DCEC 1769/2012, DCEC 39/2014 & DCEC 40/2014
(Consolidated)
[2018] HKDC 59
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NOS 1769 OF 2012,
39 OF 2014 AND 40 OF 2014
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IN THE MATTER OF THE APPLICATIONS BETWEEN
|
| | POON CHI YAN | Applicant |
| | and | |
| | JSI LOGISTICS (HONG KONG) LIMITED | Respondent |
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| Before: His Honour Judge Andrew Li in Court |
| Date of Hearing: 11 – 14 and 21 September 2017 |
| Date of Judgment: 16 January 2018 |
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JUDGMENT
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A. INTRODUCTION
1. These 3 cases involve the same applicant who uses the legal aid funds to try to cheat employees’ compensation from his former employer.
B. BACKGROUND
B.1 General background and issues in dispute
2. The applicant Poon Chi Yan (“the applicant’) was a 22-year-old ‘technician’ employed by the respondent at the time of the first alleged accident which happened in September 2011. He was employed by the respondent from May 2007 until his resignation from the company in March 2013. He was promoted to the position of ‘technical leader (test operations)’ in early 2011. However, due to unsatisfactory performance and misconduct at work on 20 April 2011, the applicant was demoted back to the position of ‘technician’ with effect from 1 June 2011.
3. The applicant alleges that on the day of the first accident, ie on 21 September 2011, while cleaning the socket of a highly sophisticated piece of machinery used for testing electronic chips, the hydraulic arms of the rear door of the machine suddenly recoiled and caused injuries to his right forearm (“the 1st Accident”). The 1st Accident is the subject matter in DCEC 1769 of 2012.
4. Then, after a period of sick leave of almost a year and on his first day of return to work on 2 August 2012, the applicant alleges that while he was turning the switches of an instrument he was then testing, he was being pushed against the desk when a colleague walking past behind him. He allegedly had sprained his wrist as a result (“the 2nd Accident”). The 2nd Accident is the subject matter in DCEC 39 of 2014.
5. Then, on the first day of his return from sick leave about a month after the 2nd Accident on 3 September 2014, the applicant alleges that he tripped over a broken chair which was placed underneath his desk when he tried to get up from his seat. He alleges that he suffered severe bodily injuries, including injuries to his right wrist and right knee, as a result of this accident (“the 3rd Accident”). The 3rd Accident is the subject matter in DCEC 40 of 2014.
6. Both liability and quantum are in dispute.
7. On the issue of liability, the respondent disputes that the 3 accidents did not occur as alleged or at all.
8. On the issue of quantum, the respondent is prepared to accept the applicant’s case on (i) his monthly earnings at the time of the accidents at $11,677.78; and (ii) the periods of sick leave in respect of the 3 accidents, subject to some minor corrections of the dates made by the respondent’s counsel in her opening, of which the applicant’s counsel agrees to. The correct sick leave periods following the 3 accidents are as follows:-
1st Accident: 21.9.2011 – 1.8.2012 315 days or 10.5 months
2nd Accident: 2.8.2012 – 2.9.2012 32 days or 1.03 months
3rd Accident: 3.9.2-12 – 16.3.2013 195 days or 6.5 months
9. The respondent also disputes the extent of the applicant’s injuries resulting from each of the 3 alleged accidents and the amount of compensation the applicant is now seeking.
10. Thus, the issues which the court has to decide in this consolidated action are as follows:-
(1) Whether the accidents did occur as alleged by the applicant or at all?
(2) If so, what are the extent of the applicant’s injuries resulted from each of those alleged accident and the compensation he is entitled to?
(3) If not, whether the applicant’s claims should be dismissed with costs and, if so, what will be the appropriate costs order?
B.2 The applicant’s pleaded case
11. The applicant’s pleaded case regarding the 1st Accident (which incidentally is exactly the same as the one relied on by his counsel in his written opening) is as follows:-
(a) At about 1100 hours on 21 September 2011, the applicant was required to clean the inside of the Chroma Handler Model No 3260 machine (“the Machine”) allegedly due to the overheating of the socket. He lifted up one of the rear doors of the Machine in order to reach to and clean the socket inside. He used his right hand to hold the handle of the Machine. The compressors (ie hydraulic arms) which were used to hold up the rear door suddenly recoiled and hit his right forearm.
(b) His right forearm was sprained as a result.
12. The applicant’s pleaded case regarding the 2nd Accident is as follows:-
(a) At around 0944 hours on 2 August 2012, the applicant was instructed to test instruments at the preventive maintenance room (“the PM room”). While the applicant was turning one of the instrument switches on the working bench with his right hand, one of his colleagues walked past behind him. Allegedly due to insufficient space of the passage, the applicant was pushed against the desk. As a result, he sprained his wrist as he was turning the switches. He allegedly had reported the matter to Fong Wai Yin (方偉賢) (“Fong”) at around 0956 hours;
(b) The applicant allegedly has suffered injury to his right wrist as a result of the 2nd Accident; and
(c) The applicant relies on the CCTV recording which showed that when his colleague Poon Hong Wang (“Poon”) walked past behind him, the applicant’s suddenly moved forward and then turned around to stare at him, hence suggesting that there was some contact between Poon and the chair which the applicant was then sitting on. The applicant also relies on the fact that there was movement of the chair shown on the CCTV footage.
13. The applicant’s pleaded case in relation to the 3rd Accident is as follows:-
(a) At around 1130 hours on 3 September 2012, the applicant was asked to sit at an area on the 18th floor of the respondent’s office building, waiting for instruction as to what work would be assigned to him on that day;
(b) When the applicant stood up from his desk and was about to walk away, a broken chair which was stored under the desk fell off to the ground in front of him;
(c) The applicant stumbled over the chair when he stepped forward; and
(d) He fell onto the ground and suffered severe injuries as a result.
C. DISCUSSION
C.1.1 The 1st Accident
14. The applicant’s case on the 1st Accident has always been built on the premise that there was a mechanical failure of the hydraulic arms (which the applicant originally described as the “compressor” in the application) of the Machine. So much so that during the case management stage of these proceedings, a number of directions had been given by the court to direct the parties to obtain expert evidence in order to find out the underlying cause of the sudden failure of the hydraulic arms. A great deal of time, efforts and expenses have been spent in order to investigate into this issue. As a result, 3 liability expert reports from Ir Lo Kok Keung (for the applicant) and Ir Dr Eric Lim (for the respondent) have been adduced by the parties, including a joint expert report prepared by them.
15. The agreed findings of the experts as contained in their joint liability expert report state that the 1st Accident simply could not have happened in the way as described by the applicant in his witness statement. In this regard, Dr Lim opines the following which Ir Lo agrees in the concluding part of the report:-
“(a) There are two possible causes, i.e. leakage of the compressed gas due to the formation of the burst hole or detachment of the hydraulic arm. But there will be no bouncing action as described by the Applicant/Plaintiff in either of the said scenarios in any event.
(b) In the absence of any evidence that someone had attempted to remove the “hydraulic arm” from the hinge at the time of the alleged accident, or had to re-attach the “hydraulic arm” after the alleged accident, and on the basis that the “hydraulic arms” restored its normal function after the 1st alleged accident without any replacement needed (i.e. no burst hole formed), it is my opinion that the likelihood or possibility that the 1st alleged accident occurred in the manner as described by the Applicant/Plaintiff is extremely remote.” [1] [emphasis added]
16. I agree with the above agreed opinion of the liability experts and find that the possibility or likelihood of the 1st Accident happened in the way as described by the applicant in his application and in his main witness statement is extremely remote. I note that both the application and witness statement had been carefully drafted by his legally aided assigned solicitor and each was accompanied by a statement of truth.
17. In this main witness statement dated 27 August 2014, the applicant states that he has to clean up the dust collected at the bottom of the Machine. To do so, he has to first turn off the Machine and then open one of the rear doors in order to use a duster to reach to the inside of the Machine and sweep off the dust. He claims that, after he opened the door, he used both hands to lift it up. The door then lifted up slowly by its hydraulic arms. He then put his left hand down, while still using his right hand to hold onto the handle of the rear door, in order to control the speed of the upward movement. In the meantime, he leaned towards the Machine and used the duster to sweep off the dust.
18. The applicant further claims that while he was doing the cleaning, the hydraulic arms suddenly went out of order and recoiled. This sudden movement has allegedly caused the door, which was in a lifted position, to fall on him at speed. His right wrist was allegedly hit by the door while it was descending. He further claims that, because his right hand was stained with oil, he could not hold onto the handle of the door and his right wrist was injured as a result.
