Fan Lian v. Wong Ka Keung

DCEC 710/2022

[2025] HKDC 1336

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 710 OF 2022

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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Introduction

1.This is the trial of the Employees’ Compensation Application by the Applicant Madam Fan Lian (“A”) against Wong Ka Keung (“R”) in respect of an accident to A arising out of and in the course of work on 29 May 2021 (“Accident”). A was allegedly employed by R at the time of the Accident.

2.The sole issue on liability is whether A was an employee of R.

3.The parties were not in great dispute, and counsel were able to agree by the closing submissions stage, on all matters of quantum for the purposes of assessing compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

4.A was represented by counsel Mr Patrick Szeto upon the instructions of the Director of Legal Aid, and R by counsel Mr Leon Ho.

5.A called at trial 3 factual witnesses including herself, mainly on matters of liability.

6.R testified as the only witness of fact.

LIABILITY

The Accident

7.There is no dispute that A met the Accident on 29 May 2021 when working in plastering work in R’s residence at Flat E, 25^th Floor, Block 5, Bayview Garden, No 633 Castle Peak Road, Tsuen Wan, New Territories, Hong Kong (“Flat”).

8.When standing on a wooden stool and plastering the wall, A fell off to the ground and landed on her right hand, thereby sustaining right wrist fracture injuries. R was present in the Flat at the time and knew about the Accident.

9.R denies that A was his employee. R’s case is that he was merely a customer who engaged A, an independent contractor, for her service to do painting and plastering works.

Legal Principles - Employment Relationship

10.It is a question of fact and law whether there exists an employment relationship.

11.The approach for determining the issue of employment is well-settled and has been laid down by the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLRD 951 at §§17-18 (per Ribeiro PJ): The modern approach to the question of whether a person was an employee was to examine all the features of their relationship against the background and the indicia of employment with a view to deciding whether, as a matter of overall impression, the relationship was one of employment. This exercise involves a nuanced and not a mechanical approach. The picture should be painted upon accumulation of details. This is applied in the recent Court of Appeal judgment of Ho Wai Keung v Billion Rich Investments Ltd [2023] HKCA 929 at §25 (per Chow JA).

12.As to the indicia of employment, A’s counsel has referred to the comprehensive, but not exhaustive list, laid down in Tse Lam & Ors v Chan Tak Wai (謝林及其他二十位 訴 陳德偉) (HCLA 150/1995) (quoting Lee Ting Sang v Chung Chi Keung [1990] 2 AC 374 at 382 and Cheng Yuen v The Royal Hong Kong Golf Club [1997] HKLRD 219) as guidance:

“13. In determining an employment relationship…the following factors had to be considered:

(1) whether the alleged employer had control over the work of the alleged employee;

(2) whether the alleged employee supplied his own tools of work;(3) whether the alleged employee employed his own co-workers;(4) whether the alleged employee bore any financial risk, and if so, its nature and degree;

(5) whether the alleged employee earned a profit from his management of the work;

(6) whether the alleged employee bore any responsibility in finance and management, and if so, its nature and degree;

(7) whether the alleged employee could be rightly described as a member of the commercial organization of the alleged employer;

(8) whether the alleged employer was responsible for the insurance and tax of the alleged employee;

(9) whether the alleged employee had a business in the relevant field;

(10) personal views of both sides of the relationship; and

(11) whether the traditional structure and customs of the trade or profession would assist in the understanding of the relationship…”

[Translation]

The Applicant’s Case/Evidence

13.On the central issue of employment relationship with R, A has called three witnesses of fact, namely herself, Lee Ming Shan (李名山) (“Lee”) and Liu Ailan (劉愛蘭) (“Madam Liu”).

