out of and in the course of employmentfor which he is entitled to employees’ compensation under the Employees’ Compensation Ordinance Cap.282 (“Ordinance”) :

“

…… the Applicant, while in the course of his employment with the Respondent, was working at the examination place at a customs office of the Government of the People’s Republic of China at [DG]. He was instructed by the Respondent to drive a container truck from Hong Kong to [DG] for picking up goods. After the Applicant had parked the container truck at and when he was walking inside the said examination place, he slipped and fell down some steps or staircase at the said examination place. The floor was wet and slippery. The Applicant fell on his back with the back of his head hitting against the edge of a step.” (my emphasis)

4.But the Applicant gave a different version of the Accident when he gave evidence. He said that at about 10:00pm on 1^st November 2001 he returned to Fengguang or Yantian, Mainland China (“FG” or “YT”) to stay the night after delivering a container load of plastic materials to Wah Shing (ie not picking up goods). After he had his supper and collected his Blue Book (see below), he hurried back to his parked container truck (“Truck”) to put the Blue Book (see below) away before going to have a shower (ie not working at the examination place of the PRC customs office). As he was doing so, he slipped and fell on the stairs at the entrance of 興田大廈 (“HT Building”) (ie not on some steps or staircase of the aforesaid examination place).

5.The Respondent denied the Applicant’s allegations in relation to the Accident and further denied the Applicant suffered personal injuries arising out of and in the course of employment.

6.However, it is common ground that (a) on 1^st November 2001 the Applicant delivered plastic materials to Wah Shing and did not go to DG to pick up goods, and (b) he suffered a head injury that required wound suturing during his overnight stay in Mainland China between about 9:00pm on 1^st November 2001 (ie when he left Wah Shing’s factory) and the morning of 2^nd November 2001 (ie when he returned to Hong Kong).

7.The burden is on the Applicant to establish he suffered personal injuries by accident arising out of and in the course of employment (see section 5(1) of the Ordinance). For completeness, I also bear in mind the deeming provisions in section 5(4) of the Ordinance.

II. Overview of the witnesses

8.Both parties gave evidence. Lee’s expurgated witness statement was adduced as evidence. In assessing witnesses’ credibility, the court should consider the totality of their evidence against the documentary evidence, inferences based on inherent improbabilities and/or undisputed facts (see the principles set out by Chung J at paragraph 12 of Star Glory Investment Ltd v Kai Tua (H.K.) Technology Ltd & ors HCA3523/2002 (unreported, 13^th August 2005)).

9.Although the Applicant was the only eyewitness to the Accident, I disagree that his evidence must be accepted. Witness’ credibility does not turn on the fortuity of having an eyewitness, but on assessment of the totality of the evidence. Even if I reject the Respondent’s evidence in some respects (see below), I must consider the inherent probability or improbability of the Applicant’s own evidence.

10.By adopting such approach, I am persuaded the Applicant has not been honest or reliable in his account of the circumstances of the Accident. The serious inconsistencies in his Application, witness statements and evidence show without doubt he has been economical with the truth. I find he has been evasive in his answers in relation to the Accident and was not above embellishing his case when confronted with contradictory documents. However, I place no weight on the criminal charge of attempted theft against the Applicant in coming to such conclusion.

11.The Respondent’s evidence on customs procedures at the China-Hong Kong customs checkpoints and on the locality where the Accident allegedly took place was hearsay evidence elicited for the first time from the witness box. Although both counsel agreed the hearsay nature of such evidence did not debar admissibility, its weight was a separate issue that should be considered in light of section 49 of the Evidence Ordinance Cap.8 and the totality of the circumstances.

12.The Respondent claimed that his CT Drivers were the source of his information, but their identities, knowledge and experience were unknown. Although the Respondent had over 30 years’ experience in cross-border cargo transportation, he did not acquire such experience as a CT Driver. Upon considering all the circumstances, I do not feel I can safely place substantial weight on certain aspects of his evidence.

13.Further, the Respondent confessed that prior to trial he had not been forthcoming on what the Applicant told him as to the circumstances of the Accident. There were also discrepancies between his evidence and Yau Lee’s account of the Accident in various documents prepared by Chan (who still worked for Yau Lee at the time of trial but was not called to give evidence) for submission to the Labour Department. I am unable to place weight on the Respondent’s evidence in this respect.

14.Even so, my rejection of certain aspects of the Respondent’s evidence would not add credibility to the Applicant’s case which was beset with inherent difficulties that had not been overcome. I find that the Applicant failed to establish he suffered personal injuries by the Accident as alleged.

III. Liability : the facts

15.It is necessary to devote some time on the evidence because the facts are the foundation of the legal inquiry.

(a) Delivery order for 31st October 2001

16.The Applicant delivered a container load of plastic materials from Hong Kong to Wah Shing for the first time on 31^st October 2001. He left Hong Kong in the afternoon and reached Wah Shing at about 10:00pm. After the goods were unloaded, he stayed the night in Mainland China and returned to Hong Kong the following morning.

(b) Delivery order for 1st November 2001

17.The Respondent assigned the Applicant to deliver another container load of plastic materials to Wah Shing on 1^st November 2001. After leaving Lok Ma Chau customs checkpoint (“LMC Checkpoint”) at about 2:42pm, he drove for about an hour to Huangguang customs checkpoint (“HG Checkpoint”).

(c) HG Checkpoint

18.To enter/exit Mainland China, a CT Driver must have with him “出入境車輛及貨物檢驗檢疫監管簿” (ie 衛生檢疫證, “Blue Book”) and “來往香港汽車進出境簽証簿” (ie 海關監管證, “Yellow Book”) for quarantine clearance (ie 檢疫) and customs clearance (ie 報關).

19.First, the Blue Book would be submitted for quarantine clearance (ie 檢疫). When it was returned, the container truck would be weighed (ie 上地磅). Then the CT Driver would drive through the customs channel (ie 海關通度)tosubmit the Yellow Book and other documents for checking/stamping by the PRC customs officer. When that was done, the Yellow Book would be returned to the CT Driver. The PRC customs officer might require vehicle inspection. When that was completed or if it were not required, the PRC customs officer would give the CT Driver permission to leave (ie 放行). The CT Driver would proceed to a platform (ie 封關台) for a seal (ie 封條) to be affixed to the container doors (ie 封關) before leaving the HG Checkpoint.

20.In the afternoon of 1^st November 2001, the Applicant completed the usual procedures at the HG Checkpoint and the seal was affixed to the container doors (ie 封關).

(d) FG/YT customs checkpoint (“FG/YT Checkpoint”)

21.After leaving the HG Checkpoint, the Applicant proceeded to Wah Shing’s designated customs checkpoint (ie 拆關場), ie the FG/YT Checkpoint, after driving for about 1-1½ hours.

22.At the FG/YT Checkpoint, the PRC customs office was located in a building (“Customs Building”) across the road from a parking yard operated by the municipal government for container trucks waiting to undergo customs clearance procedures (ie 候檢場, “Customs Parking Yard”). There were other smaller parking yards in the vicinity.

23.Abutting the Customs Parking Yard but across the road from the Customs Building was the HT Building with restaurants and toilets (ie not shower rooms). There were free-of-charge shower room facilities to the side of the Customs Parking Yard (“Shower Rooms”) which were part of its facilities. The CT Drivers often used the Shower Rooms when they stayed overnight at the Customs Parking Yard, but some CT Drivers would have a wash at the toilets of the HT Building.

