DCEC 993/2023
[2025] HKDC 1821
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NO 993 OF 2023
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IN THE MATTER OF AN APPLICATION BETWEEN
LIU XIRU
Applicant
and
RAD LIMITED
Respondent
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Before:
Deputy District Judge Simon Ho in Court
Dates of Trial:
25-26 February 2025 & 6 May 2025
Date of Judgment:
31 October 2025
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JUDGMENT
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Introduction
1. This was a 3-day trial of a claim under the Employees’ Compensation Ordinance (Cap 282) (“ECO ”). Liability is hotly contested. Quantum was initially disputed but ultimately agreed by the parties at the stage of closing submissions without prejudice to their respective positions on liability.
Background
2. The following background facts are largely undisputed, I find them established on the evidence before me.
3. The Applicant was 57 years old on the date of accident. She was injured while at work inside the Respondent’s office in the early hours of 20 May 2022.
4. In fact, the Applicant took over the cleaning work at the Respondent’s office from her mother-in-law in or about January 2007. Thereafter, the Applicant had been providing cleaning services to the Respondent at its former office located on the 4th Floor of Wyndham Mansion, 30–32 Wyndham Street, Central, Hong Kong (“the Office ”). Her responsibilities included vacuuming and mopping the office floor, washing used cups, and cleaning the tables, chairs, and glass partitions of the office’s rooms.
5. No written contract was made between the Applicant and the Respondent in relation to the cleaning services provided by the Applicant.
6. In addition to providing services to the Respondent, the Applicant also rendered cleaning services to various other entities, without any need to obtain prior consent from the Respondent.
7. At the beginning of each month, the Respondent would pay the Applicant a lump sum monthly fee for her cleaning services. From May to October 2021, the monthly fee was HK$3,600, and it was increased to HK4,800 from November 2021 to May 2022. The Respondent would also pay the Applicant an additional month sum of HK$150 for removal of trash from the Office.
8. The Respondent never issued any Employer’s Annual Tax Return in respect of payments made to the Applicant, nor did the Applicant request the Respondent to report her income to the Inland Revenue Department.
9. There has never been any arrangement between the Applicant and the Respondent regarding contributions to the Mandatory Provident Fund.
10. On 20 May 2022 at around 0100 hours, the Applicant tripped and fell inside the Office, sustaining injuries to her head and right wrist. She was subsequently admitted to Queen Mary Hospital for medical treatment.
11. Upon being notified of the accident by the Labour Department's letter dated 18 August 2025, the Respondent on 25 August 2025 submitted a Form 2 to the Labour Department, stating that the Applicant had been engaged as a self-employed cleaner at the time of the accident. The Respondent further explained that it had not submitted the report earlier as it was under the belief that it was not required to do so given the Applicant’s self-employed status.
Key issue in dispute on liability
12. The main bone of contention between the parties is whether the Applicant was working as an employee for the Respondent on the date of accident.
13. The Court of Final Appeal’s decision in Poon Chau Nam v Yim Siu Cheung t/a Yat Cheung Airconditioning & Electronics Co (2007) 10 HKCFAR 156 is the landmark authority providing guidance on how the courts should properly approach this question.
14. According to Poon Chau Nam , the modern approach to determining whether a person qualifies as an employee involves a holistic assessment of all aspects of the working relationship, viewed against the backdrop of indicia of employment developed in case-law. The objective is to form an overall impression of whether the relationship is one of employment, bearing in mind the purpose for which the question is asked, and applying a nuanced (rather than mechanical) analysis, which is essentially “painting a picture from the accumulation of detail”.
15. The indicia considered would include: (1) the degree of control exercised by the “employer” (as alleged by the claimant); (2) whether the person performing the services provided his own equipment; (3) whether he hired his own helpers; (4) the degree of financial risk he assumed; (5) the level of his responsibility for investment and management; (6) whether and how far he had the opportunity to profit from sound management in performing the task, etc. The above list of factors is not exhaustive, and their respective importance will vary from one situation to another. (see paragraphs 9 to 18 of the judgment.)
16. Bearing the above legal approach in mind, I now turn to analyse the essential matters of evidence below.
Control and supervision of work
17. I agree with the submissions of Mr Francis Chung, counsel appearing for the Respondent, that the Respondent exercised a low degree of control over the Applicant’s performance of her cleaning work in the Office, upon review of the overall evidence before this Court.
18. It is undisputed that the Applicant was given a key to gain access to the Office and she was not required to record her attendance upon arrival or departure.
19. It was agreed between the Applicant and the Respondent that she would perform the cleaning work from Monday to Friday. But on the evidence before this Court, I find that the Applicant had the discretion to determine the timing to carry out the cleaning work in the Office.
