Yasar Hussain v. Wui Shing Cargo Transportation Co Ltd and Others

DCEC 310/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 310 OF 2003

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IN THE MATTER OF AN APPLICATION BETWEEN

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Coram :  Her Honour Judge C.B. Chan in Court

Dates of Trial :  23^rd, 26^th and 27^th September 2005

Date of Handing Down Judgment:  5^th January 2006

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J U D G M E N T

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1.In this case, the Applicant claims employees’ compensation in relation to an accident that was alleged to occur on 26 June 2001 at No. 8 Terminal, Kwai Chung, New Territories, Hong Kong (“the site”).  The Applicant says that the accident was one that arose out of and in the course of his employment while engaged as a general worker at the site.

2.Initially, the Applicant filed an Application against the 1^st Respondent when he claimed that he was at the time of the accident employed by the 1^st Respondent in the present proceedings.  Subsequent on the 25^th June 2003 the Applicant filed another employees’ compensation proceedings namely DCEC 688/2003, against the 3^rd and 4^th Respondents herein and claimed in relation to the same accident against the said 3^rd and 4^th Respondents for employees’ compensation.  The two actions were consolidated by a Consent Summons dated 29.8.2003.  [P9-P11].  This is found in pages 9-11 of the Bundle of Documents (“BD”).

3.Subsequently, the 2^nd Respondent was joined in both proceedings as a Respondent on 18^th May 2004.  The two proceedings were subsequently de-consolidated after consolidation on 29.8.2003 for the two cases to be heard together by the same Judge.  Ultimately, all the relevant Respondents were joined in the present proceedings so that the matter can be determined in the present action.

4.In the Re-amended Application dated 12 May 2005, the Applicant claims that at the time of the accident, he was employed by the 1^st Respondent who was a sub-contractor of the 2^nd Respondent at the site.  Alternatively, the Applicant claims that he was at the time directly employed by the 2^nd Respondent who was the main contractor at the site.  In the further alternative, the Applicant claims that he was at the time of the accident employed by the 3^rd and/or 4^th Respondents at the site and 3^rd and/or 4^th Respondents were carrying on business under the name of the 1^st Respondent.

5.The history of the Application aforesaid shows the difficulty encountered by the Applicant in ascertaining who was his direct employer at the time of the accident.     

6.The parties resolved the issue of quantum in the course of the trial.   There are two issues to be decided in this trial and these are:

1.  Whether an accident arising out of and in the course of work did occur as described by the Applicant.

2.  Whether any of the Respondents was the direct employer of the Applicant and were the 1^st Respondent the direct employer whether the 1^st Respondent was a subcontractor of the 2^nd Respondent who was the principal contractor.  

The Background

7.The Applicant is a Pakistani man born in Pakistan on 3^rd February 1980.   He left school in Pakistan in or about 1996 and came to Hong Kong in 1997 as a dependant of his father.   He understands a little Cantonese and a little English.   His native language is Punjabi.  

8.In or about March 2000 he started working for the 1^st Respondent.   A Pakistani introduced him to the 4^th Respondent who recruited him to work for the 1^st Respondent.  He knew the 4^th Respondent as “Ah Pui” whom he later knew to be Kwan Pui Kwan.   He also knew the 4^th Respondent as “lo sai”.   He worked for the 1^st Respondent in Container Terminal No. 8 in Kwai Chung until 1^st December 2000.   He knew his employer was the 1^st Respondent because when he applied for the extension of his visa to stay in Hong Kong in August 2000, he approached “Ah Pui” to provide evidence of his employment and he was given a letter in the letterhead of the 1^st Respondent dated 12^th August 2000 and this letter stated that he was employed by the 1^st Respondent. 

9.After 1^st December 2000 he went to work for Citigain Development Limited (“Citigain”) until about 26 February 2001 when he left for Pakistan.   He got married in Pakistan on 14 April 2001.   He returned to Hong Kong on 1^st May 2001.  

Evidence of Recruitment of Employment in May 2001

10.After a few days, on his return to Hong Kong, he made a telephone call to “Ah Pui” and asked if he had any job available.   He did not want to join Citigain for work again because the work was too hard.  Two days later, the 4^th Respondent called him and told him that there was a vacancy and that he should turn up for work the next day.   Hence, the Applicant turned up for work at Container Terminal No. 8 in Kwai Chung the next day.

11.The Applicant thought that his employment from May 2001 onwards was by the 1^st Respondent, as the 4th Respondent did not tell him any other information related to his employer.   Hence, he filed his claim for employee’s compensation related to the accident in question, initially against the 1^st Respondent.