24.Both parties agreed that (a) the HT Building was a commercial building as evident by its numerous western-style restaurants and (b) the PRC customs office was located at the Customs Building and not at the HT Building. The Applicant admitted that customs clearance procedures were processed at the Customs Building and not at the HT Building. Although these two buildings were across the road from each other, vehicular traffic had to go around a wide circle to move from the Customs Parking Yard to the Customs Building.

25.Nevertheless, the Applicant suggested that the HT Building was part of the PRC customs complex/facilities, ie “個陣時代亦稱為海關吖嘛，即係嗰個範圍都叫做海關，但係嗰陣時冇話分清楚邊個—咩嘢記住佢咩大厦，咩嘢大厦，咁總之係一係叫海關嘅地域咁樣囉” and “啱啱嗰個海關對面嘅，即係屬於海關範圍架喇 …… 即係嗰個地址嗰個位係海關對面佢一迾都係西餐廳架，…… 咁車場嗰個後面嘅，……”. The Applicant went on to say “佢本身起咗嗰啲樓呢，係對呢個海關嘅結構有—即係有—配套嚟嘅，即係可以咁講，屬於配合嗰啲海關嗰啲操作 …… 都係屬於一種—配合一種建築物”. Bearing in mind the layout of the surrounding area and the matters referred to in the above paragraph, I find on balance this was nothing more than a self-serving and unreliable assertion by the Applicant to justify the crucial differences as to the location of the Accident given in his Application, witness statements and evidence. In my view, the proximity to the Customs Building and the presence of commercial businesses (eg restaurants) patronised by the CT Drivers would not be sufficient to render the HT Building part of the PRC customs facilities.

(e) Customs agency (ie 報關組, “Customs Agency”)

26.When the Applicant arrived at the FG/YT Checkpoint, he proceeded to the Customs Parking Yard to wait for Wah Shing’s designated Customs Agency (which was located some distance from the Customs Parking Yard) to handle the quarantine clearance (ie 檢疫) and/or paper customs clearance (ie 報關 and/or 文件拆關) procedures.

27.For such purpose, the Applicant telephoned to notify the Customs Agency of his arrival and gave the relevant documents in his possession to the Customs Agency for the clearance procedures. But the parties disagreed on (a) what documents should be given and (b) the method of delivery to be used.

28.The Respondent claimed that a CT Driver normally only gave the Yellow Book to the Customs Agency for processing paper customs clearance (ie 報關 and 文件拆關) whilst the Blue Book would only be submitted if the PRC customs office again required quarantine clearance (ie 檢疫). Mr Chan, counsel for the Applicant, criticised such hearsay evidence as undeserving of any weight. But even if I were to accede to Mr Chan’s submission, the Applicant’s evidence in this respect is also inherently unreliable.

29.In his 2^nd witness statement dated 14^th June 2006 (“Applicant’s 2^nd Statement”), the Applicant stated that he returned to the Customs Parking Yard on the night of 1^st November 2001 to collect both the Yellow and Blue Books. This meant that earlier in the day he had submitted both the Yellow and Blue Books to the Customs Agency so he had to retrieve them on his return. Yet when he gave evidence, the Applicant insisted he only gave the Blue Book to the Customs Agency for quarantine clearance(ie 檢疫), but retained the Yellow Book for personal submission to the PRC customs officer for stamping.

30.Even so, the Applicant was not consistent in his evidence. In his evidence-in-chief, he said “司機通常……集中喺東莞嗰個海關停車場過夜嘅，食飯同埋嗰啲黃藍簿嗰啲野，扱埋印嗰啲咁樣，沖涼、食飯” (my emphasis). Under cross-examination he said the Delivery Companies (see paragraph 33 below) “即係雁田附近嗰啲專門送黃、藍簿出入，送報關資料呀咁樣……” (my emphasis). Further, when the Applicant was asked under cross-examination about the usual practice, he said “平時做法，你咪卸貨，九點鐘未食飯咪 – 就為咗自已安全同埋架車安全，咪揸架車返嚟呢度海關停車場泊低食飯，扱埋印，攞埋黃、藍簿嗰啲囉” (my emphasis).

31.The inherent discrepancies in the Applicant’s evidence leave grave doubts as to whether he submitted only the Blue Book or both the Yellow and Blue Books to Wah Shing’s Customs Agency on 1^st November 2001. It follows that it becomes questionable whether he slipped and fell shortly after retrieving only the Blue Book (as he alleged) later that night. This clearly diminishes the Applicant’s overall credibility. In this respect, I also refer to paragraphs 40-41, 65 and 72-73 below.

32.But given the Applicant’s claim that the Blue Book would invariably be given to the Customs Agency and the Respondent’s concession that the Blue Book would sometimes be submitted if quarantine clearance (ie 檢疫) was again required, I am prepared to accept (but without losing sight of the weaknesses in the Applicant’s case and the unreliability of his evidence as to whether the Yellow Book was submitted to the Customs Agency or not as discussed above) that the Applicant at least submitted the Blue Book to the Customs Agency on 1^st November 2001. I now come to the question of how the Applicant delivered the Blue Book and other documents to Wah Shing’s Customs Agency.

33.The Applicant explained that normally it would have taken half an hour to drive via a wide circle from the Customs Parking Yard to the Customs Agency, so in order to save time the CT Drivers usually arranged for express delivery companies that carried on business in the vicinity (“Delivery Companies”) to deliver the relevant documents to the Customs Agencies by motorcycle express delivery service (“Delivery Service”) at about RMB5.00-RMB10.00 per trip (“Delivery Charges”). The Applicant said the CT Drivers would not risk potential robbery and/or vehicle damage by leaving behind their container trucks at the Customs Parking Yard and walking over to the Customs Agencies to personally deliver the relevant documents.

34.On the other hand, the Respondent claimed that the Yellow and Blue Books were so important (ie the CT Drivers would not be able to enter/exit Mainland China without them) that the CT Drivers should personally hand them over to the Customs Agencies.

35.I find on balance that for the sake of convenience but irrespective of the question of propriety the CT Drivers would deliver documents to the Customs Agencies by the Delivery Service. The Respondent could not have been unaware of such practice since his CT Drivers (including the Applicant) could set-off the Delivery Charges against miscellaneous expenses (ie 上路雜費) advanced to them by the Respondent (“ME Advances”) or seek reimbursement from the Respondent. So on the basis set out in paragraph 32 above, I accept that the Applicant delivered the Blue Book and other documents to Wah Shing’s Customs Agency in the afternoon of 1^st November 2001 by the Delivery Service.

(f) Clearance procedures

36.Armed with the necessary documents, the customs agent (ie 報關員, “Customs Agent”) went to the PRC customs office at the Customs Building to handle the clearance procedures. When completed, he telephoned to notify the Applicant to queue up at the gate for entry into the customs yard (ie 關場, “Customs Yard”) for actual customs clearance (ie 進場 or 入埸拆關). Upon entering the Customs Yard, the Applicant “攞呢個海關清單輸入條型碼”. The Truck left the Customs Yard (ie 出場) after it was weighed (ie 過磅).

37.The Applicant claimed he then submitted the Yellow Book and necessary documents to the PRC customs officer for checking as he drove through the customs channel (ie 海關通度). On that day, the PRC customs officer did not require vehicle/goods inspection, so he gave the Applicant permission to leave the FG/YT Checkpoint after (according to the Applicant) the Yellow Book was stamped (ie 蓋章放行) and the seal (ie 封條) was confirmed to be intact (ie 拆關 or 出尾袋). The clearance procedures took at least an hour and thereafter the Applicant was free to proceed to Wah Shing’s factory in DG.

