Jiang Liwang v. Cheng Wai Hing
|
DCEC 1379/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 1379 OF 2009 ________________________
Coram: Her Honour Judge H.C. Wong in Court Dates of Hearing: 1 to 4 March 2011 Date of Handing Down Judgment: 24 March 2011 ________________________ JUDGMENT ________________________ 1.The Applicant Jiang Li Wang (“Mr. Jiang”) applied for compensation under Sections 9, 10 and 10A of the Employees’ Compensation Ordinance (“the Ordinance”) for injuries sustained at an accident arising out of and in the course of employment with the Respondent Cheng Wai Hing (“Mr. Cheng”). He claimed the accident happened outside the Shau Kei Wan Typhoon Shelter within Hong Kong waters. 2.Mr. Jiang was born on 4 March 1962, he is a native of Shanwei in Quang Dong Province of the PRC. On the day of the accident, 12 February 2009, he was employed by the Respondent to work on his fishing vessel (Chinese registration No. 「深蛇6540」 and Hong Kong registration No. “64346A”) (“the vessel”). The contract of employment was terminated on 23 February 2009. 3.Mr. Cheng denied he is liable to compensate Mr. Jiang claiming the accident occurred at a village on Banggai Island in Indonesia. He further claimed Mr. Jiang had sustained the injury when he was working at an Indonesian fish farm without the captain’s consent or knowledge when the accident occurred. The Applicant’s case 4.Mr. Jiang claimed he was employed by Mr. Cheng to work on the vessel in December 2003 after an interview in Hong Kong arranged by Mr. Cheng. He claimed he was paid a monthly wage of HK$6,000, working and sleeping onboard of Mr. Cheng’s vessel. The vessel would purchase fish at Shanwei, Hainan Island and Nanào for sale in Hong Kong. He claimed he had never been to Indonesia and had never worked in Indonesian waters. He denied he had ever applied and owned a PRC passport, claiming he had always used his seaman card to enter Hong Kong on board of Mr. Cheng’s vessel. 5.At around 12 midnight on 12 February 2009, the vessel was outside Shau Kei Wan Typhoon Shelter, Mr. Jiang was instructed by Mr. Cheng to get ready for departure. As the anchor was being hoisted, he lost his balance due to the sudden movement of the vessel and his left thumb was caught by the anchor cable amputating his thumb in the process, his forehead was knocked against the anchor causing him to fall and lose consciousness. When he came to, he found himself in Shanwei People’s Hospital. 6.On 20 February 2009, while still hospitalised at Shanwei People’s Hospital, he requested Mr. Cheng to take him to Hong Kong for treatment. He claimed Mr. Cheng had arranged for his discharge from Shanwei Hospital and brought him to Hong Kong in his vessel to visit the Outpatients Department of St. Paul’s Hospital in Hong Kong on 22 February 2009. 7.Because Mr. Jiang spoke no Cantonese, Mr. Cheng had spoken to the St. Paul’s Hospital doctors on his behalf, he claimed he did not understand what Mr. Cheng told the St. Paul’s Hospital doctors at the time. He was given an injection, his wound was dressed and medication was prescribed before he left the hospital. He returned to Shanwei on Mr. Jiang’s vessel and continued his treatments at the Shanwei Hospital. Up to 28 August 2009, he claimed he had spent a total of $25,000 for his treatments at Shanwei People’s Hospital. On 23 February 2009, he received the sum of HK$43,000 from Mr. Cheng’s father for which he had signed a receipt. 8.He claimed he suffered from post-traumatic syndrome from his head injury and complications from the amputation of his left thumb. He could no longer returned to work on a fishing vessel due to the loss of his left thumb. The Respondent’s Case 9.The Respondent claimed that Mr. Jiang was employed through the Shenzhen City Shekou Hong Kong Macau Migrant Fishermen Association （深圳巿蛇口港澳流動漁民協會）(“the Association”) on 1 August 2007 to work on the Respondent’s fishing boat. He produced a letter certifying the termination of the employment dated 29 December 2009 issued by the Association of which he is a member (p. 64 of Bundle B). He further produced a copy of the Applicant’s seaman card issued on 30 October 2006 and his identity card issued by the PRC government with a validity period from 30 August 2006 to 30 August 2026. 