He Yu Fei v. Xiong Xinxi Trading As Tailor-made Furniture and Another
Read the full judgment text of DCEC 1181/2022 on BabelCite. This District Court judgment was delivered on 26 February 2025.
1. This is the trial of the application of the Applicant, Mr He Yu Fei (何郁飛), under the Employees’ Compensation Ordinance (“ ECO ”) for compensation under Sections 9, 10, and 10A thereof (“the Application ”).
Cites 3 cases
|
DCEC 1181/2022 [2025] HKDC 302 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO 1181 OF 2022 ------------------------- IN THE MATTER OF AN APPLICATION BETWEEN
-------------------------
------------------------- JUDGMENT ------------------------- A. INTRODUCTION 1.This is the trial of the application of the Applicant, Mr He Yu Fei (何郁飛), under the Employees’ Compensation Ordinance (“ECO”) for compensation under Sections 9, 10, and 10A thereof (“the Application”). B. BACKGROUND 2.The following background facts are not in dispute. 3.The Applicant sustained personal injuries in an accident on 21 June 2021 (“the Accident”) in which the Applicant suffered an electric shock while fixing the electric light and fell off the wooden ladder. The Accident took place in the premises known as 4th Floor, Block B, Alexandra Industrial Building, 23-27 Wing Hong Street, Cheung Sha Wan, Kowloon, Hong Kong (“the Premises”). 4.The 1st Respondent, Ms Xiong Xinxi (Cici) (熊昕晰), is and was at all material times a shareholder and director of the 2nd Respondent, Soonstar International (HK) Limited (順時達國際 (香港) 有限公司). 5.In around March and April 2021, the 2nd Respondent became a tenant of the Premises. 6.At around 5 pm on 21 June 2021, the 1st Respondent asked the Applicant and Mr Chan Hey Yuet (陳起越) (“Mr Chan”) to attend the Premises after they finished work at the client’s place. At around 6:30 pm on the same day, the Applicant sustained the Accident. 7.After the Accident happened, the 1st Respondent accompanied the Applicant to receive treatment at the Caritas Medical Centre (“the CMC”). No ambulance was summoned to attend the Premises. 8.On 20 October 2022, a Certificate of Assessment was issued by the Employees’ Compensation (Ordinary Assessment) Board (“Form 7”), in which the following assessment was made by the Board:
9.Upon the Applicant’s appeal, the assessment was reviewed. Under the Certificate of Review of Assessment (“Form 9”), the Board cancelled the Form 7 and made the following assessments:
10.Neither the Applicant nor the Respondents have appealed against the Form 9. C. THE PARTIES’ CASE 11.As agreed between the parties, the following issues are before this Court:
C1. The Applicant’s Case On Liability 12.It is the Applicant’s primary case that he was employed by the 1st Respondent when the Accident happened. As an alternative, the Applicant contends that he was the employee of the 2nd Respondent at the material time. 13.The Applicant says that during his employment with the 1st Respondent, he only understood the 1st Respondent to be carrying out her business in the trade name of “Tailor-Made Furniture (造櫃王)” (“Tailor-Made Furniture”). He was not aware that the 2nd Respondent was the tenant of the Premises. He in fact was not aware of the existence of the 2nd Respondent during his entire employment. 14.The Applicant says that the 1st Respondent was the one who hired him and agreed that the Applicant would receive HK$1,350 for each day of work. The Applicant further says that all the instructions for his work were given by the 1st Respondent to him. All the tools and materials, including electric drills, electric saw, adhesive glue, etc. were provided by the 1st Respondent to him. 15.The Applicant says that prior to the Accident, the 1st Respondent paid him salary on two occasions, first, in the sum of around HK$5,000 to 6,000 (i.e. around 5 days’ salary), and second, in the sum of around HK$10,000 (i.e. around 10 odd days’ salary). The payments were made in cash on both occasions. 16.The Applicant denies that he was an employee of Mr Chan. He says that Mr Chan was only the one who introduced the 1st Respondent to him. On Quantum 17.On the Applicant’s average monthly earnings, in the Amended Application §3 (6), he pleaded that:
18.On the period of sick leave, the Applicant relied on the assessment in the Form 9 and contends that he should be entitled to claim 492 days of sick leave. C2. The Respondents’ Case On Liability 19.The Respondents deny that they were the employer of the Applicant. The Respondents contend that the Applicant and Mr Chan were the 2nd Respondent’s independent contractors for the work at the Premises and the 2nd Respondent’s clients’ premises. 20.The Respondents say that the Applicant and Mr Chan used their own tools when carrying out work at the Premises or the 2nd Respondent’s clients’ premises. According to the 1st Respondent, she only liaised with Mr Chan concerning the work to be carried out, and she had never discussed the same with the Applicant: see 1st Respondent’s Witness Statement §9. 21.The Respondents contend that all the fees for the Applicant and Mr Chan for their work done for the 2nd Respondent were paid by the 2nd Respondent to Mr Chan’s bank account (A/C: 031745086) (“Chan’s Bank Account”). On Quantum 22.The Respondents contend that the Applicant’s case that his monthly earnings were about HK$31,500 is not supported by any documentary or objective evidence. 23.Rather, the monthly earnings of around HK$19,000 per month should be adopted. 24.As to the period of sick leave, the Respondents say that 492 days is excessive, as the Applicant was capable of resuming work by May 2022 at the latest. The Respondents say that only 332 days of sick leave would be appropriate. D. ANALYSIS D1. Whether the Applicant was an employee of the 1st Respondent and/or the 2nd Respondent 25.The legal principles governing whether there is an employment relationship between parties are held in the Court of Final Appeal case of Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLRD 951 at §§17-18 per Ribeiro PJ:
26.Having considered the features of the relationship between the Applicant, the 1st Respondent and 2nd Respondent, I find that the Applicant is the employee of the 1st Respondent. 27.First of all, I accept the Applicant’s case that throughout his employment, the 1st Respondent was the only person who contacted him, and that he was not aware of the existence of the 2nd Respondent at all. 28.The 1st Respondent accepted that at the Premises (which was a showroom), only the name of Tailor-Made Furniture was shown. The name of the 2nd Respondent was not shown in the Premises. Indeed, if one looks at the photograph of the entrance to the Premises, there was a large sign showing “Tailor-Made Furniture 造櫃王”. The 1st Respondent agreed during cross-examination that an outsider who attended the Premises would have the impression that it is Tailor-Made Furniture’s showroom, not that of the 2nd Respondent. 29.On the website “zgw.hk/index.html” (“the Website”), in which the Premises was listed as a contact address, only the name of Tailor-Made Furniture was shown. Similarly, on the Facebook page (“the Facebook Page”) in which the Premises was listed as the contract address, only the name of Tailor-Made Furniture was shown. On the Facebook Page, it was also stated that Tailor-Made Furniture had over 20 years’ experience of manufacturing tailor-made furniture. According to the 1st Respondent during cross-examination, this was a reference to her personal experience of working in the furniture related industry, as she had been in the field for around 20 years. 30.In the 1st Respondent’s oral evidence, she also accepted that she was the one who replied to the public’s messages on the Facebook Page. She was also the one replying to the emails from the public sent through the email address [email protected]. She would also answer the phone calls made to the number 6110 2499 stated on the Website and the Facebook Page. 31.In the WeChat communication between the Applicant and the 1st Respondent (“the R1 WeChat”), the 1st Respondent had never referred to the 2nd Respondent or informed the Applicant that she was acting on behalf of the 2nd Respondent. The 1st Respondent used the Tailor-Made Furniture logo as her profile photo on WeChat, and used “zgw61102499” as her WeChat ID. According to the 1st Respondent, “zgw” is the Chinese pinyin of the name “造櫃王”. The 2nd Respondent did not feature in her WeChat profile. 32.While the 2nd Respondent was the tenant of the Premises (the 1st Respondent was named as the contact person of the 2nd Respondent under the tenancy of the Premises), this itself does not show that the 2nd Respondent was the entity carrying out the furniture manufacturing business. It is equally possible that the 2nd Respondent allowed the 1st Respondent to occupy the Premises to carry out her business. 33.Considering the above factors, it is clear to me that at all material times, it was the 1st Respondent who was using the trade name of Tailor-Made Furniture to carry out furniture manufacturing business at the Premises. Therefore, when the 1st Respondent engaged the Applicant’s services, she was acting in her personal capacity, not acting on behalf of the 2nd Respondent. 34.Second, I accept the Applicant’s case that it was the 1st Respondent who gave instructions to him and provided materials for his work:
35.The R1 WeChat also suggested that the materials for the installation, including the faucet and the electricity plugs, were provided by the 1st Respondent to the Applicant, as it appeared that the 1st Respondent was familiar with what the above items were or how the items should be installed. 36.Third, the 1st Respondent accepted that it was an agreement with the Applicant that he would receive HK$1,350 daily for his work, irrespective of how many pieces of furniture he would assemble each day. This is a further indication that the Applicant and the 1st Respondent were under an employment relationship, such that the Applicant would earn a fixed amount of income on a day that he attended work irrespective of the amount of work he carried out. 37.Fourth, the Respondents claimed that Mr Chan was an independent contractor of the 2nd Respondent and the Applicant was Mr Chan’s work partner/a co-contractor. However, the Respondents failed to produce any documentary evidence to support the allegation. While the 1st Respondent alleged during cross-examination that there were WeChat records and running account slips proving the sub-contracting relationship between the 2nd Respondent and Mr Chan, these alleged documents were not before the Court. Further, while the Respondents said that all the fees paid to the Applicant and Mr Chan for their work were deposited into Chan’s Bank Account, the only bank account statement of the 2nd Respondent before the Court was for the period from 7 July 2021 to 7 August 2021. It did not cover the period before the Accident took place. In the said bank account statement, 2 payments to Chan’s Bank Account were recorded (one on 27 July 2021 for HK$15,000, another on 5 August 2021 for HK$10,000), however, there was no evidence as to what these payments relate to. 38.Fifth, the 1st Respondent admitted that after the Accident took place, she told the Applicant to tell the staff at the CMC that the Accident happened at her residence at 康輝大廈 when she well knew the Accident happened at the Premises (as she was present at that time). The 1st Respondent’s explanation for providing the above false information was that she thought that it was “unlucky” for injuries to happen in the Premises when it was newly decorated. I reject the excuse as being incredible. I take the view that the 1st Respondent asked the Applicant to tell the above lie as she was aware that the Applicant was employed by her and that the Applicant suffered the Accident during his employment with her. As the 1st Respondent did not take out any labour insurance for the Applicant, as an initial reaction, the 1st Respondent wanted to conceal the fact that the Accident happened in the Premises. 39.Lastly, reading the R1 WeChat and the WeChat messages between the Applicant, the 1st Respondent and a “小靜” of the logistics department (物流部小靜) in a WeChat group chat “飛哥的單據” (“the Receipt WeChat”) as a whole, as well as considering the Applicant and the 1st Respondent’s respective evidence about them, it is clear to me that the 1st Respondent initially accepted her liability to compensate the Applicant for his injuries suffered from the Accident, and had procured a part payment in the sum of HK$15,000 of compensation to be paid. The 1st Respondent only retracted from her position subsequently when the amount of the compensation increased. 40.For example, as shown in the R1 WeChat:
41.In the Receipt WeChat:
42.On 1 August 2021, in the R1 WeChat, the Applicant provide a further sick leave certificate to the 1st Respondent. On 4 August 2021, the 1st Respondent sent a message to the Applicant saying that the amount of sick leave that the Applicant had to take had exceeded her expectation and asked for a proposal from the Applicant for her to make a one-off compensation to the Applicant.