38.The gist of the Applicant’s evidence was that the Yellow Book was returned to him after stamping so he had it in his possession all along, but the Blue Book (which had been submitted to the Customs Agency) was still with the Customs Agent when he was granted permission to leave the FG/YT Checkpoint (ie 放行).

39.I have in paragraphs 29-31 above referred to the inherent difficulties in the Applicant’s evidence as to which party would have custody of the Yellow Book and whether it had to be subsequently retrieved. Such weaknesses in the Applicant’s case are more amply illustrated below.

40.The Applicant’s insistence that he all along had custody of the Yellow Book did not sit well with paragraphs 8, 9 and 19 of the Applicant’s 2^nd Statement, which contents he confirmed to be accurate when he gave evidence. The Applicant’s 2^nd Statement stated inter alia that (a) after the Customs Agent notified the CT Driver that permission to leave was granted (ie 放行), in order to save time the CT Driver would proceed to the PRC factory directly without going to the Customs Building to retrieve the Yellow and Blue Books, (b) sometimes the Customs Agent (ie not the Delivery Company) would deliver the Yellow and Blue Books to the CT Driver by motorcycle, and (c) after unloading the goods at Wah Shing he returned to the FG Checkpoint to retrieve the Yellow and Blue Books. Despite the obvious difference with his viva voce evidence, the Applicant evasively insisted that the above assertions were not inaccurate until he was pressed on the point. I find his evidence unreliable.

41.Further, the Applicant’s 2^nd Statement stated he could not be sure whether he had the Accident because it was necessary for him to return to the FG Checkpoint to retrieve the Yellow and Blue Books from the Customs Agency. But his memory distinctly improved at trial with recollection that he had the Yellow Book all along and only had to retrieve the Blue Book upon his return to FG/YT. This does not sit well with the Applicant’s confirmation that his memory at the time of the Applicant’s 2^nd Statement and at the time of trial was about the same, whichagain underlines the unreliability of his evidence.

42.This brings us to the parties’ conflicting evidence on the methods for retrieving the Yellow and/or Blue Books from the Customs Agency.

(g) Retrieval methods

43.The Applicant claimed that the CT Drivers would generally adopt one of 3 methods to retrieve the Blue Book after being granted permission to leave the FG/YT Checkpoint (ie 放行).

44.If the CT Driver intended to return to Hong Kong within the same day after unloading, he could either (a) drive for a better part of an hour to the Customs Agency via a wide circleto retrieve the Blue Book (“Self-collection Method”) or (b) park along the roadside and arrange for a Delivery Company to pick up the Blue Book from the Customs Agency and deliver it to him at his parking spot (“Delivery Method”).

45.If the CT Driver intended to stay overnight in Mainland China after unloading, to save time he could leave for the PRC factory straightaway and arrange for a Delivery Company to collect the Blue Book from the Customs Agency and hold it for return to him when he came back to the Customs Parking Yard for his supper, shower and overnight stay (“Return Delivery Method”).

46.On the other hand, the Respondent claimed that after completion of the clearance procedures by the Customs Agencies the CT Drivers must immediately and personally retrieve the Yellow and/or Blue Books and not leave them in the possession of the Customs Agencies or Delivery Companies. But he also admitted that upon being notified by the Customs Agencies that the clearance procedures were done, some CT Drivers would for the sake of convenience and for saving time immediately proceed to queue up for entry to the Customs Yard (ie 進場or 入場拆關) and at the same time arrange for the Delivery Companies to collect the Yellow and/or Blue Books from the Customs Agencies for return to them as they queued up.

47.On the basis as set out in paragraph 32 above, I find on balance that, irrespective of the question of propriety, the CT Drivers (including the Respondent’s own CT Drivers) would generally choose one or more of the above 3 methods described by the Applicant. If the Delivery and/or Return Delivery Methods were used, they were entitled to set-off the Delivery Charges against their ME Advances or seek reimbursement from their employers (including the Respondent). I accept that the Respondent was aware of such practice even though he did not formally acknowledge the same.

(h) Night-time customs clearance at the HG Checkpoint

48.The Applicant claimed that on 1^st November 2001 when he was given permission to leave the FG/YT Checkpoint (ie 放行) he decided to stay overnight in Mainland China, so he chose the Return Delivery Method. This decision was closely tied to the night-time customs clearance procedures at the HG Checkpoint.

49.There were 6-7 departure checkpoint counters at the HG Checkpoint during daytime so customs clearance procedures would take about half an hour. There were fewer night-time checkpoint counters. The Applicant claimed there would be a long queue of container trucks waiting for customs clearance (ie 排二十四龍), so night-time customs clearance would take more than 2 hours. The Respondent also agreed customs clearance would take a longer time, but did not know whether there would be a long queue.

50.The Applicant claimed that if it were anticipated that the delivery orders would not be completed by 8:00pm-9:00pm or later (as in the case of the delivery order for Wah Shing on 1^st November 2001) so that the CT Drivers would not be able to arrive at the HG Checkpoint before the daytime checkpoint counters closed down, they would prefer to stay overnight in Mainland China unless they had to return to Hong Kong for any particular reason (eg an urgent delivery order for the following morning).

51.The Applicant further claimed that when the CT Drivers stayed overnight in Mainland China, they preferred to congregate and park their container trucks at the Customs Parking Yard due to safety in numbers and the convenience of restaurants at the nearby HT Building. They would have their supper and take a shower before spending the night in their container trucks. It also made for safer driving after a good night’s rest. At about 5:00am-6:00am the following morning, the CT Drivers would proceed towards the HG Checkpoint to wait for the daytime checkpoint counters to open.

52.On the other hand, the Respondent claimed (a) it was always open for a CT Driver to return to Hong Kong within the same day after unloading (and some would) no matter how late, (b) he had informed his CT Drivers during job interviews that they should return to Hong Kong within the same day unless he gave express permission otherwise, and (c) he would not employ any CT Driver for long if such CT Driver persistently stayed overnight in Mainland China.

53.On balance I accept (and the Respondent also conceded) it was ultimately the CT Drivers (including the Applicant) who best knew their ability to drive safely or their need for sleep and who decided whether to stay overnight in Mainland China. Despite the Respondent’s stated policy, I find he knew that some of his own CT Drivers (including the Applicant) would stay overnight in Mainland China if the delivery orders were finished late or if it was anticipated they would be finished late.

54.Indeed, the Applicant’s and the Truck’s travel records kept by the Immigration Department (“Travel Records”) revealed that between 8^th October and 2^nd November 2001 the Applicant had on 3 occasions returned to Hong Kong via the LMC Checkpoint between 8:30am and 9:00am, and there were several other instances when he so returned between about 11:00am and about 1:00pm. These entries showed that he had spent various nights in Mainland China. It is also telling that the Respondent said time and again in his evidence there was nothing he could do if his CT Drivers (including the Applicant) chose to stay overnight in Mainland China.

55.When the CT Drivers stayed overnight in Mainland China, it was up to them (including the Applicant) to decide where to park their container trucks. If the Respondent’s CT Drivers (including the Applicant) parked at a paying parking yard, they were entitled to set-off the overnight parking charges against their ME Advances upon production of the relevant receipts. But they could not claim for the cost of their supper or other personal disbursements.

(i) Retrieval method adopted on 1st November 2001

56.The Applicant decided to stay overnight in Mainland China and consequently adopted the Return Delivery Method on 1^st November 2001 because he knew it would be late by the time the unloading at Wah Shing’s factory was completed. As it turned out (see paragraph 63 below), he only left Wah Shing at about 9:00pm. It would have taken 1-1½ hours to drive to the HG Checkpoint (ie about 10:00pm-10:30pm) and the night-time clearance procedures would have taken 1-2 hours. If he had chosen to return to Hong Kong, it would have been 2:00am by the time he returned home after parking the Truck either at the Respondent’s parking space at Lok Ma Chau or in the street near his home. If he had parked the Truck in the street, he would have to drive it away before 6:30am the following morning to avoid parking penalties.

