Tsang Siu Hong v. Kong Hoi for t/a Wing Hing Auto Engineering Service and Another

DCEC000529/1999

DCEC529/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 529 OF 1999

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IN THE MATTER OF AN APPLICATION BETWEEN

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Coram: Deputy District Judge Andrew Chan

Date of Hearing: 19, 22, 23, 30 April 2002

Date of Handing Down Judgment: 17 May 2002

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JUDGMENT

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This is an application made by the Applicant Tsang Siu Hong under Section 9, 10, and 10A of the Employee Compensation Ordinance Cap. 282 (the Ordinance) for compensation. The Applicant alleged that whilst working for the 1st Respondent as a welder and in the course of employment he was injured accidentally by the falling of metal object on his head. The Respondents are husband and wife. They denied, inter alia, (i) their knowledge of the Applicant; (ii) the Applicant was one of their employees; (iii) the occurrence of the above mentioned accident in their business premises; and (iv) their knowledge of the accident.

The Applicant's Case

2.The Applicant, on 21st December 1997, entered into Hong Kong from China as a visitor on a "two-way" permit. He was not allowed to work in Hong Kong. Upon his arrival, through the introduction of his cousin Tsang Kam Ha, a job interview was arranged the next day and that the Applicant took up employment with the 1st Respondent on 23rd December 1997. He worked as a welder at the 1st Respondent's garage, Wing Hing Auto Engineering Service everyday from 9 a.m. to 7 p.m. until the accident on 28th February 1998. He was paid HK$150 per day plus lunch and lodging provided by the 1st Respondent. He lived in a converted container at the garage with another employee Kong Wing Ching.

3.On 28th February 1998, while the Applicant was carrying a welding machine, he was hit by a falling iron rod carried by the 1st Respondent on his head accidentally. The Applicant lost consciousness. By the time he woke up, he was in Tuen Mun Hospital. He sustained acute epidural haematoma and craniotomy was performed. He was subsequently discharged and returned to China on 14th and 30th March 1999 respectively.

4.After his return to China, the Applicant continues to suffer from mild headache. Both Chinese and western medical treatments have been sought but to no avail. Although he tried to resume working at his old factory he was unable to due to constant headache.

5.Tsang Kam Ha was called to testify on the Applicant's behalf. She was the cousin of the Applicant. On 22nd December 1998, after the arrival of the Applicant, she telephoned the 1st Respondent as she thought the 1st Respondent might need some workers in his garage. She had known the 1st Respondent through the introduction of friends previously. During the telephone conversation she was asked by the 1st Respondent if the Applicant could weld. The 1st Respondent was informed about the Applicant's immigration status further in that conversation. On the evening of 22nd December 1998 she and the Applicant arrived at the 1st Respondent's garage for an interview where terms of the employment were agreed. The Applicant started working on the next day and had been working there till the date of accident. She had on occasions delivered some daily necessities to the garage for the Applicant to prepare his evening meals. After learning the accident on 28th February 1999, she returned to the garage for the Applicant's travel document as required by hospital. Thereafter she travelled to hospital with her relatives namely Tsang Mei Tai, Tsang Hiu Lok on board of the 1st Respondent's car.

6.Inside Pok Oi Hospital, Tsang Kam Ha and relatives were told to go to Yuen Long Police Station where the Applicant's travel document was shown for registration. On their arrival at Yuen Long Police Station, they were further told that the Applicant had been sent to Tuen Mun Hospital. The 1st Respondent was requested by Tsang Kam Ha to drive them to Tuen Mun Hospital. On their way to the hospital, they were told by the 1st Respondent not to disclose to the police the truth about how the accident occurred.

7.When Tsang Kam Ha arrived at Tuen Mun Hopsital, she was enquired by police as to the cause of injury. Since the Applicant was not in a position to speak, Tsang Kam Ha simply told the police the way she was taught by the 1st Respondent, namely the Applicant was struck by an iron rod due to gusty wind.

8.On 9th March 1999, Tsang Kam Ha requested the 1st Respondent to settle the hospital expenses as he previously agreed to. The 1st Respondent was further told that by the time the Applicant would be discharged on 14th March, the hospital expenses would be well over HK$40,000. Two days later, the 1st Respondent refused to pay any sum more than HK$3,000.

9.Tsang Mei Tai was the Applicant's aunt. On 28th February 1999 she was informed that the Applicant was in Pok Oi Hospital suffering from head injury. At 6 p.m., she and Tsang Kam Ha and Tsang Hiu Lok went to Pok Oi Hospital. Her evidence followed which I shall not repeat was similar to Tsang Kam Ha. Further she was asked by the 1st Respondent to bring flowers to the Applicant during his stay in hospital.