12.He stated that the 1^st Respondent paid his salary in cash and also after he resumed employment at the Container Terminal No. 8 in May 2001 his salary was paid in cash by the 4^th Respondent.   

Applicant’s Evidence Related to the Accident

13.At the time of the accident, the Applicant was doing his usual duty of hooking up the four corners of a container which was on a trailer, to the hooks of a derrick for the derrick to lift it up to swing it onto a vessel moored at the pier close by.  

14.To do so, the Applicant stepped from an elevated platform, Platform No. 5 onto a container on top of a trailer parked nearby.  He waited for the arrival of the steel ropes and hooks.  The operator of the derrick swung the jib in the direction of the truck and the four steel ropes and hooks swung towards him.   He put his hand to catch the ropes as they approached, however they were moving too quickly and he was unable to grab hold of them and they swung and hit him in the chest.   It was the actual hooks and part of the steel rope that hit him.  However he had used his hand to shield himself from the hooks.   He stepped back and fell on his back on the ribbed surface of the container.   He banged his head on the top of the container and his back against the surface of the container.   He remained in a prone position on top of the container for 3 to 5 minutes.   Then he got up and climbed off the top of the container onto the platform station.   He lay on the platform for about 10 minutes.  He was feeling dizzy at the time.   He did not know what happened to the steel ropes and who finished his job for him.   Another Pakistani man who worked near by came to his assistance.    He then went down from the platform.  

15.The Pakistani man brought him to an office where a phone call was made to the 4^th Respondent.  His telephone number was 98376806.  

16.The Applicant told the 4^th Respondent that he had fallen down.  He was in a lot of pain.   The 4^th Respondent told him to take a rest and he would come.  The Applicant waited between 30 to 60 minutes but the 4^th Respondent did not turn up.   When he tried to telephone the 4^th Respondent again, the 4^th Respondent did not answer his call.   Later, he called a taxi and the Pakistani co-worker took him to Princess Margaret Hospital for treatment.   He obtained a receipt from the taxi driver and that is at page 229.   It showed a taxi ride of about 8 minutes and about 4 km and a taxi fare of $34 odd.  

17.Thereafter, upon receipt of the first sick leave certificate, the Applicant telephoned the 4^th Respondent.  The 4^th Respondent instructed him to bring the sick leave certificate to him and to meet him at the place where they change their clothes.   There the 4^th Respondent refused to accept the sick leave certificate but stated that he would be paid his sick leave pay if he returned to work.   The Applicant refused to accept that condition.   Again on receipt of the second sick leave certificate, he telephoned to inform the 4^th Respondent.   The 4^th Respondent indicated that he was not going to pay the Applicant sick leave pay.   After that, the Applicant did not hand the sick leave certificate to him again.    On 13 July 2000, the Applicant filed a Notice of Accident to the Labour Department.  This is found at page 104 of BD.

18.The Applicant stated that he was not issued with a work permit whilst he was working at the Container Terminal No 8 since May 2001.   He was given a jacket with Chinese characters, which stated the company name of the employer.  He could not read Chinese so that he did not know what the characters represented.  

Evidence of the 4^th Respondent

19.The 4^th Respondent was the only witness to give evidence amongst the Respondents.   He denied that he had recruited the Applicant for work in about May 2001.   He denied that the Applicant was working on site on the date of the accident namely 26 June 2001.   He denied that the Applicant was the employee of the 1st Respondent or himself at the time.   He denied that either he or the 3^rd Respondent recruited or employed the Applicant.  

20.The 4^th Respondent’s witness statement was brief and merely stated that he employed the Applicant from around July 2000 to the end of November 2000.   Since then he did not see the Applicant again.   He stated that he did not know anything about the facts stated in the Application herein.   He stated that he had personally never been the employer of the Applicant.   Further the 1^st Respondent did not employ the Applicant again after the end of 2000.

21.In oral evidence, he stated that at the end of November 2000, he entered into employment with the 2^nd Respondent as a supervisor of hookers on the site.   He stated that in December 2000, the 2^nd Respondent became the contractor in charge of the site.   Both himself and the 3^rd Respondent were the Directors and Shareholders of the 1^st Respondent.   The 1^st Respondent tendered for the contract on the site but lost to the 2^nd Respondent.   The 2^nd Respondent thereafter employed himself and the 3^rd Respondent as supervisors of hookers.   He took all the workers formerly employed by the 1^st Respondent as hookers to work for the 2^nd Respondent.  

