Read the full judgment text of FACV 000012/2001 on BabelCite. This FACV judgment was delivered on 14 March 2002 before Bokhary PJ, Chan PJ, Ribeiro PJ, Mortimer NPJ, Hoffmann NPJ.
Civil law – employees' compensation – employee or independent contractor – primary fact finding – demolition site accident – fall from corrugated asbestos sheet canopy – welder sub-sub-contractor – alleged abandonment of sub-sub-contract – engagement as employee – appellate review of trial judge's credibility findings – when Court of Appeal may disturb findings of primary fact – deference to trial judge who received evidence at first-hand – whether Court of Appeal's reasons for reversal were valid – whether final appellate court may affirm Court of Appeal on grounds not relied on by it – principal contractor liability under s.24(1) Employees' Compensation Ordinance – two statutory declarations to factory inspector – contemporaneous note with ATM printout – demeanour evidence – Court of Final Appeal Ordinance (Cap 484) s.22(1)(a). Held, allowing the appeal, that the Court of Appeal should intervene to disturb a trial judge's primary credibility-based finding of fact only if satisfied that the trial judge's conclusion is plainly wrong; if not so satisfied, it should defer to the trial judge even if in some doubt as to correctness, because specific findings of fact are inherently an incomplete statement of the impression made on the trial judge, who had the advantage of receiving the evidence at first-hand (Benmax v Austin Motor Co Ltd; Piglowska v Piglowski applied). Held, further, that the Court of Appeal's three principal reasons for reversing the trial judge – (i) a note with an ATM printout said to show Mr Ting had been a sub-contractor on a prior occasion, (ii) Mr Ting's two statutory declarations and the factory inspector's testimony, and (iii) alleged material discrepancies in Mr Kam's testimony – were each flawed: the trial judge had not overlooked Mr Ting's evidence explaining the bonus paid by Pang; the factory inspector had concentrated on the cause of the accident and the trial judge was entitled to accept Mr Ting's testimony that he had raised uncertainty over his employment status; and the Court of Appeal misread the evidence as to whether Mr Ting's conversation with Pang was by telephone. Held, finally, that this Court will not function as an intermediate appellate court, but will not undo a Court of Appeal reversal if it is glaringly obvious the trial judge was wrong; on the evidence no such glaring error appeared. Result: trial judge's finding that Mr Ting was an employee restored; liability judgment in his favour against Mr Tam and Progress restored; matter remitted to the Court of Appeal for quantum; costs to Mr Ting here and below against Mr Tam, Progress and Kong; legal aid taxation of Mr Ting's own costs.
Legal issues: Standard for Court of Appeal to disturb trial judge's primary findings of fact · Whether the Court of Appeal's reasons for reversing the trial judge were valid · Role of final appellate court where intermediate appellate court's reasoning is flawed
Outcome: Appeal allowed; trial judge's judgment in favour of Mr Ting against Mr Tam and Progress on liability restored; matter remitted to the Court of Appeal to hear Mr Tam and Progress's appeal on quantum.
Cited by 3 cases