Cheung Shuk Wah Jessica v. Wong Kang Hung Darwin Formerly t/a New Voice Pub

DCEC 842/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 842 OF 2007

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IN THE MATTER OF AN APPLICATION

BETWEEN

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Coram:  His Hon Judge Leung in court

Date of hearing:  8-9 April 2009

Date of filing of Respondent's written submission: 15 April 2009

Date of filing of Applicant's written submission: 17 April 2009

Date of judgment:  9 July 2009

JUDGMENT

1.Man, the deceased, died in 2005 at the age of 32, leaving behind Cheung, the widow, and their then 6-year-old son.  Cheung applies for compensation against Wong, his then employer, pursuant to the Employees’ Compensation Ordinance, Cap.282.

2.At the commencement of the trial, parties through counsel agreed on the quantum of compensation.  Whether Wong is liable depends on whether the deceased met his death as a result of an accident in and out of the course of his employment with the pub then run by Wong.

The incident

3.The pub was in Tai Wai, Shatin, New Territories.  The incident happened on 10 July 2005.  At the time, the deceased was the bartender of the pub.  He was the longest serving employee, having worked there for two and a half years by then.  The deceased’s actual duties at the pub exceeded those of a bartender.  He assisted Wong in compiling the duty roster for the staff and banking in the cash business receipts of the pub.  When Wong was not at the pub, the deceased was the one to oversee the operation and to supervise the other employees.

4.Some time after 3:00 am on the day in question, Wong went off for night snacks with friends.  The deceased, Elle, the only full-time waitress, and another part time waitress were at the pub.  There was a group of 5 customers in their early 20’s.  Just before about 4:00 am, argument arose between some of these customers and Elle.  The argument became heated with verbal abuse and one of the customers, later identified as Koo, even raising a bottle to threaten Elle.

5.The deceased intervened, snatched the bottle away and attempted to calm the people down.  Wong happened to telephone the pub shortly afterwards.  He was intending to tell his employees to close the pub for the day if there were no more customers.  Elle then reported to Wong the dispute just happened.  But the deceased got hold of the telephone and reported that things were all right now and they were clearing things and were about to close the pub for the day.

6.Wong was apparently concerned about the situation and he returned to the pub.  By the time he arrived, 4 of these customers were leaving the pub.  The other one, later identified as Law, had already left the pub by then.  There was some verbal exchange including apparent apologies.  The customers then parted.  The deceased and Elle also closed the pub for the day.

7.Wong then boarded a taxi and left.  Elle was going to meeting her boyfriend at a nearby cyber café.  It was a 5-minute walk to the place.  The deceased accompanied her to get to the building where the café was.  When Wong was walking up the staircase to the café, two men suddenly came out, armed with knifes and attacked the deceased.  The deceased was wounded.  Elle telephoned Wong and Wong directed his taxi to go to the scene.  The deceased was fatally wounded and died.

8.Koo and Law were subsequently apprehended and prosecuted for the murder of the deceased.  On 15 May 2006, the two culprits were convicted after trial and sentenced to life imprisonment (Case no. HCCC 318/2005).

9.In the absence of real dispute, I find the above to be the facts.

The issues

10.The fact that injury or death was caused to the employee as a result of deliberate attack does not necessarily mean that this was not an accident for the purpose of the Ordinance.  Whether this was an accident should be assessed from the point of view of the employee.  There seems to be no dispute regarding this.  This was also accepted in Wong Kam Ho v Chim Ching Lan [1989] HKDCLR 11 at 12F, a case cited by Mr Tang for Wong.

11.  Mr Tang rightly pointed out that it is necessary to consider the time when accident took place, the place where it took place and what the employee was doing when and where it took place.

12.  In the present case, the attack happened after the pub was closed and the deceased and Elle were off duties.  It happened during their short journey to the cyber café and the purpose of Elle going there had nothing to do with her work.

13.If it were Elle who met any accident, this could not be said to have happened in the course of her employment.  But when accompanying Elle from the pub to the café, was the deceased acting in the course of his employment?  This is the real question in the present case.

14.Mr Sakhrani for Cheung opened the case by highlighting these circumstances:  The murder was proximate in time to the dispute in the pub earlier that morning.  The murderers and the deceased did not know each other and there was no reason the deceased would have been targeted.    The deceased was killed probably because of his intervention in the dispute.  Considering the evidence, I share the same view of these circumstances.

15.Notwithstanding the suggestion in her statement that Wong asked the deceased to accompany her, Elle confirmed in court that Wong did not actually ask the deceased to do that at the time.

16.Mr Sakhrani’s major contention was that what the deceased did was reasonably incidental to his work which included the duty to ensure that Elle, as the employee of Wong, was safe in leaving work and after the dispute at the pub.