22.He stated that the 2^nd Respondent had purchased employees compensation insurance for the employees on site.   However, the 2^nd Respondent did not make discovery of insurance policies that provide cover for employees’ compensation for hookers for the time of the accident.  If the 2^nd Respondent had such insurance cover, it is certainly careless for the 2^nd Respondent not to make discovery of it, as it is a relevant document.   He stated that normally if there were any accidents on site, it would be immediately reported to the site office and the office would immediately take action.   He had no personal knowledge as regards whether the Applicant was employed by the 2^nd Respondent.   He denied that the Applicant telephoned him on the 26 June 2001 to report the accident.   If an accident had been reported to him, he would need to inform the office at once.   He stated that after November 2000, he had no further contact with the Applicant.   

23.Under cross-examination by the Counsel for the 2^nd Respondent, on a letter from Manulife,  (page 312 of BD), the MPF provider of the employees of the 2^nd Respondent, he was asked why it is that the letter stated that his employment with the 2^nd Respondent started in October 2000, he could not explain that as it was a matter between the 2^nd Respondent and Manulife.   He stated that neither he himself personally nor the 1^st Respondent was a subcontractor of the 2^nd Respondent after June 2001.   Under cross-examination by the Applicant’s Counsel, he stated that during the period the 1^st Respondent employed the Applicant, the 1^st Respondent paid the Applicant’s salary by bank transfer.   Yet he did not bring the documentary proof of this even though he found it at home, to show the Court or to disclose these documents.  

24.He was cross-examined on why in his Working Permit for September 2000 the 2^nd Respondent was stated to be contractor.  He stated that before November 2000, the 2^nd Respondent was the contractor on site related to do administrative work and operation.   After November 2000 the 2^nd Respondent also took over the contract for the work of hookers on site.   It was then that the 4^th and 3^rd Respondents became supervisors of the hookers in employment with the 2^nd Respondent and brought all the 16 or so hookers who worked for the 1^st Respondent, apart from the Applicant, into employment with the 2^nd Respondent.  

25.Under cross-examination on the salary of the 3^rd and 4^th Respondents during employment with the 2^nd Respondent, the Personal Data Record of the 3^rd and 4^th Respondents submitted by the 2^nd Respondent at pages 322 to 327 of BD show that their respective salary was $10,000 with an allowance of $5,000.  However, in the payroll records of the 2^nd Respondent at pages 329 to 345, the income of the 3^rd and 4^th Respondent for the months of December 2000 to April 2001 was $20,000.   The 4^th Respondent could provide no reasonable explanation for that.

26.He was again asked as regards why the 3^rd Respondent was the signatory for cheques made out by the 2^nd Respondent to Manulife for MPF contributions by the 2^nd Respondent into the MPF scheme if the 3^rd Respondent was a small potato as stated by the 4^th Respondent.    There were also months when the names of the 3^rd and 4^th Respondents were not entered into the payroll records to be submitted to Manulife.   Although the 4^th Respondent sought to explain that the 2^nd Respondent after agreeing a salary with them at $10,000 and allowance at $5,000 sought to reduce it.   However, the amounts of salary for the months of December 2000 to April 2001 was greater than that agreed with the 2^nd Respondent in the total sum of $15,000.    The explanation given by the 4^th Respondent was not reasonable.     It further seemed clear that the 3^rd Respondent was the one who prepared and signed the payroll records to be sent to Manulife.  

27.The 4^th Respondent was cross-examined on a letter dated 4 April 2001 written on the letterhead of the 1^st Respondent and stamped with the company chop of the 1^st Respondent wherein it stated that they employed Zumarad Khan, as a hooker.  It is not in dispute that Zumarad Khan worked as a hooker for the 1^st Respondent for a period before 30^th November 2000.  He continued to be a hooker on the site thereafter.  The 4^th Respondent stated that he wrote the letter because Zumarad Khan had to renew his visa and needed proof of employment and the 2^nd Respondent refused to write a letter in support.   Hence he issued a letter on the 1^st Respondent’s letterhead to help a friend.   However, this plainly is dishonest when the 4^th Respondent stated that the 1^st Respondent no longer employed hookers from 1^st December 2000 and there is no reason why the 2^nd Respondent being a limited company would refuse to write a letter to verify the employment of its own employee.