The Applicant’s witness statements

14.A’s evidence, as stated in her first and second witness statements dated 14 July 2023 and 22 September 2023 respectively, is as follows:

(1) She had been working as a plastering worker over the years, mainly as a daily paid worker for different contractors/bosses;

(2) She first knew R in around 2005 through a friend, and has since 2011 worked for R on and off in different renovation/decoration projects on 3 properties owned by R as a casual worker in plastering and painting works;

(3) She was able to identify the addresses of these 3 properties at Tong Mi Road, Fa Yuen Street and Kwai Fung Crescent respectively (which R refers to as the Mongkok, Prince Edward and Kwai Chung properties (“旺角物業”, “太子物業” and “葵涌物業”) in which she had worked previously for R. She was told by R that these properties were all leased out by him to tenants, hence he undertook renovation/refurbishment work in them between tenancies. She had therefore been engaged to work in these properties on and off during a period of about 10 years prior to the Accident;

(4) When R called A for work, they would usually at the same time agree on her daily wage. R usually paid her in cash at irregular intervals of 2 to 3 days, 1 week or 10 days, when he had cash with him;

(5) R provided A with all work tools and materials required for the work. She had no cost for the work nor bore any risks of loss;

(6) She was paid only her daily wage plus overtime work (when required) pay for her work, nothing else;

(7) In the course of working for R on a project, A would need to seek permission from R for taking leave or not returning to work. She could work for other employers if R told her in advance that she would not be required for work, e.g. when work materials were not available or other works were being undertaken so that she could not work on the walls. In other words, she only attended work upon R’s arrangements;

(8) She worked fixed hours from 9 am to 6 pm as required by R;

(9) She could not employ assistants and would not contract-out her work;

(10) She never had business registration and did not invest capital in her work, and she bore no business risks;

(11) In respect of the renovation project of the Flat in question, R telephoned A on the morning of 14 April 2021 and asked her to do plastering/painting works for his renovation project of the Flat/his residence. R told A that her daily wage would be $1,500. They then went out to meet for lunch that day;

(12) Before that A last met R the year before in 2020 when she helped R with some work at the Mongkok property in which termites were found;

(13) After lunch on 14 April 2021, R took A to the Flat to inspect/see the works required. A checked the wall condition and estimated that the wall works would take at least a month. She then did some initial work of tearing away the old wallpaper that afternoon (which she later recorded as half day’s work);

(14) After that R told A to commence working in the Flat after about 10 days on about 23 April 2021. After working in the Flat for a few days, there were periods when work materials were not available or other works being carried out so A could not carry out plastering works. It was R who decided and had control as to when A should go to work in the Flat;

[*Such evidence of A was given in reply to R’s evidence that A was an independent contractor who worked in different projects upon her own arrangements. To the dissatisfaction of R, A did not return to work in the Flat upon her own arrangements during May 2021 and caused delay in R’s renovation work in the Flat.]

(15) On 12 April 2021 and for a few days in early May 2021, A had worked for another contractor Mr Chan who claimed to be a nephew of R. Mr Chan first contacted A through R’s referral. A also worked for him at a daily wage of $1,500;

[*R on the other hand denies that he had ever introduced or referred A to work for his nephew, though he agrees that his nephew’s surname is Chan.]

(16) When working for R, A brought to work only her personal protective equipment including work clothes, shoes and face mask. Other work tools were provided by R. On 12 May 2021, R brought her before work to a shop in Tsuen Wan to purchase materials and tools such as paints, wall putty and glue, brushes, shovels and so on, all paid by R for A’s work;

(17) Over the years, A kept diaries of her work in which she marked down the dates and some details of her work as a record for calculation of her earnings afterwards. She has adduced in evidence a pocket diary of year 2021 (“Diary”);[1]

(18) For 12 April and 3-7 May 2021, A marked in the Diary “Boss Chan…work” (“陳老板…開工”) at “$2,000” or “$1,500”;[2]

(19) For 14 April 2021, she marked half day’s work for R in the Flat, stating also details of the address and daily wage of $1,500 (“25E 5座黃生表哥全灣景花園開工，$1,500一天，半天”);[3]

(20) Thereafter similar entries were made in the Diary on 23, 24 and 26 April, and then 12-15, 17-22, 24, 25, 28 and 29 May 2021,[4] i.e. a total of 17.5 days working for R in the Flat (until the date of the Accident on 29 May 2021);

(21) On 26 and 27 May 2021, A did not work in the Flat because she was told by R that new tiles were laid and they required time to dry;

[*This evidence is given by A in refuting R’s evidence[5] that A was an independent contractor who had attended to her own work in other projects, making R dissatisfied and causing delay in finishing her works in the Flat.]

