HOSSAIN MD FARUK v. KHAN, FAQERGUL (簡誠諾) formerly known as KHAN, WAJID t/a PESHAWAR AUTO DISMENTLING & GENERAL TRADING CO

DCEC 1221/2017

[2022] HKDC 180

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1221 OF 2017

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J U D G M E N T

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1.  This is the trial of the applicant’s claim against the respondent for employees’ compensation.

Preliminary issues

2.  Mr. Wong, counsel for the applicant, informed the court that two of the applicant’s witnesses, namely Mr. Farid and Mr. Sheikh Aptar, would not attend court to give oral evidence. He therefore sought that the court should not rely on their respective witness statements.

3.  Mr. Pirie, counsel for the respondent, did not object to this and the court according made the order that the court would not consider the witness statement of Farid (Trial Bundle page 61-66)  and witness statement of Sheikh Aptar (Trial Bundle page 67-72).

4.  Mr. Pirie then made an application for the respondent:

a.  to rely on a medical report dated 20 December 2021 from Dr. Mian Javed Iqbal from a hospital in Pakistan; and

b.  for the respondent’s witness statement to be read out in court in his absence.

5.  The application was opposed by Mr. Wong.

6.  I have perused the said medical report which only concerned a road traffic accident of the respondent in Pakistan back in 12 August 2021. There was no medical evidence to certify that the respondent was medically unfit to travel or, indeed, give evidence via video conference facilities.

7.  As such, I am not convinced that the court should treat the respondent’s witness statement any differently from those of Mr. Farid and Mr. Sheikh Aptar.

8.  Further, as pointed out by Mr. Wong, this issue has already been dealt with by His Honour Judge MK Liu in his decision dated 31 January 2022 for the respondent’s application to vacate the current trial dates on the argument that the respondent had no opportunity to give evidence in court. The Learned Judge stated (in paragraph 13(1)  of the Decision)  that:

“Notwithstanding the advice given to him by his solicitors, the respondent has decided not to make an application for leave allowing him to give evidence through VCF. This is his informed choice, and the respondent should face the consequence of his choice.”

9.  I have therefore dismissed the respondent’s application and ordered that his witness statement (Trial Bundle page 73-77)  would not be considered by the court.

Background

10.  The applicant is an asylum seeker from Bangladesh and his claim is that, at the relevant time, he was employed by the respondent to work in a vehicle scrap yard called “Peshawar Auto Dismantling & General Trading Company” (the “Yard”)  for a monthly wage of HK$6,500. Mr. Qadir Gul (“Gul”)  was the person-in-charge of the Yard.

11.  The applicant claimed that on 14 November 2015, he was cutting a hydraulic pipeline using a fire cutting gun when hydraulic oil burst out and caught fire. As a result, he suffered burns to his face, neck and arms.

12.  Gul took the applicant to a different location away from the Yard and instructed him, amongst others:

a.  not to tell anyone that he was working in the Yard, since he was working illegally in Hong Kong;

b.  that if he told the truth, both the applicant and the respondent would get caught by the police;

c.  to lie to others that he was injured when cooking at home; and

d.  if he did not follow the instructions, Gul would cause trouble to the applicant.

13.  The applicant was admitted to Pok Oi Hospital via A&E department with 40% second-degree burn and then transferred to the ICU of Prince of Wales Hospital and later the Burns Unit. He underwent debridement and skin grafting to the neck on 23 November 2015 and was discharged on 7 December 2015. He was granted sick leave until 22 December 2015.

Issue of liability

14.  The respondent’s case, as stated in the Answer (Trial Bundle page 15-19)  is basically a denial of any employment relationship. According, he also denied any knowledge of the applicant’s earning at the material time (List of Earning, Trial Bundle page 20-22).

