AHMED ISHTIAQ v. TIN WO ENGINEERING CO LTD

      DCEC 572/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 572 OF 2009

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J U D G M E N T

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Introduction

1.  This is an application for employees’ compensation brought under the Employees’ Compensation Ordinance, Cap. 282, (“the Ordinance”) in respect of an accident which happened to the Applicant in Macau on 7 June 2007. The Applicant was working as a steel fixer when the accident took place and he claims that he was the employee of the Respondent (“Tin Wo”).

2.  The Respondent, while not disputing that an accident indeed happened to the Applicant on the site in Macau at the time, says that the Applicant was not his employee, but that of a related company, that is, Tin Wo (Macau) Engineering Co. Ltd. (“Tin Wo Macau”). Tin Wo Macau was incorporated in Macau in 2004 and was not registered as an overseas company in Hong Kong. Tin Wo Macau only carried on business in Macau, not in Hong Kong.

3.  The Respondent’s position is that the Applicant should have filed his claim for employees’ compensation in Macau and not seeking compensation in Hong Kong against the Respondent.

4.  There is another company which features in this case, and that is, World Faith Engineering Ltd. (“World Faith”). The Respondent accepts that these three companies (Tin Wo, Tin Wo Macau and World Faith) are related companies in the sense that the companies have some common shareholders and directors. However, the Respondent maintains that, apart from this, the companies are separate legal entities and carry on their own trade and business.

5.  The Respondent further says that before the Applicant moved to work for Tin Wo Macau, he worked for World Faith in Hong Kong, not for the Respondent as he alleges.

6.  Insofar as quantum is concerned, Mr. Clough for the Applicant confirms that the Applicant no longer pursues the appeal lodged under section 18 of the Ordinance against the assessment made on 10 June 2009 by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”). Mr. Pirie for the Respondent also confirms that, if liability is proved, the Respondent does not take issue with the amount of compensation being sought by the Applicant, including the assessment in respect of the Applicant’s permanent loss of earning capacity made by the Board.

7.  Therefore, the real issue in this case is only this : was the Applicant the employee of the Respondent at the time when the accident happened?

The Accident

8.  It is not disputed that the Applicant went to Macau on 22 May 2007. After attending a safety course organised by the principal contractor, Gammon Building Construction (Macau) Ltd. (“Gammon Macau”) on 24 May 2007, the Applicant started working on the Macau Venetian site on that day.

9.  The accident happened in this way : on 7 June 2007, while the Applicant was working on the Venetian site and was trying to lift up the steel bars from a bending machine, the machine slightly moved forward as the ground on which it stood was uneven. As the machine moved, the operating pedal at the base of the machine came into contact with the Applicant’s right leg. The contact caused the machine to rotate as the pedal was used to control its rotation. As a result, the Applicant’s right index finger was crushed between the steel bars.

10.  After the accident, the Applicant was taken to the Accident & Emergency Department of the Kiang Wu Hospital Macau and was diagnosed with open wounds of the right middle and index fingers. Surgical debridement and suturing were performed. The Applicant was discharged on the same day with follow-up treatments on 9 and 11 June 2007.

11.  On 13 June 2007, the Applicant returned to Hong Kong and sought medical treatment at the Accident & Emergency Department of the Queen Elizabeth Hospital. X-ray examination showed fractures of his right index and middle finger distal phalanges.

12.  The Applicant was granted sick leave from 7 June 2007 to 18 November 2007. On 10 June 2009, the Applicant was examined by the Board. The Board’s assessment was that the Applicant suffers from 10% permanent loss of earning capacity because of the injury to his fingers.

The Applicant’s Employment in Hong Kong 

13.  The Applicant said that, through the introduction of a Pakistani friend Mr. Mahmood Ansar (“Mr. Ansar”), he started working as a steel fixer for the Respondent around the middle of December 2006. The Applicant told the Court that, as far as he knew, Mr. Ansar had worked for the Respondent for about 9 years.

14.  The Applicant said he first started working for the Respondent on a site in Homantin (“the Site”). At that time, it was Mr. Ansar who took him to the site office and told him to call the foreman. The Applicant did so and the foreman then asked the site office staff to record his HKID card and CITA card details as well as his bank details for arranging salary payments. Afterwards, the foreman asked him to sign, to get changed and to start working. 

