Wong Yu Tui v. 劉禮納 and Another

DCEC 886/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 886 OF 2008

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IN THE MATTER OF AN APPLICATION BETWEEN:

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Coram:  His Hon Judge Leung in court

Date of hearing:  2-3; 6 July 2009

Date of judgment:  30 September 2009

J U D G M E N T

1.Tui, the Applicant, applied for compensation pursuant to the Employees’ Compensation Ordinance, Cap.282 for injuries to his left palm and fingers during demolition work at a house in Sheung Shui, New Territories in October 2007.  Lee, the 2nd Respondent, was the principal contractor.  Lau, the 1st Respondent, was allegedly Tui’s employer.

2.Lee was unrepresented and absent from the trial.  At the beginning of the trial, counsel agreed on behalf of Tui and Lau that in the event that liability is established, compensation will be awarded as follows:

3.Lau contends that Tui was not his employee but an independent contractor at the time.

The law

4.Counsel referred to the considerations set out by the Court of Final Appeal in the often cited case of Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156.  Essentially the court is to examine all the features of the relationship between the parties concerned with a view to deciding whether, as a matter of overall impression, the relationship is one of contract for service or contract of service.

5.Relevant considerations may include the degree of control exercised by the person hiring for the services, whether the person performing the services provided his own equipment, whether he hired his own helpers, what degree of financial risk he took, what degree of responsibility for investment and management he had and whether and how far he had an opportunity of profiting from sound management in the performance of his task.

6.In a nutshell, this court is to find whether the person providing the services can be said to be conducting business on his own account or merely working for the pay.

Lau’s case

7.Lau emphasized that he has been an electricity contractor since 2006, which was 3 years after his arrival at Hong Kong.  According to him, Lee approached him in October 2007 for electricity work in a project and also asked if Lau knew anyone who could do wall demolition work.  Lee then brought Lau to the house in Sheung Shui to see the work to be done.  Lau gave no quotation in respect of the demolition work because he had never done that before.  Lee allegedly expected the work to be completed in 7 days.

8.Lau approached Tui.  There was no dispute that they met up in the evening of 16 October 2007 and visited the house.  According to Lau, he confirmed to Tui that the wall demolition work was contracted to him and Tui accepted.  Tui also represented that he would bring in 2 workers to carry out the work.  It was however on the following day when Tui allegedly called Lau to make a quotation.  The price was HK$18,000 inclusive of cleaning debris and the provision of equipment.  Then Lau called Lee and quoted HK$23,000 for the demolition work.  Lee accepted.

9.Lau later received HK$5,000 from Lee as deposit for the contract between them.  According to Lau, he met outside the Lai Chi Kok MTR Station on 18 October 2007 where he paid Tui HK$2,000 as deposit for the wall demolition work.

10.In denying that he employed Tui or the 2 workers that Tui brought into the work, Lau emphasized that he did not provide any equipment to Tui.  He also did not supervise them at work.  In fact, Lau was not present on either day of work.  He was not present when the accident happened on the second day.

Tui’s case

11.Tui came from the Mainland in 1999 and has been a causal demolition worker.  Tui came to know Lau in 2005.  Since then, Lau had hired him to carry out demolition work at HK$600 per day.

12.When Lau talked to him on 16 October 2007 about the wall demolition work, he was given to understand that he was to bring along 2 more workers to finish the job in a few days.  Tui expected to be paid a daily wage according to the market rate of HK$600.  He was expected to commence work on 22 October 2007 but Lau would not be at the site then.  Tui would have to take instruction from Lee who would be there.

13.Tui and Lau went to the house in the evening of 16 October 2007.  Tui denied that this was a trip for enabling him to prepare a quotation for the demolition work.  Rather, this was because he did not know where the house was and therefore arrangement was made for the two of them to go there after Tui’s work on that day.

14.Tui denied the alleged conversation between him and Lau whereby Lau confirmed contracting the demolition work to him.  He denied making quotation to Lau afterwards or taking a deposit of HK$2,000 from Lau at all.

15.Tui brought in 2 co-workers, Lu and Wong.  On 22 October 2007, they gathered at the Sheung Shui KCR Station and went to the house by taxi.  Tui did not bring along any equipment.  After waiting for about an hour, Lee arrived at the house and gave them instruction to work.  Tui was given the business card of Lee before Lee left the house.  The first day of work was uneventful.  As mentioned above, Tui was injured at work on the following day.

16.Tui denied that he contracted to remove the debris after the demolition work.  Lee instructed him to put the debris at the backyard of the house.  He was supposed to inform Lau who would be responsible for arranging the truck to remove the debris.

17.Lu gave evidence.  According to him, he came to know Lau when he worked for Lau for a day in Aberdeen in late 2006 and was paid HK$500.  He basically confirmed Tui’s evidence regarding how he came to take part in the job.  He recalled that during the taxi ride to the house on the first day of work, he actually asked Tui who would be paying his wages.  Wong told him that it would be Lau.  Lu also confirmed what Tui said about Lee’s arrival and his giving instructions afterwards.