15.  At the trial, during the cross-examination of the applicant, Mr. Pirie did not challenge any of the applicant’s case as stated above, but only ascertained that it was Gul whom the applicant contacted regarding to his work at the Yard and his salary, and that, on the relevant day, it was Gul who instructed the applicant to work on the particular vehicle and provided the equipment etc.

16.  After the applicant closed his case, Mr. Pirie applied to disclose a new piece of evidence, which was apparently a travel record obtained from the Immigration Department which purported to show that the respondent (that is, Mr. Khan, Faqergul (“Mr. Khan”))  was not present in Hong Kong at the time of the accident.

17.  Mr. Wong objected to this. He informed that court that this document was only disclosed by the respondent to the applicant’s solicitors the day before the trial.

18.  Firstly, I am surprised by Mr. Pirie choosing to made the disclosure application at this stage of the trial, given that he had that document on hand when making his two earlier applications as preliminary issues to the trial. There is no reason why Mr. Pirie could not have made the application then.

19.  Further, Mr. Pirie also failed to make use of this evidence during cross-examination nor put any case relevant to this new evidence to the applicant, and only disclosed this after the applicant has closed his case. This is not even an attempt to, so as to say, ambush at trial, it was an attempt to stab the victim in the back after letting him walk past peacefully.

20.  More importantly, Mr. Pirie never challenged the applicant’s case that Gul was the person-in-charge of the respondent (paragraph 5 of the applicant’s witness statement, Trial Bundle page 50). As such, whether Mr. Khan was in Hong Kong or not at the time of the accident was clearly irrelevant to the issue of whether there was an employment relationship between the respondent and the applicant.

21.  As such, I have dismissed Mr. Pirie’s application.

22.  In his closing submission, Mr. Pirie argued that the court should view the applicant’s evidence “with extreme caution” because he has lied about the cause of his injury (that is, that he was injured by boiling something at home)  to various doctors and others. He suggested that the applicant only changed his story in order to obtain compensation.

23.  However, if this was the respondent’s case, it was never put to the applicant during cross-examination. The applicant’s case was that he was an asylum seeker working illegally for the respondent and it was Gul who instructed him to lie. None of this was challenged by Mr. Pirie during cross-examination.

24.  Mr. Pirie also suggested that it was Gul who employed the applicant and that there was no “reliable” evidence showing that the applicant was employed by the respondent. Again, if that was the respondent’s case, it was never put to the applicant whose evidence, all along, was that Gul was the person-in-charge of the respondent.

25.  Mr. Pirie also produced the case of Shahzad Ajmal v Chakwal Auto Trader (HK)  Ltd DCEC 2556 of 2015 and suggested that the two case was similar and the judge in that case dismissed the claim.

26.  However, Mr. Pirie did not assist the court further by elaborating how the Shahzad case was similar to the current case. The only similarity that I can see is that in both cases, the accident happened in a scrap yard.

27.  The issue of whether there was an employment relation is a finding of fact by the court in each case and on the basis of such in the current one, I find that there is an employment relationship between the respondent and the applicant.

Illegal worker

28.  The parties do not dispute the legal principles laid down by the Court of Appeal in Yu Nongxian v Ng Ka Wing [2007] 4 HKC 551 that where an illegal worker was doing lawful work, public policy reasons favoured exercising the discretion permitting the illegal worker to recover employees’ compensation under Section 2(2)  of the Employees’ Compensation Ordinance.  I see no reason why the court should not exercise such a discretion in the current case.

Issue of quantum

29.  There was no dispute between the parties regarding the quantum of compensation.

Monthly earning

30.  I accept that the monthly earning of the applicant is HK$6,500 per month from September 2015. This is not challenged by the respondent.

Section 9

31.  The Board assessed 3% Loss of Earning Capacity but Dr. David Ip (the orthopaedic expert)  opined 5% with various medical reasons including chronic pain and neck stiffness. I will accept Dr. Ip’s opinion.