15.  According to the Applicant, the same continued in the following days. The Applicant lined up at the gate, signed and worked. The Applicant said that for Tin Wo, there were 3-4 forms placed on the table and their names (40-45 workers) were clearly printed on the forms. The Applicant told the Court that he signed on the ‘Tin Wo list’ although he cannot read Chinese. He said Mr. Ansar had told him that the lists would be faxed to Tin Wo at 7:35 am, so if he arrived late at 7:40 am, he could not work and had to go home.

16.  It turns out that the forms on which the Applicant signed bore the name of World Faith and stating in Chinese that it was the workers’ daily work report form, that is, “匯輝工程有限公司員工工作日報表”.

17.  The Applicant told the Court that although no written employment contract was signed with the Respondent, the terms of his employment, as explained to him by Mr. Ansar, were that he had to undertake steel bar bending as well as loading/unloading work and that, each day, he had to work from 7:30 am to 6:00 pm, 6 days a week. The Applicant said that his daily wage was HK$450 and the salary was paid direct into his bank account by the Respondent.

18.  There are, however, three cheques drawn on World Faith’s bank account and made in favour of the Applicant which were dated 31 January 2007, 13 February 2007 and 31 March 2007. These were apparently salary payments made to the Applicant. The Applicant, however, said that he was only aware of these cheques when his solicitors got the copies from his bank as they were banked in directly without his knowledge.

19.  Also produced at the trial was a salary tax return dated 30 April 2007 which was filed by World Faith in respect of the Applicant, stating that the Applicant was under World Faith’s employment between 11 December 2006 and 30 March 2007. There were also produced to the Court records detailing the MPF contributions made by World Faith to the Applicant’s MPF account during that period.

20.  Under cross-examination, the Applicant agreed that Mr. Ansar was just a fellow worker who had worked with him on the Site, not a foreman. When shown the attendance sheets which bore the name of World Faith and on which he signed as well as the card which was issued to him by Paul Y for gaining access to the Site and which named World Faith as the company, the Applicant maintained that he had never heard of the name “World Faith”. He said that he had not made enquiries as to what was written in Chinese on the forms as he did not feel the need to do so. As to the MPF contributions made by World Faith, the Applicant said that nobody had told him about that.

21.  In the end, however, the Applicant accepted that he did not really know who his employer was when he worked on the Site in Hong Kong.

22.  Mr. Au-Yeung Sing (“Mr. Au-Yeung”), who was the manager of the Respondent, said that the Respondent had never employed the Applicant in Hong Kong. Nor did the Respondent send the Applicant to work in Macau. Further, the Respondent and World Faith did not have any common projects as World Faith was established in 1999 to carry out construction work for Paul Y Engineering Group Ltd. whereas the Respondent was to serve other clients.

23.  Mr. Au-Yeung said that, as far as he knew, there was a container office on the Site and the name and the logo of World Faith were clearly shown. Workers were required to go inside the office to sign the attendance sheets each day. Helmets bearing the name and the logo of World Faith were also given to workers working on the Site. The Applicant, however, denied that the helmet he got had any logo or name on it.

24.  Mr. Au-Yeung recalled that in early April 2007, some non-Chinese workers, including the Applicant, attended their Shatin office to seek jobs as steel fixers in Macau. The Respondent therefore referred their requests to Tin Wo Macau. Mr. Au-Yeung said that as the workers were daily paid workers, they could just come and go and could work for different companies on different days. He told the Court that he did not know why the Applicant left the Site as, according to the records, the Respondent still had work for steel bending on the Site and the work actually continued to the beginning of 2009. 

Knowledge about the Macau Job

25.  The Applicant said in his evidence in chief that in early April 2007, Mr. Ansar told him that some of the workers working on the Site were given a choice to work on a hotel site in Macau for a 5-year project. If not, they might be laid off. The Applicant said that as the daily wage for working in Macau was higher, he volunteered to go.

26.  Under cross-examination, the Applicant agreed, at one point, that it was some time after he no longer worked on the Site that he discovered about the Macau project. However, the Applicant later said that he and a few others went to Tin Wo’s Shatin office in March 2007 and they were asked by the Respondent to attend a safety course organised by Gammon Construction Limited in Hong Kong (“Gammon HK”).

