Akhtar, Tahir Mehmood v. Ng Wai Chun

DCEC 1899/2017

[2019] HKDC 842

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1899 OF 2017

--------------------------------

--------------------------------

Before: Deputy District Judge Kate Li in Court

Dates of Hearing: 17 & 18 June 2019

Date of Judgment: 21 June 2019

-------------------------

JUDGMENT

-------------------------

INTRODUCTION

1.The applicant claimed that since 2013, he worked for the respondent at various construction sites Sheung Shui as a general labourer.  He gave evidence that the respondent instructed him where to work and what task to do on the sites.  The respondent sometimes drove the workers to the sites in Sheung Shui after meeting up at a specific point in Sheung Shui.  The applicant told the court that throughout 2013 to 2015 when the applicant worked for him, the respondent was the one paying him wages in cash. 

2.On 18 August 2015, he was injured as a result of the drill having slipped his hands, and hitting his right leg. The construction site was at Hang Tau Tsuen, Chiu Yeung Oah.  The injury caused a wound on the right leg.  After hospitalization of about 7 days, the wound was healed without complication.  The taking place of the accident and the injury were not disputed by the respondent.

3.The applicant claimed that the respondent took care of him following the incident, as in driving him to the North District Hospital, handling his admission by using the respondent’s ID card for admission, visiting him every other day and accompanying him for following up consultations.  The applicant told the court that the respondent had paid him HK$47,000 as sick leave part payment by way of monthly payment between August and October 2015.  

4.The applicant filed the Form 2 notification on 6 January 2016 stating that the respondent is his employer, and that Golden First Investment Limited was the principal contractor. 

5.Thereafter, the applicant filed a first EC action against Golden First Investment Limited on 22 November 2016.  It was discontinued by the applicant on 4 August 2017. 

6.Then the applicant commenced this application on 16 August 2017.  In the application, the applicant claimed that the respondent was both his employer and the principal contractor. 

7.Whether the employer of the applicant is the respondent falls to be the only issue for my determination.  There is no suggestion or nothing to suggest that the applicant was working on his own account. 

8.The only documentary evidence adduced by the applicant was a name card.  There were mobile, email, fax number and the Sheung Shui address of the respondent and it is a card of him with Golden First. 

9.The respondent denied any knowledge and any involvement in the location at all.  He denied being the applicant’s employer and also working for Golden First.  He gave evidence at court that whilst he was in construction business all his life until 2012, he only had dealings with Golden First for business referral.  Saliently, the respondent said that after 2012, he was only a casual worker for construction site.  I note that all these were not stated in his witness statement.

10.After hearing the evidence of both parties, with no other witness called by any party, I have no hesitation to reject the application.

ANALYSIS OF EVIDENCE

11.Both parties blatantly lied to the court.  The applicant lied extensively on the details advanced in an attempt to reinforce his claim that the respondent was his employer.  The main areas of the details advanced to try to make the employment more concrete can be analyzed under three groups. 

Payment of wages

12.The applicant relied on the fact that the respondent paid him the wages throughout as the main support of the employment relationship.  The assertion could have been advanced plainly, but the applicant chose to give details which did not make sense or were conflicting.  He said that he worked for the respondent at another site before August 2015 for two to three months.  During that period, there was this odd arrangement that the “other person” there paid his friend and fellow labourer, Mr Rafique, who in turn paid the respondent.  Then the respondent handed the payment to the applicant directly.  It is quite implausible for the wages to be routed in this way via a fellow labourer.  If the respondent had been the employer, he would have not needed to source wages through another worker at the site. 

13.More problematic is the fact that this strange routing was merely an attempt of the applicant to retract paragraph 9 of his witness statement which stated that Mr Rafique first got the money from the respondent and another Chinese, and then Mr Rafique handed him the wages. 

14.I believe that the applicant blatantly lied as different versions were advanced.  There was no credible evidence before me how the wages were paid.

15.The evidence on payment was only one part of the pervasive lies of the applicant. 

Hospital scene and many hospital visits of respondent

16.The applicant tried to embellish the case by saying that the respondent first acted responsibly by driving him to the hospital, and handling the admission.  The applicant however was undecided how the admission scene should be like.  He sometimes told the court that Mr Rafique was there, and other times, he told me that Mr Rafique was not there.  The admission scene as in the respondent taking care of things for the applicant was a purported embellishment to the case.  As it was not the truth, the applicant cannot achieve narrating it with any coherence. 

17.The applicant further told the court that the respondent cared about his injuries to the extent that the applicant came to see him every other day during hospitalization and also accompanied him when he went back for following up consultation.  Such kind of details were unnecessary.  Yet these details are tellingly implausible – even a genuine employer may not be as caring in the way as the applicant described.  There is, to say the least, a lot of exaggerated or untrue details.  

Payment of HK$47,000

18.The applicant spoke of the respondent first acknowledging liability by paying him HK$47,000.  The applicant however was undecided how the payment was made.  There was no document to support such a sizeable payment being made.  The applicant said some of it was made in cash with the respondent visiting him at his home.  This is tellingly untrue.  The respondent was in Sheung Shui, and the applicant told me he lived in Kwun Tong.  It is again very unconvincing that an employer of construction site would visit an employee at home both being construction site workers. 

19.It was also said that HK$5,000 was paid by the respondent through banking in cash to his bank account.  As point out by Ms Wong, there was no bank statement adduced by the applicant to support this.