57.So in order to save time, the Applicant left for Wah Shing directly after permission to leave was granted (ie 放行). At the same time he telephoned to instruct a Delivery Company to pick up (according to the Applicant) the Blue Book from the Customs Agency and hold it forreturn to him when he came back to the Customs Parking Yard that night for meal, shower and overnight stay.

(j) Wah Shing’s factory

58.The Applicant arrived at Wah Shing’s factory at about 6:00pm. Unloading was deferred until 7:00pm because the factory’s workers were having supper. The unloading was completed by about 9:00pm.

59.According to the Respondent, upon completion of the customs procedures at the FG/YT Checkpoint, the Customs Agent should bring the relevant documents and official seal of the PRC factory (“Factory Seal”) back to the PRC factory premises, so that the Factory Seal could be affixed (ie 扱番公章、扱番廠印) on the already retrieved Yellow and Blue Books after unloading.

60.On the other hand, the Applicant claimed that because the Yellow Book was with the CT Driver and the Blue Book with the Customs Agency/Delivery Company under the Return Delivery Method, the CT Driver would instruct the Customs Agent to affix the Factory Seal on the Blue Book before passing it to the Delivery Company for delivery back to the CT Driver upon his return to the Customs Parking Yard later at night. 

61.The Factory Seal on the Yellow and Blue Books served an important function. The PRC customs office might check such seals at any future time (eg when there was a problem with the delivered goods). It might also check whether the information in the Yellow and Blue Books correlate (ie 對檢、對簿) before their renewal.

62.The Applicant claimed that upon adoption of the Return Delivery Method, he arranged for Wah Shing’s Customs Agent to affix the Factory Seal on his Blue Book (which would not be at Wah Shing) before giving it to the Delivery Company for return to him. In the meantime, Wah Shing affixed the Factory Seal to his Yellow Book at the factory premises. Yet he also gave evidence that the Factory Seal was affixed on the Yellow Book after he returned to the Customs Parking Yard that night (ie “泊好架車食飯呀，同埋沖涼呀，同埋呢個黃、藍簿冇蓋章蓋埋章吖，攞埋藍簿吖，諸如此類呢啲”). There is no satisfactory explanation for the discrepancy. Further, the veracity of the Applicant’s evidence in relation to the Factory Seal is also adversely affected by his uncertainty as to whether he submitted and/or retrieved the Yellow and/or Blue Books (see paragraphs 29-31 and 40-41 above and paragraphs 65 and 72-73 below).

(k) Return to the Customs Parking Yard

63.The Applicant left Wah Shing at about 9:00pm. He claimed that he returned to FG/YT with a view to park the Truck at the Customs Parking Yard, have his supper, retrieve the Blue Book via the Delivery Service, have a shower and stay the night in the Truck. When he returned to Hong Kong, he submitted the receipt for the overnight parking fees to Yau Lee for reimbursement or set-off against his ME Advances.

(l) Alleged Accident

64.The Applicant claimed he arrived at the Customs Parking Yard at 10:00pm. He gave evidence that “嗰晚我開架車去停車場，肚餓先食飯，然後去攞黃、藍—攞呢個藍簿嗰啲，然之後先去沖涼嘅”. This reflected (as discussed in paragraphs 29-31 and 40-41 above and paragraphs 65 and 72-73 below) the Applicant’s wavering uncertainty as to whether he was to retrieve the Yellow and Blue Books or just the Blue Book.

65.It was already 11:30pm when the Applicant finished his supper and the Customs Agency was already closed. The Applicant claimed he had arranged for the Delivery Company to collect from the Customs Agent the Blue Book (with the Factory Seal duly affixed thereon) for return to him after he had his supper at the entrance of the HT Building, ie “…… 即係嗰個地址嗰個位係海關對面佢一迾都係西餐廳架，有樓梯級架，咁車場嗰個後面嘅，咁你去揾黃、藍簿呀，去食飯都係經嗰個位嘅，咁先到達海關同埋食飯嗰個地方嘅，咁樓梯級之間都好多人出入上落架喇……” (my emphasis). As discussed above, the Applicant’s continued reference to the retrieval of the Yellow Book emphasises the unreliability of his evidence, including his assertion that the Yellow Book would always be in his possession.

66.The Applicant claimed that the staff of the Delivery Company handed the Blue Book to him as he walked along the side of and before reaching the stairs at the entrance of the HT Building. The Applicant gave evidence that he was in a hurry to return to the Customs Parking Yard to put the Blue Book away in the Truck before going to have a shower at the Shower Rooms. He said he slipped and fell at the stairs at the entrance of HT Building (ie “…… 照計，咁就係樓梯級附近嗰到嗰個級位我就喺度跣親嘅。嗰晚我可能比較急呢，心情急，又夜呢，成個人剷晒落去嘅”) and denied he did so whilst having his shower.

67.However, the Applicant in the Application averred that “[after] the Applicant had parked [the Truck] at and he was walking inside the said examination place [at a PRC customs office in DG], he slipped and fell down onto some steps or staircase at the said examination place”. This plainly placed the Applicant at an entirely difference place at the time of the Accident, ie the examination place inside the PRC customs office, which was located at the Customs Building across the road from the HT Building.

68.The Applicant tried to explain away the discrepancy by claiming that the HT Building was part of the PRC customs complex/ facilities. As explained in paragraphs 22-25 above, I find such explanation nothing more than a poor attempt to justify those blatantly different versions of the Accident.

69.In the Applicant’s 1^st witness statement dated 30^th October 2005 (“Applicant’s 1^st Statement”), he said that upon parking the Truck he rushed into the PRC customs office for customs clearance. As he was walking back to the Truck after completing the documentation procedure at the PRC customs office and “…… climbing down the flight of stairs to the entrance of the Customs Office near a toilet, [he] slipped and fell down with the back of his head hitting against the edge of the step/stair. At the material time, the floor was slippery and full of soap bubble after floor cleaning”. Again, these assertions placed the Applicant at a place and in an activity quite different from what was said in the Application and in his evidence.

70.The Applicant tried to explain away the contradictions in relation to the location of the Accident (which varied from the flight of stairs at the entrance of the PRC customs office to the staircase of the examination place inside the PRC customs office and then to the stairs at the entrance of the HT Building) and the Applicant’s activity at the time of the Accident (which varied from working inside the examination place at the PRC customs office to walking back to the Truck after completing the customs clearance documentation procedure at the PRC customs office and then to walking back to the Truck after collecting the Blue Book) by saying that “同一層架嘛，同一笪地方架嘛，嗰啲沖涼房同埋嗰啲同一排架麻” (even though he admitted the Shower Rooms, the Customs Building and the HT Building were all separate structures) and that HT Building “……都係屬於海關架喇，都係海關範圍嚟個喎” (even though it was a separate building across the road from the Customs Building where the PRC customs office was located).

71.More importantly, the Applicant acknowledged that (a) it was the Customs Agency/Customs Agent and not the CT Driver who handled the customs clearance procedures at the PRC customs office at the Customs Building (ie not at the HT Building) and (b) there were no further customs procedures to be done by the time he returned to FG/YT that night.

