Qadir Sher v. Siddiqui Muhammad Faisal and Others
Read the full judgment text of DCEC 404/2011 on BabelCite. This District Court judgment.
1. The Applicant entered Hong Kong illegally in June 2009 from Pakistan. He was arrested and was released under recognizance pending determination of his claim for protection against torture to the Immigration Department.
Cited by 3 cases · Cites 3 cases
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DCEC 404/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO.404 OF 2011 -------------------- BETWEEN
-------------------- Coram: Acting Chief District Judge S. T. Poon in Court Dates of Hearing: 26th and 27th March, 2012 Date of Handing Down of Judgment: 13th August, 2012 -------------------- JUDGMENT -------------------- 1.The Applicant entered Hong Kong illegally in June 2009 from Pakistan. He was arrested and was released under recognizance pending determination of his claim for protection against torture to the Immigration Department. 2.The Applicant claims against the Respondents for compensations under sections 9, 10 and 10A of the Employees Compensations Ordinance (“ECO”). 3.It is the Applicant’s case that he was employed by the Respondents as a casual worker to work at a warehouse site on Kam Sheung Road where he fell from a collapsed working platform at a height of 18 feet on 20 October 2009. 4.On the other hand, the Respondents said that they did not know the Applicant. The 2nd Respondent said on that day he saw the injured Applicant lying at the side of the road when he was driving along Kam Sheung Road. He stopped and spoke to the Applicant and the Applicant told him that he was hit by a car and asked him to drive him to the hospital which he did. Neither the Respondents had ever employed the Applicant. 5.In the certificate of assessment (Form 7) issued by the Employees’ Compensation (Ordinary Assessment Board), the Applicant was assessed to have suffered from 6% loss of earning capacity and entitled to sick leaves of 317 days. The Applicant appealed against the result in reliance on Dr. Arthur Chiang’s medical opinion. According to Dr. Chiang, the loss of earning capacity should be 8%. The Respondents did not adduce any medical expert evidence. 6.It is common ground that the alleged employment was an illegal one. Miss Rebecca Lee, counsel for the Applicant, submitted that I should exercise my discretion under section 2(2) of the ECO to deal with the matter as if the Applicant’s employment was a valid one. Evidence 7.The Applicant gave evidence that he was asked by a friend Mohammad Ashfaq to go to the warehouse on 19th October 2009 where he was introduced to the 2nd Respondent. The 2nd Respondent told him that he and his brother, the 1st Respondent, were the “bosses” of the 3rd Respondent. The 2nd Respondent also gave him 2 name cards, one of himself and the other the 1st Respondent’s. The 2nd Respondent also told him that he was employed by him and the 1st Respondent and would be paid $400 per day. The Applicant immediately began work on the day and was paid $400 in cash by the 2nd Respondent after work. 8.The Applicant went to work at the warehouse again the next morning. He was told by the 2nd Respondent to work on a platform with 4 wheels at a height of 18 feet. In the course of hauling up some heavy metal plates to the platform, the platform suddenly collapsed and he fell from the top to the ground. He was injured seriously at his left arm and right leg. 9.After the accident, the 2nd Respondent, together with another Pakistani male, drove him to Pok Oi Hospital in Yuen Long where he was hospitalized. 10.The Applicant called his friend, Naqash Muhammad, to testify for him. They knew each other in China in June 2009. According to Naqash, the Applicant telephoned him on 20th October and told him that he was working at a certain place. The Applicant asked someone to tell him on the phone the address of the place and he went there to meet the Applicant. At the site he saw the Applicant working together with another man on a platform with 4 wheels of around 15 feet of height. He saw the Applicant and that other person hauling up an iron frame onto the platform but the platform collapsed and they fell. The Applicant was taken by two Pakistani males to a car and driven away. He was not allowed to follow. 11.The 2nd Respondent gave evidence that he saw the Applicant lying at the side of Kam Sheung Road on the morning of 20th October 2009 when he was driving along that road to Yuen Long. He was told by the Applicant that the Applicant was hit by a car. Although he suggested calling an ambulance for the Applicant, the Applicant requested him to drive him to the hospital as he could not speak Chinese or English. At the hospital, he was questioned by the police and he told them what happened. He produced his identity card and gave his phone number to the police. He also gave the Applicant his name card before he left the hospital. It was only in late May or June 2010 when he was contacted by the Immigration Department that he realized that the Applicant claimed to be his employee. 12.The 2nd Respondent was the major shareholder of the 3rd Respondent which has a registered address at Kam Sheung Road. The 1st Respondent is the brother of the 2nd Respondent. The 2nd Respondent could not explain why the Applicant has the name card of his brother. Discussion 13.As submitted by Mr. Middleton, solicitor representing the Respondents, the Applicant did give different versions of facts to the hospital and police officers from that to the Court. 