10.Mr. Cheng claimed the Applicant’s accident had taken place in Indonesia not in Hong Kong. He denied Mr. Jiang was injured onboard the vessel. He further claimed he was not the captain on board the vessel on the fish purchase trip to Indonesia in February 2009. It was his evidence at trial that he had stopped pilotting the vessel for long trips 3 years before February 2009 after his younger brother, Cheng Wai Yip, passed the test and obtained the master’s license to captain the vessel, he had relinquished the job to him. 11.He admitted he had accompanied Mr. Jiang to seek medical treatment on 22 February 2009 at St. Paul’s Hospital. Contrary to his written witness statement admitting he had informed the St. Paul’s Hospital doctor Mr. Jiang was injured in Indonesia, under cross-examination at the trial, he denied he was with Mr. Jiang and had spoken to the doctor when he was examined and treated at St. Paul’s Hospital. He claimed he had worked with Mr. Jiang onboard his vessel and knew he could speak fluent Cantonese and Mr. Jiang had spoken to the St. Paul’s Hospital doctor directly. 12.Mr. Cheng denied Mr. Jiang is entitled to be compensated under the Ordinance because he was not injured in the course of employment and the accident did not take place in Hong Kong. He adduced evidence from his brother Mr. Cheng Wai Yip who claimed Mr. Jiang was onboard of the vessel captained by him when it set sail from China for Indonesia to purchase fish from the fish farms there. The vessel was detained by the Indonesian customs authority, it was not released until 12 February 2009. He produced a photocopy of his own passport and those of his crew Lin Zuwu and Xu Sheng Jian showing an entry date of 14 January 2009 and an exit date of 12 February 2009 endorsed by the Indonesian Immigration Authority in support of his claim. He accused Mr. Jiang for having left the vessel without his knowledge or consent to work on a fish farm on 11 February 2009 where he had sustained the thumb injury. Mr. Cheng Wai Yip claimed the owner of the fish farm had taken Mr. Jiang to seek medical treatment at a local clinic because he did not speak either Indonesian or English. The Respondent produced a report from the Indonesian clinic in support (p. 172-173 of Bundle D). 13.Mr. Cheng Wai Yip said he did not disclose to the Respondent’s solicitors the vessel had been detained by the customs authority in Indonesia because the detention involved an investigation of the vessel’s operation license. He claimed he had immediately upon the release of the ship’s documents set sail for Hong Kong so that the Applicant can receive medical treatments in Hong Kong. He did not purchase any fish from the fish farms in Indonesia on that occasion. Liability 14.The issue in this case is whether the Applicant sustained injuries in the course of employment with the Respondent in Hong Kong. The evidence of the Applicant compared with those of the Respondent and his younger brother were completely different. It is for the Court to assess their evidence to determine whose version to accept. Analysis 15.The evidence of Mr. Jiang is simple and straight forward. He was employed at HK$6,000 per month to work on the Respondent’s vessel. The vessel would purchase fish from Nanào, Shantao, Hainan Island and deliver cargos of fish to Hong Kong. He claimed he had never worked on a boat that travelled to Indonesia to purchase fish. He had never possessed a PRC passport, he spoke no Cantonese and is illiterate. He sustained the injuries in Hong Kong waters on 12 February 2009. 16.The Respondent’s case is Mr. Jiang had sustained his injuries in the Indonesia island of Banggai while working for a local fisherman at his fish farm. The vessel was detained by the Indonesian authority between 14 January 2009 and 12 February 2009. The Respondent claimed he owned only one boat, Hong Kong registration No. 64346A with a Chinese registration 「深蛇6540」in the PRC. 17.It is Mr. Jiang’s evidence that the Respondent and his family members together owned five boats and he had only worked on the Respondent’s boat pilotted by Mr. Cheng himself. This was denied by Mr. Cheng who claimed he had stopped pilotting the vessel since his brother obtained his master’s license. The documents produced showed Mr. Cheng Wai Yip had passed his master’s examination to take charge of a motor on a fishing vessel on 16 April 2004 (p. 213 of Bundle 213). 18.The Chinese registration book of the Respondent’s vessel CM 64346A 「深蛇6540」(粵港澳流動漁船戶口簿) issued on 31 August 2007 stated the ship owner「船主」 was the Respondent, its crew members included his father (de-registered on 23 November 2009) and his brother Cheng Wai Yip. The Applicant was among the other crew members named, he was de-registered on 23 February 2009 (p. 216-221 of Bundle D). The vessel’s registration book showed Mr. Cheng Wai Yip was only registered as a crew member of the vessel on 31 August 2007. 