Hui To Ying v. Sun Kwong Ming and Another

DCEC 1759/2021

[2025] HKDC 1790

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1759 OF 2021

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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Introduction

1.The applicant was injured in the course of work on 3 July 2020 at Flat B, 23^rd Floor, Mayland Court, Nos 1-7 Shelter Street, Causeway Bay, Hong Kong (“the flat”).

2.By these proceedings, the applicant claims compensations under ss 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”).

3.The 1^st respondent did not appear in these proceedings and the trial.

4.By the Order of Deputy District Judge Alexsander Wong dated 24 April 2024, leave was given to the Employees Compensation Assistance Fund Board to join as the 2^nd respondent.

5.The only issue on liability is whether the applicant was an employee of the 1^st respondent at the time of the accident.

Absence of the 1^st respondent

6.Service of the application on the 1^st respondent was effected pursuant to the Order of Her Honour Judge Levy dated 13 October 2023.

7.The 1^st respondent did not take any step in these proceedings.

8.The applicant’s solicitors did send the Order of Her Honour Judge Phillis Loh dated 8 November 2024 (fixing the dates of the present trial) on the 1^st respondent pursuant to the Order for substituted service of Deputy District Judge Patrick Siu dated 4 June 2025.

9.I am satisfied that the 1^st respondent has had due notice of these proceedings and the trial.

Whether the applicant was the employee of the 1^st respondent

10.According to the applicant, he worked as a renovation worker since 2003. His spectrum of works includes demolition, installation of doors, water pipe works, electrical works, carpentry works and ceiling works.

11.He began working for the 1^st respondent since March 2017. His daily wages were increased twice from $1,200 to $1,600. When he was working for the 1^st respondent, he was not allowed to employ any assistant, nor would he employ substitute worker for the 1^st respondent. The works he did were assigned and supervised by the 1^st respondent. The tools and materials were provided by the 1^st respondent. If he were to buy materials for the 1^st respondent, he would be reimbursed by the 1^st respondent. His working hours were from 9 am to 6 pm. He was not required to work on Sundays and public holidays. He was not required to invest any money. He has nothing to do with the profit or loss of the work projects. The 1^st respondent never shared any profits with him.

12.In mid 2019, the applicant referred his friend, Mr Lam Yick Kiu (“Mr Lam”), to the 1^st respondent for the renovation of his factory. The costs of the project were close to $1,000,000. The 1^st respondent gave him $50,000 as introduction fee.

13.Apart from working for the 1^st respondent, the applicant also worked for other contractors. However, he would give priority to the 1^st respondent.

14.In April 2020, he was employed by the 1^st respondent to work on the renovation works of a flat in Tsing Yi. By the end of June 2020, the 1^st respondent assigned him to work in a residential flat in Causeway Bay (ie the flat).

15.In the morning of 3 July 2020, the 1^st respondent instructed him to go to the flat in Tsing Yi to pack all the tools and moved them to the flat. Starting from 10 to 11 am on the same day, the applicant together with the 1^st respondent did the demolition works in the flat.

16.At about 4 pm, when they were dismantling an aluminum window frame of the living room, the window frame dropped on the applicant’s right hand and he was injured as a result.

17.Mr Gary Chung, Counsel for the 2^nd respondent, in discharging of his duties, highlighted the following aspects in an attempt to persuade this court that the applicant was not the employee of the 1^st respondent.

Refusal to work

18.Mr Chung referred to the texts/WeChat communication between the applicant and the 1^st respondent on 15 August 2017, 21 October 2017, 16 June 2018, 22 June 2018 and 3 July 2018 in which the applicant refused the 1^st respondent’s request to work.

Time to work

19.Mr Chung referred to the texts/WeChat communication between the applicant and the 1^st respondent on 23 October 2017, 4 April 2018 and 22 June 2018 in which the applicant could not work for the whole day.

Work method

20.Mr Chung referred to the texts/WeChat communication between the applicant and the 1^st respondent on 31 October 2017, 2 November 2017, 22 May 2018, 21 December 2018, 27 December 2018, 2 January 2019, 4 April 2019, 28 May 2019 and 5 July 2019 in which the applicant held a different opinion on the standard of works and the way to do certain works.

Tools

21.Mr Chung pointed out that the applicant needed to bring along certain tools.