10.Tsang Hiu Lok is the Applicant's elder brother. Whilst the Applicant was working at the 1st Respondent's garage, he paid visits there twice. He was informed about the accident on 28th February 1999 and likewise his evidence followed was similar to Tsang Kam Ha.

11.Ronald Yu was a private detective employed by the Applicant's solicitor to investigate the identity of the proprietor of Wing Hing Auto Engineering Service. On 30th May 2001, Ronald Yu visited the garage. He was told by employees that the 1st Respondent was the boss. Subsequently he met the 1st Respondent and was told by the 1st Respondent that he was indeed the principal of Wing Hing Auto Engineering Service.

12.Dr. Edmond Woo examined the Applicant on 18th September 2000. After examination, he found the Applicant suffered from 10% of loss of earning capacity. Further Dr Yu stated that with the Applicant's injury, he should have recovered sufficiently by February 1999 (i.e. a year after the accident) to be able to resume some forms of employment.

The Respondents' Case

13.The 1st and 2nd Respondents both denied running a car repairing business at the time of the accident and their knowledge of the Applicant. They further claimed that they had never met or heard of the Applicant or his relatives prior to this litigation. Further the Applicant was never taken on as employee of their business. Employees were only first recruited in the year of 2000.

14.Both the 1st and 2nd Respondents further denied any knowledge concerning the accident that took place on 28th February 1998. In short, the evidence of the Applicant and his relatives were false and a result of fabrication and concoction.

Assessment of Evidence

15.Having heard all the evidence, I am satisfied on the balance of probability that the Applicant and his witnesses were telling the truth. I reject both the 1st and 2nd Respondents' evidence. I found both the 1st and 2nd Respondents were evasive and untruthful witnesses.

16.I am satisfied that the Applicant did enter into a contract of service with the 1st Respondent on 23rd December 1997 and that during his course of employment on 28th February 1998, he sustained injuries as described by him.

17.I am not impressed and convinced by the Respondents' assertions that the Applicant and his relatives had fabricated evidence in order to obtain compensation. The vivid details given by the Applicant and Tsang Kam Ha indicated that they had been to the garage and conversed with the 1st Respondent on many occasions. And that what they had told the court were true.

18.Shortly before the trial, the Respondents' solicitor disclosed a letter from the police dated May 2001 briefly stating the incident that had taken place on 28th February 1998. No explanation was given why the letter was not disclosed earlier. In this letter, it was stated that the Applicant was hit by an iron plate due to heavy wind whilst walking past Chung Uk Tsuen and then he was rushed to a private doctor Tsang Kuen Pong. It was further stated that the Applicant was conveyed to Pok Oi Hospital and subsequently onto Tuen Mun Hospital for medical treatment. Replying on the content of that letter for cross examination, it was submitted on behalf of the Respondents that the Applicant had given inconsistent evidence during different stages of the trial and that he was not a reliable witness, in particular, it was pointed out that when the Applicant was cross-examined on whether he did tell the police the account of the accident, he first denied then changed to lack of recollection.

19.I do not agree. The Applicant could suffer from post traumatic amnesia according to Dr. Woo. He might not be able to recall those events at hospitals accurately. I accept Tsang Kam Ha's evidence that the account given in the police notebook did not come from the Applicant's mouth. This is supported by the fact that it was Tsang Kam Ha's signature rather than the Applicant's being affixed onto the notebook.

20.I do not accept the allegation put forward by the Respondents that the Applicant and his relatives were fabricating evidence against them. It is absolutely absurd to suggest that the Applicant would pick on two complete strangers for compensation. Although the Applicant had no experience in vehicular repair, he could weld. I have the opportunity in watching the video taken during Ronald Yu's visit, it can be seen clearly that welding process did take place in the garage. It is beyond dispute that welding may form part of the vehicle repairing process. As such the Applicant cannot be regarded as a non- skilled worker. Further it can be seen from the 1st Respondent's name card that welding is part of Wing Hing Auto Engineering Service's business. The suggestion that the 1st Respondent would not employ non-skilled worker could be refuted. That also explains why the Applicant instead of his elder brother was able to secure a job.

21.On the other hand, I reject the two Respondents' evidence. Both were evasive and seemed to suffer from lapse of memory. Both respondents denied that they were in vehicular repair business not until 2000. This cannot be right. If one cares to look at the business registration application, one can clearly see motor repairing is described as the nature of business and that the name under which the business is carried on is "Wing Hing Auto Engineering Service 永興汽車維修工程部". It would be strange for the business not described as sale and purchase of used car or vehicular insurance services if these were indeed the business at the time.

22.Comparing the two different name cards given by the 1st Respondent at different times and the name card of the 2nd Respondent, it can be seen clearly that the 1st and 2nd Respondent did have different roles to play in this business, namely the 1st Respondent mainly responsible for vehicle repair whereas the 2nd Respondent responsible for the sale of used car and insurance. This is consistent with what the Applicant said that he had hardly seen the presence of the 2nd Respondent.