19.Both Mr. Cheng and his younger brother’s witness statements stated the vessel had set sail for Indonesia in early February 2009. Mr. Cheng Wai Yip, however, claimed in Court the vessel had left China on 1 January 2009 arriving in Indonesia on 14 January 2009 where the vessel was detained by the Indonesian Customs Authority. He claimed the vessel had left China without cargo and left Indonesia without the fish it had intended to purchase from Indonesia. Instead of sailing back to Shanwei or Shekou the empty vessel sailed to Hong Kong. No credible reason was given other than the vessel was taking Mr. Jiang to Hong Kong for medical treatment even though Mr. Jiang’s home is in Shanwei. On the other hand, the St. Paul’s Hospital record showed he was not allowed to receive further treatments at St. Paul’s Hospital and was taken back to Shanwei on the next day after one outpatient visit on 22 February 2009. 20.I find the discrepancies in the departure date of the vessel from China to Indonesia in the two Mr. Cheng’s evidence to be suspicious. Mr. Wong, Counsel for the Applicant, claimed the Respondent had tailored his evidence to coincide with the passport evidence of Mr. Cheng Wai Yip and his crew which were only disclosed shortly before the trial. It is quite possible the Respondent’s ‘crew list’ to the Indonesian authority had been amended or interfered with for it did contain discrepancies, such as the position of the colon in front of Mr. Jiang’s name. Mr. Jiang’s seaman card in the trial bundle showed a PRC identity card number different from the one on his PRC identity card. This puts the authenticity of the documents produced by the Respondent in question. 21.The medical report from the Indonesian clinic’s general practitioner Dr. Silveria Bailia was unusually brief, it only stated that Jiang Li Wang was treated at the clinic by Dr. Bailia on 12 February 2009 and the patient was diagnosed with” “Post Amputasi digit 1 manus Sinistra” (post amputation of the thumb on the left hand). According to Mr. Jiang, his left thumb was severely injured, it was almost cut off from his hand, but was still attached to his hand after the accident. 22.On the other hand, the medical report from the Shanwei Hospital described Mr. Jiang’s condition and treatments with more details (p. 128 of Bundle B). It stated that Mr. Jiang was admitted to the hospital on 12 February 2009 due to the amputation of the left thumb （左手拇指絞斷）and brain concussion. 23.The translation in the joint medical report of Drs. Chan Sai Keung and Danny Tsoi Chi-wan of 16 June 2010 at para. 2.3 of the report of Shanwei Hospital’s Dr. Wang For Tian （王佛添）was:-
24.The Shanwei People’s Hospital report by Dr. Wong is consistent with the evidence of Mr. Jiang on his medical history. While the Indonesian medical report referred only to the patient’s post amputation condition failing to describe the nature of the treatment or the symptoms at the time of admission. Contrary to St. Paul’s Hospital’s Dr. Ng Cheuk’s report, there was no mention in Dr. Bailia’s report that he had surgically removed Mr. Jiang’s left thumb or surtured the wound. Dr. Ng was probably given the information by Mr. Jiang’s employer, the Respondent, for Dr. Ng had referred to the patient’s employer refusing further treatment by an orthopaedic surgeon at the hospital and telling the doctor Mr. Jiang was going to China the next day for treatments. The lack of details in Dr. Bailia’s report showed the inadequacy in the Respondent’s case. Vital details such as whether Dr. Bailia had removed the left thumb and surtured the wound, the condition of the wound and the medication given were missing. The Indonesian clinic, according to Mr. Cheng Wai Yip, was the only clinic in the area, it must have dealt with a lot of similar injuries. Yet, it failed to give the necessary details on the injury and treatment administered on the patient. I find the Shanwei People’s Hospital report contained more plausible details on Mr. Jiang’s injuries. 25.As to the evidence adduced by the Respondent and his brother, I find there were too many inconsistencies between their witness statements and their evidence in Court. Not only was the date of departure to Indonesia changed from early February 2009 to 1 January 2009, Mr. Cheng Wai Yip was also extremely evasive on the reason for the vessel’s detention in Indonesia of almost 1 month. I believe the change of the date of departure from China to Indonesia from early February 2009 to early January 2009 was made to co-incide with the date stamp on Mr. Cheng Wai Yip’s passport disclosed shortly before the trial. 