19. When the respondent’s witnesses disputed the account given by the applicant in their witness statements[2], the applicant went on to make a very lengthy supplemental witness statement, which, amongst other things, tries to contradict the respondent’s account in an very elaborated manner.[3]
20. The applicant’s counsel repeated the same allegations as contained in the application and main witness statement in his written opening which was submitted to the court about one week prior to the commencement of the trial. In other words, right up to the commencement of the trial, the applicant still maintains that the injuries sustained by him in the 1st Accident were caused by the sudden mechanical failure of the hydraulic arms of the Machine.
21. When the applicant’s counsel Mr Jackson Poon orally opens his case in court, this crucial part of the allegations, ie the injuries had been caused by the mechanical failures of the hydraulic arms, was somehow not mentioned at all. Instead, Mr Poon tries to shift the focus to the angle of the opening positon of the hydraulic door and whether it would fall on its own weight when it was opened to a level between 45 to 60 degree as contrast to when it was in a fully opened position. In other words, the applicant tries to open a case on a slightly different basis than what has been pleaded in the application and stated in his 2 witness statements.
22. When it comes to giving evidence in court during the first day of trial, the applicant gave a completely different version of events which does not involve any element of mechanical failure at all.
C.1.2 The applicant’s credibility
23. Having studied the applicant’s various accounts and having observed him carefully when he gave evidence in court, I have no hesitation to come to the conclusion that the applicant is a thoroughly dishonest and unreliable witness whose evidence in relation to the 1st Accident, as well as the 2 other alleged accidents, is not worth believing at all.
24. First and foremost, his evidence given in court regarding how the 1st Accident happened is completely different from his pleaded case, the one contained in his 2 witness statements (which was accompanied by a statement of truth signed by the applicant respectively) and the case as stated in his counsel’s written opening. The first time that the court, as well as the respondent, has any inkling of the applicant might have already abandoned his original pleaded case was during the applicant’s evidence. I think it is fair to say that both the court and the respondent were completely caught by surprise by this.
25. Second, the applicant, as well as his legal advisors, should have known that the 1st Accident could not have happened in the way as described in his originally pleaded case and witness statement in the light of the agreed opinion of the liability experts.
26. Third, his evidence was full of inconsistencies and contradictions, contrary to the contemporaneous documents and in direct conflict of the evidence given by the respondent’s witnesses.
27. Comparing the applicant’s evidence with that of the respondent’s witnesses, I find all the respondents’ witnesses to be credible and reliable. Their evidence is not only reasonable and logical, but is consistent with the contemporaneous documents produced. Hence, where there is any discrepancy between the two, I have no hesitation to accept the evidence of that of the respondent’s witnesses.
28. Fourth, as a simple matter of probabilities and common sense, the chance of a worker meeting an industrial accident on the first day of his return to work on 2 separate occasions after his sick leave is not only extremely remote, but almost unheard of. It should have immediately raised alarm bells in the minds of those representing him as well as his employer.
C.1.3 Evidence in relation to the 1st Accident
29. Cheung Chor Yuen (張楚源), RW1 (“Cheung”), was the ‘floor supervisor (test operations)’ at the time of the 1st Accident and was the applicant’s direct supervisor. He confirms in his evidence that the applicant reported to him on the day of the 1st Accident that he had sprained his right forearm earlier when opening the door of the Machine. Upon Cheung’s invitation, the applicant demonstrated to him how he had sustained the injury. The applicant only used his right hand to grab hold of the black plastic handle of the Machine at the right rear door while lifting it up. He told DW1 that while it was lifted to the level of his head, his right arm was sprained. Cheung noticed that throughout the demonstration, the applicant was able to open the rear door of the Machine with ease and the hydraulic arms of the rear door were operating normally. More importantly, throughout the demonstration, the applicant did not mention that the hydraulic arms of the rear door had recoiled once or twice as he would later allege. He also did not mention to Cheung that he was injured when the hydraulic arms suddenly went out of order and dropped down by itself. Nor did the applicant mention anything about oil stains at the door handle which caused his hand to slip.
30. I accept Cheung’s evidence not only because he is a more credible witness and his evidence is more cogent and credible, but his evidence is also entirely consistent with the experts’ joint findings and opinions.
31. One salient point which I think Cheung has explained well and of which the applicant has completely mistaken is this. At the time of the alleged 1st Accident, in the monitor of the Machine, it displayed an “error code” message. The applicant has erroneously mistaken that to mean a failure of the hydraulic doors when in fact it merely means that the Machine itself required service. In fact, all that was required is for a technician to re-set the programme after the service and the “error code” message would then disappear by itself. In my judgment, this matter not only shows up the applicant’s ignorance on the operation of the Machine, but his readiness to rely on anything that he thought was going to be helpful to his case.
32. Cheung’s evidence is further supported by a contemporaneous incident report compiled by him. In the report, it only mentioned that the applicant has told him that he had sprained his right forearm after opening the right rear door of the Machine. Nothing was said about the malfunction of the hydraulic arms. Had the applicant mentioned this to Cheung, I have no doubt that he would have recorded this in his report and arranged for immediate inspection and if necessary repair on the Machine.
33. Further, the Form 2 filled in by the respondent, which was based on the information solely provided by the applicant (as there was no independent witness to the 1st Accident), made no mention of any mechanical failures of the Machine.
34. As a matter of fact, the respondent was not aware of the allegation of malfunction of the hydraulic arms being the possible cause of the 1st Accident until the receipt of the applicant’s declaration to the Labour Department dated 13 November 2011. Further, it was not until the exchange of witness statements that the respondent was first being informed of the applicant’s allegation of the sudden failure of the hydraulic arms.
35. Besides the above, RW4 Fong, in his evidence confirmed that his department undertook regular maintenance and inspection of the Machine. They also conducted comprehensive preventive maintenance on regular intervals. During such procedures, they would open the rear doors of the Machine. The maintenance records show that both prior to and after the 1st Accident, there was no report of any malfunctioning of the hydraulic doors. In my view, this goes strongly to support the respondent’s case that there was all along no mechanical failure on the Machine’s door at all.
36. The applicant’s demotion from the position of a ‘technical leader’ to that of a ‘technician’ due to misconduct and unsatisfactory work performance was confirmed by the evidence of the respondent’s human resource manager Ms Chow Kit-man (周潔雯), RW8 (“Chow”). Further, it is supported by the contemporaneous records kept by the respondent in the form of the “advice of disciplinary action form”, appraisal report and the applicant’s shift transfer form. In my judgment, it provides a perfectly plausible motive for the applicant to make up a case of injury at work in order to take his “revenge” against the respondent.
37. On the contrary, the applicant’s denial of the demotion and his purported explanation of voluntary transfer to the day-shift post to a lower position of that of a technician due to his alleged further studies is not only unsupported by any documentary proof, eg enrolment of studies or payment of tuition fees, but is in direct contradiction with the above contemporaneous documents produced by the respondent. I reject his claim on this.
38. Further, the first action arising out of the 1st Accident has been ongoing for over 5 years. All along, the parties prepared the case on the basis of the alleged mechanical failure being the possible cause of the accident, on which witnesses statements and liability expert evidence were adduced and obtained. It was only during cross-examination of the applicant, and for the first time during the trial, that the applicant gave a completely different story and confirmed that mechanical malfunction was not the cause of the 1st Accident. What is even more surprising is that the applicant’s counsel subsequently confirmed with the court that he knew about this at the pre-trial conference with his client and yet had made no attempt to change the contents of his written opening and the pleadings. This important shift of the fundamental basis of the applicant’s claim in relation to the 1st Accident was also not specifically mentioned to the court during his opening. I do not for one moment accept the applicant’s explanation that this was due to miscommunication with his lawyers and that the mention of the hydraulic arms merely referred to the normal work process but not a cause of the 1st Accident. Such pathetic explanations not only show how low the applicant is prepared to stoop in order to swindle compensation from his former employer, it is an insult to the intelligence of all the lawyers and experts involved in the case.
39. Given the fact that the applicant has signed a statement of truth on each of those occasion when he signed the witness statements, the only logical deduction in my view is that he could not have been telling the truth when he gave those statements when he mentioned that the 1st Accident was caused by the mechanical failure of the hydraulic arms of the Machine.
40. In my judgment, in the light of the agreed opinion of the liability experts, the applicant knew very well that it is almost impossible to establish that the hydraulic door could have failed in the way as he has described in his witness statements. Thus, I am not surprised that he has to change his story during the trial. What I am surprised is that his legally aided assigned lawyers were prepared to believe this most improbable story in the light of the agreed expert opinion and put forward this case on his behalf until the time the applicant gave evidence in court.