20. The Applicant claimed that she was required by the Respondent to work about 4 hours per day. On the other hand, the Respondent’s director, Mr Aaron Hee Hung Tan (“Mr Tan ”) and his secretary, a lady called 楊永鳳 in Chinese (“Ms Yeung ”) testified that no minimum daily work hours was imposed on the Applicant. Under cross-examination, Mr Tan said that he had no idea the Applicant worked for how many hours each day for the Respondent. On the totality of the evidence, I prefer the testimony of Mr. Tan and Ms. Yeung. Notably, the Applicant was not required to record attendance, and she carried out the cleaning work outside the Respondent’s office hours for all practical purposes, during which no personnel were present to monitor her arrival or departure. In this light, there seemed no point to impose any fixed work hours requirement which would be unenforceable anyway as a matter of practicability.
21. At paragraph 9 of her witness statement the Applicant said vaguely that it was only when Mr Tan (whom she described as her “boss”) made a special request that she would be arranged to work at specific hours. And at paragraph 11, she said that Ms Yeung would occasionally call her to inform her what she should focus on cleaning. The Applicant further said while at work, if she happened to see Mr. Tan, he would occasionally instruct her on which areas of the office required cleaning.
22. At the trial, Ms Yeung testified that the Applicant rendered her cleaning services satisfactorily most of the time, and she rarely gave instructions to the Applicant, estimating such occasions to be no more than once or twice a year. Though, she also fairly agreed in her witness statement that if Mr Tan noticed that some of the Office area was not cleaned according to the agreed scope of cleaning services, and he happened to encounter the Applicant at the Office at that time, either she or Mr Tan would instruct the Applicant to complete the cleaning work properly. In the witness box, Mr Tan said that he had only once asked Ms Yeung to remind the Applicant to ensure that the leaves dropped from plants placed on the table were also cleared.
23. During cross-examination, Mr Tan was asked whether he encountered the Applicant sometimes in the early morning at the Office, he replied that over the past 15 years, he and the Applicant only randomly ran into each other for a couple of times. It is observed that Ms Yeung and Mr Tan’s testimony was not really challenged and remained unshaken after cross-examination. In these circumstances, where inconsistencies arise between the respective accounts, this Court prefers the evidence of Mr Tan and Ms Yeung to that of the Applicant, and does not find that the Applicant’s vague and unparticularised account set out at paragraph 9 of her witness statement of much probative value either.
Supply of cleaning tools
24. According to the testimony of Mr Tan and Ms Yeung, the Respondent did not supply the Applicant with cleaning tools for her to carry out the work. The Applicant used her own equipment, a vacuum cleaner and a mop, which were not stored inside the Office, but kept at the public staircase outside.
25. The Applicant did not deny these evidence. Rather, she acknowledged that she obtained the vacuum cleaner and mop from another company she worked for after its office was closed down. There is no evidence that the Respondent ever paid for these tools.
26. The Applicant was nonetheless reimbursed by the Respondent for cleaning consumables purchased by her such as detergents, bleaching agents and rubbish bags. The detergents were not used exclusively by the Applicant, they were placed in the Office’s pantry also available for use by the Respondent’s staff.
Applicant arranged substitute worker(s) on her own
27. The Applicant was free to appoint substitute worker(s) to carry out the cleaning work at the Office during her absence. The Respondent was not required to pay any fees to the substitute workers(s) arranged by the Applicant.
28. At the trial, the Applicant acknowledged that she was not paid any statutory sick leave. In instances where she was ill or otherwise unable to perform cleaning services on a given day, she would notify Ms Yeung in advance and arrange for her husband or son to substitute in her place. The Applicant did not need to submit any sick leave certificate to the Respondent.
Extra payments for additional cleaning tasks
29. The Applicant was paid on a task‑by‑task basis by the Respondent. She could therefore earn additional income by undertaking extra assignments.
30. For instance, in about July 2021, the Respondent paid the Applicant an additional HK$3,600 for performing the extra task of trash removal before the commencement of the office renovation work around August to September 2021.
31. Apart from that, as said, the Respondent had been paying a separate monthly sum of HK$150 to the Applicant for trash removal for the Office in the normal days. Since the Applicant did not carry out any trash removal during August and September 2021, she did not receive trash removal fee from the Respondent for these two months.
32. It also appears that the Applicant actually derived an additional benefit by effectively “double-charging” for the same trash removal services rendered in respect of the 4th Floor unit (i.e., the Respondent’s office) through her concurrent provision of cleaning services to both the Respondent and the Incorporated Owners of Wyndham Mansion.
33. The Applicant’s cleaning services contract with the Incorporated Owners indicates that her daily duties included, among other things: “每日工作事項：1清理公眾地方之垃圾桶丶收集各戶垃圾 及運走一次 ” (emphasis added), which encompasses the removal of trash from common areas and individual units of the building.