72.In the Applicant’s 2^nd Statement, he said he could not remember or describe the Accident in any detail or state the exact time of completion of the unloading of goods at Wah Shing or of the occurrence of the Accident due to a lapse of 4 years since the Accident and due to impairment of his memory as a result of his head injury. He also added he could not be sure whether it was because it was necessary to return to the FG/YT Checkpoint to retrieve the Yellow and Blue Books from the Customs Agency that he fell at the stairs at the lobby entrance of the PRC customs office. It was said that the Customs Parking Yard was inside the examination place of the PRC customs office and to gain access to such parking yard one had to pass through the lobby entrance of the examination place of the PRC customs office.

73.But the Applicant admitted in evidence that his memory at the time of making the Applicant’s 2^nd Statement and at the time of trial were about the same, so it is startling that his memory substantially improved when he gave evidence. Indeed, although he said in the Applicant’s 2^nd Statement that he could not recollect whether it was for retrieving the Yellow and Blue Books that he returned to the FG/YT Checkpoint that night, he was able to describe in detail his decision to adopt the Return Delivery Method for retrieval of the Blue Book, the whereabouts of the Yellow Book, his activities when he returned to FG/YT (eg having his supper and collecting the Blue Book etc) when he gave evidence. I find such vast improvement in memory suspect.

74.In light of the aforesaid grave and substantial discrepancies on the core issues, I reject the Applicant’s evidence as inherently unreliable. He failed to establish on balance that the Accident happened as alleged or he suffered his head injuries as a result of the Accident as alleged.

(m) Post-alleged Accident

75.The Applicant claimed he lost consciousness when he slipped and fell. When he recovered consciousness, there was at first no bleeding but “his skull was dented”. Later his head wound at the occipital region started to bleed, and he was taken to莞市鳳崗華僑醫院雁田分院 (“PRC Hospital”) at about 11:30pm. Whilst waiting for medical treatment, he felt dizzy, nauseous and uncomfortable. Eventually his head wound was sutured and he was told to rest for an hour at the PRC Hospital. At about 2:00am on 2^nd November 2001 he requested discharge and returned to the Truck to rest. At about 6:00am-7:00am he slowly drove back to Hong Kong “with the companion of a fellow truck driver”. 

76.When he crossed the LMC Checkpoint, the Applicant telephoned the Respondent who offered to pick him up and drive him to the hospital. The Applicant was admitted to the accident and emergency department of Princess Margaret Hospital (“PMH”). Skull x-ray was taken but did not show any fracture. He was discharged with sick leave from 2^nd to 8^th November 2001.

(n) Applicant’s explanation to the Respondent

77.The Applicant claimed that whilst on the way to PMH he told the Respondent about the Accident. He said “我咪話喺嗰度食飯—泊車、沖凉、食飯擺其他嘢嗰時整親，……咪照呢個過程講囉”. 

78.The Respondent said in his witness statement that the Applicant told him over the telephone “在鳳崗海關報關時跌倒引致頭部受傷”(my emphasis). But when he gave evidence the Respondent denied the Applicant said he was injured whilst “報關”. The Respondent went further to say that on the way to PMH the Applicant told him he slipped and fell when he was taking a shower and he was naked at the time of the Accident. Surprisingly, this was first elicited when the Respondent gave evidence.

79.The Respondent tried to explain away the discrepancy by saying “因為佢要求我哋話同佢咁寫番，咁希望佢有幾日工傷攞到嘅話，就可以佢得到補償幾日，咁我吔既然係話幾日，好喇，我哋—我當—我係唔知呢件事喇，我而家係法庭，我即係咁坦白咁講，我係—當時我係做錯咗，我唔應該姑息咁嘅情況下，嚟到有今日嘅田地出現”. The Respondent further admitted his witness statement was inaccurate “…… 因為當時佢返嚟同我講話扻親，佢話佢係同我報--「我報關，喺海關跌親。」咁就等我攞個—如果有幾日嘅勞保，可以補償畀佢，我就誤以為係用咁方法，我係—我自己係的失策，係好唔應該當時幫佢做呢件事”.

80.The Respondent claimed he never thought they would end up in litigation, so he did not spell out in his witness statement what the Applicant told him, and when he made his witness statement in October 2005 “……仍然係本住以心為心，幫佢做咩嘢，……”. But in fact by the time he made his witness statement the Respondent already knew the Applicant sued him for employees’ compensation, and I do not see any objective basis for the Respondent’s surmise that the Applicant would not continue with the present proceedings. Even if the Respondent did not wish to say bad things about the Applicant, it is strange that he never even told his own solicitors. The Applicant tried to brush this aside by saying he did not tell his solicitors because they did not ask him, and he related the whole background when he gave evidence because he was asked about the same. I find such attempt to justify the discrepancy unreliable.

81.Although PMH’s medical records in respect of the Applicant’s attendance at the accident and emergency department on 2^nd November 2001 and the medical report of Dr Tam Shing-pa of PMH dated 15^th August 2003 both stated the Applicant informed the medical staff that “[he] was a truck driver requiring travel to China. At around 1 a.m. on that day, he slipped and fell down a toilet in China ……”, both counsel agreed that no weight should be placed on such statements which had not been put to the Applicant in cross-examination at all.

82.Interestingly, the Respondent also did not tell Yau Lee’s manager Chan (who signed the Form 2 dated 6^th November 2001 (“Form 2”) for submission to the Labour Department) what the Applicant told him about the Accident. There was no satisfactory explanation for the Respondent’s reticence, especially when the Applicant claimed he made a specific request for help in claiming a few days’ worth of compensation.

83.The Form 2 stated inter alia that (a) the Accident occurred in the course of work at the FG Checkpoint “查驗場”, (b) the activity carried out at the time of the Accident was “司機泊車等候報關”, and (c) the Applicant slipped and fell on wet and slippery staircase. Such description is clearly incorrect for there were no further customs procedures to be carried out by the time the Applicant returned to FG/YT, and he was not waiting for customs clearance. The Respondent tried to explain this away by saying that the Applicant wrote an account of the Accident which Chan or Yau Lee’s staff copied onto the Form 2. But the Respondent was not personally involved in the preparation of the Form 2 and there was no evidence that he liaised with Chan on the subject, so I am not prepared to accept his speculative explanation.

84.The sparsity of the Respondent’s knowledge is reflected by his ignorance of the Information Amendment Sheet dated 21^st November 2001 (which was again signed by Chan for submission to the Labour Department) by which Yau Lee amended the contents of the Form 2. The Information Amendment Sheet described the Accident differently by stating that on the night of 1^st November 2001 the Applicant drove the Truck from the HG Checkpoint to the FG Checkpoint to “報關”. When the Truck entered the Customs Parking Yard, the Applicant “便交報關簿，之後返回車傍，經過關場洗手間門口石級滑倒而後腦著地，頭撞至石級邊上”.

85.The Respondent admitted he could only speculate as to why the description of the Accident was such when (a) the Applicant returned from Wah Shing and not from HG Checkpoint, (b) there were no further customs procedures to be completed, and (c) the Applicant did not submit “報關簿” upon his return. I am unable to place weight on the Respondent’s admittedly speculative suggestion that the Applicant returned to Yau Lee’s office and told Chan to describe the Accident in the manner set out in the Information Amendment Sheet.

86.The Respondent did not give any explanation about these documents in his witness statement and Chan was not called to give evidence to clarify these matters.

87.In light of the aforesaid analysis, I am unable to place any weight on the Respondent’s allegation that the Applicant told him he slipped and fell whilst he was having a shower. Nevertheless, such conclusion does not aid the Applicant because he is still unable to establish on balance that the Accident happened in the way he alleged. Whilst there is no doubt the Applicant sustained head injuries pursuant to some accident during his overnight stay in Mainland China on 1^st November 2001, how he actually sustained such injuries remained a mystery and there was no cogent or reliable evidence as to the circumstances of such accident.