41. In my view, his new version of events given in court does not sound an ounce more convincing either. He now alleges that it was the oil/lubricant stains on the handle of the rear door of the machine that had caused him to slip his hand when the lifting door was lifted up to his chest level (as he has demonstrated in court). He alleges he has sprained his right wrist as a result. In my view, this is not capable of belief for several reasons. First, this is wholly inconsistent with his pleaded case that “the door was rising slowly”[4] and in his witness statement that “the door raised to the top before it recoiled”. Second, this is contradicted by the evidence of RW4 Fong's evidence which states that all the workers have to wear gloves when adding lubricant oil to the Machine and they have to remove their gloves after doing so and before they close the doors. I consider Fong’s evidence as perfectly reasonable, particularly when one is talking about a highly sophisticated and very expensive piece of machinery (over HK$1.5 million each) that is extremely sensitive to any dust or dirt. Third, the allegation that there were oil/lubricant stains on the handle also goes against the video and photographs produced by the respondent where an immaculately clean and spotless environment can be seen. This is confirmed by the respondent’s witnesses that a dust and stain free environment are absolutely essential for such machines to function properly as they are highly sensitive to such things.
42. Last but not the least, I do not consider that the “mild swelling and tenderness over the right wrist” allegedly resulting from “lifting of heavy object at work” is consistent with his originally alleged version or the revised version given in the witness box. For what we know, the mild swelling and tenderness could be caused by his own feigning of an accident. It certainly was not, in my view, due to the either lifting or dropping of the hydraulic door of the Machine at the time.
C.1.4 Conclusion on the 1st Accident
43. Given the above circumstances and the overwhelming evidence produced by the respondent, I have no hesitation to find that the applicant has blatantly lied under oath and in his witness statements when he told the court of how the 1st Accident happened. Further, I have no hesitation to reject his evidence in its entirety in relation to the 1st Accident, whether it was the original version contained in his witness statements or the completely changed version given in court. In my judgment, the applicant is simply a hopeless and pathetic liar.
C.2. The 2nd Accident
C.2.1 The CCTV Evidence
44. First thing I should mention about the 2nd Accident is that, like the 3rd Accident, unknown to the applicant at the time, his every movement at the material time of the alleged accident had been captured by the closed circuit television (“CCTV”) images. The CCTV were installed by the respondent to monitor its workers’ general activities and not specifically to try to catch out the applicant. In answer to a question from the court, the applicant himself has confirmed that he did not know there were CCTV installed respectively at the PM room and in the general office on 18/F of the building at the time when the 2nd and 3rd Accidents happened. In the present proceedings, it was not until the exchange of witness statements sometime in November 2014 that the respondent first discovered those CCTV records. Thus, the applicant’s lawyers as well as the applicant himself would have only seen those images captured by the CCTV for the first time around that period.
45. While it is not to anybody’s surprise to find that those footages captured by the CCTV did not support the applicant’s pleaded case nor his case contained in his witness statements, what was however surprising to find is that, despite those very clear CCTV images, the applicant maintained his originally pleaded case and the accounts given by him in the witness statements throughout the trial. It is even more surprising that his assigned lawyers, in the light of those indisputable and objective evidence, instead of advising the applicant to abandon those claims, took the case all the way to trial when the applicant’s case, in relation to both the 2nd and 3rd Accidents, would have in my view obviously become unsustainable in the light of the CCTV evidence.
C.2.2 CCTV Evidence in relation to the 2nd Accident
46. Ms Phillis Loh, counsel for the respondent, has succinctly summarized what the CCTV footages have captured in respect of the 2nd Accident of which I would respectfully re-produce as follows:-
“9:44:26-28 AP was sitting in a chair at the table. 潘康宏(Poon) walked past AP, turning his body slightly (right side forward) at the same time (側身) at the back of AP’s chair to pass through in a slanting position. 李烽 (Li) was standing to the right of AP facing him. AP turned back to his right seemingly looking at 潘康宏(Poon) who was passing through at his back; AP’s chair was not pushed nor did it move forward. AP’s right hand was on the edge of the table, not working nor screwing switches. His right hand remained in the same position before and after 潘康宏(Poon) passed through; it did not move, jerk or hit at the table corner or edge as alleged by AP in his evidence in Court; [emphasis supplied]
9:45:45 Thereafter, AP continued to sit in his chair and started to work (mainly with his left hand) on the table for more than 10 minutes;
9:56:26 AP got up, walked out and left the work area.”
47. The respondent’s case in relation to the 2nd Accident is that such accident as described by the applicant had never happened at all.
48. I accept the respondent’s case and reject the applicant’s case for the following reasons.
49. First and foremost, the CCTV footage in relation to the 2nd Accident clearly shows that, at the material time when the applicant says the accident happened, there was no direct physical contact between him and Poon who was walking past behind him, let alone being pushed by Poon from behind which allegedly had caused him to suddenly move forward and thereby injured his wrist. What the applicant did was he voluntarily moved his swivel chair forward when Poon was passing behind him. For some reasons best known to the applicant, he did turn around and stare at Poon. However, there was no sign of Poon having pushed or touched him from behind at all.
50. Second, even if there was any physical contact between them, clearly the applicant did not injure his wrist as he was not doing any work with his hands at the time, whether it was twisting or turning any switches as he alleges in the application. His right hand remained in the same position as at the time when Poon was passing behind him. His wrist did not move, jerk or hit at the table corner as the applicant alleges in court.
51. Third, the CCTV video also shows that the applicant calmly remained in his chair and continued to work for more than 10 minutes before he got up and left his seat. Had he been injured on his wrist as he now alleges, no doubt he would jump up and yell out in pain at once. Or at least he would be seen trying to cover his wrist in distress. Instead, the applicant did nothing of the kind. In my view, the applicant clearly has made up the story of his alleged wrist injury afterwards, obviously oblivious to the fact that all his movements had been captured by the CCTV.
52. Fourth, according to the evidence of Fong and Chow, which was supported by the contemporaneous medical records, the applicant did not mention to the respondent or later to his treating doctors of the fact that he was being pushed by a co-worker which was the primary cause of the 2nd Accident. He only mentioned to them that he was injured while at work.
53. Fifth, when the applicant went to seek treatment at the A&E of Yan Chai Hospital immediately after the 2nd Accident, he told the doctor that he had injured his right wrist “after twisting socket”. When he went to seek treatment from a private practitioner Dr Yam Cheong Fat 4 days later, he gave a similar description of “right wrist pain & swelling after working with twisting motion”. This is however very different from his subsequent allegations and the claims he made in court. When confronted by the respondent’s counsel during cross-examination, the applicant says that this was due to a misunderstanding on the part of the doctors and his lawyers. In my view, there was no misunderstanding at all. The only reason why his account in court is so different from what he had told the doctors and his lawyers is because he was blatantly lying about the whole incident in the witness box. We know from the CCTV records that he was not twisting any socket when the alleged accident took place. His hands did not hit the corner of the table at all. In fact, his hands were not doing anything.
54. Sixth, about a month after the alleged 2nd Accident, on 31 August 2012, the applicant submitted a Notice of Accident and Declaration to the Labour Department. This time he reported injuries to “both wrists” and “many parts of the arms”. They clearly are untrue and are gross exaggeration of his very dubious initial injury.
55. Seventh, more than 4 years after the 2nd Accident and for the first time after viewing the video clips in relation to the 2nd Accident, the applicant stated in his 2nd supplemental witness statement dated 10 January 2017 (which he attempted to file out of time but was disallowed by the court[5]), that he was actually pushed by his co-workers 3 times (at 9:07:49, 9:34:45 and 9:44:26) and injured his right wrist on each of those 3 occasions. In my judgment, not only this was a completely new version of the 2nd Accident, this is wholly contradictory to what could be seen on the CCTV records and is simply untrue. What is more incredible is that this new version of events had never been raised by the applicant whether in the pleadings or his previous witness statements. Yet the applicant maintained this most improbable version in court which has not been supported by any objective evidence at all. What is more scandalous in my view is that this new version of event, which the applicant purported to fortify with his 2nd supplemental witness statement, was only added after the applicant had watched the relevant footage with his assigned lawyers.
56. Last but not the least, I also note that, during cross-examination, whenever the applicant could not explain the glaring discrepancies between his pleaded case and the CCTV evidence, he would repeatedly resort to answers like “cannot remember”, “not clear” or “no such impression”. These in my view are not answers to be expected from an honest and truthful witness, of which the applicant in my view clearly is not. When being pushed further by Ms Loh, the applicant even tried to hide behind his congenital hearing impairments and stated that he could not express himself clearly to his doctors and lawyers because he was not wearing his hearing aids at the time. To me, these are desperate attempts from a desperate liar.
C.2.3 Conclusion on the 2nd Accident
57. For the above reasons, I come to the only conclusion that one could in view of the indisputable evidence contained in the CCTV videos, namely, the applicant has made up the 2nd Accident and he was not injured as claimed or at all.