34. In this connection, the Incorporated Owners in their letter to the Respondent dated 28 November 2023 stated, among other things, that:-
“3. Ms. Liu only told that she provided cleaning services for the offices of RAD Limited and would not affect the cleanliness of the building. She did not mention charging RAD Ltd. for the removal of RAD office garbage placed in the public common escape stairs on the 4th floor .” (emphasis supplied)
35. The Applicant’s provision of cleaning services to the Incorporated Owners will be addressed in greater detail at the appropriate juncture below.
Applicant engaged in cleaning works for other entities
36. It is also not in dispute that the Applicant was free to provide cleaning services to other entities without the need of seeking the Respondent’s consent. The Applicant testified that she also provided cleaning services to three other entities concurrently at the time of accident as follows:
(1) Incorporated Owners of Wyndham Mansion (i.e the same building where the Office was situated at its 4/F): Daily from 7:00 am to 12:00 noon;
(2) William International (Hong Kong) Limited (“William International ”) at Worldwide Commerce Centre (at 34 Wyndham Street): Monday to Saturday from 7:00 am to 12:00 noon;
(3) Swan Hygiene Services Limited (“Swan Hygiene ”) at the Centrium (at 60 Wyndham Street): Daily from 4:00 pm to 9:00 pm.
37. The Applicant acknowledged that these three buildings are situated in close proximity to each other.
Analysis of the working relationship between Applicant and Respondent
38. Applying the approach laid down in Poon Chau Nam, and after carefully considering the whole evidence of this case and counsel’s submissions, this Court is of the clear view that the Applicant was operating business on her own account as an independent contractor, rather than as an employee of the Respondent for the purposes of section 2(1) of the ECO.
39. First and foremost
40. On the other hand, I have not lost sight that the Applicant was skilled and experienced in providing cleaning services, any supervision from the Respondent may understandably be less. In fact, the Applicant’s solicitors’ pre-action letter dated 4 May 2023 sent to the Respondent stated, among other things, that “[t]he Claimant had to do all the Work by herself without any supervision ”[1] .
41. To respectfully adopt the reasoning of Lok J in Lee Wai Kei Wicky v World Family Limited (unrep, HCLA 35/2015, 3 October 2017) at paragraph 24, this Court similarly finds that any “control” exercised by the Respondent in this case, having regard to its nature, purpose, and degree , did not necessarily amount to control of such kind typically exercised by an employer over an employee.
42. In my view, the communications between the Respondent and Applicant rather reflect a client’s expectation of results or quality of performance, but not control over its method or timing, and are more consistent with the nature of a contract for services viewed against the overall evidence before this Court.
43. Secondly
44. In this connection, Ms Yeung gave evidence at paragraph 6 of her witness statement (which is accepted by this Court) that : “申請人自行帶備吸塵機、掃把及地拖到答辯人的辦公室清潔。之前辦公室有一個地拖，申請人也的確曾經拿來使用，但她覺得不適合沒用，後來改用了自己的工具。 ”
45. The Applicant testified that the vacuum cleaner and the mop were of little value, and she used them in the Office with a view to save the Respondent’s money. But the fact remains that they were her own tools of trade, but not acquired by the Respondent directing her to use to perform the cleaning work.
46. The Applicant stated for the first time in oral testimony that, had she not brought her own vacuum cleaner to the Office, Mr. Tan would have been obliged to purchase one for her use. However, she did not indicate that this matter had ever been discussed with Mr. Tan at any time in the past, nor was this matter mentioned in her witness statement. I consider this assertion to be, at most, a personal opinion of her own, with no evidence that it was ever communicated to the Respondent. In these circumstances, it carries limited probative value and does not affect this Court’s ultimate conclusion on the issue of liability when assessed against the totality of the evidence.
47. As regards the cleaning consumables, including detergents, bleaching agents, and rubbish bags, the Applicant at paragraph 13 of her witness statement said that, upon depletion of such items, she would first notify Ms Yeung and obtain her instructions prior to replenishment. However, Ms Yeung at paragraph 6 of her witness statement gave a different account, saying that the Applicant was not required to seek the Respondent’s prior approval and was at liberty to purchase the consumables as needed. The Applicant would submit receipts for reimbursement afterwards.
48. The Applicant’s assertion regarding the need to obtain prior consent before purchasing cleaning consumables was not put to Ms. Yeung during cross-examination. I also find Ms. Yeung’s evidence more credible, particularly in view of the longstanding working relationship between the parties and the trust demonstrated by the Respondent in entrusting the Office key to the Applicant. The arrangement described by Ms. Yeung also appears more practical and efficient.
49. Viewed in this context, the Court finds no persuasive reason advanced by the Applicant to suggest why the Respondent would require its staff to undertake the inconvenience of approving each instance of a routine, low-value purchase. Accordingly, I prefer Ms. Yeung’s account to that of the Applicant.