27.  In any event, the Applicant accepted that he was no longer working on the Site in April and May 2007 although he said it was only because Mr. Ansar had told him that the company had asked them to go to Macau and they were waiting to go at that time.

28.  Between the end of March and May 2007, the Applicant recalled that he mostly did not work but he did ask Mr. Ansar to find work for him. As a result, he worked as a loading/unloading worker on some days.

29.  The Applicant admitted being a daily paid worker. He further said that it was up to them if they did not want to go to Macau but after they talked, they agreed to go. The Applicant recalled that Mr. Ansar had told him as they both were not able to fill in any form, they had to ask somebody for help.  

The Safety Course in Hong Kong 

30.  There is no dispute that when attending the Gammon course, the Applicant was given a form which was prepared by Mr. David Lee of the Respondent (“the Form”). The Form contained Gammon HK’s address and other remarks, including :

“Please attend the safety training as arranged on time. Gammon will charge $500 as penalty at your absence. The penalty amount will then be deducted from your salary.

  Our company is only responsible to submit your work permit application for you and does not guarantee its success or job placement. It depends on the labour import policy of Macau government.”

31.  The Applicant said he was asked to sign on the Form and he was explained about the deduction of salary through Mr. Ansar.

32.  When shown the Gammon registration form dated 10 April 2007 which had Tin Wo Macau named as the subcontractor, the Applicant said that he just signed the form without paying attention to that. The Applicant denied that he knew he was working for Tin Wo Macau in the Venetian project. He claimed that he first heard of Tin Wo Macau on 14 October 2007, which apparently was the date of the first receipt signed by the Applicant in respect of the periodical payments given to him by Tin Wo Macau in relation to his injury at work. I shall shortly return to these periodical payments.

33.  Insofar as these receipts are concerned, the Applicant said that he did not pay attention to whether it was Tin Wo or Tin Wo Macau at the time and that it was only after he had signed, then a friend told him that the receipts had the name Tin Wo Macau on them.

34.  Mr. Au-Yeung said that the Form was prepared by the Respondent with the only purpose of helping the workers and reminding them of what to bring to the safety course as Gammon HK was very strict with documentations.

The Macau Job

35.  Concerning his work in Macau, the Applicant said the Respondent had told them that the company would arrange work permits for them to work in Macau and would pay for their travelling expenses as well as providing them with accommodation. When they were in Macau, it was ‘Mr. Fung’ who is indeed Mr. Tsang Chun Fung (“Mr. Tsang”), the manager of Tin Wo Macau, who arranged everything for them. 

36.  When shown the attendance sheets on which he signed when he worked in the Venetian project in Macau and which bore the name of Tin Wo Macau, the Applicant said he did not know about that and he did not see a single document relating to Tin Wo Macau.

37.  When testified on behalf of the Respondent, Mr. Tsang said that Tin Wo Macau was the sub-contractor for steel fixing work on the Venetian site and Gammon Macau was the principal contractor. He told the Court that for the steel-fixing industry, the method of recruitment would mainly be by words of mouth and friends introducing friends. They did not have any arrangement with the Respondent that workers under the employment of the Respondent were to be sent to work for Tin Wo Macau. Nor did Tin Wo Macau use any particular company or person for recruitment of workers for the Venetian project.

38.  Mr. Tsang said that in early April 2007, Tin Wo Macau was informed by the Respondent that some non-Chinese workers, including the Applicant, would like to seek employment in Macau. Mr. Tsang confirmed that it was he who met the Applicant and Mr. Ansar when they first arrived in Macau but he said that the workers had to pay for their own expenses for travelling to Macau. It was only after they had started working for Tin Wo Macau then they would get the transportation allowance of $350 each month. Mr. Au-Yeung of the Respondent also denied that the Respondent had paid for the Applicant’s travelling expenses.

39.  Mr. Tsang said that, for those workers who sought employment in the Venetian project, they first had to attend a safety course conducted by Gammon Macau in Hong Kong. Mr. Tsang further said that as Gammon Macau was the principal contractor of the Venetian site, Gammon Macau would, on behalf of the Venetian site owner, apply for working permits for the workers.

