Amir Nazir v. Sino Construction Engineering Co and Another

DCEC 855/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 855 OF 2006

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Between:-

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Coram  :  H.H. Judge Chow in Court

Hearing dates :  20, 23 and 25 March 2009

Date of handing down Judgment:  27 April, 2009

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Judgment

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1.This is the Applicant’s application for compensation payable under sections 9, 10, 10A s.10(5) of the Employees’ Compensation Ordinance (“the Ordinance”) in respect of the injuries sustained by him at an accident which occurred on 20 August 2005 in the course of his employment. 

2.The Plaintiff was born in Pakistan in 1976, and was 29 at the time of the accident.  In 2000 he came to Hong Kong as a tourist.  After his tourist visa had expired, he continued to stay in Hong Kong. In 2005 he sought protection from the United Nation High Commissioner for Refugees as an asylum seeker.

3.He was introduced to work at the premises at No. 252-274 Jaffe Road, Wanchai (“ the Site”) through a co-worker called Tariq.  He had mentioned to Tariq that he wished to borrow money from him.  In the evening of 19 August 2005 Tariq told him to wait at the Wanchai MTR station in the next morning, so that he could lend some money to the Applicant.  At about 8:30 a.m. on 20 August 2005, when he was waiting for Tariq at the Wanchai MTR Station, he met Illyas Muhammad (“Aslam”).  Aslam told him that he was waiting for Tariq as well.  Later on, Tariq and a Chinese man came.  Tariq had worked with this Chinese man before, and he was meeting this Chinese man to take him to a job.  That Chinese man said that there was a lot of work to be done, and manpower was urgently needed.  He asked the Applicant and Tariq if they wanted to work.  The Applicant said that he had no identity card, but that Chinese man said that it was all right.  His boss would offer $300 a day with lunch or $350 without lunch.  They told him that they would take $350.  He then brought them to a premises located at 250 Jaffe Road, Wanchai, where he introduced them to a foreman (“the Foreman”), and then he left with Tariq.

4.The Foreman told the Applicant to break and demolish all the cabinets, cup-boards, wooden frames and remove glass by using a hammer and his hands.  At around 11:00 a.m. when he was breaking a big piece of glass from a large cupboard with his hammer, suddenly the whole piece of glass fell towards him, and cut his right forearm.  His arm was bleeding heavily.  The Foreman and Aslam sent him to the Ruttonjee Hospital by a taxi, where he underwent an operation.  Meanwhile the Foreman and Aslam went back to the place of work.  They returned to the hospital after his operation.  The Foreman handed $800 to Aslam and asked him to give it to the Applicant.  He said he would inform the boss about the said accident, and would give him sick leave pay and pay for his medical expenses.

5.After his discharge from the hospital on 23 August 2005, the Applicant and his friend Mohammad Ifran (“Ifran”) went to the Site.  The Foreman was there.  After a while someone came.  According to the Foreman, he was the manager, called “Ah Wah”.  The Applicant gave Ah Wah his sick leave certificate.  Ah Wah made a telephone call to his boss Mr. Mak.  After finishing the phone call, he said his boss was in Macau, and he gave $2,000 to the Applicant.  Irfan told him that it was not enough as the Applicant had been given sick leave more than two weeks.  Ah Wah said that he would give the Applicant some more next week and he would call him.  He asked the Applicant to wait.  Irfan asked for proof of the company identity and the telephone number of the boss.  Ah Wah wrote something down in Chinese on a piece of paper.  Two telephone numbers were written on it.  The Applicant kept that piece of paper.

6.Later on, the Applicant called Ah Wah.  Ah Wah said that the boss would give him another $2,000 but no more.

7.The Applicant showed that piece of paper on which were written Mr. Mak and Ah Wah’s telephone numbers to someone called Mr. Afzal.  Mr. Afzal made a call to Mr. Mak and talked to the other side in Chinese.  Mr. Afzal told him that Mr. Mak said that he had talked with the manager Ah Wah already.  He wanted him to go back to the Site and Ah Wah would speak to him regarding his sick leave pay.  He asked him to wait for a telephone call from Ah Wah.  Later on, Mr. Afzal introduced a lawyer to him.  On 1 September 2005, he met Miss Wong of Krishman & Tsang, Solicitors.  He showed her that piece of paper.  She jotted down the telephone numbers of Ah Wah and Mr. Mak.  Later on, Miss Wong told him that she had talked with Ah Wah, but Ah Wah only agreed to pay him another $2,000 but no more.  She asked him for further details of the company, but Ah Wah said that he was not the boss.  She also told the Applicant that on 2 December 2005 she had talked with Mr. Mak; Mr. Mak told her that Ah Wah was not working with him any more.  The Applicant also received a call from someone whom he realized as Mr. Mak, because it was not Ah Wah’s voice.  That someone told him not to contact him anymore, otherwise he would call the police.

8.The Applicant gave an account of the event leading to his injuries.  There is nothing shown to the contrary by way of evidence.  His evidence is credible.  I accept that what he said in this regard as the truth.

9.P. 226-227 of the Trial Bundle shows a contract signed between Kwan Tai Surveyor (HK) Ltd. and the 1^st Respondent.  The contract was written on the 1^st Respondent’s letterhead.  It bears the mobile phone number of Mr. Mak, namely, 9600 6698.  This is the same number (9600 6698) written by Miss Wong on her notebook (p. 38 of Trial Bundle) and on her attendance note  (P.39 of Trial Bundle).  This proves that the person whom Mr. Afzal spoke to was the same Mr. Mak referred to in the contract.