32.  The applicant was 23 years old at the time of the accident.

33.  The compensation under this head of claim should be HK$6,500 x 96 x 5% = HK$31,200

Section 10

34.  The applicant was granted a total of 40 days of sick leaves which Dr. Ip opined was reasonable.

35.  The compensation under this head of claim should be HK$6,500 x 4/5 x 40/30 = HK$6,933.33

Section 10A

36.  The applicant’s medical expenses were paid by the Social Welfare Department so no claim is made under this head.

Total sum

37.  The total sum of compensation should be HK$31,200 + HK $6,933.33 = HK$38,133.33

38.  I accept that the respondent has paid no advance payment.   

Interest

39.  Interest should be awarded at half judgment rate from the date of the accident (i.e. 14 November 2015)  to the date of judgment, and thereafter at judgement rate until full payment.

Costs

40.  There be an order nisi for the respondent to pay the applicant’s costs of the action, with certificate for counsel, to be taxed if not agreed.

Mr H Y Wong, instructed by Messrs Choy Yung & Co, for the applicant

Mr Nicholas Pirie, instructed by Messrs Chaudhry Solicitors, for the respondent

DCEC 1221/2017

[2022] HKDC 125

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1221 OF 2017

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DECISION

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1.  The trial in these proceedings has been scheduled to commence on 15 February 2022, with 16 February 2022 and 17 February 2022 reserved. By a summons dated 24 January 2022 (“the Summons”), the respondent seeks an order to vacate the trial dates and for consequential directions. The Summons is supported by an affirmation made by the respondent dated 24 January 2022 (“the supporting affirmation”). The respondent’s application is opposed by the applicant.

2.  In these proceedings, the applicant’s case is that as a result of an accident occurred on 14 November 2015 arising out of and in the course of employment with the respondent, the applicant has sustained injuries.  The applicant said that he was a labourer of the respondent’s scrap yard as from September 2015 for a monthly wage at HK$6,500.  The respondent’s case is a straight denial. The respondent denied that there was ever an employer-employee relationship between him and the applicant.  He also denied any acquaintance with the applicant, and he denied having any knowledge regarding the said accident.

3.  For the purpose of the Summons, the essential facts are set out in the table below.  For ease of reference, I have incorporated the matters set out in the supporting affirmation into the table.  However, for avoidance of doubt, I make no comment on the veracity of those matters.

Date	Event
29 December 2020	Order made by HHJ H. Au-Yeung, giving leave to set down this action in the fixture list for trial before a judge with 3 days reserved.
26 February 2021	The parties’ respective solicitors attended the Listing Office and fixed the trial dates, i.e. from 15 to 17 February 2022.
7 August 2021	The respondent travelled back to his hometown in Pakistan to visit his family members.
12 August 2021	A traffic accident occurred in Pakistan.  The respondent’s younger brother passed away as a result of this traffic accident.  The respondent suffered serious injuries in the accident.
13 August 2021	The burial of the respondent’s younger brother took place.
16 August 2021	The respondent went to see a private doctor.  The doctor prescribed that the respondent had sustained serious injuries and should have complete bed rest for 60 days.
18 October 2021	The respondent went to see the doctor again.  The doctor stated that the respondent would need to take some further medicine and would need to receive physiotherapy.   The doctor was of the opinion that the respondent would need to have bed rest for 2 more months.
20 December 2021	The respondent went to see the doctor again.  The doctor said that surgery might be necessary if the respondent’s situation is worsened.  The doctor further recommended the respondent to have complete bed rest for 2 more months.
After 20 December 2021, but in December 2021	The respondent contacted his solicitors representing him in this case and discussed the situation.  The respondent planned to return to Hong Kong to attend the trial.  The respondent wanted to continue his bed rest, and to wait until first week of January to book his plane ticket to fly back in mid-January.
5 January 2022	HKSAR Government banned flights from Pakistan to Hong Kong as from 8 January 2022 due to the pandemic situation.
12 January 2022	The respondent’s solicitors wrote to the court and said that the respondent intended to make an application to vacate the trial dates.
13 January 2022	The applicant’s solicitors wrote to the court and indicated that the applicant would oppose the application intended by the respondent.  In the same letter, the applicant’s solicitors also said:- “… the Respondent has failed to mitigate the prejudice on the Applicant as he has not attempted to give evidence by video-link evidence in order to not disrupt the flow of trial. However, should the Respondent make an application for video-link evidence one month before the trial; it ought to be contested by the Applicant as it does not give ample opportunity to the Applicant to ensure a fair-trial has been rendered in order to conduct fair cross-examination of the Respondent.”
14 January 2022	I directed that the respondent should make the application by an inter partes summons supported by affidavit/affirmation.
25 January 2022	The respondent’s solicitors took out the Summons and filed the supporting affirmation.