The principles

17.So long as it can be said that the activity upon which the workman is engaged is reasonably incidental to the work that he is employed to do, his course of employment can extend beyond the normal hours or place of work: see R v National Insurance Commissioner, ex parte East [1976] ICR 206; R v National Insurance Commissioner, ex p Michael [1977] 2 All ER 420 at 427; Lam Min & Ors v Yau On Construction Co [1981] HKLR 646 at 650F; H-I; Ng Mung Khian for herself and the defendants of Chow Shek Fung v Wing Kwong Painting Co & Anor, CACV 217/2004, 29 June 2005 at paras.28-29; Richard Lewis, Compensation for Industrial Injury (1987) at p.58.

18.It is important to remind ourselves of what Roskill LJ stated in R v National Insurance Commissioner, ex parte Michael (above) at 427:

“Nor so far as the adjective ‘incidental’ is concerned, is it sufficient for the injury to have been suffered in some manner incidental to that contract of service.  If the injury is not suffered in the actual course of the work which the employee is engaged to do, it must have been at least been suffered by reason of some event incident to that work.” (emphasis added)

19.The court has observed that a liberal meaning is often adopted to what is reasonably incidental and this can be extended to acts which are habitually done by an employee to the knowledge of the employer without question: see Li Hoi Shuen v Man Ming Engineering Trading Co Ltd [2006] 1 HKC 349 at 362H-I.

20.The court accepts that in a changed social matrix, the foundation of the employment relationship is no longer so much based on orders and instructions as on requests and information, and contractual rights and duties are often supplemented by mutual expectations of co-operation: see Nancollas v Insurance Officer [1985] 1 All ER 833 at 835b-836d; Hsu Shu Chiao v Lung Cheong Toys Ltd [2002] 1 HKC 479 at 486A-B.

21.Each case has to be decided on its own facts: see Nancollas (above).

The evidence

22.Cheung gave evidence as to what she learned from the deceased during his lifetime about his work and responsibilities for overseeing the pub and the safety of the female staff during business hours and after the pub was closed.

23.However, it transpired that Cheung had in fact separated from the deceased when he was detained by the Mainland authority in 2000.  She has moved out of the matrimonial home since then and refused to move back to live with him even after the deceased’s release and return to Hong Kong in 2003.  She had visited the deceased on a few occasions prior to the accident, according to her, with the possible view to redeveloping the relationship.  He used to have daytime job but she has no idea about that.

24.I share Mr Tang’s reservation about having to rely on Cheung as the source of information about the deceased’s work and responsibilities at the pub.  However, this does not affect my evaluation of the evidence from Elle and Wong, who should after all be in better positions to give first hand evidence in this regard.

25.There is no dispute that the deceased was the longest serving full-time employee of the pub.  Wong admitted that he relied on the deceased, apart from attending the bar, to handle the others matters of the pub as mentioned above.  The deceased was expected to keep an eye on the establishment including supervising the other employees.  Wong agreed that the deceased was effectively his right hand man at the pub.

26.Wong would not necessarily stay at the pub until its close of business for the day.  This was apparent from the fact that on the day in question, Wong had already left the pub and eventually telephoned to instruct the deceased and others to close the pub and to leave if there were no more customers.  The deceased and Elle were often responsible for closing the pub in the early hours of the day.  Elle also confirmed that in court.

27.Elle gave evidence as to the situations she had encountered during work. She described some customers were not civilised in that they would scold the waitresses.  There were occasional troublemakers at the pub and the deceased was expected to deal with them.

28.Wong agreed that some customers might sometimes get rude and aggressive when they had too much drink.  If Wong was not at the pub, he relied on the deceased to ensure that any trouble caused by the customers would not get out of control.  During cross-examination, Wong had to admit that there had been such disputes at the pub.  Two to three of those occasions even ended up with police intervention.

29.Elle also gave evidence that there were occasions on which customers would deliberately wait outside the pub for the waitresses to come out when they were off duty.  Both Wong and Elle considered the deceased to have been very conscientious.  Elle said that the deceased considered that it would be dangerous to let her leave the pub alone.

30.Wong agreed that any harm to his staff would be more likely to occur when they walked out of the pub.  Wong agreed that as employer, he would ensure that it would be safe for the staff to leave work when the pub was closed.

31.Considering the circumstances surrounding the business of Wong, I am satisfied that whether expressly required to do so, the deceased was expected to ensure that it would be safe for his colleague to leave work when the pub was closed for the day.  The question is whether this extended to accompanying his colleague from the pub to another destination.  Was that reasonably incidental to his responsibilities?

32.Wong said that if requested, attempt would be made to escort the female colleagues from the pub when they left work.  If he was not around, it would have to be the deceased to deal with any such request.

33.Elle explained that sometimes his boyfriend would come to meet her when she was off duty.  Otherwise, she would go to the cyber café mentioned above to meet him.  The deceased would accompany her because, according to her, the deceased thought that it would be dangerous to let her walk there alone.