C.3 The 3rd Accident
C.3.1 Evidence in relation to the 3rd Accident
58. In my view, the allegations made by the applicant in relation to the 3rd Accident not only border on the point of absurdity but are simply incapable of belief in the light of the objective evidence. The applicant alleges that a broken chair fell out from underneath the table he was using or that he was tripped over by the broken chair when he was trying to get out from his seat. The evidence of the respondent’s witnesses, including Tso Man kai (曹文佳) (“Tso”) (RW5) and Wong Po Chu (黃寶珠) (“Wong”) (RW7), all state that the broken chair (not the chair he was sitting on) was stored at the far upper left corner of the table (at a depth of about 2.5 feet). It was stored well within the far end corner underneath the table while the applicant was sitting on a perfectly sturdy chair in the middle.
C.3.2 Reasons for rejecting the applicant’s case
59. In my judgment, it was simply unimaginable that the broken chair would have fallen out suddenly causing the applicant to trip over for the following reasons.
60. First, the alleged accident happened on the first day upon his return to work on the expiry of his sick leave after the 2nd Accident. In terms of probabilities, as said, it is most unlikely that an accident would happen on both occasions on the first day of his return to work.
61. Second, the alleged accident happened when the applicant was not doing any work at all. Given the troubles the respondent had had experienced with the applicant, the respondent had wisely asked the applicant to sit in the office on the 18th floor waiting for the assignment of work. The alleged accident happened while the applicant was waiting for further instruction of such work.
62. Third, the applicant has given so many different versions of how this accident happened that makes it almost impossible to believe which version is true, if there was a true one in the first place at all.
63. For example, he told the doctor at the O&T department of Tuen Mun Hospital on 19 September 2012 that “he fell from a broken chair, landed by right knee”[6].
64. In his declaration to the Labour Department dated 8 October 2012, he stated that he was told by “Ah Kai” to sit in another colleague’s positon and when he “was getting up, he was tripped over by the chair which had fallen out underneath the seat and injured himself[7]”.
65. In the application for the 3rd Accident, it has been pleaded that “(A)t the material time, the Applicant stood up and was about to walk away. When the Applicant stood up, a broken chair under the office desk (“the broken chair”) fell off to the ground in front of him and the Applicant stumbled when he stepped forward. As a result, he fell onto the ground and suffered severe bodily injuries.” (emphasis added).
66. Then, in his 2nd supplemental witness statement dated 10 January 2017 (the one which was disallowed to be admitted as evidence by HH Judge MK Liu), the applicant gave yet another different version, this time claiming that while he was still in a sitting position, he felt something fell underneath his seat. It says, due to the large size of the falling object, he became frightened and immediately tried to get up and leave. It was while he was standing up that he allegedly was tripped over by the broken chair.[8]
67. The above last version was similar to the one given by the plaintiff under cross-examination. However, this is wholly inconsistent with his pleaded case contained in the application and is simply not worth believing.
68. What is more incredible is that when further cross-examined by the respondent’s counsel on the details of the 3rd Accident, the applicant conveniently said that he could not recall how he fell. In my view, this is a shameful way of avoiding further questions put to him regarding the accident and shows that the applicant is nothing other than a hopeless liar.
69. Fourth, all the above versions were in direct contradiction of the CCTV video which provides an objective and indisputable account of what happened at the material time when the applicant claims that the accident took place.
70. The following summary of Ms Loh in my view provides an accurate description of what actually took place at the material time of the alleged 3rd Accident:-
| “11:07:23-25 | 陳光明(Chan) on the right side of AP left his seat |
| 11:07:31 | AP (did not stand up), facing the front away from the camera, moved from a sitting level to the right, and sat on the floor |
| 11:08:15 | AP got up |
| 11:08:27 | AP walked out and left the work area |
11:08:41 -
11:09:09 | AP came back. Left the work area and came back again, walking in a normal gait |
| 11:09:39 | AP sat down in his seat |
| 11:12:02 | A lady (Sherry Young/楊慰珊(Young)) came and talked to AP |
| 11:12:20 | AP got up, and then left with the lady |
| 11:13:14-25 | 3 workers (黃寶珠，徐梓樑，曹文佳 (Wong, Tsui & Tso)) went up to look at AP’s seat |
| 11:13:48 | 曹文佳 (Tso) stooped down to the far left side of the seat for about 12 seconds, retrieved the broken chair and took it away” |
71. Fifth, in my view, the applicant’s allegation that the broken chair had fallen out from the corner of the table could not be true at all in light of the CCTV evidence. In particular, after the alleged accident, it took one of the staff of the respondent Tso about 12 seconds to stoop down the table and to retrieve the broken chair from the far end corner. Tso confirms in evidence that the broken chair was still at the far left corner under the table when he tried to retrieve it.
72. Sixth, as could be seen from the CCTV footage, the applicant “fell” from a sitting position to the right and sat on the floor for almost 1 minute without any of his colleagues paying any attention to him. He then got up by himself and walked away without any difficulty. This shows that, first, he did not fall from a standing positon while he was trying to get out of his desk as alleged. Second, that the accident did not happen suddenly as his colleagues would have heard the sound of the falling chair from underneath the table or from his falling. Third, the applicant would have yelled out in pain or immediately sought help from his colleagues instead of sitting on the floor in silence for almost 1 minute if it was a genuine accident.
73. Last but not the least, the alleged injuries sustained in the 3rd Accident is not compatible with the medical evidence subsequently disclosed by the applicant at all. I shall analyze the medical evidence under a separate heading below.
C.3.3 Conclusion on the 3rd Accident
74. Based on the above, I have scant doubt that the 3rd Accident did not happen at all or at least in the way as described by the applicant. In my judgment, it was no more than a little charade dreamed up and acted out by this contemptuous applicant, perhaps with the help of his father who had an acrimonious employment history with the respondent. It certainly does not help with his assigned lawyers all turning a blind eye to the indisputable evidence in the form of the CCTV footages.
C.4 Conclusion on Liability
75. Based on the above discussed matters, I have come to the inevitable conclusion that none of the 3 accidents happened in the way as described by the applicant. They are simply not capable of belief. I am of the view that the applicant has made up all 3 accidents with the sole aim to try to cheat employees’ compensation from his former employer. Hence, all 3 claims are hereby dismissed.
D.1 QUANTUM
D.1.1 Medical Evidence
76. I agree with the respondent’s submissions that the medical evidence produced at the trial suggests that the applicant has highly exaggerated if not feigned about his right wrist or right knee disabilities.
D.1.2 Medical evidence in relation to the 1st Accident
77. In relation to the 1st Accident, I find the medical evidence does not support the applicant’s allegations of serious injuries and disabilities resulting from the accident.
78. First, the initial almost zero or insignificant abnormal findings on 21 September 2011, 25 September 2011, 30 September 2011 and 8 October 2011 after the 1st Accident are wholly inconsistent with the complaints of his right hand condition to the extent of having difficulty in holding chopsticks and forks when eating in January 2012[9].
79. Second, in a few of the medical reports[10], it has been reported that the applicant had sustained a new sprain to his right wrist while travelling on a bus on 17 November 2011. Yet the applicant adamantly denied or maintained that he could not recall this had happened when being questioned under cross-examination.
80. Third, the MRI examination of the right wrist taken in March 2012 revealed no abnormality at all[11]. Yet the applicant complained to the physiotherapist and occupational therapist in TMH that the grip power in his right hand had deteriorated from 34 kg to 6 kg in a period of 4 months for no apparent reason at all[12].
81. Fourth, I note that the initial complaints made by the applicant to the doctors at public hospitals after the 1st Accident consisted of subjective complaints like tenderness only with no objective evidence like swelling, bruising or redness in support[13].
82. Fifth, through the almost 11-month period when the applicant was treated by the public hospitals after the 1st Accident, the condition had developed from that of the subjective sensation of “tenderness with no swelling or redness” to “electric like/shock sensation” with no good objective medical reason to explain that at all[14].
83. Sixth, after several months of being seen by the doctors in the public sector with no objective evidence to support his complaints, even the doctors have become suspicious. In the report by the orthopaedic surgeon at the O&T department at TMH on 23 May 2012, which was at a time after both the physiotherapy and occupational departments had discharged him, Dr Isaac Yang recorded in his report that “Explained to [the applicant] that is not possible to grant SL (sick leave) forever” and if no MRI film or report available, “shall reach static progress and refer OAB next visti +/- stop SL”[15].
84. Lastly, when the applicant could not get sick leave from the doctors at the public hospitals, he then turned to the private sector. However, in the report of Dr Yam Cheong Fat dated 5 July 2012, there was again no objective findings made in support of his injuries. All that was reported was the applicant’s subjective complaint of “tenderness at dorsum right wrist at base of 4th metacarpal & carpometacarpal joint area / weakness (grade 4/5) on wrist flexion & extension” but with a full range of movement of the right writs activity and no swelling around the wrist. It is significant to note that after giving him 2 weeks of sick leave, Dr Yam must have his doubts as he ordered an MRI on 18 July 2012. The findings unsurprisingly were unremarkable. Yet the applicant continued to make complaints of residual pain which presumably had caused Dr Yam to extent the sick leave to 1 August 2012.