28.He was cross-examined on a Working Permit at pages 319 and 320 where his position was stated to be Hooker Supervisor and the date of issue was 4 September 2000 whilst the name of the Contractor was stated to be the 2^nd Respondent.   He stated that the 2^nd Respondent at that stage was granted the contract to issue Working Permits for workers on site.   However this does not explain why the 4^th Respondent was stated to be the Hooker Supervisor and not a Contractor of Hookers as he then was at that period according to his evidence.   

29.I find from the following evidence of the 4^th Respondent that the 2^nd 3^rd and 4^th Respondents have not disclosed all the facts to the Court.  The evidence are:-

(1)   The relationship between the 2^nd Respondent and the 1^st Respondent or the 2^nd Respondent and the 3^rd and 4^th Respondents may not be fully disclosed.  There is no reasonable explanation as regards why the 3^rd Respondent is a signatory of the bank account of the 2^nd Respondent and able to sign cheques made out to Manulife if he were merely a small potato as stated by the 4^th Respondent. 

(2)   There is also no reasonable explanation as regards why the income of the 3^rd and 4^th Respondents were stated at $20,000 in the MPF Payroll Records for December 2000 to April 2001 when their Personal Data Record with the 2^nd Respondent state that it was $15,000 inclusive of allowance. 

(3)   The 4^th Respondent stated that the 2nd Respondent as from 1st December 2000 employed him, as well as the 3rd Respondent.  However, the contract between the main contractor Mid-Stream Holdings Limited and the 2nd Respondent as contractor of the site works, at pages 303 to 307 of the BD stated that the term of their agreement would start on 1^st January 2001. 

(4)   Further, the letter from Manulife dated 28 July 2005 (see page 312 of BD) stated that the 3^rd, 4^th Respondents and Zumarad Khan, a hooker who was admitted by the 4^th Respondent to be the employee of the 1^st Respondent in October 2000 were stated to have started their employment with the 2^nd Respondent on 1^st October 2000.

(5)   The 1^st Respondent’s solicitor when approached by the Applicant’s solicitor related to the Application herein wrote in their letter dated 20^th June 2003 that the Applicant “was not and is not the 1^st Respondent’s employee”.  It was only when the Applicant’s solicitor submitted the letter from the 1^st Respondent dated 12^th August 2000 bearing the company stamp of the 1^st Respondent stating that the Applicant was employed by the 1^st Respondent that the 1^st Respondent’s solicitor wrote in their letter dated 23 July 2003 that the Applicant ceased to be an employee of the 1^st Respondent since 1^st December 2000 (see page 243 of BD).  This shows the lack of transparency of the 1^st Respondent.

(6)   The 2^nd Respondent failed to send any independent witness to give evidence on its own behalf so that such a witness would be able to answer questions and be cross-examined in relation to the 2^nd Respondent’s position.    It relied on the evidence of the 4^th Respondent.  

30.I am not satisfied that the 4^th Respondent has been wholly truthful.   He admitted that he was not honest when he wrote a letter in the letterhead of the 1^st Respondent stating that the 1^st Respondent was the employee of the 1^st Respondent in January 2001 when he stated in evidence in Court that that was not true.   Further his solicitors on instruction stated that the Applicant had never been the 1^st Respondent’s employee in their letter dated 23 July 2003 (page 243 of BD).   Further, the 1^st Respondent’s solicitors by letter date 16 March 2004 stated that they were instructed to inform the Applicant’s solicitors that since end of November 2000, the 1^st Respondent has ceased all active operations.  However, under cross-examination of the 4^th Respondent, he admitted that during the time he was employed by the 2^nd Respondent from December 2001, the 1^st Respondent still took on other projects.   These show that the 4^th Respondent is not reliable or truthful as a witness and also in his evidence.  

The 1^st Issue

31.I accept the evidence of the Applicant that he was not supplied with a Working Permit but a jacket with the company name in Chinese characters.   That seems to me to be a sensible way to identify workers, for a hooker working on an elevated to platform hooking up containers, wearing such a jacket, could easily be identified as a worker employed by a contractor.  A working Permit would not serve the same purpose.  I find that the 4^th Respondent was not a reliable or truthful witness.  I do not accept his evidence given in the trial.