40.  Mr. Tsang told the Court that after Tin Wo Macau had been informed of the Applicant’s interest to work in the Venetian project, Tin Wo Macau then sent the Applicant’s registration form dated 10 April 2007 to Gammon, recommending him for attending the safety course and for the issue of the working permit. However, at the time when Mr. Tsang met the Applicant and Mr. Ansar, Tin Wo Macau had only got their temporary work permits, not the “blue-cards” which are issued by the Macau authority to overseas workers, as they had yet to complete the fingerprinting procedure.

41.  Mr. Tsang supplemented that for those workers who went to Macau, he might not necessarily employ them for they had to be interviewed by him first. If anyone were found not suitable, he would be sent back.

Dealings with Tin Wo Macau after the Accident

42.  The Applicant said that, after the accident and when he was still in Macau, he told Mr. Tsang that he was going back to Hong Kong. Mr. Tsang then gave him $1,000. Thereafter, Mr. Tsang came to Hong Kong almost every week and he told the Applicant in Tin Wo’s Shatin office that if he needed any money and if he had any problem, he could contact him. The Applicant said that Mr. Tsang had given him some periodical payments but Mr. Tsang did not say which company was the Applicant’s employer, whether it was Tin Wo or Tin Wo Macau. The Applicant claimed that he thought Mr. Tsang was a representative of Tin Wo.

43.  Insofar as these periodical payments are concerned, there is no dispute that the Applicant had received a total sum of HK$38,000 and had signed on the relevant receipts. Amongst the receipts produced at trial, except for HK$8,000 which was given to the Applicant by way of cheques drawn on Tin Wo’s account, the other receipts all bore the name of Tin Wo Macau.

44.  Mr. Tsang said that, initially, he paid the periodical payments in cash to the Applicant when he came to Hong Kong. However, on second thought, he considered it more appropriate if cheques were issued to the Applicant so that there were proper records. Since Tin Wo Macau only had bank accounts in Macau whereas the Applicant had returned to Hong Kong, Mr. Tsang said he had therefore asked Tin Wo to issue cheques to the Applicant on Tin Wo Macau’s behalf. These sums were later reimbursed by Tin Wo Macau and the relevant accounting records were produced at trial.

The Macau Insurance 

45.  Mr. Tsang said that as the principal contractor, Gammon Macau, had taken out an insurance policy for the Venetian site, he had prepared an employees’ compensation insurance claim form (Macau Insurance Company) in respect of the Applicant’s injury. Although the claim form was dated 27 September 2007, Mr. Tsang said he had already informed Gammon Macau of the accident on the day when it happened and the safety officer of Gammon Macau also went to the site to check.

46.  Mr. Tsang recalled that after he had reported the accident to Gammon Macau, Gammon Macau asked the Applicant to return to Macau in order that a detailed accident report could be prepared. He therefore related this message to the Applicant and asked him to return to Macau. He talked to the Applicant about this a few times but the Applicant did not return. Therefore, after a while, they decided to file the claim form first.

47.  Mr. Tsang said that, in 2007, when the Applicant gave him a sheet of paper about compensation assessment when they met in Jordan, Hong Kong, he clearly told the Applicant that he had to return to Macau for assessment because if not, the employees’ compensation could not be arranged. However, the Applicant did not do so. Mr. Tsang said he then asked the safety supervisor and an officer of Gammon Macau to contact the Applicant but he could not be contacted. Since then, the Applicant had not contacted him again and had not returned to Macau. Mr. Tsang told the Court that according to Gammon Macau, the Applicant’s accident had already been reported to the labour bureau in Macau.

48.  In 2008, Tin Wo was contacted by the Hong Kong Labour Department about the Applicant’s injury in Macau. After learning this from Tin Wo, Mr. Tsang said he then wrote on behalf of Tin Wo Macau to the Department, informing that they had made a report in Macau and asking the Department to help locating the Applicant. These letters were produced at trial.

49.  With regard to the claim form filed by Tin Wo Macau in respect his injury, the Applicant said he did not know anything about that and he had never made any claim in Macau. He insisted that nobody from Tin Wo or Tin Wo Macau had asked him to claim compensation in Macau and nobody had told him anything about filing a claim with the labour bureau in Macau.

50.  While the Applicant maintained that nobody had asked him to go for assessment in Macau, he, however, told the Court that Mr. Tsang had told him that he was in contact with the insurance company and he would pay him if he received anything from them. The Applicant further said that as Mr. Tsang did not put down what he said in writing, he was worried that if he went to Macau and Mr. Tsang said he did not know him, then he did not know what to do.