18.On the second day, after Tui was injured, it was Lu who informed Lau of the accident.  Lau suggested that he had no insurance coverage and asked Lu to get in touch with Lee instead.  Lu then ceased working at the house.

19.Wong gave evidence.  Apparently like Tui, he also believed that he would be paid the market wage of HK$600 per day without really asking.  He did not know Lau.  On the first day of work, he first came to meet Lu.  Neither he nor Tui, as he recalled, brought along any equipment.  He basically confirmed Tui’s evidence of what happened after their arrival at the house.

20.After Tui was injured, it was Wong who accompanied him to the hospital.  He also called Lee to inform him of the accident.  Having discussed with Lu, he also decided not to work at the house.

21.Both Lu and Wong were owed their wages for the 2 days of work at the house.  In February 2008, they filed their claim with the Labour Department for wages in arrears against Lau.  After mediation, their claims were settled by Lee as the principal contractor in the following month.

Discussion

22.Various disputes between the parties are trivial.  For instance, Lau denied his being known by his alias.  But this was contradicted by Lu and the information provided by Lee to the Labour Department.  Lau also suggested that Lu was Tui’s cousin but both Tui and Lu denied.  Disputes such as these, in my view, have no material bearing on the determination of the key issue.

23.The contractual stage, according to Lau, was when he discussed and verbally contracted Wong to carry out the work.  The visit to the house in the evening of 16 October 2007 was said to be made to enable Tui to view the site and to prepare his quotation.  But as Mr Wong for Tui pointed out, Lau’s evidence was effectively that he already agreed to contract the demolition work to Tui immediately after visiting the house on 16 October 2007 in the absence of any quotation from Tui.  It was on the following day did Tui allegedly quote to Lau the price of HK$18,000 for the demolition work.  Lau then quoted to Lee HK$23,000 for such work.  Lee agreed only then.

24.Mr Wong was sceptical about Lau’s attempt to explain the above during cross-examination.  The scepticism escalated when Lau suggested only during re-examination that Tui had made a tentative quotation of about HK$16,000 to him at the end of their visit to the house on 16 October 2007.  Tui then called on the following day to confirm the quoted price to be HK$18,000 instead.  There was however no evidence of any discussion of how these figures came to be quoted and what explained the HK$2,000 difference overnight.

25.Tui’s explanation that the visit was arranged because he did not know where the house was is not inherently improbable.  The undisputed fact was that Lau made clear to Tui that he would not be with him on the first day of work.  Tui and his workers were therefore expected to go to the house by themselves.

26.Tui’s version of the contractual stage was that he agreed to work for Lau without discussing his wage.  His explanation with reference to the market wage rate of HK$600 per day that he expected for demolition work is supported by his co-workers.  They shared the same understanding.

27.During the taxi ride to the site on the first day of work, Lu asked Tui who would be paying his wages.  This appeared to be an unnecessary question if it was understood that Tui contracted the work and hired them to work.

28.Discrepancies between the evidence of Lu and Wong were pointed out.  They include their evidence as to whether Tui had in fact mentioned to them that the job would last for a few days.  Mr Wong for Tui acknowledged the discrepancies but I agree that these are minor discrepancies.  The effect of the evidence of Tui and his co-workers was that they had not ascertained the exact number of working days in advance.  This does not sound unusual in the case of workers earning on a daily wage basis.

29.Lau emphasized the lack of control and supervision of Tui and his co-workers at work.  In my view, the fact that Lau was not present at the site to give instruction to Tui and the workers is neutral in the circumstances of this case.  There seems to be no dispute that the workers are experienced in demolition work.  During the visit to the house on 16 October 2007, Lau already explained to Tui what to demolish.  It was the understanding that Lee, the principal contractor, would give instruction in detail on the first day of work.  Apart from that, Tui and the workers, in my view, could well be left to proceed with the demolition work accordingly without being told how to do it.

30.Lau also gave evidence of the control that would have been exerted by an employer over his employed workers.  Such supervision could have included such daily routine as when to take lunch break.  According to Lau, workers would have to wait for their employer to tell them to take the lunch break every day.  He also expected an employed worker to call his employer before leaving work for the day.  This, according to him, was to ensure that the employer would not happen to be delivering materials to the site but only to find that no one would stay there to help unload the materials.

31.In the case of experienced workers like Tui and his co-workers and the work being demolition, instead of building work, of such scale and short duration, I am not convinced that the extent of supervision and control projected by Lau would have happened as alleged.

32.The question of whether Lau provided equipment to Tui and his co-workers at work turned out to be a major dispute.  Apart from denying having provided any equipment to Tui, Lau suggested that Tui did bring his own equipment to work, in particular drilling equipment like “大炮” (big drill) and “炮仔” (small drill).