IV. Liability : legal inquiry

88.The weaknesses in the Applicant’s evidence have an important impact because whether an accident arose out of and in the course of employment is a fact-sensitive issue. H H Judge Carlson in Kong Hon Hung v Yuen Hing (Cargo) Transportation Limited DCEC150/1998 (unreported, 5^th January 2001) said as follows :

“	As the very many decided cases show, the outcome as to whether an accident arose in the course of employment is not an easy one to predict where the facts of the particular case will frequently fall close to the line marking success and failure for the injured workmen.”

89.Lord Goff of Chieveley in Smith v Stages & anor [1989] 1 AC 928, 936 said the fundamental principle was that an employee was acting in the course of his employment when he was doing what he was employed to do or which was reasonably incidental to his employment. This is echoed by the Court of Final Appeal in LKK Trans Ltd v Wong Hoi Chung (2006) 9 HKCFAR 103, 112, where Ribeiro PJ said that “[plainly], this section [section 5(1) of the Ordinance] requires a causal connection first, between the employment and the accident (so that the accident arises “out of” the employment) and between the accident and the injury suffered by the employee: the accident must cause the injury. None of this is controversial.”

90.Given my assessment of the factual evidence, there is no cogent or reliable evidence as to the activity the Applicant was engaged at the material time. I have on balance rejected the Applicant’s evidence that he was in the course of bringing the retrieved Blue Book back to the Truck for safe storage.

91.In such circumstances, the Applicant is left with the argument set out in the Applicant’s 2^nd Statement that even if he were not returning to the FG/YT Checkpoint to retrieve the Yellow and Blue Books, given the time of day, he would still have parked the Truck at the Customs Parking Yard to stay overnight in Mainland China. In short, the suggestion was that the Applicant remained in the course of employment throughout his overnight stay in Mainland China. Is that a sufficient basis for establishing that the Accident arose “out of and in the course of employment”? 

92.In his written closing submissions, Mr Chan elaborated by saying that “at the time of the accident the Applicant in carrying out his duties under the instructions of the Respondent through driving the Truck was acting for the purpose of and in connection with his employer’s trade and business. There was no contrary evidence from the Respondent” (my emphasis). He drew assistance from section 5(4)(g) which provides as follows :

“	(4)	For the purpose of this Ordinance,
			……
		(g)	an accident to an employee shall be deemed to arise out of and in the course of his employment if it happens to the employee while he is, with the express or implied permission of his employer, travelling by any means of transport for the purposes of and in connection with his employment between Hong Kong and any place outside Hong Kong or between any place outside Hong Kong and any other such place.” (my emphasis)

93.But Mr Chan conceded in his oral closing submissions that even on the Applicant’s own case he was not driving the Truck or travelling en route between Wah Shing and Hong Kong at the time of the Accident. Actually the Applicant had already parked the Truck at the Customs Parking Yard and had his supper. I agree with Ms Wong, counsel for the Respondent, it would be artificial to say the Applicant was then still “travelling by any means of transport”. In my view, section 5(4)(g) of the Ordinance was not applicable to the present case, and the case of Tan Hua Ning v Tam Wah Sung [1999] 3 HKC 490 cited by Mr Chan is clearly distinguishable.

94.Mr Chan also cited Hsu Shu Chiao v Lung Cheong Toys Ltd [2002] 1 HKC 479. In that case, the respondent employed the deceased to work in its factory in DG during the week with accommodation provided and to return to Hong Kong via Shenzhen for the weekend. The respondent provided bus transportation to take the deceased and other employees from DG to Shenzhen to catch the train to Hong Kong. If the deceased worked late and missed the respondent’s bus, he would arrange his own transport to Shenzhen and claim reimbursement of the cost. On the day in question he worked overtime and hired a taxi to go from DG to Shenzhen to meet his girlfriend, but was killed in a road accident.

95.It was held that section 5(4)(g) of the Ordinance was applicable since the accident occurred while the deceased was travelling for the purpose of and in connection with his employment between a place outside Hong Kong and any other such place. It made no difference that he had arranged to meet his girlfriend because the taxi route did not deviate from the normal route taken by the respondent’s bus. The focus should be on the fact that Shenzhen was the place in Mainland China where the deceased’s course of employment ended. He remained in the course of employment whilst en route to Shenzhen.

96.Hsu Shu Chiao was discussed by Deputy Judge A To in Li Hon Shuen v Man Ming Engineering Trading Co Ltd [2006] 1 HKLRD 84, 100-102. In that case, the plaintiff’s counsel adopted a proposition similar to Mr Chan’s proposition set out in paragraph 91 above, ie an employee engaged in cross-border employment was in the course of employment from the moment he crosses the border until the moment he returns to jurisdiction. However, Deputy Judge A To disagreed that Cheung JA in Hsu Shu Chiao re-cast the law in such wide terms. He cited p.487 of Hsu Shu Chiao where Cheung JA said as follows:

“

Likewise, there must be a limit to Mr Hui's course of employment, e.g. a visit to the cinema at night while he was in Dongguan. As Ormrod LJ observed, a little commonsense is required in such a case. In Smith v Stage, Lord Goff stated that how one distinguishes the travelling cases in which a man is acting in the course of his employment from those in which he does not, depend on the circumstances of each case. In this case, Mr Hui was entitled by his contract to go from Dongguan to Shenzhen on Saturday after work. His journey from Dongguan to Shenzhen must be within the course of his employment. A return journey from work is recognized to be on the same footing as an journey to work.” (my emphasis)

97.Deputy Judge A To said at p.102 that it was implicit from the above passage that a cross-border employee did not remain continuously in the course of employment from the moment he crossed the border to Mainland China until the moment he returned to Hong Kong. “…… [There] is no justification for the view that when an employee clocks off work he is still in the course of employment merely because he is in the Mainland. …… a cross-border employee ceases to be in the course of employment when he engages in his own affairs after clocking off work but resumes to be in the course of employment when he embarks on his homeward journey in the Mainland”. The learned judge went on to say at p.102 as follows :

“

34.

The test remains whether at the material time the employment continues to run its course.  The very wide proposition advanced by [the defendant’s counsel] is based on his misunderstanding of the decision in Hsu Shu Chiao…… with which he made the impossible leap from the case of a cross-border employee on transit to the case of a cross-border employee taking his rest between the time he clocks off duty and the time he clocks on duty.  He has gone far beyond what Sir John Donaldson MR said in Nancollas & Another v Insurance Officer [1985] 1 All ER 833:he was not applying established legal concept in a changed social matrix, he was trying to enlarge the concept.  With respect to Counsel, his proposition is an unjustified extension of the principle in Hsu Shu Chiao ……”

98.In the circumstances, I find the 2 cases cited by Ms Wong, ie Smith and Li Hon Shuen, more compelling, and Mr Chan had no disagreement with the principles therein.

99.In Smith, Lord Lowry said at pp.955-956 as follows :

“	The paramount rule is that an employee traveling on the highway will be acting in the course of his employment if, and only if, he is at the material time going about his employer’s business. ……
	It is impossible to provide for every eventuality and foolish, without the benefit of argument, to make the attempt, but some prima facie propositions may be stated with reasonable confidence.
	……
	4.	An employee travelling in the employer’s time …… in the course of a peripatetic occupation …… will be acting in the course of his employment.
	5.	A …… interruption of a journey undertaken in the course of an employment (unless the …… interruption is merely incidental to the journey) will for the time being (which may include an overnight interruption) take the employee out of the course of his employment.
	6.	Return journey are to be treated on the same footing as outward journeys.” (my emphasis)

100.In Li Hon Shuen, Deputy Judge A To at pp.102-103 held that :

“

35.