34.If Elle was not going to the cyber café, the deceased would also walk Elle to the minibus stop before heading home himself.  According to Elle, there had also been occasions on which the deceased accompanied other female colleagues after work.  Therefore there is no question of the deceased doing that because he happened to be on his way home

35.Regarding the circumstances on the day in question, Elle said in her earlier statement to the police that since she had just had the quarrel with the customers at the pub, the deceased accompanied her to meet her boyfriend at the cyber café.  But Wong said that when he left the pub, he did not sense that any more trouble or act of violence would come as a result of the earlier dispute at the pub.

36.Mr Tang suggested that like any other day, the deceased accompanied her out of his being a gentleman and a friend.  Elle did not deny that.  But that fact and the fact that he assumed the responsibility to walk her to her usual destinations after work for her safety even on an uneventful day are not mutually exclusive.

37.Mr Tang suggested that the deceased did not accompany her as a matter of duty.  Elle did not deny that either.  But what matters was not what she thinks, but how this was understood by the deceased and Wong, his employer: see Nancollas (above).

38.In the Form 2 filed a couple of days after the incident, Wong described that the incident happened when the deceased was responsible for escorting his colleague home.  On their way, he was attacked by the customers of the pub and died as a result.  He confirmed in the form that this occurred in the course of the deceased’s work.

39.In court, Wong explained that it was filled in by his friend who worked in the insurance field.  He did not realise the significance of these details and therefore made the mistake.  What he stated in this part of the form was allegedly incorrect.

40.Mr Tang referred to Wong Kai Hung v Lam Geotechnics Limited, DCEC 110/2004, 13 April 2006 and submitted that the court could disregard an admission in the form if this is inconsistent with the evidence and was made by mistake.

41.The contents of Form 2 are not conclusive.  Nothing prevents the court in an appropriate case from finding errors or refusing to place any weight on the contents of the form.  But in explaining how he came to have the form prepared and to confirm it by mistake, Wong’s evidence did not actually impress me.  It was he who provided the information and he confirmed its accuracy.  He has personal knowledge about what happened that day as he was present when the pub was closed.  He could not have made mistake of the kind alleged.  I do not accept his explanation.

42.On the basis of the evidence, I am satisfied that in accompanying Elle from the pub to her usual destinations after the pub was closed that morning, the deceased was performing what was reasonably incidental to his responsibility to ensure that Elle, who normally stayed until the closing of the pub, would be safe leaving work.  It was necessitated by the circumstances peculiar to their employment, generally and specifically due to the dispute that morning.  The deceased’s course of employment continued to run its course until he left Elle at her usual destinations shortly afterwards.  This was also the understanding of the employer, Wong; hence what he stated in Form 2.

43.In arriving at the above conclusion, I also reflect upon where to draw the line in respect of the deceased’s course of employment.  If the deceased had met some other kind of accident in the course of accompanying Elle to her usual destinations after work, such accident would have occurred in the course of his employment.  Whether the deceased’s employment could have continued its course beyond that or discontinued at some point would depend on the circumstances that I do not propose to hypothesize.

44.Reading the relevant parts of Lewis (above) at pp.61; 67-68, I do not think that Mr Sakhrani’s reference to acts relating to necessities of employment or emergency situations are really relevant to the present case.

45.Save that the principles applied were essentially the same as those stated above, the cases cited by Mr Tang do not assist either.  In Wong Kam Ho (above), the accident happened when the worker called at the employer’s restaurant in his own free time and demanded double pay.  He was assaulted when he left the premises.  He was neither required nor expected to call at the restaurant for payment of wages.  He called for payment before it was due that could not have been part of his contract of service.  In Li Hoi Shuen v Man Ming Engineering Trading Co Ltd [2006] 1 HKC 349, the peculiar circumstances of cross-border employee were studied.  The issue was what happened during the employee’s own rest between the time he clocked off duty and the time he clocked on duty.

46.Once I find that the deceased met his death in the course of his employment, I have no difficulty in concluding too that this arose out of his employment in the circumstances of this case.

47.I find that liability is proved.

Quantum

48.It is agreed that compensation shall be as follows:

49.Interest runs on the above sum from the date of accident to today at half judgment rate and thereafter until full payment at judgment rate.

50.The compensation shall be apportioned between Cheung and the son (Man Sheung Chit).  According to section 6A and the 7^th Schedule of the Ordinance, Cheung and the son shall each be entitled to 50% of the compensation.  The amount for the son shall be paid into court.

Order

51.I give judgment in the above sum together with interest as aforesaid, with 50% thereof be paid to Wong and 50% thereof be paid into court.  Upon payment of the amount apportioned for the son, Cheung has liberty to apply for directions regarding the management of the amount in court within 14 days.

52.I make a nisi order that Wong shall pay the costs of this application.  Costs shall be taxed, if not agreed.  For the avoidance of doubt, I certify the engagement of counsel.  Cheung’s own costs shall be subject to legal aid taxation.  In the absence of appointment in 14 days to argue costs, this costs order shall become absolute.

Represention:

Mr Ashok SAKHRANI instructed by Messrs Y C Lee Pang Kwok & Ip for the Applicant on assignment by the Director of Legal Aid

Mr Ronald TANG instructed by Messrs W H Chik & Co for the Respondent