14.According to the medical report by Dr. Chan Ping Tak of Tuen Mun Hospital, the Applicant claimed that he was hit by another vehicle while he was riding a bicycle on admission to the hospital. In the statement dated 1 December 2009 of police constable Yuen, he stated that the Applicant told him at the hospital that he was hit by an unknown vehicle while he was riding a bicycle. However, the Applicant could not tell him the exact location of the accident and no damaged bicycle can be found. 15.In his statement to the police dated 22 December 2009, the Applicant stated that he had fallen from the roof and his injuries had nothing to do with any traffic accident. He did not know why the police said he was injured while cycling. 16.The Applicant could not give any reasonable explanation to the inconsistencies when he was cross-examined by Mr. Middleton. He only denied having told others that he was injured in a traffic accident. 17.I have no difficulties in finding that the Applicant did give a different version of facts to the hospital staff and police officers from the present one to this court. 18.However, it does not necessarily follow that the version of the Applicant given to this court must not be the true one. 19.What the 2nd Respondent said is inherently improbable. It just so happened that he picked up an injured man on the road to the hospital and it turned out that that man claimed that he was his employer. And, he just gave only his name card to the man but with reasons unknown the man had in his possession also the name card of his brother who was another shareholder of his company. 20.Besides, when asked by Miss Lee why he did not mention about the Applicant’s traffic accident to the immigration officers when he gave his statement to them, the 2nd Respondent answered that he did not realize that the person the immigration officer asked about was the Applicant, which is unbelievable. 21.In my judgment, although both parties did not tell the whole truth to the court, in relation to whether the Applicant was injured at work in the employment of the Respondents, the Applicant’s version is on balance more probable. In arriving at this finding, I have also in mind the evidence of Mr. Naqash Muhammad whose evidence is generally reliable notwithstanding some minor inconsistencies to the Applicant’s evidence on the details. 22.I find the Applicant suffered injuries as a result of an accident happened in the course of his employment with the 1st and 2nd Respondents as described in the evidence of the Applicant. 23.In finding the 1st and 2nd Respondents to be the employers, I accept the Applicant’s evidence that the 2nd Respondent told him that they were. Section 2(2) ECO 24.Under Section 2(2) of the ECO, the Court has discretion to treat an illegal employment contract as if it were a valid one for the purpose of any proceedings under it. It reads as follows:
25.Relying on the decisions of the Court of Appeal in Chen Xiu Mei v Li Siu Wo[1] and Yu Nongxian v Ng Ka Wing & Anor[2], Miss Lee submitted that the Applicant’s position in the present case could not be worse than that of an illegal immigrant working in Hong Kong in breach of a condition of stay as what the applicants did in the two cases. 26.I find force in Miss Lee’s submission. There is no reason why I should depart from the principles laid down by the Court of Appeal and I exercise my discretion under Section 2(2) in favour of the Applicant accordingly. Quantum 27.There is no query raised on Dr. Chiang’s evidence by the Respondents. I considered Dr, Chiang’s suggestion on the loss of earning capacity of the Applicant a reasonable one and I find that the Applicant suffered an 8% permanent loss of earning capacity. 28.There being no other evidence than the Applicant’s that his daily wages prior to the accident was $400. However, there is no basis upon which this court can conclude that he would work on average 26 days per month as suggested. In the circumstances, I view that 20 days per month is a more realistic estimate. 29.The Applicant was 25 years old at the time of the accident. The amount of compensation under Section 9 is thus: $400 x 20 x 96 x 8% = $61,440. 30.Although the Applicant is claiming also compensation under Section 10 for temporary loss of earning capacity, I agree with the views of His Honour Judge Leung in Abu Bakkr Shiddik v M M & Co. Auto Parts, Dismantling & General (A Firm)[3] that the Applicant is not entitled to the same as illegal worker. 31.Concerning medical expenses under Section 10A, in the Applicant’s evidence all medical expenses were out of the government’s pocket and he is not liable to pay the same. Although he claimed also travelling expenses in his witness statement, he said he has no idea of what they are when asked in cross-examination. 32.In my judgment, nothing should be awarded under Sections 10 and 10A. 33.Judgment is therefore entered against the 1st and 2nd Respondents in favour of the Applicant in the sum of $61,440 and interest thereon at 4% per annum from the date of accident to the date of this judgment and thereafter at 8% per annum until payment. 34.Applicant’s claim against the 3rd Respondent be dismissed. 35.Cost order nisi that costs of the Applicant be borne by the 1st and 2nd Respondents to be taxed if not agreed, with certificate of counsel and there be no order as to costs between the Applicant and the 3rd Respondent. This order nisi shall become absolute upon the expiry of 14 days unless any party applies for variation of the same. 36.The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.
Miss Rebecca Lee instructed by Messrs Munros for the Applicant. Mr. Derek Middleton of Messrs Massie & Clement for the Respondents. |
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