4.  It is indisputable that the trial dates are milestone dates and cannot be varied in the absence of most exceptional circumstances.[1] Counsel for the respondent relies upon Samuel Tak Lee v Tsang Chiu Wing Florence[2] and submits that the court may vary the milestone dates in the absence of any exceptional circumstances.  In that case, the learned judge said that the requirement for exceptional circumstances does not exist under Order 25 rule 1B(1), which entitles the court, of its own motion, to vary the timetable fixed by it under Order 25 rule 1A.  I am unable to accept counsel’s submission.  Even assuming that the point in the Samuel Tak Lee case is correct, that point cannot assist the respondent.  The respondent is now asking the court to allow his application to vacate the trial dates.  The court is not considering vacating the trial dates on its own motion. 

5.  In my view, there cannot be any exceptional circumstances, let alone most exceptional circumstances, justifying vacating the trial dates.  The trial dates were fixed in February 2021.  Even assuming all the matters mentioned in the supporting affirmation are true, it is inexplicable why the respondent did not make an application for leave to enable him to give evidence through VCF shortly after 5 January 2022.  The respondent is legally represented in this case.  His legal representatives can handle the trial on his behalf.  The only matter which the respondent would need to do is to give evidence in the trial, for he is the only witness in his case.  However, nowadays, a witness not in Hong Kong may give evidence through VCF. 

6.  In respect of giving evidence through VCF, the respondent said the following in the supporting affirmation:-

“23. In addition to this application, I have been advised by my solicitors and I believe that I should seek alternatives before attempting to vary the trial dates. My solicitors have advised me that I am able to give evidence by video-link. My solicitors have advised that I should make a formal application to do so. However, I believe it is impractical to give evidence through this medium as I do not have the appropriate conferencing facilities.

24. Furthermore, I have been advised by my solicitors that the Plaintiff may wish their own representatives to be present in the room with me when I give evidence. The Plaintiff may wish to do so to ensure the integrity of the proceedings, creating further logistical barriers.

25. Alternatively, I am able to apply to the Pakistani Courts, where they have both the technological means and facilities to allow me to give evidence. However, I am advised by my solicitors that this will require time which may inevitably will[3] delay the trial.

26. By the reasons above, I respectfully request the court to grant leave to vacate the trial date due to my exceptional circumstances.”

7.  What has been said by the respondent in the supporting affirmation cannot be satisfactory explanation as to why he did not make a formal application for leave enabling him to give evidence through VCF.  He himself may not have the necessary conference facilities.  However, he has not said that the necessary conference facilities would not be available to him even after making reasonable effort to try to have access to the same.  The respondent can try to buy or rent a computer with the conference facilities therein.  He may also try to rent a room in a business centre with video conference facilities.  All these have not been done by the respondent.

8.  No doubt that the applicant may want to have an observer at the place from where the respondent would give his evidence.  However, the ball is in the respondent’ court in the first place.  The respondent should make an application for leave to give evidence through VCF first.  The respondent should let the court and the applicant know the place from where he is prepared to give evidence through VCF.  After knowing this, the applicant would consider how to engage an observer in that place.  The fact that it would be necessary to have some discussion with the applicant does not mean that giving evidence through VCF is impractical.