32.I find that the Applicant was a truthful witness.  I find that his evidence related to the recruitment by the 4^th Respondent for him to work at Container Terminal No 8 in early May 2001 when he met up with the accident as stated by him was true.   There was conviction of truth when he gave the evidence I find that after the accident he went to Princess Margaret Hospital as described by him by taxi.   I find that he had used his hands to protect his chest at the time of the accident when the hooks and the metal cables came at him and even though he was hit in the chest it was his hands that shielded him from the force of the hooks but he slipped and fell backwards injuring his back.  I accept that his limited language meant that he was not able to convey to the medical officer attending to him about his pain in his chest but he had no bruises or wound on his chest but the injury on his back was obvious.  However it was clear that there was an injury on his right wrist and that is commensurate with his account that he used his hands to shield his chest before falling backwards.  

The 2^nd Issue

33.As I do not accept the evidence of the 4^th Respondent and I accept the evidence of the Applicant, I accept that the 4^th Respondent recruited the Applicant to work on the site as a hooker at the salary stated by the Applicant.   The Applicant presumed that the 4^th Respondent was his employer.    However, the Applicant was not able to state who employed him.  

34.The 2^nd Respondent discovered the MPF payroll records in evidence.   This did not contain the name of the Applicant.   However, the Applicant had just been employed in early May 2001 and met up with the accident on 26 June 2001.   It could be the case that the name of the Applicant had not been entered into the MPF payroll record before the date of the accident, or for some reason the MPF account for the Applicant had not been set up before the date of the accident.   Further, we have seen that the MPF payroll record is not accurate.   For several months, the names of the 3^rd and 4^th Respondent were not entered therein even though the 2^nd Respondent was their employer.  Hence the fact that the name of the Applicant was not on the MPF payroll record could be explained away.   Further, there is no oral evidence directly from the 2^nd Respondent that the Applicant was not the employee of the 2^nd Respondent.  

35.Again the fact that no Working Permit was issued to the Applicant is not of great significance because there was no evidence from the 2^nd Respondent that all workers were issued with a Working Permit in June 2001.   The Applicant stated that he was not issued with a Working Permit in the period of his employment ending in November 2000.   The 4^th Respondent discovered a Working Permit issued to him in September 2000.   It may be that workmen of a certain level were issued with Working Permit whilst workers were not.   The Applicant stated that he was identified as a workman on site by the jacket he wore.  It seems much more sensible for workmen to be identified on site by the jacket they wore rather than a Working Permit which is not identifiable from a distance.   

36.Having considered the aforesaid, having found that the Applicant’s evidence is true, I find that the Applicant was employed to work on the site.  As the 2^nd Respondent’s case is that he did not subcontract the work of hookers on the site to any third party, and he was the contractor of Mid-Stream Holdings (HK) Limited to provide workmen on the site, (see para (1) of Agreement at page 303 of BD) I find that the 2^nd Respondent was the employer of the Applicant.   

37.The parties had agreed quantum in the sum of $45,504.00 inclusive of interest calculated up to 25 September 2005.  

38.I therefore give judgment for the Applicant as follows:

Judgment for the Applicant against the 2^nd Respondent in the sum of $45,504.00 together with interest from 25 September 2005 at half judgment rate until date of judgment and thereafter at judgment rate until payment.   I make an order nisi that the 2^nd Respondent do pay the costs of the Applicant in this action to be taxed if not agreed with Certificate for Counsel.  The Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.

39.In relation to costs of the 1^st, 3rd and 4^th Respondents, the 2^nd Respondent’s Counsel argued that the 1^st 3^rd and 4^th Respondents should not be paid by the 2^nd Respondent should the Applicant succeed in this action against the 2^nd Respondent.  Having heard submissions I consider that the 2^nd Respondent only became a party on 18 May 2004.   Prior to that the 1^st Respondent had not disclosed the full facts.   They did not inform the Applicant’s solicitor immediately that the Applicant had been employed by it for a few months, until end of November 2000 and thereafter the 2^nd Respondent became the principal contractor of the site to contract for workers including hookers.   This led the Applicant’s solicitor to think that the firm Wui Shing System & Transformation Co should be the employer.    The 3^rd and 4^th Respondents were brought into this Action shortly before the trial.   They were found by me to have failed to disclose the full facts in the course of the trial.    It is fair that each of the Respondents pay their own costs of defending the Action as each played a role in the playing out of these proceedings.   I therefore make an order nisi that there be no order as to costs as between the respective Respondents.  

Representation:

Mr. Ashok Sakhrani instructed by Messrs. Lo, Wong & Tsui assigned by D.L.A. for the Applicant.

Miss Annie Lai instructed by Messrs. Hastings & Co. for the 1^st , 3^rd and 4^th Respondents.

Mr. Daniel K.K. Chan instructed by Messrs. Tsang, Chan & Wong for the 2^nd Respondent.