(22) On 25 May 2021, A wrote in the Diary “received $25,000” (“收到$25,000元”).[6] She explains[7] that by that date she had worked for R for 15.5 days. Total wages should be $23,250 ($1,500 x 15.5). R paid her $25,000 on that day, which she recorded in the Diary;

(23) On the day of the Accident on 29 May 2021, she recorded in the Diary “working for R in the Flat” (“黃生灣景花園開工”), and “10 o’clock hand injury” (“10點扭傷手”);

(24) On 1 June 2021, A, accompanied by R, attended follow up treatment in the hospital for her injury. R gave her $15,000. The receipt of $15,000 is recorded in the Diary.[8] R did not say what the money was for; A did not know whether R meant to give the sum for her medical expenses or as compensation;

(25) On 5 June 2021, R visited A at her home. As she had worked for R for a total of 17.5 days up to the date of the Accident, her total wages should be $26,250 ($1,500 x 17.5), of which R had already paid her $25,000 previously (on 25 May 2021). Upon her request for payment of unpaid wages, R gave her a further $2,000. R wrote (as A’s right hand was injured) in her Diary “work wages all received on 5 June 2021” (“21.6.5 開工銀全收”);[9]

[*Such evidence is given by A in refuting R’s evidence contained in the latter’s witness statement.[10] Whilst agreeing on the 3 payments made to A in the total sum of $42,000 and the notes being written by him on 5 June 2021, R argues that the sums paid were for different purposes as stated in paragraph 23(11) hereinbelow.]

(26) Thereafter upon A’s request for compensation of $600,000 for her injuries sustained in the Accident, R refused to talk to A further or take her calls; and

(27) In around mid-June 2021, A, accompanied by a lady friend (Madam Liu), went to the Flat and submitted sick leave certificates to R. They noticed that the progress of the floor tiling works was far from being done, contrary to R’s evidence.

Lee’s witness statement

15.Lee’s witness statement dated 21 March 2024 was adduced in reply to R’s supplemental witness statement dated 21 February 2024. R relies on a furniture quotation (“Quotation”) enclosed in the Diary discovered during inspection to support his argument that A was an independent contractor working in different renovation/decoration projects.

16.Lee’s evidence is summarised as follows:

(1) Lee is a furniture contractor and an acquaintance of A for about 7 years;

(2) In around May 2021, A had asked Lee if he would work together with her in the Flat, at a daily wage of $1,500. Lee declined as he was then engaged in other projects;

(3) A took Lee to the Flat a few days later and they met a Mr Wong (R). They had an inspection and took measurements in the Flat. Thereafter Lee prepared the Quotation for making furniture and gave it to A, for her to submit to Mr Wong (R);

(4) Some time after that Lee heard that A had a work injury. No one followed up on the Quotation thereafter; and

(5) It is within Lee’s knowledge that A had all along been working for others as a worker at daily pay, not as a contractor. She never had her own business.

Madam Liu’s witness statement

17.Madam Liu states in her witness statement dated 20 May 2024 as follows:

(1) She had in around mid-June 2021 accompanied A to the Flat to submit sick leave certificates to the latter’s boss;

(2) A decoration worker came to open the door. She noticed that decoration work was in progress in the Flat. She saw a pile of floor panels stacked up to about 3 feet high in the living room; and

(3) A addressed the boss, a Mr Wong, inside the Flat. He refused to accept A’s sick leave certificates. A then left them on the pile of floor panels, and left with Madam Liu.

Testimony in court

18.In court, A upon cross-examination gave the following evidence:

(1) She first met and worked for R in the latter’s Mongkok property in around 2011 when she was taken/introduced to work for R by her clansman (“鄉里”) Ah Ko (“阿高”). She also worked as a daily paid plastering worker then. She worked together in R’s Mongkok property with Ah Ko and R who did mostly the dismantling plus some painting works;

(2) R was the one who first took A to a shop in Tsuen Wan and taught her in choosing plastering and painting materials. He paid for the purchase of all materials and small work tools. A was not required to pay for anything but only worked as told by R and received her daily wages as agreed;

(3) A would carry out duties and work in the Flat as assigned by R. She was an experienced plasterer who knew how to do the work; but as to the work duties and materials to use she would take work instructions from R who was there in the Flat to supervise her works everyday;

(4) A admits that she had an injury at work in April 2012 after which she was on sick leave for some time and received subsequently compensation in excess of $1 million. She had referred to this previous injury and compensation received when asking R to pay her compensation for the Accident;