In my view, whether an employee is in the course of employment is a question of fact.  The test is simply whether at the material time the employment continues to run its course.  Prima facie, an employee is in the course of employment during his duty hours and ceases to be in the course of employment when his duty hours are over or when he clocks off work until he resumes duty on the following day.  The situation may be more complicated in the case of an employee on overseas duty or a cross-border employee.  But, the test whether such an employee is in the course of employment after his duty hours is the same.  This question may be answered by considering whether the employee has the freedom to go where he pleases and do what he pleases, whether the employer is concerned with how the employee disported himself during the off duty hours or whether he was required to go and stay at a particular place in the interim period for the employer’s purpose such as on standby duty or on call.  Resting and sleeping is a necessary and natural physiological activity of the body in a 24-hour cycle.  Thus, prima facie, resting and sleeping at the end of the day creates a natural break in the continuity of employment unless the employee is required by his employer to sleep and rest at a particular place so as to make himself available for the employer’s purpose as and when required.” (my emphasis)

101.There is no dispute that (a) the Applicant as well as the CT Drivers generally did not have fixed hours of work, (b) the Truck was the Respondent’s property, and (c) the Defendant was the sole permitted driver of the Truck within Mainland China. But, as evident from Li Hon Shuen, these matters did not mean a CT Driver would be acting in the course of employment during the whole period between Hong Kong and the PRC destination.

102.In my view, in returning to FG/YT that evening, the Applicant’s purpose was to break the return journey from Wah Shing to Hong Kong by staying the night there. It was an interruption of the return journey as described by Lord Lowry in Smith. I bear in mind that the Applicant had already made up his mind to stay overnight in Mainland China when he left the FG/YT Checkpoint in the late afternoon for the reasons set out in paragraph 56 above and his adoption of the Return Delivery Method was merely a consequence of the aforesaid decision. In the circumstances, he would have stayed overnight in Mainland China in any event.

103.Upon his return to FG/YT, the Applicant was free to disport himself in the way he chose. His intention to eat, shower and rest (and indeed the Applicant said that before the Accident he already had his supper which he had to pay for himself) bolstered the view that the overnight stay was a natural break in the continuity of employment. As Deputy Judge A To said, eating and resting are necessary and natural physiological activities of the body. Having a shower is clearly a non-work related personal comfort.

104.Although the Respondent reimbursed the Applicant for the overnight parking fees, the Applicant was free to choose where to park the Truck. Although he would generally park at the Customs Parking Yard, he had on a few occasions parked at other parking yards to suit his travel routes. He was also free to decide how to spend the night, ie at a hotel at his own cost or in the Truck at no cost. It is also telling that the Respondent declined to reimburse accommodation expenses for his overnight stay, which suggested strongly that the Applicant had clocked off work.

105.Ms Wong suggested that the Respondent’s reimbursement of overnight parking expenses was no different from the situation in Hong Kong. If the Applicant parked the Truck at the Respondent’s parking space at Lok Ma Chau, the Respondent had to pay the rental. If he parked on the street, the Respondent would have to subsidise parking penalties up to a certain limit. Mr Chan conceded that the Applicant would not be regarded as still acting in the course of his employment had the Accident occurred in Hong Kong whilst he was on the way home after he had parked the Truck. I agree with Ms Wong that (without more) the situation should not be appreciably different simply because the Accident happened in Mainland China.

106.In light of my conclusions on the factual evidence, there is no sufficiently reliable evidence that the Accident happened immediately after the Applicant retrieved the Blue Book and when he was returning it to the Truck for safe storage. In short, there is no sufficient basis for saying that when the Applicant was injured the employment continued to run its course. This is sufficient to dismiss the Applicant’s claim.

V. Quantum

107.For completeness, I shall consider the issue of quantum briefly. Both parties agreed that the Applicant’s monthly earnings were HK$15,142.21 and his incurred medical expenses were HK$3,452.00. Thus, the issues are (a) the percentage of loss of earning capacity and (b) the period of absence from duty necessary due to the injury. The Respondent also appealed against the assessments in respect of (a) and (b) above under a Certificate of Assessment issued on 24^th June 2004 (“Form 7”).

(a) Medical treatment

108.The Applicant attended the accident and emergency department of PMH on 2^nd November 2001 and attended a further 15 times between 12^th November 2001 and 27^th October 2004 for various symptoms of headache, dizziness, tinnitus and blurring of vision of both eyes.

109.On 21^st November 2001, the Applicant was referred to the neurosurgery department of PMH. According to the expert report of Dr Edmund Woo (“Dr Woo”) dated 2^nd December 2005, the Applicant was hospitalised on 27^th December 2001 for evaluation of his symptoms of headache, dizziness, tinnitus and impaired hearing. Examination showed no abnormal neurological signs and the diagnosis of post-concussional syndrome was made. He was discharged on the following day. CT brain scan in March 2002 was normal. He attended 15 follow-up consultations, but they were terminated in 2004.

110.The Applicant was referred to the eye clinic of Caritas Medical Centre and the Hong Kong Eye Hospital for blurring of vision and to the ENT clinic of Yan Chai Hospital for bilateral tinnitus. He received various follow up consultations between 28^th November 2001 and 1^st June 2004. He also received 4 sessions of occupational therapy at PMH in 2002.

111.The Applicant claimed he gradually developed symptoms of forgetfulness, irritability, poor concentration, depressed mood and pessimistic idea, so he was referred to South Kwai Chung Psychiatric Clinic for management of his psychiatric symptoms. When he was examined by Dr Woo on 29^th November 2005, he only attended follow-up visits to the psychiatric clinic of PMH.

(b) Applicant’s complaints

112.According to Dr Woo, the Applicant complained he had headache, ie a buzzing sensation in the head superimposed upon which were brief bouts of stabbing, bi-temporal pain that lasted for seconds only and had no precipitating factor. The headache was associated with impaired hearing, visual blurring, dizziness and nausea, but no vertigo or vomiting.

113.The Applicant’s 1^st Statement stated his intermittent headaches were of moderate intensity and although they disturbed his sleep, they could be relieved by analgesics. His intermittent bouts of dizziness were also of mild intensity and could be relieved by Stemetil.

114.According to Dr Woo, the Applicant complained he often felt uncomfortable in his whole body when in a crowded environment or riding in a bus so he might have to alight, sit down and rest.

115.The Applicant complained of impaired memory. He would forget to bring his belongings, but had not lost any personal item of value. The Applicant’s 1^st Statement claimed he found it difficult to concentrate and his performance of mental tasks had deteriorated. The Applicant also complained of constant tinnitus.

116.Dr Woo noted the Applicant complained he became irritable but there was no physical violence. He became asocial with few friends, and had the impression that his colleagues had nicknamed him “大傻”. He had insomnia with frequent wakening through the night.

(c) Dr Woo’s expert opinion

117.The mental state examination administered by Dr Woo revealed that whilst the Applicant demonstrated mild impairment in each of the tests of orientation, registration and memory, the tests of calculation, concentration, language and general knowledge were normal. Dr Woo was of the view that the Applicant only suffered mild head injury with residual headache and forgetfulness consistent with the diagnosis of a mild post-concussional syndrome that accounted for 1% impairment of the whole person. Dr Woo said the Applicant’s complaints of radiating back pain and visual blurring were unrelated to the Accident. From a neurological perspective, Dr Woo considered that the Applicant should be able to resume his pre-injury occupation as a CT Driver although the forgetfulness might limit his work performance and the headache might compel periodic rests during the day.