43.On 11 August 2021:
44.While there were some messages in R1 WeChat in which the 1st Respondent suggested the Applicant to purchase employees’ compensation insurance for himself as well as his workers in the future, and the Applicant replied by saying that he had informed Mr Chan about it, and would ask Mr Chan to set up a company and purchase the employees’ compensation insurance: see R1 WeChat 6 July 2921 13:30 to 13:40. Reading such messages in context, at most the 1st Respondent was referring to the need of the Applicant to purchase insurance in the future. In the light of the Applicant and the 1st Respondent’s other conversations as highlighted above, I am persuaded that the R1 WeChat and the Receipt WeChat on the whole support the Applicant’s case that there was an employment relationship between the Applicant and the 1st Respondent when the Accident happened and the 1st Respondent was fully aware of her liability to compensate the Applicant. D2. The average monthly earnings of the Applicant at the material time 45.The average monthly earnings of the Applicant is relevant to the Applicant’s claim under Sections 9 and 10 of the ECO. 46.I accept the Applicant’s daily wage before the Accident happened was HK$1,350. This was also admitted by the 1st Respondent during cross-examination. 47.As to the number of days which the Applicant worked in the month immediately before the Accident, I agree with the Applicant’s submissions that it should be 26 days:
48.The daily wage of the Applicant was accepted by the 1st Respondent. The number of days which the Applicant had worked in the month before the Accident happened was calculated based on the 1st Respondent’s evidence summarised in §47 above. The Applicant is entitled to rely on the above evidence to calculate the amount of his monthly earnings. As to the Applicant’s pleas in §3 (6) of his Application about his monthly earnings[1], they were only estimates, as the Applicant had made clear in the Application that they were approximates and “subject to discovery”. D3. The period of sick leave which the Applicant is entitled to claim for 49.The period of sick leave is relevant to the Applicant’s claim under Section 10 of the ECO, which provides that:
50.In the present case, the Respondents did not take out any appeal against the Form 9. There is a dispute between the parties as to whether in such circumstances, the period of absence from duty certified in the Form 9 (i.e. 492 days) is conclusive (as contended by the Applicant). Alternatively, whether the assessment in Form 9 only creates a rebuttable presumption of the period of absence from duty (as contended by the Respondents). 51.Having considered the authorities cited by the parties, I am of the view that under Section 10 (2) of the ECO, the said presumption is rebuttable, as recognised by the Court of Appeal in Yu Tat Kam v Chu Tung Shing [2009] 6 HKC 411 (CA). However, in the same case, the Court of Appeal also held that the burden is on the employer to prove that circumstances existed for a reduction in compensation under Section 10(1) and observed that it would only be in rare circumstances where an employer would be able to prove potential earnings where total incapacity has been certified because (a) it is not only physical disability that incapacitates an employee from working – an employee may be incapacitated by discomfort or pain preventing him from concentrating; and (b) an employee is expected only to undertake employment which is suitable for him. 52.In the present case, the Respondents have failed to rebut the assessment under the Form 9 that 492 days of sick leave is appropriate. 53.First of all, the Respondents did not adduce any evidence showing that the Applicant actually worked or earned money during the period of sick leave certified under the Form 9. 54.Second, the Respondents have not adduced any expert evidence to show that the Applicant was capable of earning in some suitable employment or business since May 2022. 55.Third, while the Applicant’s bone fracture at the middle finger had fully healed by 26 November 2021, as the Applicant said in his oral evidence, his still felt painful in his hand, and this is supported by the Applicant’s consultations at the CMC Orthopaedic, Traumatic Surgery O&T Traumatic Clinic (“the O&T Clinic”), see below. As the Court of Appeal observed in Yu Tat Kam, it is not only physical disability which may incapacitate an employee from working – an employee may be incapacitated by discomfort or pain as well. 56.Fourth, there is no evidence to show that the Applicant was merely “seeking sick leave certificates” rather than seeking to cure his conditions when he attended his medical appointments: cf Ko Wai Fan v Tung Wah Group of Hospitals [2022] 6 HKC 436 at §§61-63:
57.In the circumstances, I find that 492 days of sick leave is appropriate. D4. Section 9 of the ECO 58.Following from my findings above, the amount of Section 9 ECO compensation payable by the 1st Respondent to the Applicant is:
D5. Section 10 of the ECO 59.As for the Section 10 ECO compensation, it should be:
D6. Total amount of compensation 60.By reason of the aforesaid, the total amount of compensation which the 1st Respondent should pay the Applicant is HK$479,857:
E. Disposition and Costs 61.I order the 1st Respondent to pay HK$479,857 to the Applicant. 62.The Applicant is entitled to interest at half judgment rate from the date of the Accident (i.e. 21 June 2021) to the date of judgment and thereafter at judgment rate until the date of payment. 63.As to costs, I invite the parties to make written submissions on the appropriate costs order in light of my findings above, including whether a Bullock costs order should be granted as indicated by the Applicant in the oral closing submissions. I give the following directions:
Ms Julia Lau, instructed by KCL & Partners, assigned by the Director of Legal Aid, for the Applicant Mr Brian Tsui, instructed by Chak & Associates LLP, for the 1st and 2nd Respondents [1] Of about HK$19,000 per month (subject to discovery) for the month immediately preceding the accident; and of about 31,500 per month (subject to discovery) on average during the 12 months or any lessor period of employment with the employer prior to the Accident) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCEC 1181/2022