The Issue : Was the Applicant the Employee of the Respondent at the Time when the Accident Happened?

(1)     The Hong Kong Employment

51.  It is the Applicant’s case that he was an employee of the Respondent at the time when he worked on the Site in Hong Kong. He was then sent or “instructed by the Respondent” (the words used by Mr. Clough in his written opening) to work in the Venetian project in Macau.

52.  I shall firstly deal with the Applicant’s employment on the Site in Hong Kong. I accept the evidence of Mr. Au-Yeung that the Respondent and World Faith served different clients. For the Site, as Paul-Y was the principal contractor, it was World Faith which provided the steel bar bending and fixing work on the Site, not the Respondent. The employment of the Applicant by World Faith on the Site was supported by the documents produced at trial.

53.  These included the employer’s tax return to the Inland Revenue Department; the cheques issued to the Applicant by World Faith in January, February and March 2007 in respect of his salary payments for the work he did on the Site; World Faith’s attendance sheets on which the Applicant signed; the Paul-Y card with World Faith named as the company; and the MPF contributions.

54.  Unless it were said, which was never the case here, that there was a scheme to deliberately use the name of World Faith in all of these documents in order to hide the fact that the Respondent was the Applicant’s actual employer, I cannot see why if the Respondent was the employer, these documents would bear the name of World Faith, not Tin Wo.

55.  While it is the Applicant’s case that he was employed by the Respondent in Hong Kong, his evidence is merely that it was at all times “his belief” that he was so employed. The above records clearly do not support such a belief and the Applicant did not challenge the authenticity of these documents.

56.  It would appear that the Applicant’s belief mainly stemmed from what he had heard from Mr. Ansar and perhaps, from the fact that it was Mr. Ansar who took him to the Site. However, as the name of World Faith appeared on the attendance sheets, on the Applicant’s Paul-Y card, and according to Mr. Au-Yeung, whose evidence I accept, on the safety helmets issued to the workers and on World Faith’s container office on the Site, I find that the Applicant must have heard of World Faith while he worked on the Site between December 2006 and March 2007. I do not believe that he only heard of this name when he received the details from the Inland Revenue Department in February 2010. 

57.  When shown the above World Faith documents, the Applicant merely maintained that he could not read Chinese and he had paid no attention to those. The Applicant also said that documents like the cheques and the tax return were submitted without his knowledge.

58.  In relation to this lack of knowledge, Mr. Clough makes the point that under section 44 of the Employment Ordinance, Cap. 57 (“EO”), an employer has a duty to inform each employee in detail as to his conditions of service and therefore, the Respondent in this case was in breach of the requirement.

59.  A contravention of section 44 is an offence under section 63D of the EO and is punishable with a fine. However, this is not what we are concerned with in these proceedings. This Court is dealing with the Applicant’s application for employees’ compensation, not any prosecution of offences under the EO. As I have mentioned above, I find that when the Applicant worked on the Site, he was employed by World Faith, not the Respondent. Whether or not the Applicant had any valid complaint about not being notified of the particulars of his employment, such would not alter the finding that I have made.

60.   Although much has been said about the three companies being related companies in that they had some common shareholders/directors and that, since 2007, the Respondent and World Faith shared one common administrative office, Mr. Clough accepts in his closing submissions that, “This is not a question of lifting the veil of incorporation. It is the Tin Wo (Hong Kong) employed the Applicant to work in Macau.”

61.  Whether or not the Applicant was so employed is a question of fact to be determined by this Court based on the evidence adduced. Although I find that the Respondent was not the Applicant’s employer in respect of his work on the Site, this does not necessarily mean that the Applicant could not have been employed by the Respondent to work in Macau and this is the question which I shall now deal with.

(2) The Macau Employment

62.  When opening the Applicant’s case, Mr. Clough says that the Applicant began working for the Respondent when he worked on the Site. He was then instructed by the Respondent to go and work in Macau. In his closing submissions, Mr. Clough, however, says that it is not material whether the Applicant was an employee of the Respondent before or at the time when he went to the Gammon course, the important part was that the Form prepared by Mr. David Lee of the Respondent clearly showed that the Respondent was recruiting employees to work in Macau. Mr. Clough contends that the Applicant was so employed and he went to Macau as the Respondent’s employee and remained such when he was injured on 7 June 2007. 