(5) A denies however that she did not work for R ever since the previous accident in 2012 and until April 2021 (as alleged by R). She had resumed work after 1 year since around 2013, and had worked for R in his 3 properties during the 10 years from 2011 to 2020 on and off for at least 10 times (i.e. 10 small renovation projects);

(6) A was adamant that R had all along known well her experience and qualification in plastering and painting works. He had engaged her in such works on and off in his 3 properties. R treated her well and was nice. A addressed him as “cousin” (“表哥”);

(7) A denies ever having her own business as a contractor or that she had (as alleged by R) ever shown to R her name card under a company named “Yick Sing” (“億昇”). It was likely that R came to know about this company “Yick Sing” from A’s tax records disclosed in this action. A’s receipt of “subcontractor’s fee” from this company as shown in the tax record for year 2019/2020[11] was actually her wages working as a daily paid worker. She recalls that Chun Wo was the main contractor of that project in which she worked for a foreman named Ah Keung. She understands that some contractors and companies report their payments of wages to employees as subcontractors’ fees and do not pay MPF for the employees; and

(8) It would be impossible for her to work in her own contractor’s business given her low education level (“字都唔識”).

19.Lee gave evidence in court on his experience and qualifications in renovation and decoration works in different areas of making furniture, painting, metal works and aluminium windows.

20.He confirmed that the Quotation contains price quotes provided by him for making furniture after he took measurements and discussed with R in the Flat. He provided the information to A as he did not have the contacts of R. Making furniture was part of his business, not concerning A.

21.Madam Liu gave evidence consistent with her witness statement.

The Respondent’s Case/Evidence

22.R denies strenuously that A was his employee. His case is that he was merely a customer who engaged A’s service on a casual basis in carrying out plastering and painting works at R’s own residence, i.e. the Flat. He further denies that A had ever worked in his other 3 properties during the 10 years before the Accident.

23.R’s evidence on the central issue of employment as stated in his witness statements dated 2 August 2023 and 21 February 2024 can be summarised as follows:

(1) He was a businessman in watch and clock-making and had retired almost 20 years ago;

(2) He had no experience in renovation works. He did not and could not supervise A’s work (as alleged by A);

(3) He first came to know A through a renovation contractor Ah Ko (“阿高”) after he had purchased the Mongkok property in 2007. He engaged Ah Ko for the renovation works. A was an employee of Ah Ko who brought her to work. A was paid by Ah Ko for her work, not by R;

(4) Thereafter R had kept in contact with A as a friend. They met for meals (yum cha) occasionally, without any work relationship;

(5) R denies that he had ever during the period from 2011 to 2020 engaged A to work in any of his properties (as alleged by A). Other than the Flat which was his own residence, the other 3 Mongkok, Kwai Chung and Prince Edward properties were all leased out on long leases. He did not carry out any renovation works in these properties during that period, and it was not worthwhile to do so given the low rental value;

(6) R had started to consider/plan on major renovation works of the Flat in 2019. In March or April that year, he met A by chance in Mongkok and mentioned the plan to her. A was keen to get the job and showed R her name card under a company named “Yick Sing”. R had later put the renovation plan on hold as he had to arrange funds for the works. He had no contact with A thereafter;

(7) On 23 April 2021,[12] A telephoned R and they met for meal. R mentioned during lunch about the renovation in the Flat. A volunteered to take up the wall works. They went to the Flat after lunch for viewing. They agreed for A to renovate the walls (in 3-4 weeks) at a lump sum contract fee of $30,000 (exclusive of cost of materials);

(8) R denies ever taking A to purchase work tools and materials, as it is not his expertise nor within his experience;

(9) R did not provide A with work tools. He relied on A’s expertise to choose tools and paint materials for her works. He would reimburse A for the purchase of work tools and paint materials;

(10) A worked in accordance with her own schedule, and R had no control over her work or timetable. She could work for other contractors/bosses according to her own plans and arrangements. Indeed after A had commenced working in the Flat for a few days, she had after 26 April 2021 been engaged in other works for other contractors/employers and did not return to the Flat to work (without R’s approval). This had resulted in delays in renovating the Flat for R to move back in, and R having to stay in hotel for longer and paying extra hotel charges;[13] and

