Ernst Eduard Sprecher v. Zingrich Cabletrans Gmbh and Another

DCEC 1498/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1498 OF 2006

--------------------

--------------------

Coram : His Honour Judge Chow

Date of Hearing : 22^nd February 2008

Date of Handing Down Decision : 14^th March 2008

DECISION

1.This is an application made by the Applicant pursuant to Order 26 Rules 1 and 2 of the Rules of the District Court and section 21 of the Employees’ Compensation Ordinance (“the Ordinance”) for leave to serve upon the 1^st Defendant the interrogatories shown in the draft Interrogatory annexed to the Summons.  Save and except the first interrogatory the 1^st Respondent opposes the application. 

Background

2.On 13 January 2006, the deceased, Matthias Sprecher, suffered fatal injuries caused by an accident arose out of and in the course of his employment with the 1^st Respondent.  The 1^st Respondent was a sub-contractor to the 2^nd Respondent.  At the material time, the Applicant applies to this Court for compensation under the Ordinance in respect of the death of the deceased. 

3.The 1^st Respondent’s case is that the deceased was working in Hong Kong without a valid employment visa when the accident occurred.  As a result he was an illegal worker in Hong Kong, and his employment contract was unlawful.  Therefore the Applicants should not be entitled to any compensation under the Ordinance.

4.The 1^st Respondent’s defence avers that in December 2004, the deceased entered into a written employment contract with the 1^st Respondent relating to the Tung Chung Cable Car Project.  The contract expressly stated that his employment was to commence as soon as a work permit had been obtained from the Government of the Hong Kong Special Administration Region.  By an email dated 16 December 2004 from the 2^nd Respondent to the 1^st Respondent, the 2^nd Respondent stated that it was trying to get work permits for those people employed on the Project.  As a result, the 1^st Respondent believed that a work permit was being obtained by the 2^nd Respondent for the deceased.  On 22 January 2005 a contract for work and services concerning the Project was made between the 2^nd Respondent as principal contractor and the 1^st Respondent as sub-contractor.  The deceased thereafter traveled to Hong Kong and unknown to the 1^st Respondent started working without a valid work permit.  As a result, the deceased’s employment in Hong Kong was illegal.

5.The Applicant submits that it will likely be required to be considered at the trial the following issues:-

“(a)	In respect of the 1st Respondent:
	(i)	the degree of knowledge on its part, acting through its directors, servants and agents, in employing the Deceased to carry out lawful work in Hong Kong on the Lantau Tung Chung Cable Car Project when no work visa had been issued to the Deceased; and
		……
	(ii)	in order to determine such degree of knowledge on the part of the 1st Respondent:-
		(1)	the extent, if any, of any criminal conduct committed by the 1st Respondent;
		(2)	the benefit, if any, enuring to the 1st Respondent by the Deceased not having issued to him a work visa.
(b)	In respect of the Deceased the degree of knowledge on his part, if any, of the Deceased that no work visa had been issued to him.”

In my judgment, regarding (1), any criminal conduct committed by the 1^st Respondent may not necessarily show that the 1^st Respondent knew that no work permit had been issued to the deceased.  As for (2), it implies that the 1^st Respondent knew that no work visa had been issued to the deceased.  This is not helpful to (a)(i), because the question to be resolved is whether the 1^st Respondent knew that no work visa had been issued to the deceased.

Interrogatory 2 (a)

Did the 1^st Respondent employ Stefan Zingrich to work in Hong Kong on the Lantau Tung Chung Cable Car Project (“the said project”)?

6.Clause 3.2 of the Contract dated 22 January 2005 states “Supervisor (Zingrich Stefan)”.  The Contract is a contract for installation and supervision, signed between the two respondents; Stefan Zingrich signed the contract on behalf of the 1^st Respondent, and his position is supervisor.  So he must have been employed by the 1^st Respondent to work in the project as a supervisor.  The answer is readily apparent from this document.  So the interrogatory is unnecessary.

Interrogatory 2 (b)(i)

In what capacity was Stefan Zingrich employed?

7.This is evident from Clause 3.2 of the Contract describing him as “supervisor”.  The interrogatory is unnecessary.

Interrogatory 2 (b)(ii)

The approximate number of weeks during which Stefan Zingrich worked in Hong Kong?

8.It is evident from Clause 3.2 of the contract which states that Stefan Zingrich was to be employed ‘on site x approximate 10 weeks’.  So the interrogatory is unnecessary.

Interrogatory 2 (b)(iii)

(iii) Did Stefan Zingrich have issued to him by the Immigration Department of HKSAR a work visa entitling him to work in Hong Kong on the said Project and if “yes” the date of such work visa and if “no” the reason?