9.  This court would not require the respondent to give evidence through VCF from a court in Pakistan.  If leave is given to the respondent to give evidence through VCF, the respondent would only be required to give evidence from a neutral place, i.e. a place which has no connection with the applicant or the respondent.

10.  Even assuming all the matters said in the supporting affirmation are true, there is no satisfactory explanation as to why an application for leave to give evidence through VCF is not made shortly after 5 January 2022.  In fact, up to now, no application for VCF evidence is made by the respondent.

11.  In my judgment, there is no exceptional circumstance justifying vacating the trial dates.  The respondent’s application as per the Summons must be refused. 

12.  I am fully aware that refusing the respondent’s application would mean that the respondent would not have an opportunity to give evidence to support his case in the trial.  I have considered whether this is a proportionate measure which I should adopt.  After all, the primary aim in exercising the powers of the court is to secure the just resolution of the dispute herein in accordance with the substantive rights of the parties.[4]

13.  In the circumstances of this case, I am of the view that although maintaining the trial dates would mean that the respondent would have no opportunity to give evidence in the trial, this is still a proportionate measure.

(1)     Notwithstanding the advice given to him by his solicitors, the respondent has decided not to make an application for leave allowing him to give evidence through VCF.  This is his informed choice, and the respondent should face the consequences of his choice.

(2)     The respondent has not put forward a positive case and his case is a bare denial.  The only witness statement filed by the respondent is his witness statement dated 14 November 2019.  In that witness statement, after mentioning his background and his business, the respondent said:-

“The Alleged Accident

6. I categorically deny employing the Applicant in any capacity.

7.     I am not acquainted with the Applicant.  I understand that the Applicant is a non-refoulment claimant.  It is a known fact that employing such a person is illegal.  I am a law-abiding citizen and would not do anything illegal.

8.     I operated this business on Sole Proprietor basis.  I was also responsible for hiring and I ran the business operations alone.”

(3)     It is clear that the respondent is denying the existence of any employer-employee relationship between him and the applicant at the time of the accident alleged in the applicant’s case.

(4)     With or without the respondent’s evidence, the applicant would need to prove the employer-employee relationship in order to succeed.  The burden of proof is on the applicant.  Counsel for the respondent would have the opportunities to cross-examine the applicant’s witnesses and to make comments on the documentary evidence.  All these rights of the respondent would not be affected by the absence of the respondent’s evidence in the trial.

(5)     The alleged accident occurred on 14 November 2015, which is more than 6 years ago.  The dispute herein should be resolved as soon as practicable without delay.  The trial should not be postponed in the absence of any most exceptional circumstances.

14.  For the reasons above, I dismiss the Summons.  Counsel for the applicant submits that costs of the Summons should be to the applicant in any event.  I accede to this request and so order.  I also grant a certificate for counsel. Those costs are to be taxed if not agreed.

15.  Counsel for the applicant also submits that there should be a wasted costs order against the respondent’s solicitors, requiring the respondent’s solicitors to bear the costs of the Summons personally.  I decline to do so.  It became not possible for the respondent to come back to Hong Kong because of the change of policy by the HKSAR Government on 5 January 2022.  As per the supporting affirmation, the respondent’s solicitors have advised the respondent to try to give evidence through VCF.  It is the respondent’s decision not to adopt that course.  On 12 January 2022, the respondent’s solicitors have written to the court and to the applicant, indicating that the respondent intended to make an application for an order vacating the trial dates.  Although the formal application was only taken out on 25 January 2022, one has to bear in mind that it would take some time to obtain the supporting affirmation made by the respondent in Pakistan.  In the circumstances, I am of the view that the respondent’s solicitors cannot be criticized as having acted unreasonably in any aspect.

16.  It remains for me to thank counsel for the assistance rendered to the court.