(11) R agrees that he had made payments of $25,000, $15,000 and $2,000 to A respectively on 25 May 2021, 1 June 2021 and 5 June 2021, but argues that they were for different purposes as follows:

(i) The $25,000 given to A on 25 May 2021 was for part-payment of the agreed contract fee of $30,000;

(ii) He gave A $15,000 on 1 June 2021 in the hospital in balance payment of the contract fee plus $10,000 loan to A out of sympathy as she was injured and could not work; and

(iii) The payment of $2,000 on 5 June 2021 was R’s further loan to A. R agrees that he had written the Chinese notes (“21.6.5 開工銀全收”) in the Diary on that day, but it was actually a loan. He had therefore loaned A $12,000 in total.[14]

24.In court upon cross-examination, R gave the following evidence different from that contained in his witness statements:

(1) He reiterates that he had not engaged A to work at all over the years other than when she was first brought by Ah Ko to work in the Mongkok property after he purchased it in 2007, not until April 2021 when he engaged her service for the renovation in the Flat. Despite they would meet occasionally for yum cha and chat casually during those 10 years, he never asked A and did not know about her occupation or work. He only came to know about her work experience (in plastering and painting works) when they met by chance in Mongkok in March or April 2019, when A, upon hearing R’s renovation plan of the Flat, showed him immediately her name card under the company name of “Yick Sing”;

(2) Much later on 23 April 2021, A called R and asked when he would commence renovation works in the Flat and whether he would engage her for the work;

(3) Whilst agreeing that his nephew’s surname is Chan, R denies that he had ever introduced or referred A to work for his nephew. He does not know whether A had worked for or how A had come to know his nephew;

(4) R initially denies that he had carried out any renovation works in his properties during the 10-year period from 2011 to 2021. Later during cross-examination upon being challenged and shown that the Mongkok and Prince Edward properties were leased out on short tenancies of 1-2 years,[15] R admitted that some cleaning works, and minor renovation works were carried out in these properties such as plastering, painting and renovating the toilets in between tenancies. He admitted that the Mongkok property was renovated into subdivided units (“劏房”), adding that it had to be renovated before renting out (“唔裝修點租出去？”). He also agreed that renovation works were carried out in the Kwai Chung property which was an office unit.

Analysis

25.Having perused all documentary evidence and considered the evidence of A and R, I am inclined to accept A’s case which is straightforward and on the whole consistent, as borne out by her Declaration dated 2 August 2021 given to the Labour Department when reporting the injury at work. She was not directly cross-examined on the matters stated therein.[16]

26.The evidence of the Diary adduced by A is contemporaneous evidence which in my view bears all the hallmarks of a daily paid casual worker engaged to work by different employers.

27.A’s evidence is on the whole consistent, reasonable and supported by details recorded in the Diary. Her evidence on work arrangements and the employment relationship with R is firm and unshaken upon cross-examination. I found her a frank and straightforward witness and accept her evidence.

28.A’s evidence on her usual work as a daily paid casual employee but not a contractor is corroborated by Lee, who I also found to be an honest and reliable witness. His evidence explains clearly how the Quotation had come about, and has validly challenged R’s argument that A was an independent contractor who prepared the Quotation for her own business.

29.The evidence that A had initially asked Lee to “work together in the Flat at a daily wage of $1,500” is neither here nor there – it would not make A an independent contractor or employer of Lee (as R seeks to argue). It was equally possible, which I so find, that A was merely trying to look for more manpower to work for R in the Flat when she herself was busy with other works during that period.

30.Much has been said and argued by R’s counsel Mr Ho that R had no experience nor qualification in renovation works hence he was not capable of and unlikely to be exercising control over A’s work as an employer.

31.This argument lacks legal basis. There is no such requirement in law that an employer would have to have certain experience or qualification in order to be able to exercise control over an employee’s work.

32.In my view, A’s evidence on her work arrangements of fixed hours in places and on works assigned and arranged by R, plus daily supervision and monitoring of work progress, clearly supports “control” by R over A’s work in his capacity as the employer. Other than R stating his bare denials, A was not cross-examined nor challenged on these matters.