9.Whether Stefan Zingrich was issued by the Immigration Department of HKSAR a work visa entitling him to work in Hong Kong on the project would not tend to show the extent of knowledge on the part of the 1^st Respondent as to whether a work visa entitling the deceased to work in Hong Kong on the project was issued by the Immigration Department of HKSAR.  So the interrogatory is irrelevant.

Interrogatory 2 (b)(iv)

(iv) Did the 1^st Respondent submit the Inland Revenue Department of HKSAR an employer’s return of salary and benefits paid by the 1^st Respondent to Stefan Zingrich for those tax years during which Stefan Zingrich worked for the 1^st Respondent in Hong Kong?

10.I cannot see how interrogatories (iv) can be related to the extent of knowledge on the part of the 1^st Respondent in respect of the employment status of the deceased.

Interrogatory 2 (c)

Did the 1^st Respondent employ Christian Oberli to work in Hong Kong on the said project?

11.It is clear from Clause 3.2 of the Contract that Christian Oberli was an employee of the 1^st Respondent for the project because Clause 3.2 states that he belonged to “supervisor support”.  So the interrogatory is unnecessary.

Interrogatory 2 (d)(i)

In what capacity was Christian Oberli employed?

12.The capacity in which Christian Oberli is employed is clear from Clause 3.2 of the Contract which describes him as a “supervisor support”.  So the interrogatory is unnecessary. 

Interrogatory 2 (d)(ii)

The approximate number of weeks during which Christian Oberli worked in Hong Kong?

13.The answer to the interrogatory comes from Clause 3.2 of the Contract which states that Christian Oberli was to be employed ‘on site x approx. 28 weeks’.  So the interrogatory is unnecessary.

14.The Applicant’s Counsel says that he wants the information which actually took place.  There may be a discrepancy of what actually took place and what is stated in Clause 3.2 of the Contract.  But the actual number of weeks during which Christian Oberli worked in Hong Kong would not help the Applicant because it could not tend to show the knowledge of the 1^st Respondent relating to the employment status of the deceased.

Interrogatories 2 (d)(iii)

(iii) Did Christian Oberli have issued to him by the Immigration Department of HKSAR a work visa entitling him to work in Hong Kong on the said Project and if “yes” the date of such work visa and if “no” the reason.

(iv) Did the 1^st Respondent submit to the Inland Revenue Department of HKSAR an employer’s return of salary and benefits paid by the 1^st Respondent to Stefan Zingrich for those tax years during which Christian Oberli worked for the 1^st Respondent in Hong Kong.

15.I cannot see how the information relating to (iii) and (iv) can be relevant to the extent of knowledge on the part of the 1^st Respondent in respect of the employment status of the deceased.

Interrogatory 3 (a)

On 13^th January did Stefan Zingrich then own share in the 1^st Respondent?

16.I cannot see how the information can be relevant to the issue on whether the Deceased was an illegally employee.  In any event, in Kart Zingrich’s declaration he said that he had given 50% of the shares in the Respondent to his son Stefan Zingrich.  So the interrogatory is unnecessary.

Interrogatory 3 (b)(i)

How many shares in percentage terms?

17.Kart Zingrich has already said that he had given 50% of the shares in the Respondent to Stefan Zingrich.  So the interrogatory is unnecessary, and the information cannot be relevant to the issue in this case.

Interrogatory 3 (b)(ii)

On what date or dates was/were the shares transferred to Stefan Zingrich and by whom?

18.I cannot see how the information can be related to the extent of knowledge on the part of the 1^st Respondent’s knowledge about the illegal employment status of the Deceased.

Interrogatory 3 (c) and (d)

(c) On 13 January 2006 was Stefan Zingrich then a director of the 1^st Respondent?

(d) If the answer to (c) is “yes” then on what date was Stefan Zingrich appointed as a director of the 1^st Respondent?

19.I cannot see how the information to the interrogatories can be related to the knowledge on the part of the 1^st Respondent about the employment status of the deceased.

Interrogatory 4

20.Did the 1^st Respondent submit to the Inland Revenue Department of the HKSAR Profits Tax Returns for assessment of profits tax payable by the 1^st Respondent for those tax years during which the 1^st Respondent was engaged in the construction of the Lantau Tung Chung Cable Car Project?

21.I cannot see how this case be related to the issues in this case.

22.By reason of the matters above-said, I grant leave to the Applicant to serve interrogatory 1 on the 1^st Respondent, which is to be answered on an affidavit/affirmation by a director within 28 days from the date of service of the order.  I dismiss the Applicant’s application for leave to serve on the 1^st Respondent all the other interrogatories on the 1^st Respondent.

Costs

23.I make an order nisi, to be made absolute in 14 days’ time, that the Applicant do pay 70% of the costs of this application to the 1^st Respondent, to be taxed, if not agreed.

The Applicant : represented by Mr. Niall of Messrs. Munros for the Applicant.

The 1^st Respondent : represented by Messrs. Stephenson Harwood & Co., Solicitors.