26.Based on the many discrepancies in the Respondent’s evidence, I reject the Respondent’s and his brother’s evidence that the accident had taken place in Indonesia at a local fish farm. I further reject the Respondent’s evidence that the Applicant spoke fluent Cantonese based on his claim that Mr. Jiang had worked with him between 1 August 2007 and February 2009 (para. 9 of his witness statement p. 59 of Bundle B) for he admitted in Court he had rarely skippered the vessel after his brother obtained the master’s licence in 2004. Mr. Jiang is an illiterate man from Shanwei who had worked as a fisherman since his teenage years in his hometown. As an employed seaman onboard a fishing vessel, it is unlikely for him to have mastered the Cantonese dialect in a few years when he was not expected to go onshore on the occasions the vessel delivered fish to Hong Kong. Mr. Cheng admitted he had accompanied Mr. Jiang to St. Paul’s Hospital on 22 February 2009 though he denied he spoke to the doctors at the hospital contrary to his witness statement. I am not convinced that the doctors at St. Paul’s Hospital had lied about Mr. Jiang’s employer had told them Mr. Jiang sustained his injuries in Indonesia or that the doctors at St. Paul’s Hospital had forgotten about Mr. Jiang’s treatment on a second occasion. Mr. Cheng claimed that Mr. Jiang was taken to the St. Paul’s Hospital Outpatients Department on two occasions, 21 and 22 February 2009, there was only record of one visit on 22 February 2009 from the two reports from the St. Paul’s Hospital doctors. For the aforesaid reasons, I reject Mr. Cheng’s evidence. I find both Mr. Cheng and his brother unreliable witnesses. 27.I accept the evidence of Mr. Jiang that he had sustained the injuries when he was hoisting anchor outside Shau Kei Wan Typhoon Shelter. That the sudden movement of the vessel had caused him to lose balance resulting in his head and left thumb injuries. He was in the course of employment and had sustained the injuries while performing duties for the Respondent. I find the Respondent liable to compensate the Applicant under the Ordinance. Quantum 28.The monthly salary claimed by Mr. Jiang is HK$6,000 while Mr. Cheng claimed he was paid only HK$4,800. On the list of earnings filed in Court on 14 May 2010 by the Respondent’s solicitors, the Applicant’s monthly salary was said to be HK$4,800 between February to November 2008, it was reduced to HK$3,900 in November 2008 until his departure in February 2009. Under cross-examination, Mr. Cheng admitted the Respondent’s monthly wage was HK$4,800 and there was no reduction to HK$3,900 in November 2008. No explanation was given for the discrepancy. 29.As there were no documents showing the Applicant’s monthly salary, the Court had to rely on the oral evidence of the Applicant and the Respondent. Given the demanding nature of the Applicant’s work that he was required to work and live onboard the vessel and was only allowed to visit his home when the boat returned to Shanwei, I accept his evidence that his monthly pay was HK$6,000, not $4,800. Section 9 30.The Applicant was 47 years old at time of accident, the multiplier of 72 is not disputed. Under the Ordinance, loss of earning capacity for the loss of the left thumb is 25%. The compensation is: $(6,000 x 72 x 25%) = $108,000. Section 10 31.Sick leave pay – the joint experts agreed a sick leave period of 9 months for the thumb injury $(6,000 x 4/5 x 9) = $43,200. Section 10A 32.Mr. Jiang claimed he had incurred the sum of $25,000 in medical expenses. He produced a number of medical certificates in support at p. 226-235 of Bundle E. I am satisfied he had spent the said sum on medical treatments and is entitled to be compensated for the expenditure. Summary
Interests 34.Interests at ½ judgment rate from date of application to date of judgment, thereafter at judgment rate. Costs 35.Cost order nisi to the Applicant to be taxed if not agreed with certificate for counsel. Applicant’s own costs to be taxed in accordance with Legal Aid Regulations. Should there be no application on costs within 14 days of the judgment, the order will be made absolute.
Mr. Wong Hay Yiu instructed by Legal Aid Department for the Applicant. Mr. Kenneth Lam instructed by Messrs. S.K. Lam, Alfred Chan & Co. for the Respondent. | |||||||||||||||||||||||||||||||||||||||||||