85. When that sick leave was about to expire, the applicant went back to the O&T of TMH for consultation again, presumably with a view to ask for more sick leave again. However, he was not granted any on this occasion. It was of no coincidence that at the expiry of his extended sick leave, on the first day of his return to work on 2 August 2012, the 2nd Accident happened.
D.1.3 Medical evidence in relation to the 2nd Accident
86. When first admitted to the A&E department of Yan Chai Hospital immediately after the 2nd Accident, the applicant claims that there was “right wrist swelling appear(s) after twisting socket” when none was found by the doctor. Redness and tenderness of the right wrist was however reported and found by the doctor. 4 days of sick leave was given by the doctor at the A&E.
87. 4 days later when the applicant consulted Dr Yam Cheong Fat in the private sector on 6 August 2012, the applicant still maintained his account that he suffered from “right wrist pain & swelling after working with twisting motion”. On this occasion, somehow swelling at “volar ulnar at FCU & pisiform area” was found by Dr Yam when none was found by the doctor at A&E only 4 days earlier. As to where he might have sustained such swelling in between those 4 days is not clear but it is my finding that he has not sustained any injury during the alleged 2nd Accident based on the evidence I have analyzed above.
88. On 22 August 2012 when the applicant attended the O&T department of TMH, despite the applicant’s complaint of right wrist swelling and pain after he resumed work on 2 August, physical examination revealed no swelling on his right wrist and there was no focal tenderness.
89. Based on the above medical evidence, I find that the medical evidence does not support the applicant’s claim that he has sustained injury to his right wrist while he was twisting a socket during the 2nd Accident.
D.1.4 Medical evidence in relation to the 3rd Accident
90. When the applicant was admitted to the A&E of YCH immediately after the 3rd Accident on 3 September 2012, he complained of “slipped and fell in office whilst on duty resulting in right wrist and right knee pain”. However, the physical examination conducted by the doctor only revealed tenderness over the ulnar aspect but with no swelling and no redness. The range of movement was found to be full. For the alleged right knee injury, the doctor found no swelling, no redness and no effusion. There was full extension and the applicant was able to walk with a normal gait[16].
91. This is confirmed by the ultrasound scan of the right knee in November 2012 which states that there was no abnormality.
92. In my view, based on those initial findings, there is simply no logical or medical explanation of the development and then gradual deterioration of the limping gait.
93. I find the applicant’s allegation that he had suffered from continuous limping gait and the need to use a crutch when going outdoor in 2012 to 2013, and up to the time of his joint expert examination 2 years later in November 2014 simply untrue. Such serious disabilities are flatly contradicted by the surveillance conducted by the private investigators engaged by the respondent’s insurers which show that the applicant was able to walk with a normal gait and walking space, able to walk up and down stairs at ease with no walking aid on divers dates in 2012, 2013, 2014 and 2015.
94. Like most of the allegations he made throughout the trial, I find that the applicant’s claim of sustaining a right knee injury in the 3rd Accident and his subsequent claim of limping gait and serious disabilities are simply blatant and flagrant lies.
D.2 Appeal against the Medical Assessment Board’s Assessment
95. The Medical Assessment Board (“MAB”) issued 3 certificates on 5 March 2014 that the applicant suffered from a 1%, 0% and 3% loss of earning capacity (“Form 7”) for the 1st, 2nd, and 3rd Accidents respectively for right wrist injury resulting in right wrist residual pain and weakness and right knee injury resulting in right knee pain and stiffness. Both the applicant and the respondent filed an appeal against the findings.
96. The MAB has issued 3 certificates on 21 July 2014 and revised the findings that the applicant suffered from a 1%, 5% and 3% loss of earning capacity for the 1st, 2nd, and 3rd Accidents respectively (Form 9) for right wrist injury resulting right wrist residual pain, stiffness and weakness and right knee injury resulting in right knee pain and stiffness. The respondent filed an appeal against the MAB’s findings.
97. The applicant invites this Court to consider the applicant’s injury and medical treatment as I have summarized above.
98. The applicant was assessed by Dr Lam Yan Kit, a private orthopaedic surgeon, on 28 March 2012. He was assessed to have a 1% loss of whole person impairment and earning capacity for his injuries in the 1st Accident.
99. A joint medical report (“JMR”) was compiled on 9 February 2015 by Dr Miu Yin Shun Andrew (“Dr Miu”) for the applicant and Dr Ko Put Shui Peter (“Dr Ko”) for the respondent when they jointly examined the applicant on 14 November 2014.
100. Dr Miu states the following in the JMR:-
“Dr Miu opines that the permanent impairment of the whole person (WPI) for the right wrist injuries is 5% (3% from the first accident, 1% each for the subsequent second and third accident). The WPI of the right knee injury is 3% based on the present clinical information and assessment. The total impairment for the whole person is 8%. Purely for the parties’ reference, the loss of earning capacity, on orthopaedic aspect, is 10% arising directly from the accident (5% from the right wrist injuries and 5% from the knee injury…)”
101. According to Dr Ko, if the 3 accidents as alleged had occurred, loss of earning capacity in respect of the 3 accidents is assessed at:-
| 1st Accident (right wrist) | 0.5% or less |
| 2nd accident (right wrist) | 0% |
| 3rd Accident (right knee) | 1% |
102. This is comparing to Dr Miu’s assessments:-
| right wrist | 5% (1st, 2nd and 3rd Accidents) |
| right knee | 5% (3rd Accident) |
103. And compared with the public doctors’ assessment under the Form 9:-
| 1st Accident (right wrist) | 1% |
| 2nd Accident (right wrist) | 5% |
| 3rd Accident (right knee) | 3% |
104. In the joint orthopaedic expert report, Dr Ko sets out the mild or insignificant initial finds of applicant’s right wrist and right knee after the alleged 3 accidents, unreasonable deterioration over time resulting in very weak right wrist and hand power, significant inconsistent test results, and limping gait, etc, which are contradicted by the normal right wrist MRI and right knee ultrasound findings. Dr Ko points out the good muscle bulk in the right arm and forearm, and the obvious evidence of underperformance as well as magnification and exaggeration of symptoms, be it intentional or unintentional. Dr Ko queries the genuineness of the severe symptoms and disabilities. I accept Dr Ko’s opinion.
105. On the other hand, Dr Miu accepts at face value and without query all present subjective complaints of the applicant of tenderness and decreased range of movements of the right wrist and right knee. He concludes that the complaints are genuine as they are compatible with the initial symptoms of swelling, tenderness and reduced range of movements, and those noted by the physiotherapists and occupational therapists.
106. I also accept the respondent’s submission that a clear fallacy shown in Dr Miu’s conclusion is that there were in fact nil or doubtful initial abnormal findings in the right wrist and right knee immediately after the alleged 3 accidents as shown in the medical records. Most of the symptoms complained of were subjective and not supported by any abnormal findings. Whilst accepting that the applicant has sustained soft tissue injuries to the right wrist and right knee without any structural derangement, Dr Miu has not given any possible explanation for the unreasonable drastic deterioration in the applicant’s right wrist and right knee conditions, as opposed to the normal gradual improvement or recovery of soft tissue injuries, in particular bearing in mind the nil abnormal findings, inconsistent test results and query of symptoms magnification and exaggeration validly raised by Dr Ko.
107. Dr Miu suggests the applicant should take an MRI of the right knee to confirm any abnormality, which was never done. Any abnormality had in fact been ruled out by the normal ultrasound scan results (7.11.2012).
108. The severe symptoms presented by the applicant during joint examination on 14 November 2014, eg limping gait (all accepted by Dr Miu) is clearly contradicted by the surveillance evidence which shows that the applicant could walk in a normal gait and normal/fast pace all along during 2012 to 2015.
109. I find that Dr Miu’s evidence, based on his acceptance and conclusion of genuineness of all the subjective complaints and symptoms presented by the applicant, simply cannot stand given the zero credibility demonstrated in the applicant’s evidence.
110. I accept that Dr Ko raised valid query of exaggeration or even feigning of the applicant’s severe right wrist and right knee disabilities. In my view, Dr Ko’s evidence is reasonable and logical in light of the overall medical evidence and surveillance evidence. I prefer his opinion to that of Dr Miu. In my view, the high LEC percentage assessed by Dr Miu likewise cannot be sustained.
111. I am mindful of the fact that in considering the respondent’s appeal against the Form 9 assessment of the Assessment Board (which had given no reason for its conclusion), the court should judge an assessment by testing the validity of its conclusions against the total available evidence. The court is not bound by the assessment of the Assessment Board and has the freedom to make its own assessment: see Cheng Ka Yu v Margin Management Limited (DCEC 324/2015) (§§4-10).