23.The 1st Respondent in his evidence claimed that he had never worked in motor repairing business not until 3 years ago i.e. 1999. And that he had no formal qualification in motor repairing. The 2nd Respondent in her evidence likewise stated that she did not possess any motor repairing skill. That would mean the 2nd Respondent without the aid of the 1st Respondent started up a business in 1992 knowing nothing about motor repair. This is simply unbelievable.

24.According to the undisputed evidence of Ronald Yu, he was given a quote by the 1st Respondent for repairing his vehicle. It would be incredible that the 1st Respondent who had no previous experience except driving was able to pick up such motor repairing skill in a matter of 1 to 2 years and was in a position to quote repairing costs.

25.According to the evidence of the 2nd Respondent, she had no idea what the 1st Respondent did for a living between 1992 and 2000 and that the 1st Respondent was employed as an odd job worker from 2000. This is simply unbelievable given the relationship between the Respondents. It was clear from the video that the 1st Respondent sat in one of the converted container office and discussed business with Ronald Yu. He clearly did not behave as an odd job worker. The 2nd Respondent when cross-examined on a worker named Kong Wing Ching who was working with the Applicant in 1998, initially admitted there was such an employee. However, after lunch adjournment, the 2nd Respondent on her own volition, wished to clarify that Kwong was only employed in 2000 for 2 to 3 days. It seems strange that the Applicant could have known the existence of such employee well back in 1999.

26.In deciding this application, I am also aware that the contract of service was one of unlawful or illegal. However, having regard to all the circumstances, in particular, the awareness of the Applicant's immigration status by the 1st Respondent, I do not see why I should not exercise my discretion in dealing with the matter as if the Applicant had at the time been a person working under a valid contract of service.

27.In view of the above, I am satisfied that the Applicant did work for the 1st Respondent between 1998 and 1999. He sustained head injuries during his course of employment at the Respondents garage.

Quantum

28.The Applicant stated in his witness statement which was adopted as part of his testimony in court that he worked everyday from the 23rd December to the date of the accident. I am required by Section 11 of the Ordinance to give the most favourable calculation. As such, the Applicant's monthly earning per month is as follows:

HK$150 x 365/12 = HK$4,562.50

29.I am also required by Section 3 of the Ordinance to consider other benefit which is capable of being estimated in money as part of the Applicant's earning. In this respect the Applicant enjoyed free lunch and accommodation. There is no evidence from any of the witnesses as how much in monetary term these two benefits amount to. It was suggested on behalf of the Applicant that the lunch could be estimated at HK$20 and the lodging at HK$50 per day. For the former of HK$20, I think it is not unreasonable. For the latter, it is up to anyone's guess. However it seems to me that it would be on the high side if the free lunch and lodging amount to approximately 1/2 of his daily wages. It seems to me, since the costs of lodging is higher than lunch, an estimate of $30 attributed to lodging would not be regarded as excessive. A total of HK$50 a day, amounting to 1/3 of his daily wages would be reasonable. This additional benefit per month would be HK$50 x 365/12 = HK$1,520.80. Therefore the total monthly earning would be HK$4,562.50 + HK$1,520.80 = HK$6,083.30.

30.Since the Applicant's loss of earning capacity was estimated by Dr. Woo to be 10%, as such compensation under Section 9 of the Ordinance is calculated as follows :-

HK$6,083.30 x 96 x 10% = HK$58,399.70

31.In his report, Dr. Woo opines that one year would be a reasonable period for the Applicant to resume some form of employment, as such compensation under Section 10 of the Ordinance is calculated as follows :-

HK$6,083.30 x 4/5 x 12 = HK$58,399.70

32.The Applicant also spent HK$2,000 on medical expenses. Therefore in total, the Applicant will receive HK$118,799.40 compensation under the Ordinance. The 1st Respondent held himself out as the principal of the business during the job interview with the Applicant in 1997 and business negotiation with Ronald Yu in 2001. Clearly the business has been run both by the 1st Respondent and the 2nd Respondent jointly albeit each is responsible for a different type of business as stated in paragraph 22 above. As such both the 1st and 2nd Respondents are jointly and severally liable to pay the said compensation. The description stated in the business registration application is simply one indication, but not conclusive.

33.In addition, the Applicant is entitled to interest at 4.07% p.a. from the date of accident to the date of handing down judgment and thereafter at judgment rate. Further I make an Order Nisi that Respondents will pay the Applicant costs of this action to be taxed if not agreed. The Applicant's costs will be taxed in accordance with legal aid regulations.

Representation:

Mr. S. Cleves of Miller Peart for the Applicant

Mr. Louie Chan instructed by M/s Ko & Chow for the 1st and 2nd Respondent