33.As mentioned above, the evidence of Tui and his co-workers was that they did not bring any equipment such as the drills to work.  This, according to the recollection of Lu and Wong, was also their observation about each other when they went to work at the site.  Lu however admitted that he had a small drill.  But if he was required to bring it to work, he expected to receive an extra HK$50 per day.  However, no one had asked him to bring the drill to work in this case.  Indeed he expected to be paid the market daily wage of HK$600 only.  This was also what he eventually claimed against Lau as his wages in arrears.

34.According to Tui, he knew that Lu had a small drill but confirmed that he did not ask Lu to bring it to work.  During his visit with Lau to the house in the evening of 16 October 2007, Tui saw demolition equipment inside the house.  This was actually confirmed by Lu and Wong who also discovered such equipment when they started work on 22 October 2007.

35.Attempting to contradict Tui, Lau relied on what appeared to be Tui’s admission during the post-accident conversation between them.  Lau produced 3 audio recordings taken on 3 occasions.  According to Lau, they were all made by him making use of his cell phone.  The first and the third recordings were those of the telephone conversation between Lau and Tui in the Hokklo dialect.  Transcript of them and their Punti translations were provided.  The authenticity of the recordings was in issue.

36.Tui suggested that the recordings had been edited.  I doubt that.  But according to the order made during previous direction hearing, these recordings were identified to be one made at 10:49 pm and two made at 10:50 pm, all on 8 May 2008.  Oddly, according to the transcripts of the recordings now produced, it is most unlikely that the recorded conversation took place on those dates and/or times.  The obvious one must be the second recording which was actually that of the conversation between Tui and the officer at the Labour Department.

37.Having said that, I agree with Mr Wong that even if considering the contents of these recordings, this court should do so with caution.  The relatively more crucial recordings are the first and the third one capturing the telephone conversation between Lau and Tui.  Admittedly, Lau recorded their conversation without Tui knowing it.  It was also Lau who telephoned Tui.

38.In the first recording, Tui brought up the subject of Tui’s equipment including a small drill (mentioned above) having been left behind in the house.  Tui apparently acknowledged that but suggested that the drill belonged to Lu.  Tui was certain that he did not bring along a small drill.  Tui explained that when being asked all of sudden at that moment, he mistakenly assumed that the small drill might have been brought along by Lu.  In fact, when being pressed by Lau to confirm whether other tools or equipment were left behind, Tui could only think of a bag and a pair of shoes.  Lau then turned to talk about another subject, namely, how the demolition work was carried out and whose responsibility it was to instruct him.

39.In court, Lau suggested that it was Lee who reported to him about the left behind drill.  This cannot be corroborated by Lee, who was absent from the trial, or the documents from Lee.  I have my doubt as to how the equipment such as the small drill could have been let left behind in the house and somehow neither Tui nor Lu cared to retrieve it, if it really belonged either of them.  It is in my view far fetched to suggest that right after the accident, parties already contemplated this application, the dispute and even the possible relevance of who provided the equipment for work so that Tui and Lu would avoid acknowledging bringing the equipment to work.

40.The second recording is per se curious in the sense that only the conversation between the Labour Officer and Tui was recorded.  Whether and, if yes, what Lau said at any stage on that occasion is unknown.  In any event, the content of the recorded part of the conversation does not really cast any light on the issue in dispute.  The comment made by the officer about the chance of Tui’s claim does not carry weight.

41.The last recording, in my view, shares the hallmarks of the first one.  Again it was Lau who made the call and brought about the conversation, this time about the allegation that the work was subcontracted to Tui.  Tui was said to have failed to deny the allegation made by Lau during that telephone conversation.  In court, Tui explained that Lau kept on talking and he did not have the chance to say much.

42.In my view, what matters is not really the authenticity of the recordings but their evidential value.  They were premeditated attempts by Lau to create record of things said by Tui which might be useful to him.  Considering the contents of the recording and the background of Tui, I am of the view that they cannot be relied on for a fair and full picture of the parties’ stance, let alone admission.

Conclusion

43.Seeing the witnesses testify and considering their evidence, on balance I prefer the evidence of Tui and his witnesses on the whole to that of Lau.  I find that when he was injured at work on 23 October 2007, Tui was an employed worker of Lau’s.  Liability is proved.

Order

44.Judgment is entered against Lau and Lee for compensation in the total sum of HK$119,860 together with interest thereon from the date of accident to today at half judgment rate and thereafter until payment at the judgment rate.  I make a nisi order that Tui has the costs of this application, including any costs reserved, which shall be taxed if not agreed.  I certify the engagement of counsel.  The own costs of the legally aided parties shall be taxed subject to legal aid regulations.  In the absence of application in 14 days, this costs order shall become absolute.

Mr Damian WONG instructed by Messrs Au-Yeung, Cheng, Ho & Tin for the Applicant upon the assignment of the Director of Legal Aid

Mr Jackson POON instructed by Messrs Damien Shea & Co for the 1st Respondent upon the assignment of the Director of Legal Aid

The 2nd Respondent, in person, absent