112. I am of the view that the Assessment Board’s 5% LEC for the right wrist injury resulting from the 2nd Accident (note: revised from 0% LEC in Form 7 with no reason or explanation given) and 3% LEC for the right knee injury resulting from the 3rd Accident are unusually high and wholly unsupported by the medical evidence, in particular (i) nil findings of right wrist were documented on 2 August 2012; (ii) the applicant was certified by the treating doctor at the O&T to be fit to resume duty on 22 August 2012; and (iii) nil findings of right knee were documented on 3 September 2012.
113. In my judgment, the respondent’s appeal against the Form 9 should be allowed. I order that the LEC percentage assessment by the Assessment Board should be substituted by that assessed by Dr Ko.
D.3 Conclusion on medical evidence
114. In conclusion, I am of the view that the medical evidence does not support the applicant’s claim that he has suffered any serious injury to his right wrist and right knee as a result of the 3 alleged accidents. In my judgment, if there are any injury at all, they are of an extremely minor nature and certainly did not result from the 3 accidents he has alleged in this case.
D.4 Calculation on Compensation
115. For the sake of completeness and in the event that I am wrong on the issue of liability, I would briefly set out below what I would have allowed as compensation in this case had I found in favour of the applicant.
116. Section 9 compensation:-
| 1st Accident: | $11,677.78 x 96 x 0.5% = $5,605 |
| 2nd Accident: | nil (0% LEC) |
| 3rd Accident: | $11,677.78 x 96 x 1% = $11,211 |
117. Section 10 compensation:- (agreed)
| 1st Accident: | $11,677.78 x 316/30 x 4/5 = $98,404.76
(Less) $85,325.64 = $13,079.12
|
| 2nd Accident: | $11,677.78 x 32/30 x 4/5 = $9,965.04 |
| 3rd Accident: | $11,677.78 x 195/30 x 4/5 = $60,724.46 |
118. Section 10A compensation:- (agreed)
| 1st Accident: | $4,970 - $3,845 (reimbursed) = $1,125 |
| 2nd Accident: | $760 |
| 3rd Accident: | $5,580 |
119. Interest: Computation of interest is agreed.
120. Had I found liability in respect of all 3 Accidents in the applicant’s favour, compensation would be assessed in the total sum of $108,049.62 plus interest.
E. Costs
E.1 Costs follows the event
121. Following my findings on the issue of liability, all 3 actions have been dismissed. The costs will follow the event and there is no question that the respondent is entitled to its costs in all 3 actions, together with certificate for counsel. The only question is on what basis should such costs be taxed and who should bear them.
122. In view of the deplorable conduct of the applicant and the thoroughly dishonest way he tried to use public funds to cheat employees’ compensation out of his former employer, I am of the view that the only appropriate order to reflect the court’s disapproval for this kind of appalling behaviour is to order the applicant to pay the above costs on an indemnity basis. Mr Poon does not dispute with this. In his closing submissions, he states that if this court finds the applicant was lying all along (which I have), an appropriate costs order may be made, such as costs order on an indemnity basis.
123. I so make such an order that the costs should be paid by the applicant on an indemnity basis in all 3 cases.
124. Unfortunately, the applicant is on legal aid so at the end of the day it is most likely that the legal aid funds (and hence the taxpayers) will have to foot the bill for the inexcusable conduct of this disgraceful litigant. While this does call for a more vigilant monitoring of “assigned out” cases in future by the Director of Legal Aid (“DLA”), I do appreciate the practical difficulties he and his colleagues have once the cases are assigned out to solicitors and counsel in private practice. In my view, the party who should play an equal if not more important role of safeguarding our precious public funds not to be abused by such rogue litigants must be the assigned solicitor and counsel themselves. Not only because they are legal professionals who are in the unique positon to be able to evaluate the evidence and closely monitoring the progress of the case assigned to them, they also possess the legal knowledge to be able to advise the DLA of when an initially perfectly arguable case with merits will become totally unarguable in view of the changing state of the evidence. In my view, in cases where public funds are involved, the assigned solicitor and counsel owe a primary duty to the DLA to ensure that the legal aid funds will not be misused or abused. They cannot blindly follow the instructions of their legal aided clients and choose to blatantly ignore the obvious changed state of the evidence when it becomes clear that their client’s case is no longer sustainable. Sadly, I find myself in an invidious position to say that this case has all the hallmarks of those features here.
125. As stated, the applicant had obviously changed his case regarding the cause of the 1st Accident before coming to court to give evidence. In light of the joint experts’ opinion, it must have become rather obvious to him and his assigned lawyers that the originally pleaded case of alleged injury caused by a mechanical failure of the hydraulic arms of the Machine would become wholly unarguable. I do not know if the assigned lawyers had advised the DLA of this, however, I note that the case was opened and fought on such a basis until the applicant gave evidence in court.
126. After the closing of evidence, I raised the question with the applicant’s counsel of when did he first realise that the applicant no longer relied on the alleged malfunction of the hydraulic arms of the Machine as cause of the injury. The applicant’s counsel informed the court that he was made aware of this at the pre-trial conference with the applicant on 30 August 2017, which was about 10 days before the commencement of the trial. Yet in his written opening dated 31 August 2017 which was submitted to the court on the same day, the case was still opened on the basis that the 1st Accident was caused by the sudden recoiling of the hydraulic arms of the Machine. No attempts were made to amend the application or the written opening; no attempts were made to inform the court that the applicant was no longer relying on the originally pleaded case and the expert opinion. The applicant’s counsel says that it was due to an inadvertent oversight. I regret to say that I find that difficult to accept.
127. Further, in regard to the 2nd and 3rd Accidents, in my judgment, it should have become blindingly obvious to the applicant’s assigned solicitor and counsel that, upon the discovery of the CCTV evidence, the applicant could not have been telling the truth regarding the cause of those 2 accidents. At the very least, it should have raised alarm bells in the minds of the assigned lawyers and the DLA’s instructions should have been sought as to whether legal aid should be continued to cover the trial. Instead of seeking amendments or withdrawing such ludicrous claims of having injured his wrist while twisting a socket (as in the 2nd Accident) or tripped over a broken chair falling off underneath a table (as in the 3rd Accident), after viewing the CCTV evidence, the applicant’s lawyers chose to file further supplemental witness statements on his behalf in order to “fortify” his baseless claims.
128. After the closing of the evidence, I invited counsel on both sides to address the court in their final submissions of what options are open to the court or what actions the court can take with a view to reflect the disapproval of such conducts both on the part of the applicant and their assigned lawyers.
129. I am grateful to Ms Loh for very helpfully summarized the legal principles and authorities governing these matters, of which Mr Poon agrees.
E.2.1 The applicant’s criminal behaviour
130. Where an arguable case of serious misconduct is disclosed by evidence in a civil trial, the court will consider referring the matter to the prosecuting authority, as it is part of the court’s duty in upholding the rule of law. In the event that a court makes findings in the judgment of any arguable case of criminal behaviour, eg perjury, fraud, giving false statements verified by statements of truth, the court may make directions in the Order drawn up in respect of the judgment for the registrar of the District Court to forward a copy of the judgment to the Director of Public Prosecutions (DPP) / Department of Justice (DOJ) for such action as the latter may think fit: see TCWF v LKKS (No 1) [2014] 1 HKLRD 896 (CA) (§§115-125).
E.2.2 Untrue witness statements verified by statements of truth
131. The common law position and the court’s powers remain intact. Upon findings that a person has made or caused to be made a false statement in a document verified by his statements of truth without honest belief in their truth, proceedings for contempt of court may be brought against him by the Secretary for Justice or the person aggrieved by the false statement, with the leave of the court: (Order 41A rule 9, Order 52 rule 2 of RDC): see Kinform Ltd v Tsui Loi (No 1) [2011] 5 HKLRD 57 and Kinform Ltd v Tsui Loi (No 2) [2011] 5 HKLRD 80 (Judgment and Reasons for Sentence of DDJ Au-Yeung (as he then was)).
132. In the above case, the plaintiff in a civil action (DCCJ 3854/2009) applied for leave to commence contempt proceedings (DCMP 947/2011) against the defendants on the basis that they had made or caused to be made false statements in documents verified by statement of truth without honest belief in their truth. The 1st and 3rd defendants were found guilty of contempt of court. The court expressed her disapproval that these false statements have or likely to have interfered with the course of justice, which is no doubt a very serious matter. The giving of false statements would undermine the whole process of our system of justice, which the court will not tolerate. In sentencing, the court referred to cases of perjury and sentenced the 1st and 3rd defendants to 5 months’ and 6 months’ imprisonment respectively.