33.In any event, R’s own evidence suggests that he has 3 properties for rental income of which he undertook repairs and renovation works, however minor, over the years. He was experienced enough to have engaged for the renovation works of the Flat two other contractors “Luen Fat” and “On King” (“聯發” and “安景”) for the respective electricity/piping and flooring/tiling works, apart from A who was engaged to do the wall works.

34.R entered into written contracts with the two contractors “Luen Fat”[17] and “On King”,[18] to whom he was required to and did pay deposits of $19,000 and $8,000 respectively upon signing of contracts.

35.R further testified during cross-examination that he had previously engaged these 2 contractors for the Mongkok subdivided units project. He found them good thus re-engaged them to work in the renovation project of the Flat. Such evidence backfires and discredits his evidence that he has no experience in renovation works, or that he had not carried out any renovation works in his 3 other properties during the 10 years prior to the Accident.

36.Despite R’s argument that A was another independent contractor engaged to do the wall works of the Flat, no contract was made nor deposit was paid in his engagement of A.

37.Considering such evidence in context with R’s evidence stated in his witness statement that “我不時會到該物業視察裝修的進度……協助清理裝修廢料和雜物……”,[19] and that he had after the Accident personally finished off the unfinished painting work left by A, I do not accept R’s submissions that he had no knowledge or experience at all in renovation works, or that he was only a customer who engaged A’s service. This is a matter going to credibility.

38.I also accept the submissions of A’s counsel that had A been engaged as a contractor for a lump sum contract fee of $30,000 as R submits, it would have been more reasonable for R to demand A to arrange for another worker to finish off the agreed project/wall works, rather than pay A in full her contract fee (plus loans) and finish off the work himself.

39.There are other aspects of R’s evidence which I find unreasonable and not credible.

40.R was keen to dissociate himself from A: He claims that he did not have knowledge, despite the 10 years of acquaintance with A, of A’s occupation or work experience as a plastering/painting worker. He denies that he had ever engaged A to work in his other 3 properties in Mongkok, Prince Edward and Kwai Chung nor referred A to work for his nephew Mr Chan.

41.I find it unreasonable that R would meet A occasionally socially for meals over a period of 10 years yet did not know anything about A’s occupation at all, particularly given his own evidence that he first came to know A when she was brought by Ah Ko to do plastering works in the renovation of his Mongkok property. A’s evidence, not challenged by R, is that R, A and Ah Ko had worked together at that time.

42.R’s evidence is that he first mentioned to A his plan to renovate the Flat when they last met by chance in March or April 2019. He did not meet A thereafter until April 2021.

43.I accept Mr Szeto’s submission that it would be wholly unreasonable for A to call R suddenly out of the blue in April 2021, some 2 years after they last met back in March or April 2019, and asked when he would commence renovation works in the Flat. It would be wholly unreasonable for A to expect R would have put the renovation plan on hold for 2 years.

44.R could not give any reason or explanation as to how A could come to know the addresses of his 3 other properties and his nephew Mr Chan. A’s explanations that she was engaged by R to work in these properties over the years and the referral by R to work for Mr Chan are reasonable and credible.

45.I accept A’s evidence that R had all along known of A’s work experience and had engaged her for the renovation works of his 3 other properties over the years.

46.R’s explanation of the payments made to A on 1 and 5 June 2021 being his loans to A out of sympathy is wholly unreasonable, and is inconsistent with his own written notes in the Diary of “work wages all received” (“開工銀全收”). A’s evidence regarding the 3 payments made by R is on the other hand reasonable and credible.

47.R’s evidence of nil renovation works in his 3 properties other than the Flat because they were leased out on long term tenancies is contradicted by the evidence of short-term tenancies of 1 to 2 years.[20] He had in light of such evidence of short-term tenancies changed his evidence later during cross-examination that cleaning and minor repairs and renovation had in fact taken place in these 3 properties. He later gave further evidence during cross-examination that he had previously engaged the other 2 contractors Luen Fat and On King for the renovation works. The engagement of the 2 contractors indicates further in my view that these should not be minor works only.

48.R argues that A was not his employee but was free to work elsewhere. His evidence that A had due to her absence from work (when working in other projects) caused delay and resulted in him paying extra hotel charges (see f/n 13) is untruthful. Hotel booking evidence shows that R had on 19 May 2021 already extended booking of the hotel up to 14 July 2021.