118.I accept Dr Woo’s opinion that the Applicant only suffered a mild head injury with residual mild headache/forgetfulness. This is consistent with the factual evidence below that he had returned to his pre-accident work as a CT Driver (see paragraphs 122-125 below).

(d) Return to work

119.There is no dispute that the Applicant continued to work for the Respondent on an on-and-off basis from November to mid-December 2001.

120.The Applicant claimed the Respondent threatened to dismiss him if he did not resume working. He resumed working even though he felt painful because he did not want to lose his job. The Applicant claimed the Respondent terminated his employment in February 2002 due to his neurological problems even though he was still on sick leave. Although the Applicant signed a letter dated 5^th February 2005 stating he resigned because “本人健康問題而不宜駕駛車輛”, he said he had no option but to sign such letter as prepared by the Respondent.

121.On balance I prefer the Respondent’s evidence that he did not put pressure on the Applicant to return to work and/or later to leave his employment. The Applicant ceased working in mid-December 2001. Although no other CT Driver could drive the Truck in Mainland China, the Respondent did not remind the Applicant of the same because as an experienced CT Driver he would be well aware of such fact. It was more than 1½ months later (ie February 2002) that the Applicant formally left the Respondent’s employment.

122.The Applicant’s 1^st Statement stated that because he had to support his family and was in financial hardship, he specifically requested his attending doctors not to give any sick leave to him after 14^th May 2002. Since then he worked as a CT Driver for 盈展企業有限公司 for almost a year. He vaguely claimed that “[he] was fired because of his neurological deficit as a result of the head injury” without particularising the relevant acts, omissions or incidents that led to his dismissal.

123.It therefore appears from the Applicant’s 1^st Statement that the Applicant did not work from mid-December 2001 to mid-May 2002. The Applicant’s 1^st Statement also stated he was unemployed between April and September 2003 and thereafter worked on odd jobs. When he gave evidence, the Applicant claimed he ceased working as a CT Driver in 2003-2004 and rested for 8-9 months.

124.It is common ground that the Applicant was charged with an offence of attempted theft that allegedly happened on 22^nd April 2002. He gave evidence that “我揸嘅係另外一間公司架車，我停咗就泊喺係側邊呢，起訴我企圖偷車—佢車嗰啲零件，但係我一個螺絲都冇攞”. So the Applicant admitted he was working as a CT Driver for another transportation company (whose name he could not remember) at that time. He joined such transportation company after he left Yau Lee but could not remember exactly when, and he worked for such transportation company for about a year (ie probably up to early 2003). Such evidence did not sit well with the Applicant’s 1^st Statement which described him as not working for the period from mid-December 2001 to mid-May 2002.

125.According to the Applicant’s Answer to Interrogatories, from October 2003 to mid-January 2004 he was employed by a 盧重達 as a full-time CT Driver. Although the Applicant gave evidence that he felt mentally better after his rest of 8-9 months, he was dismissed after lunar new year because of his absent-mindedness and his inability to communicate properly or to concentrate on his work. He said he was unable to finish his tasks on time as he had to take longer rests and his driving speed was slower than before. From March to August 2004, a Mr Chow employed the Applicant as a full-time CT Driver. The Applicant’s employment was terminated in/about August 2004 when (a) his container truck collided with a tree causing vehicle damage in/about end of June 2004 and (b) he was accused of losing a receipt for the return of a container to the container terminal. From November 2004 onwards, he was employed by Sun Fai Transportation Limited as full-time CT Driver.

(e) Sick leave

126.The Applicant was granted sick leave for the following periods :

127.The Applicant claimed he had submitted all his sick leave or medical certificates to the Respondent, but the Respondent sent him away in a threatening manner, so he was forced to find work. On the other hand, the Respondent claimed the Applicant only gave him the 1^st sick leave certificate (2^nd to 8^th November 2001) 4-5 days after 2^nd November 2001 and the 2^nd sick leave certificate (12^th to 16^th November 2001) in mid- to end of November 2001. He did receive further sick leave certificates but at much later dates (ie after the sick leave periods had expired).

128.Dr Woo said that most recovery of neurological functions after mild head trauma would occur within the first 3 months of the accident although some further minor improvement could continue up to 6 months. He opined that with such mild head injury, the Applicant should have recovered sufficiently by February 2002 (ie 3 months after the Accident) to be able to resume gainful employment.

129.It is uncontroversial that for the days the Applicant returned to work for which he received remuneration he should not receive periodical payments even though sick leave or medical certificates had been issued for such periods. I find on balance that the Applicant was entitled to the following periods of absence from duty necessary as a result of his injuries :

(a)

Although the Applicant had not put forward any explanation for the discrepancy between sick leave or medical certificates and the Form 7 in respect of the sick leave periods, bearing in mind that Dr Woo agreed the Applicant should have a rehabilitation period of 3 months, I am prepared to accept the appropriate periods of absence from duty for November 2001, December 2001 and January 2002 at 22 (ie 26 – 4) days, 28 (ie 31 – 3) days and 31 days respectively.

(b)

In relation to the period from 1st February to 14th May 2002, the appropriate period of absence from duty was 28 days days (ie the whole of February 2002). As seen from paragraphs 122-125 above, the suggestion in the Applicant’s 1st Statement that he did not work for the period from 6th February to mid-May 2002 was refuted by the Applicant’s own admissions that he was working as a CT Driver in April 2002 and that he had been so employed for about a year shortly after he left his employment with the Respondent. This sits well with Dr Woo’s opinion that the Applicant could return to gainful employment by February 2002. However, since the Applicant could not remember when he started to work as a CT Driver again after he left Yau Lee, I am prepared to allow a reasonable time, ie up to end of February 2002.

(f) Section 18 appeal

130.Section 18(3) of the Ordinance provides inter alia that the court may confirm or vary any assessment in the Form 7 or may substitute its own assessment. In my view, the appeal against the assessments in Form 7 should be allowed. The periods of absence from duty necessary due to the Applicant’s injuries should be 109 (ie 22 + 28 + 31 + 28) days. I assess the Applicant’s loss of earning capacity to be 2%, which is less than the Form 7’s 5%. I have carefully considered the medical evidence as well as the Applicant’s ability to return to work as a CT Driver. The work of a CT Driver is not a light one. It involved long hours of driving and preparation of detailed work records. The Applicant was back at work as a CT Driver shortly after the Accident and in 2002-2003 he worked continuously as such for a year. He worked (and was able to cope) as a CT Driver on a completely full-time basis since November 2004. Any headache or forgetfulness would have been mild, and would not have unduly interfered with his daily work.

(g) Assessment of compensation

131.The Applicant was 46 years old at the time of the Accident. The quantum (exclusive of interest) is assessed as follows :

(a)	Section 9 : HK$15,142.21 x 72 x 2%	HK$21,804.78
(b)	Section 10 : HK$15,142.21 x 4/5 x 109/30	HK$44,013.36
(c)	Section 10A :	HK$3,452.00
(d)	Advance payments :	(HK$15,000.00)
	Total :	HK$54,270.14

V. Conclusion

132.The Applicant’s claim is dismissed. There is no reason why costs should not follow event. I therefore grant a costs order nisi that the Applicant do pay to the Respondent costs of the action (including all costs reserved, if any) to be taxed if not agreed with certificate for counsel.

Representation:

Mr Daniel W S Chan instructed by Messrs Lily Fenn & Partners for the Applicant.

Ms Abigail Wong instructed by Messrs Chong & Partners for the Respondent.