133. In Nield & Anor v Loveday & Anor [2011] EWHC 2324 (Admin), committal proceedings were lodged by the defendant in a previous personal injury action and his motor insurers against the plaintiff/husband (who was allegedly injured in a traffic accident) and his wife after settlement of the personal injury action. The basis of the committal proceedings was that both the plaintiff husband and wife had in the personal injury action made representations through his legal representatives to the court in which (i) the statements of facts had been untrue; (ii) they had been untrue in such a way that the untruth interfered with the course of justice in a material respect; and (iii) they had been made in the couple’s knowledge that they were untrue. Both were found guilty of contempt of court. Many of the claims in the husband’s witness statement, including his current infirmity, had been false. The court expressed disapproval that fraudulent insurance claims of this kind in road traffic cases or personal injury cases were endemic, and those who were caught should expect to go to prison. The husband was sentenced to 9 months’ imprisonment. The wife had admitted her contempt and benefited from several good character references. She was sentenced to 6 months’ imprisonment, suspended for 18 months.
134. See also South Wales Fire and Rescue Service v Smith [2011] EWHC 1749 (Admin) which committal proceedings for contempt of court by the Fire Service (previous employer) against a previous fireman claimant who made a false claim in respect of an accident at work. The ex-fireman was found guilty and sentenced to 12 months’ imprisonment, suspended for 2 years, plus repayment to the Fire Service.
135. Again, the court may make directions for the registrar of the District Court to forward a copy of the judgment with findings of the contempt behaviour of the applicant to the DPP/ DOJ for such action as the latter may think fit.
E.2.3 No legal Aid Taxation Order (NLATO) / Wasted Costs Order (WCO)
136. At the end of the trial, I expressed my views that the conduct of the applicant’s legal aid assigned lawyers in this case may call for sanctions on the costs or fees to be payable by the DLA or received by them. Ms Loh has referred the court to a possible “no legal aid taxation order” (“NLATO”) or “wasted costs order” (“WCO”).
137. The effect of and circumstances under which a NLATO can be made were discussed in the Court of Appeal judgment of Cheung Shui Han v Luk Ka Ling [2012] 4 HKLRD 536 in which it is stated as follows:-
(1) A NLATO in effect means that the legal representatives cannot have their costs against the legal aid fund, ie it has the effect of depriving them of their costs;
(2) A NLATO is the equivalent of the making of a WCO, which is governed by section 52A of the High Court Ordinance, Cap 4 (in particular subsections (4)-(7)) and the relevant rules of the court is Order 62 rules 8-8E. The making of a NLATO is also guided by Practice Direction 14.5;
(3) Before a WCO can be made, procedural fairness must be observed and the requirements of natural justice must be satisfied;
(4) Order 62 rule 8 provides that the court shall consider whether to make a WCO in 2 stages as follows:-
“(1) The Court shall consider whether to make a wasted costs order 
in 2 stages-
(a) in the first stage, the Court must be satisfied that-
(i) it has before it evidence or other material which, if unanswered, would be likely to lead to a wasted costs order being made; and
(ii) the wasted costs proceedings are justified notwithstanding the likely costs involved; and
(b) in the second stage (even if the Court is satisfied under subparagraph (a)), the Court shall consider, after giving the legal representative an opportunity to give reasons why the Court should not make a wasted costs order, whether it is appropriate 
to make the order in accordance with rule 8.
(2) On an application for a wasted costs order, the Court may proceed to the second stage described in paragraph (l)(b) without first adjourning the hearing if it is satisfied that the legal representative has already had a reasonable opportunity to give reasons why the Court should not make a wasted costs order. In other cases the Court shall adjourn the hearing before proceeding to the second stage.
(3) On an application for a wasted costs order, any evidence in support must identify-
(a) what the legal representative is alleged to have done or failed to do; and
(b) the costs that he may be ordered to pay or which are sought against him.”
138. Order 62 rule 8 provides the court with the power to make a WCO and it must be used as a remedy in cases where the need for such an order is reasonably obvious.
139. Order 62 rule 8(2) stipulates as follows:-
“A wasted costs order may –
(a) disallow the costs as between the legal representative and his client; and
(b) direct the legal representative to –
(i) repay to his client costs which the client has been ordered to pay to other parties to the proceedings; or
(ii) indemnify other parties against costs incurred by them.”
E.2.4 Order of legal aid taxation with riders
140. In Kumara Debanama v Lui Pui Wai [2016] 4 HKLRD 501, the court, in making an order of legal aid taxation for the legally aided plaintiff’s own costs, gave riders to bring to the attention of DLA of specific items of work which the court considered should not be recoverable in view of the conduct of the proceedings of the plaintiff’s solicitors.
141. In the interests of public interests and to ensure proper saving and appropriate use of the legal aid public funds, DLA would undoubtedly follow in legal aid taxation such directions of the court to limit the scope of taxation for obvious reasons.
E.2.5 Hearing of the legal aid taxation by the trial judge
142. Alternatively, upon the making of an order of legal aid taxation, the court has the power to hear and monitor the legal aid taxation, or by way of a summary assessment (Order 62 rule 9). Directions such as ordering the aided person’s solicitors to prepare a statement of costs and for submissions, and inviting DLA to attend and make submissions at the taxation hearing can be made. In this exercise, PD 14.3 (paras 11-14) provides useful guidance, in particular in para 14 as follows:-
“14. Although the Court may allow the full amount claimed by the receiving party, it will, so far as possible, ensure that the final figure is not disproportionate and / or unreasonable having regard to the nature and circumstances of the application or matter and the underlying objectives stated in Order 1A. The Court will retain this responsibility notwithstanding the absence of challenge to individual items in the make-up of the figure sought. The fact that the paying party is not disputing the amount of costs can however be taken as some indication that the amount is proportionate and reasonable. The Court will therefore intervene only if satisfied the costs are so disproportionate that it is right to do so.”
143. The respondent submits that in view of the small quantum of employees' compensation claimed in these 3 actions, it is highly likely that the costs as a whole will be totally disproportionate. It is further submitted that it is an appropriate case and will clearly be in the public interests for this court, having heard all the evidence at trial, to also hear and monitor the legal aid taxation of the applicant’s own costs. Where the costs as a whole appear disproportionate, a “sensible standard of necessity” approach must be adopted in taxation. (See 62/9/10 White Book 2018)
E.2.6 Costs order against the aided person in respect of his own costs
144. Another alternative is provided under section 17 of the Legal Aid Ordinance, Cap 91, which reads as follows:-
“17. Court may order payment of costs by aided person in certain event
(1) Where it appears to a court or judge that a legal aid certificate has been obtained by fraud or misrepresentation, the court or judge may order the aided person to pay the costs of the Director and of the counsel and solicitor who acted for him or the costs of the other party, or the costs of the Director and such counsel and solicitor and such party.
….
(3) Where it appears to a court or judge that an aided person has acted improperly in bringing or defending any legal proceedings or in the conduct of them, the court or judge may order the aided person to pay the costs of the Director and of the counsel or solicitor who acted for him or the costs of the other party, or the costs of the Director and such counsel and solicitor and such party.”
145. This court may therefore, as it deems appropriate, order the applicant to pay the costs of DLA and of his legal representatives. However, this will likely in practice have the effect of limiting greatly or even wiping out any costs that can be recoverable by DLA or the applicant’s legal representatives from the legally aided claimant who unlikely has the means to pay.
E.3 Sanctions against the applicant
146. After careful consideration, I am of the opinion that there is sufficient evidence to refer the case to the DPP/DOJ to investigate into the possible criminal behaviour of the applicant referred to in §130 above. I shall direct the registrar of the District Court to provide a copy of this judgment to the DPP for such action as he considers appropriate.
E.4 Sanctions against the assigned lawyers
147. The applicant counsel in his closing submissions submits that there was prima facie evidence in relation to the 3 accidents. He submits that the applicant could “insist that case to be litigated” and it was the duty of the legal representation to litigate the case for him. He further submits that the strength and weakness of a case could be easily seen after cross-examination in court which might not be obvious before trial. It has also been submitted that lawyers instructed by DLA should not be treated differently from lawyers instructed by private clients. More specifically, it has been submitted by Mr Poon that “no lawyer who acts in the public interest by accepting legally aided clients should stand any greater risk of being ordered to pay costs, than if he acts for a paying client.”
148. In any event, the applicant submits that the court should not impose a limit to the taxation of the applicant’s own costs as “legal representation will be more vigilant and cautious in the future.”