Profiting

22.Mr Chung is referring to the $50,000 the applicant received from the 1^st respondent for the factory renovation project of Mr Lam.

Applicant running business

23.Mr Chung is referring to the applicant using his name and address to register a business under the name of Chuk Kwan Lok (transliteration of 足君樂).

Miscellaneous

24.Mr Chung also asked this court to take into consideration the following matters:

(a) that the 1^st respondent did not ask for the applicant’s identity card when he started to work;

(b) that the 1^st respondent had retained 5 days’ wages of the applicant; and

(c) the missing of WeChat record between 13 June 2020 and 3 July 2020. Mr Chung suggested that the applicant has something to hide.

25.Notwithstanding Mr Chung’s tenacious argument, I am convinced that the applicant was an employee rather than an independent contractor of the 1^st respondent.

26.In coming to the conclusion, I bear in mind the guideline and indicia of employment propounded by the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156.

27.First, it is not disputed that the applicant was paid by the days of his work. Thus, regardless of the profit or loss of the project he was working at, his income remained the same. For the same reason, the applicant would not benefit from sound management in the performance of his task. It also leaves no room for him to hire his helpers. Indeed, it is not the suggestion of the 2^nd respondent that the applicant had hired any helpers.

28.Secondly, the applicant seems to be working at the direction of the 1^st respondent. The 1^st respondent did from time to time inform the applicant where he would be required to work. He had to tell the 1^st respondent whether he was available and if not, to give a reason for his unavailability. The WeChat conversation referred to by Mr Chung under paragraph 18 above are good examples of those instances. Furthermore, the applicant was under an obligation to explain to the 1^st respondent why he was absent from or late for work. The WeChat conversation referred to by Mr Chung under paragraph 19 above are good examples of those instances.

29.To my mind, as an experienced renovation worker, the applicant is well-qualified to give either the 1^st respondent and the house owners his opinion on the standard of works and the ways to do certain kind of works. The WeChat conversation referred to by Mr Chung under paragraph 20 above are good examples of those instances.

30.As a side note, it is not uncommon for experienced renovation workers to work with their personal hand tools. It is not surprising that the applicant is no exception.

31.Mr Chung placed much emphasis on the $50,000 received by the applicant on account of the factory renovation project of Mr Lam. Mr Chung submitted that it was “a profit made out from R1’s renovation project of Lam”.

32.The issue under consideration is whether the applicant is an employee or an independent contractor of the 1^st respondent, not whether he was a partner of the 1^st respondent’s business.

33.There is little doubt that the $50,000 the 1^st respondent paid to the applicant was part of the money he received from the factory renovation project because the project was a referral from the applicant. That said, it does not necessarily follow that it was a sharing of profits between the two of them.

34.It is not clear that how much, if at all, the 1^st respondent had made by way of profit. On the other hand, it cannot be ruled out that he in fact suffered a loss.

35.As the money was paid to the applicant anyway, I am inclined to think that it was treated by the 1^st respondent as an incentive (or introduction fee in common parlance) and was therefore part of his costs in the project.

36.In my view, the receipt of an introduction fee from the 1^st respondent does not turn the applicant to be an independent contractor nor a partner of the 1^st respondent’s business.

37.Mr Chung also made submission on the fact that the applicant was the sole proprietor of Chuk Kwan Lok.

38.The applicant explained that it was in fact the business of his friend, Madam Tang Sau Man, who is the wife of Mr Lam. Madam Tang testified that she asked the applicant to hold out as the sole proprietor because as a woman, she did not feel it right to be known as operating a foot massage business. As Mr Lam is a businessman with reputation, he could not be the proprietor either. Therefore, she sought the help from the applicant.

39.I see nothing incredible about the evidence of the applicant and Madam Tang and I accept their evidence in this respect. In any event, whether or not the applicant was operating a separate business has nothing to do with his relationship with the 1^st respondent.

40.Quite contrary to Mr Chung’s submission, with due respect, I take the view the retention of 5 days’ wages tends to show that the applicant was the 1^st respondent’s employee as such arrangement would serve to motivate the applicant to be more obedient to the 1^st respondent.

41.Lastly, I do not think the missing of WeChat record can in any way assist the 2^nd respondent’s case.