49.The evidence shows that immediately after the Accident, R had taken a responsible attitude of accompanying A to medical treatment and giving her money, be it her outstanding wages or compensation, but not loans. It was only after A made requests for compensation much higher than what R had expected that he backed out and they fell out.

50.As Mr Szeto points out, there is no evidence, as agreed by R, that he had ever denied being A’s employer during their discussions on the subject of payment/compensation subsequent to the Accident.

51.I have also considered the parties’ submissions and other evidence regarding R buying lunch boxes for A at work, both A and R coincidentally referring to a termite incident in one of R’s other properties and Madam Liu’s observation of progress of works in the Flat after the Accident in around mid-June 2021. These are in my view peripheral matters not determinative of the issue of employment.

52.Having considered all witnesses’ and documentary evidence, on the central issue of employment, where the evidence of A and R differs, I accept A’s version.

53.I should adopt an overall evaluative-impressionistic approach, referencing to the employment indicia laid down in Poon Chau Nam (supra) and Tse Lam (supra) in deciding whether an employment relationship exists when determining employees’ compensation claims under the ECO.

54.On the overall evidence, I find it reasonable to conclude on a balance of probabilities that A was at the time of the Accident working in the Flat as a daily paid casual worker, and an employee under the arrangements, supervision and control of R.

Conclusion

55.A was an employee of R at the time of the Accident. She suffered injuries arising out of and in the course of her employment with R, who is liable to pay employees’ compensation under section 5(1) of the ECO.

QUANTUM

56.A claims employees’ compensation under sections 9, 10 and 10A of the ECO.

57.There is no dispute that A was aged 58 at the time of the Accident. The appropriate multiplier of 48 months for assessing section 9 compensation is agreed.

58.At the closing submissions stage and after trial, counsel for the parties confirmed their agreement to adopt, for assessment of compensation, the following: permanent loss of earning capacity of 2%, sick leave of 585 days, $21,375 (calculated based on the Diary, not including meal allowance) as A’s average monthly earnings and $1,245 being medical expenses reimbursable under section 10A.

59.In respect of section 10 compensation, I note the evidence that R had paid A three payments totalling $42,000 on 25 May 2021, and 1 and 5 June 2021.

60.A’s evidence is that she does not know, and the evidence of both A and R is that there was no discussion of, the nature of or reason for the payment of $15,000 on 1 June 2021 (be it “compensation or medical expenses”). As for the payment of $2,000 on 5 June 2021, I accept A’s evidence that it was made by R upon A’s request for unpaid wages (which should be $1,250 according to A’s calculations).

61.R’s evidence is that the surplus was his loan to A out of sympathy, of which he had no intention of seeking repayment, hence he did not write down or specify “loan” in the Diary on 5 June 2021.

62.The evidence is thus not clear whether the surplus payment of $15,750 ($42,000 - $26,250) over A’s wages of $26,250 ($1,500 x 17.5 days) was sick leave or gratuitous payment, though I am inclined to the latter on R’s own admission.

63.On the evidence, I do not consider it appropriate to give credit for the surplus payment of $15,750, or make a deduction from section 10 compensation as proposed by R’s counsel in his closing submissions.

Computation of Compensation

64.I therefore assess employees’ compensation under the ECO as follows:

Section 9: $21,375 x 48 x 2%	$20,520
Section 10: $21,375 x 585/30 x 4/5	$333,450
Section 10A: Medical expenses (agreed)	$1,245
	________
Total:	$355,215

65.Total employees’ compensation is thus $355,215.

Interest

66.Interest is awarded on the compensation adjudged at half judgment rate from the date of the Accident to the date of judgment, and thereafter at full judgment rate until payment.

Costs

67.Costs should follow the event. I make the following order nisi on costs:

(1) A do have costs of the action, payable by R, with certificate for counsel, to be taxed if not agreed; and

(2) A’s own costs be taxed in accordance with the Legal Aid Regulations.

68.In the absence of application from the parties to vary this costs order within 14 days, the costs order nisi will become absolute.

69.Lastly, I thank counsel for their assistance.

Mr Patrick Szeto, instructed by Or & Lau, assigned by the Director of Legal Aid, for the Applicant

Mr Leon Ho, instructed by Robertsons, for the Respondent