149. With respect, I find the above submissions difficult to accept.
150. First, in my judgment, while there was prima facie evidence in this case for the applicant to commence the actions against the respondent, by the time of completion of discovery of all relevant documents, particularly in light of the joint liability experts’ report (for the 1st Accident) and the CCTV video evidence (for the 2nd and 3rd Accidents), it must have been obvious to any reasonably competent and conscientious lawyers that the claims of the applicant are extremely doubtful if not outright unsustainable. While I agree it is the responsibility of every lawyer to fearlessly fight on behalf of their clients, in my view, in a case where public funds are involved, a legally aided assigned solicitor or counsel owes a duty not only to his aided client but an equally important duty to the DLA to ensure that no public funds will be wasted to fight or continue with a hopeless case. In my view, the assigned lawyers owe a continuous duty to inform and advise the DLA of the merits of the case in the light of any change in the state of the evidence, particularly after the close of pleadings and at the completion of discovery. As assigned lawyers, they cannot disregard those discovered evidence and blindly choose to fight on behalf of an aided client without first fully inform the DLA of the risks involved.
151. In regard to the 1st Accident, besides agreeing with the respondent’s appointed expert Dr Lim, the applicant’s expert Ir Lo offered no plausible explanation as to the possible cause of the alleged failure or malfunctioning of the hydraulic arms of the Machine in the joint expert report. That report was jointly prepared by the experts in November 2016[17]. In other words, latest by the end of 2016 (allowing a few weeks for the assigned lawyers to digest and explain the contents of the joint expert report to the applicant), the assigned lawyers must be fully aware that the applicant’s case on the 1st Accident based on mechanical failure was not supported by any expert or independent evidence. All that was left was the applicant’s own bare assertions.
152. In any event, at its latest, by the time when the applicant abandoned his claim based on the mechanical failure of the hydraulic arms on 30 August 2017, the assigned solicitor and counsel must be left with no illusion that the pleaded case could no longer be sustained. And it is difficult to see on what other basis the applicant could continue to make his claim in relation to the 1st Accident as all the pleadings, witness statements and expert evidence were prepared on the basis of a mechanical failure.
153. In relation to the 2nd Accident, the respondent had disclosed the CCTV evidence under the witness statement of Fong dated 17 September 2014[18] and explained quite clearly in that statement why the CCTV footage shows that the accident could not have happened in the way as described by the applicant in the pleadings and in his main witness statement. Yet the applicant insisted in his supplemental witness statement in reply (which was filed on 24 April 2015) that he was hit from behind when his colleague was walking past behind him, causing him to be pushed against the table and thus causing the right wrist injury. However, if one were to look at the CCTV footages, none of those things claimed by the applicant in his statement actually occurred.
154. In relation to the 3rd Accident, the CCTV video was enclosed in the witness statement of Tsui Chi Leung (徐梓樑) dated 4 November 2014 which was filed and exchanged with the applicant’s main witness statement on or about 14 November 2014. Thus, the applicant’s assigned solicitor and counsel would have plenty of time to study and advise the applicant in the light of the CCTV video and to report the matter to the DLA. Further, save from stating that, according to his memory, there was no notice being placed on the broken chair under the table with the words 「待修」(“under repair”) [19], the applicant failed to address this issue completely in the 2 supplemental witness statements filed by him subsequently to the disclosure of the CCTV video. It seems the applicant and his assigned lawyers have decided simply to ignore this vital piece of objective evidence as if it did not exist at all.
155. In my judgment, while this case may not warrant a full blown NLATO or WCO, ie where the legal representatives may not be able to recover any of their costs from the legal aid funds, it certainly requires a close scrutiny over which part of the costs the assigned solicitor and assigned counsel should be entitled to recover in this case during the legal aid taxation process. For example, whether the costs after the experts had already concluded that the 1st Accident could not have caused by mechanical failure should be allowed (giving of course a reasonable time for the assigned lawyers to properly consider and advise their aided client and to report the matter to the DLA); or alternatively, whether the costs after the time when the assigned solicitor and counsel were made aware that the applicant was no longer going to rely on the mechanical failure as the basis of his claim in relation to the 1st Accident sometime in August 2017. Further, whether legal aid taxation should be allowed after the CCTV videos were disclosed to the applicant in relation to the 2nd and 3rd Accidents.
156. Despite the fact that the applicant’s counsel and solicitor have indicated to the court respectively at the end of the closing submissions[20] and after the closing submissions[21] that they will not dispute with any costs order to be made by this court against them personally and do not wish to make any further submissions or attend any further hearing on this matter, in accordance with the rule of nature justice, I am of the view that the assigned solicitor and counsel must be given a full opportunity to make submissions before they are deprived of any of their legal aid taxation.
157. Thus, I would make an order for the assigned solicitor and counsel in this case to show cause within 28 days, if they so wish, as to why they consider they are entitled to their own portion of the legal aided taxed costs after the following periods:-
(i) 4 weeks after the discovery of the joint expert report in November 2016 when they should have sufficient time to consider and advise their client as well as reporting the matter the DLA;
(ii) alternatively, after they have become aware that the applicant was no longer going to rely on the mechanical failure of the hydraulic arms as the cause of the 1st Accident at the end of August 2017; and
(iii) 4 weeks after the discovery of the CCTV evidence in November 2014 when they would have the full opportunity to review the videos and to advise the aided client and to report the matter to the DLA in relation to the 2nd and 3rd Accidents.
E.5 Conclusion on Costs
158. In conclusion, I make the following order on costs in this consolidated action:-
(1) The applicant do pay the costs of the respondent on all 3 actions with certificate for counsel on an indemnity basis;
(2) The applicant’s own costs be taxed in accordance with the legal aid regulations, with the above riders that certain costs should not be allowed. The assigned solicitor and counsel are directed to make written submissions, if they so wish, within 28 days from the date of handing down this judgment as to why they consider they are entitled to the legal aid taxation after the periods mentioned in §157 above. A hearing will be fixed before me to hear oral submissions to be made by the assigned solicitor and counsel where a representative from DLA will be invited to attend to express their views before a final order on this will be made.
CONCLUSION
159. In conclusion, based on the discussions above, the applicant’s 3 actions are hereby dismissed with the costs orders as specified above. A copy of this judgment will be forwarded to the DPP/DOJ via the registrar of the District Court for their further investigation and action. A copy of the judgment will also be forwarded to the DLA for his reference and consideration in relation to the legal aid taxation.
| | (Andrew SY Li) |
| | District Judge
|
Mr Jackson Poon instructed by Leung & Associates, assigned by the Director of Legal Aid, for the applicant
Ms Phillis Loh instructed by Clyde & Co, for the respondent
[1] See §9. a. & b. onp.4 of the Joint Experts’ Report dated 22 November 2016 at [C17-20]
[2] A total of 11 witness statements were filed on behalf of the respondent.
[3] See §§ 17 to 21 of AP’s 1st Supp WS dated 9.3.2015.
[4] See para 3 (3) of Application
[5] See HH Judge MK Liu’s Decision dated 5 April 2017
[6] See Bundle [MR/54] of O&T of Tuen Mun Hospital
[7] 「阿佳叫我坐另一位同事的位置，但當本人起身的時候，被座位下跌出來的椅子絆倒受傷。」
[8]意外發生時，本人坐於座位，突然感到有東西在座位下跌出來(其後知道是一張爛椅子)。由於跌出來的東西體積較大，本人當時感到很驚慌，因為馬上起身要走，但就在起身時被該爛椅子絆倒受傷。
[9] See consultation note of TMH Yan Oi GOPC on 16 January 2012 at [MR 195]
[10] See for example consultation noted by Dr Hong Sze Hga dated 21 November 2011 at [MR184]
[11] See MRI report dated 29 March 2012 at [D10]
[12] See physiotherapy report of TMH dated 14 April 2014 recording clinical findings on 16 December 2011 at [D56] and the OT Rehabilitation Outcome Report dated 24 April 2014 for an assessment on the same date at [MR145]
[13] See for example reports from Yan Chai Hospital and TMH at [MR1], [MR23], [MR167], [MR175], [MR 169], [MR184] from 21 September 2011 to 21 November 2011
[14] See for example reports from Yan Oi GOPC dated 4 January 2012, 12 January 2912 abd 16 Janaury 2912 at [MR193-195].
[15] See [MR 59] report of O&T of TMH consultation summary dated 23 May 2012
[16] See notes of A&E doctor at [MR56], report of A&E of YCH dated 19 January 2013 at [D38] and report of Dr Chan Tze Wah dated 28 June 2013 at [D45]
[17] The Joint Agreed Expert Report was dated 22 November 2016
[18] which was served and exchanged with the applicant’s witness statement at the same time with 10 other respondent’s witness statements on or about 14 November 2014 pursuant to an Order of HH Judge Levy on 4 November 2014
[19] contrary to what 7 other respondent’s witnesses have seen and noticed.
[20] towards the end of closing submissions on 21 September 2017.
[21] See applicant solicitors’ letter to the court dated 22 September 2017.