Muhammad Dost v Hong Kong Ying Cheung Trading (Recycling) Ltd

Kwan V-P, Cheung and Au JJA
26 March, 12 April 2021

Facts

X was an asylum seeker, and as such, without the prior approval from the Director of Immigration, could not be lawfully employed in Hong Kong. X had not obtained such approval. X commenced proceedings against R for employees’ compensation. X’s case was that he was offered to work on a night shift in a warehouse for a recycling business. X claimed that while at work, he was injured by a protruding tip of the prong of a large digging fork which pierced through his right foot. Not knowing the name of his employer, X went back to his workplace, and found R’s name plate posted in front of the entrance of the warehouse. X therefore alleged that R was his employer. R alleged that X concocted a story about his accident at the warehouse at a time when R’s business was not even in operation. At trial, X was cross-examined rigorously. The Judge found that at the material time, X was working at R’s warehouse, R was X’s employer, and awarded X compensation including for temporary incapacity under s.10 of the Employees’ Compensation Ordinance (Cap.282) (the ECO). R appealed, arguing that: (i) the Judge erred in finding that R was X’s employer at the time of the accident, having erred in her assessment of X’s evidence which contained various inconsistencies; and (ii) the wording of s.10(1) of the ECO prohibited the Court from awarding compensation to X because he was an illegal worker. Section 10(1) of the ECO provides inter alia that the periodical payments as compensation for temporary incapacity shall be, or at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident.

Held, dismissing the appeal, that:

  1. R had not been able to show that the findings by the Judge were plainly wrong. R’s approach in this appeal in respect of the discrepancies in X’s case was to invite the Court to focus on some particular areas of the evidence rather than to see how the Judge had assessed the parties’ case in the round. The Judge was well aware of R’s criticism of X’s evidence and the alleged inconsistencies. Some of these discrepancies could be properly explained once the whole of the evidence was fully considered and some were clearly not germane to the core issue of whether X was employed by R at the time of the accident. Once R’s primary and only case was disbelieved and the Judge found that X was indeed working at the warehouse at the material time, the Judge was entitled to draw the inference that R was the employer of X (China Gold Finance Ltd v CIL Holdings Ltd (CACV 11/2015, [2015] HKEC 2529) applied; Piglowska v Piglowski [1999] 1 WLR 1360, Royal Bank of Scotland Plc v Carlyle [2015] UKSC 13 considered).
  2. The last phrase of s.10(1) of the ECO “or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident” was dealing with a hypothetical situation where the employee was not actually earning money but was said to be capable of earning money in an employment which was either physically suitable for him or the nature of which was suitable for him. Such potential earnings would need to be considered in the s.10(1) calculation. But the hypothetical situation had nothing to do with the status of the employee as an illegal worker (Hossain Mohammed Sajib v Chuen Kee Environmental Resources Recycle (Hong Kong) Ltd (DCEC 2689/2016, [2020] HKEC 4070) approved; Yu Tat Kam v Chu Tung Shing [2009] 6 HKC 411 considered; Abu Bakkr Shiddik v M M & Co Auto Parts, Dismantling and General (A Firm) (DCEC 903/2009, [2012] HKEC 69), Qadir Sher v Siddiqui Muhammad Faisal (DCEC 404/2011, [2012] HKEC 1141), Shahzad Ajmal v Chakwal Auto Traders (HK) Ltd (DCEC 2556/2015, [2019] HKEC 2129) overruled).

Appeal

This was an appeal by the respondent against the judgment of Deputy District Judge Elaine Liu awarding employees’ compensation in favour of the applicant (see [2019] HKEC 4265).

Jurisdictions