10.When the Applicant went back to the Site with Ifran, he met Ah Wah.  After making a phone call Ah Wah said that the boss was in Macau and offered $2,000 to the Applicant.  Ah Wah wrote two telephone numbers on that piece of paper and gave it to the Applicant.  Mr. Afzal called Mr. Mak’s telephone number, which was written on that price of paper.  If the Applicant had not been employed by Mr. Mak, why would Mr. Mak have offered to give him $2,000 plus another $2,000.  On 20 August 2005, the 1^st Respondent was the contractor of the site in question.  Mr. Mak was the boss of the Applicant, as well as a person in charge of the 1^st Respondent.   Therefore it is the 1^st Respondent which employed the Applicant, and the Applicant was its employee on 20 August, 2005.

11.The Applicant was an overtayer in Hong Kong.  Following the ruling in Yu Nongxian v. Ng Ka Wing and ECAFB CACV 270/2006, I exercise the discretion under section 2(2) of the Ordinance in the Applicant’s favour.  Consequently this court deals with this case as if the Applicant had at the material time been a person working under a valid contract of service.

12.The Applicant relies on section 11(2) to calculate his monthly earnings.  Section 11(2) provides:-

“(2) Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.”

13.The 2^nd Respondent submits that it was more likely than not that the Applicant took up employment on the day in question solely as a temporary measure to provide himself with the money he intended to borrow from his friend.  It is more likely than not that he would not have worked for more than 2 to 3 days even without the accident.  So his monthly earnings calculated under section 11(1) is likely to be less than $1,000 per month.  He further submits that section 11(2) does not apply in the present case as there is no evidence as to the average earnings of “a person of similar earning capacity in the same grade employed in the same class of employment and in the same district”.  At the material time, the Applicant worked as a labourer.  Mr. Aman Khan, who was called by the Applicant to give evidence in this case, was basically a transportation worker working or looking for employment in the Sham Shui Po District.  But the Applicant and Mr. Aman Khan were in fact “general workers”, because they would do whatever work they were asked to do.

14.The purpose of section 11(1) of the Ordinance is to calculate the “monthly earnings” of an injured employee by relying on the provisions set out under section 11.  The formulae under section 11(1) do not contain any reference relating to the intention of the injured workers regarding their continuation to work.  Hence it would be wrong for me to take into account such intention as suggested by the Respondent in computing the “monthly earnings” of the Applicant.  Furthermore the Applicant did say that he might continue to work, if employed.  There is no concrete evidence that he would only work for 2 to 3 days and no more as suggested by the Defence Counsel of the 2^nd Respondent.

15.The evidence of Mr. Aman Khan is relevant for the purpose of calculating the “monthly earning” of the Applicant.  He worked in Hong between August and October 2006, and between October and November 2008.  He worked everyday except Sundays.  At the place where he waited to be hired for the day there were employers looking for workers doing transportation, construction, demolition work.  At the time of the accident the economy of Hong Kong was good.  Even without the evidence of Mr. Aman Khan, it was reasonable to adopt 26 days as the number of days worked per month in August 2005 for the purpose of computing the monthly earnings of the Applicant.

Award under section 9

16.The loss of earning capacity is 4%.  The Applicant was aged 29 at the time of the accident.  The award is therefore $34,944 ($350 x 26 x 96 x 4%).

Award under section 10

17.The reasonable sick leave is 6 months.  So the award is $43,680 ($350 x 26 x 4 ÷ 5 x 6).

Award under section 10A

18.According to the receipts enclosed in the “Agreed Trial Bundle” (p. 181 to p. 187), the Applicant made a total of $830 as his medical expenses.  I award him this amount.

19.The total award is $79,454 ($34,944 + $43,680 + $830).  He received a total of $2,800 ($800 + $2,000) from the 1^st Respondent.  So the 1^st Respondent has to pay him $76,654 ($79,454 - $2,800).

20.I order that the 1^st Respondent do pay to the Applicant, within 14 days from today, the sum of $76,654, with interest thereon, at 1/2 judgment rate, from 20 August, 2005 to 27 April, 2009, and at judgment rate from 28 April, 2009 until satisfaction.

21.I was informed that a decision pursuant to s.10(5) of the Ordinance was not required.  Hence, I make no order under s.10(5) of the Ordinance.

Costs

22.The 2^nd Respondent submits that this court should not make an order against it because it joined in these proceedings at the request of the Applicant.  This is different from those cases in which on its own volition it joined in the proceedings to defend the issue of liability and quantum vigorously.  The Applicant’s request is not an automatic licence against any cost order made against it.  The 2^nd Respondent should exercise independent decision to determine whether to join in these proceedings or not, irrespective of the request of the Applicant. 

23.I make an order nisi, to be made absolute in 14 days’ time, that each of the respondents do pay 50% of the costs of these proceedings respectively to the Applicant, to be taxed, if not agreed, with certificate for Counsel.  The Applicants’ own costs be taxed in accordance with Legal Aid Regulations.

The Applicant:  represented by Mr. Patrick Lim, instructed by Messrs. Krishman & Tsang, Solicitors.

The 1^st Respondent: represented by Miss Wong Chui Yi.

The 2^nd Respondent: represented by Mr. Daniel Chan , instructed by Messrs. P.C. Woo & Co., Solicitors.