20.As a result of the applicant’s own evidence, I have no hesitation to take the view that the credibility of the applicant has been destroyed in its full.  I have also accepted Ms Wong’s argument at closing challenging the applicant’s claim that he was employed by the respondent from 2013 to 2015; Ms Wong relied on, among others, the fact that there was a Details of Income document issued by the Inland Revenue Department suggesting that the applicant worked for one Yuen-Team Construction Engineering Co Ltd from April 2014 to March 2015.  

21.In rejecting the applicant as a credible witness, I have taken into account the fact that the applicant was only a labourer, and was unsophisticated.  He also suggested that his memory was affected by the injury to his head suffered in January 2018.  He appeared in court needing walking aids.  I have given due regards to all the possible limitations on his presenting of evidence. 

22.I am not minded to accept other parts of his evidence as true.  Such other evidence included how his work operated, who gave his instructions and tools.  The application is bound to be rejected on the basis that the applicant fails to furnish any credible evidence, and hence, employment cannot be proved.  The application must be dismissed on his failing to discharge the burden on proof.

THE RESPONDENT’S CASE

23.However, my rejection of the applicant’s evidence does not mean that the respondent has no involvement at all as he claimed.  Moving on to the respondent, whom I observed as more sophisticated, did also lie to the court in key matters to suggest that he has no involvement in the subject workplace at all, in whatever capacity.  I feel compelled to set out the falsehood in his evidence, to mark my disapproval. This also affects my costs order.

24.In my view, the respondent lied in two important respects.

25.The respondent said at court that he has retired from his construction business in about 2012.  Since then he was only a causal worker, called in to work whenever required at the construction sites.  According to him, he is now about 57 years old (as he said he had started construction work at the age of 13 in 1975).  He claimed that as casual worker he was to drive trucks to transport goods, and he also planted trees there.  I find that this evidence is totally incredible.  Transporting goods and planting trees are obviously not normal construction site work.  The respondent blatantly lied as to his work from 2012 to now.

26.The second matter is that he was evasive in his explanation about his name card.  The name card is the only document that the applicant had in his hand to support the employment case. The respondent first stated in paragraph 6 of the witness statement that he rejected the idea of working for Golden First, and then he reluctantly received the name cards Golden First printed for him.  The respondent is evasive as to whether the respondent agreed to the referral arrangement and the printing of name cards.

27.He only admitted when asked by the court that he had agreed to the business arrangement with Golden First, and of arranging his name cards.  At court, he admitted to having such Golden First name cards and for engaging in the business dealings with Golden First. 

28.I have no doubt that his dealings with Golden First was something he wished to tell as little as possible.  

29.I believe that the respondent effortfully tried to play down the name card.  If his dealings with Golden First was really as little as it was as in it was just for business referral, without actual engagement of other kind of work, then there is no reason to play down the name card.  He would not have avoided confirming that he agreed with the name card printing, in the witness statement, when giving explanation about the name card.

30.My inference is that the respondent’s evidence that he did not work for Golden First at all in the construction business was untruthful.  In my view, he has a role in the work involving the applicant, though the structure of the arrangement has nowhere surfaced in these proceedings. 

31.I do not believe that the applicant only randomly sued the respondent as he came upon the respondent’s name card, or randomly sued the respondent as the respondent was an easy target given the approaching of the expiration of limitation period, such being a proposition put to the applicant by Ms Wong.  In my view, the unwillingness of the respondent to talk about the name card and the business dealings he had with Golden First was obvious.  This reluctance is indicative of a level of connection between him and the matter here. 

32.In so commenting on the evidence of the respondent, I am mindful of the fact that there was indication of the applicant not being sure of who the employer was.  He has first filed an EC application in 22 November 2016 against Golden First (DCEC 2622 of 2016) in which the applicant formerly claimed that Golden First was both his employer and principal contractor.  However, in my view, the implication of this first EC action was limited.  In the more contemporaneous document of Form 2, the applicant did already claim that the respondent here was the employer.  

Observation on quantum

33.By way of observation, I also deal with quantum.  Ms Wong, for the respondent, confirmed that the respondent does not dispute the daily wage of HK$650, and that the days of work in a month be 24 days.  The applicant was at his age of 31 when he met the accident.  Ms Wong also confirmed that the respondent did not dispute the multiplier of 96 months.  Sick leave was of 16 months.  Loss of earning capacity was assessed at 1% by the Employees’ Compensation (Ordinary Assessment) Board.  Hence, the compensation amount is agreed as follows, which I find in order:-

Summary

Section 9: HK$15,600 x 96 x 1%	HK$14,979
Section 10: HK$15,600 x 16 months x 80%	HK$199,680
Section 10A:	HK$0
Sub-total	HK$214,659
Less payment received:	(HK$47,000)
Total:	HK$167,659

Plus interest at half judgment rate from the date of the accident and costs.

CONCLUSION

34.To my mind, this matter potentially highlights the problem possibly faced by construction site labourers, who work on casual as required basis, that they may not have the bargaining power to get the employers to commit to documentation for identification purpose.  I am not making a finding as such rave but when the respondent have had chosen to be untruthful in fundamental matters, it is unsettling and warrants a note of disapproval. 

35.This application is dismissed. 

36.Costs should normally follow the event.  However, the defendant was not telling the truth.  To mark my disapproval of the fact that the respondent was not forthcoming with the truth or the whole truth of the matter, I make a cost order nisi that there be no order as to costs of the application (including any cost previously reserved).  The applicant’s costs be taxed in accordance with the Legal Aid Regulations.

37.It remains for me to thank Mr Middleton, Ms Wong and Mr Lee for their assistance.

Mr Derek Middleton, of Massie & Clement, assigned by the Director of Legal Aid, for the applicant

Ms Catherine Wong and Mr Michael Lee, instructed by Pang Wan & Choi, for the respondent