63.  In the course of submissions, both Mr. Clough and Mr. Pirie refer to the definition of “employer” in the Ordinance which reads, “… where the services of an employee are temporarily lent or let on hire to another person by the person with whom the employee has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Ordinance, be deemed to continue to be the employer of the employee whilst he is working for that other person …” and also to section 30B(2) which reads, “This Ordinance also applies where personal injury by accident arising out of and in the course of employment is caused to an employee outside Hong Kong where the employee's contract of employment is entered into in Hong Kong with an employer who is a person carrying on business in Hong Kong.”

64.  The crux of the matter is : was the Applicant employed by the Respondent in Hong Kong and then sent/lent to work in Macau?

65.  Mr. Clough places emphasis on the Form, saying that as the Form bore the name of the Respondent and there were references to the deduction of salary as well as the application for work permits, it is clear that the Respondent was then recruiting workers to work in Macau. As a prerequisite, the workers were sent by the Respondent to attend the Gammon course. After the completion of the course, they then became the employees of the Respondent and were sent to work in Macau.

66.  I do not agree that the Form evidenced or supported the claim that the Applicant was employed by the Respondent to work in Macau. Although there was a reference to deduction from salary, nothing further was mentioned on the Form. It is not known what it exactly meant or how that deduction was to be made. It was, however, clear from the Form that the deduction would only come about if a worker failed to attend the course at the appointed time. Since both parties agree that the attendance of the course was a prerequisite for those seeking to work in Macau, once that failure occurred, it would appear that the worker would not be considered for employment in Macau.

67.  If so, any mentioning by the Respondent of ‘deduction from salary’ could not be by reference to the salary the worker was going to receive in his Macau employment as he would not be given such an employment. Whether it could be a reference to a deduction from the salary in respect of any current employment that worker had with the Respondent or with anybody else, it is not clear from the Form and it is inappropriate for me to speculate on this. Suffice it to say I do not accept that this reference to ‘deduction from salary’ necessarily means that the Respondent was the one employing the Applicant to work in Macau.

68.  The reference to “Our company is only responsible to submit your work permit application for you and does not guarantee its success or job placement. It depends on the labour import policy of Macau government.” also cannot be said to evidence or support the Applicant’s claim that the Respondent employed him in Hong Kong and then sent him to work in Macau. The sentence merely referred to submitting applications for work permits, nothing was said about the employment. In respect of the registration form filled in by the Applicant when he attended the Gammon course in Hong Kong on 10 April 2007, there is no dispute that the name and stamp of Tin Wo Macau were shown on the registration form although the Applicant said he had not paid attention to those.

69.  Mr. Clough says that since the Respondent and Tin Wo Macau are related companies and the reality is that it is one family enterprise, the arrangement of one company employing a worker and then sending/lending the worker to work for another company would not be surprising.

70.  For the following reasons, I reject that such was the case here. Firstly, the Applicant himself admitted that he was a daily rated worker and he indeed worked for another employer as a loading/unloading worker before he went to Macau. As Mr. Au-Yeung said in his evidence, the workers could just come and go, working for different employers on different days.

71.  In such circumstances, I cannot see why there was a need for the Respondent to get into the trouble of recruiting the Applicant and then immediately lending him to Tin Wo Macau. There is no dispute that it was Tin Wo Macau which was the subcontractor on the Venetian site, not the Respondent. Tin Wo Macau could employ the Applicant on its own and the Applicant could work for Tin Wo Macau on his own choice. As the Applicant said, “as the daily wage for working in Macau was higher, I volunteered to go.” and “it was up to us if we did not want to go to Macau but after we talked, we agreed to go.” This evidence of the Applicant is not consistent with the claim that the Applicant was “instructed” by the Respondent to go to work in Macau in the sense of an employer directing an employee to go and work abroad.

72.  Further, in this case, the suggestion that the Applicant, after being employed by the Respondent, was then immediately lent to Tin Wo Macau does not make much sense for it would appear that the loan period would be a long one : some 5 years. Moreover, Mr. Au-Yeung said in his evidence, which I accept, that there was still work on the Site in Hong Kong at the time and it continued to 2009. That would mean that workers were still required on the Site in 2007. In these circumstances, there would not appear to be any reason for the Respondent to lend the Applicant to Tin Wo Macau, especially for such a long period of time.   