43.In my view, the manner in which the demolition works were performed on the day of the accident is indicative of the relationship between the 1^st respondent and the applicant.

44.It is not in dispute that on the day of the accident, the applicant and the 1^st respondent were doing the demolition works of the flat together.

This would not happen if the 1^st respondent had subcontracted the demolition or even the renovation works to the applicant.

45.As the applicant was paid for each day of work at a fixed rate of $1,600, he was more probably than not working under the direction of the 1^st respondent bearing in mind it was the 1^st respondent who paid him. Also, there is no room for the applicant to profit from sound management in the performance of his task. The applicant was not hiring his own helper in the performance of his task.

46.That being the case, to say that the applicant was an independent contractor of the 1^st respondent simply cannot stand. I find as a fact that at the time of the accident, the applicant was employed by the 1^st respondent to work in the flat.

Section 9

47.By a Certificate of Review of Assessment dated 26 May 2022 (“Form 9”), the applicant’s loss of earning capacity permanently caused by the injury was assessed under review at 2%. Both the applicant and the 2^nd respondent appealed against the said assessment.

48.At the beginning of the trial, Mr Patrick Szeto, counsel for the applicant and Mr Chung came to an agreement of 2.5%. I see no reason not to allow the appeal to that extent.

49.Both Mr Szeto and Mr Chung also came to an agreement that the daily wages of the applicant was $1,600 and that the applicant worked for 22 days a month.

50.The applicant was born on 25 March 1974 and was aged 46 at the time of the accident. Under s 7(1)(b) of the Ordinance, the multiplier is 72.

51.It is common ground that the monthly earnings of the applicant of $35,200 ($1,600 x 22 days) exceeded the statutory maximum of $30,530 under the 6^th Schedule of the Ordinance.

52.Accordingly, it is agreed that the compensation under s 9 is $54,954 ($30,530 x 72 x 2.5%).

Section 10

53.The applicant is claiming 957 days of sick leave until 15 July 2023.

54.Mr Chung submitted that the applicant is only entitled to claim a maximum 36 months by virtue of s 10(5) of the Ordinance, that is to say, 944 days.

55.S 10(5) of the Ordinance reads:

“(5) An employee who has received periodical payments under this section for a period of 24 months from the date of the commencement of the temporary incapacity or for such further period being not more than 12 months as the Court may allow in any particular case shall no longer be entitled to periodical payments under this section but shall be deemed to have suffered permanent incapacity and the provisions of section 7 or 9, as the case may be, shall apply to the employee.”

56.Mr Szeto submitted that the calculation should be on the basis of the number of days of sick leave, not on the basis of the number of calendar months, citing no authorities in support.

57.To my mind, if it were the intention of the legislation to base the calculation on the number of days, it would have expressly said so. With respect, Mr Szeto’s submission is flawed by the clear wordings of the section. I accept Mr Chung’s submission and hold that the period of temporary incapacity ended on 2 July 2023, ie 36 months from the 1^st day of the applicant’s sick leave. Therefore, the applicant is entitled to claim 944 days of sick leave.

58.Accordingly, the compensation under s 10 is $886,101 ($35,200 x 944/30 x 4/5).

Section 10A

59.Mr Chung agreed to the compensation under s 10A in the sum of $7,530 and I so allow.

Advance payment

60.There is no dispute that the applicant has received advance payment in the sum of $11,240.

Conclusion and Order

61.In the result, the applicant is entitled to compensation in the sum of $937,345 ($54,954 + $886,101 + $7,530 - $11,240).

Interest

62.The applicant is entitled to interest at half judgment rate from the date of accident (ie 3 July 2020) to the date of judgment and thereafter at judgment rate until the date of payment.

Costs

63.At the invitation of Mr Chung, I make the following costs order nisi that:

(a) the 1^st respondent shall pay the applicant the costs of these proceedings with certificate for counsel, to be taxed if not agreed; and

(b) there be no order as to costs between the applicant and the 2^nd respondent.

64.In the absence of any application by summons for variation within 14 days from the date of this judgment, the costs order nisi shall become absolute.

65.The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

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

Mr Gary Chung, instructed by Cheng, Yeung & Co, for the 2^nd respondent

The 1^st respondent was not represented and did not appear