73.  Mr. Au-Yeung’s evidence concerning the Form was set out above and I shall not repeat it. As I have mentioned, I find Mr. Au-Yeung a credible witness and I accept his evidence. Given that Mr. Tsang Ting Fat was a shareholder of both the Respondent and Tin Wo Macau, I do not find it surprising that the Respondent would help the workers in relation to their seeking employment with Tin Wo Macau in the Venetian project. Moreover, according to Mr. Au-Yeung, as the workers themselves had made it clear that they wanted to go to Macau to work, there was no reason for his colleagues not to help them. I find that it was under these circumstances that the Respondent prepared the Form to facilitate the workers to attend the Gammon course, not because the Respondent was the employer of the Applicant and sending the Applicant to work in the Venetian project.

74.  I also accept the evidence of Mr. Tsang and find his evidence credible. Mr. Tsang said that it was Tin Wo Macau which employed the Applicant to work on the Venetian site. However, that employment only came into effect after he had met the Applicant in Macau and found him to be suitable and for this reason, it was the Applicant who paid for his own expenses for travelling to Macau.

75.  Mr. Clough further submits that as the Respondent was the Applicant’s employer, not Tin Wo Macau, that explains why there was a late reporting of the accident to Gammon Macau and why the insurance claim form was only completed in September 2007.

76.  It should be noted that, in his supplementary statement, the contents of which had been adopted as his evidence, the Applicant said, “As I recall before I left I was visited by the Gammon Safety Officer and a Representative from the Respondent. The Gammon Safety Officer told me to call him if I had any problems regarding sick pay and wished me good luck.” Since there is no dispute that the Applicant returned to Hong Kong on 13 June 2007, the Gammon Safety Officer must have visited him shortly after the accident.

77.  This is consistent with what Mr. Tsang said, that is, he had reported the accident to Gammon Macau on that very day and the Gammon Safety Officer had gone to the site to have a look. I accept that the alleged late reporting did not reflect the true picture and that the insurance claim form was only completed in September 2007 as Gammon Macau had initially asked for the Applicant to return to Macau so that a full investigation report could be compiled but since the Applicant had not done so, they decided to file the form first.

78.  I accept Mr. Tsang’s evidence that it was Tin Wo Macau which provided the periodical payments to the Applicant after the accident. Initially, the payments were made in cash, but subsequently, they were made by way of cheques drawn on the Respondent’s account but the amounts paid were reimbursed by Tin Wo Macau.

79.  I also find that Mr. Tsang had asked the Applicant to return to Macau for assessment in respect of his employees’ compensation claim. However, the Applicant did not do so. I reject the Applicant’s saying that nobody had told him to make a claim in Macau and that he was not aware of any report of the accident being made in Macau. As recorded earlier, the Applicant’s own evidence was that, “Mr. Tsang had told me that he was in contact with the insurance company and he would pay me if he received anything from them.” This shows that the Applicant had been told by Mr. Tsang about a claim being made in Macau, at least insofar as the claim made to the insurance company is concerned.

80.  It is therefore not the case that nobody had ever mentioned anything about making a claim in Macau. The making of such a claim was indeed mentioned to him by Mr. Tsang, but perhaps, as explained by the Applicant, he was afraid of returning to Macau for there was nothing in writing on which he could rely.    

81.  After examining all the above, I am unable to find that the Respondent was the company employing the Applicant to work on the Venetian site in Macau or to have lent him to work on that site. On the evidence before me and as admitted by Tin Wo Macau, it was Tin Wo Macau which employed the Applicant to work as a steel fixer on the Venetian site.

Conclusion

82.  Although I have much sympathy for the Applicant who got injured while he was at work, on the evidence before me, the application for employees’ compensation brought against the Respondent must be dismissed. The Applicant has failed to prove on a balance of probabilities that the Respondent was the Applicant’s employer at the time when the accident happened. Therefore, the Respondent is not liable to pay compensation to the Applicant in respect of the accident on 7 June 2007.

83.    I now make a costs order nisi, to be made absolute in 14 days, that the costs of this application are to be paid by the Applicant to the Respondent, to be taxed if not agreed, with a certificate for counsel. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.