50. In these circumstances, this Court finds that there is no effective evidence to suggest that the Respondent had exercised control over the selection of, or placed emphasis on, any particular cleaning consumables used by the Applicant in the performance of her cleaning work.
51. In light of the aforesaid, viewing the situation from the perspective of provision of cleaning tools and consumables, it would appear to this Court that the overall evidence tend to show that the Applicant operated with a degree of independence more consistent with a contract for services than a contract of employment.
52. Thirdly all of the three other entities cannot be accepted by this Court upon careful survey of the evidence.
53. In fact, two letters issued by the Inland Revenue Department (“IRD ”) to the Applicant (both dated 15 February 2024) indicate that only William International and Swan Hygiene were recorded as her employers during the relevant period covering the date of accident. [2] By contrast, the income reported as received from the Incorporated Owners of Wyndham Mansion (“the IO ”) for the period between 01.04.2022 and 31.08.2022 was classified under the category “Others,” [3] and the IO was not identified as her employer, unlike the aforesaid two entities.
54. As for the written contract she entered into with the IO, it expressly described her as a self-employed cleaner.[4] Prima facie , this directly contradicts her claim of employment with the IO and undermines the credibility of her assertion. In my view, the fact that her working hours for the IO and William International wholly overlapped (according to the Applicant’s own case) tends to suggest that she actually worked as an independent contractor for the IO.
55. The Applicant sought to justify the concurrent working arrangement for the IO and William International in her witness statement (at paragraph 24) by referring to the proximity of the two buildings and the purportedly accommodating attitude of staff from the management company of Wyndham Mansion and William International respectively. She claimed that provided she completed the cleaning tasks promptly, no objections would be raised by their “staff”.
56. However, this Court finds it inherently improbable that the two entities (which the Applicant claimed to be the employee of each of them) would just permit her to work for another employer during the same designated work hours at her own discretion. As a matter of basic expectation, each “employer” would naturally require that its interests be attended exclusively and with priority during the assigned work hours. In this light, the notion that the Applicant could discharge duties for two masters in the same/overlapped time slot, without conflict or objection, strains credulity.
57. Apart from the aforesaid, when being confronted with the written contract she signed with the IO under cross-examination, the Applicant said that she had not read the document due to illiteracy and had signed it simply upon request by one Mr. Chan of the IO. The answer in her own words was : “我唔識字，叫我簽就簽”[5] . In answering another question regarding her awareness of being engaged as a self-employed cleaner by the IO, she stated: “我唔知, 我唔識, 我無問, 佢無講”[6] indicating that she neither knew nor inquired about the nature of the engagement and that no explanation was provided by the IO.
58. But this account is contradicted by the IO’s letter to the Respondent dated 4 September 2024, which states that the terms of the written contract (whereby the Applicant agreed to provide the services to the IO as a self-employed cleaner) had been clearly explained to her, and that she had acknowledged her understanding prior to signing. [7]
59. According to the written contract entered into with the IO dated 30 June 2020, the Applicant’s cleaning duties (daily, weekly and monthly) provided therein are as follows:
“每日 工作事項：
1清理公眾地方之垃圾桶丶收集各戶垃圾及運走一次。
2. 掃淨各層走廊及樓梯地面。
3. 拖掃地下大堂至後巷公共地方地面、清潔及抹淨信箱、告示板、公共間隔。
定期工作事項
5. 每星期
6. 每月
其他
8. 清潔用具及用品由（乙方）供應，所有單據必須實報實銷，並於每月25號前提交予（乙方）。
9. 甲方（包括其合夥人或僱員，如有）為自僱人仕，因清潔工作引致之工傷、及或意外，須由（甲方）自負全責，一概與乙方無關 。
10. 如甲方有私人事務處理而未能執行當天工作，必須自行安排有清潔工人到場執行清潔工作。遇有涉及相關安排而產生之費用及責任，須由（甲方）自負，一概與（乙方）無關 。
...” (emphasis supplied)
60. Pausing here, the Applicant initially stated in her first witness statement that she had not entered into any written contract with the Respondent. It was only subsequently that she filed a supplemental witness statement claiming that she had forgotten about the written contract earlier and exhibited a copy in her supplemental witness statement which had allegedly been obtained by her lawyer from the IO. She further stated that she was educated only up to primary school level, and that she signed the contract without reading it because she wished to secure the job. She added that, even if she had read it, she would not have understood its contents. While she disputed the clause indicating she was self-employed, she did not quarrel with the remaining terms of the written contract.
61. It is further noted that the Applicant’s description of her scope of cleaning services provided to the IO in her first witness statement is in fact substantially narrower than those stipulated in the written contract. At paragraph 18 of her witness statement, she only stated that: “我受僱於它們的工作是收集及棄置位於香港中環雲咸街30-32號的雲成大廈裏的垃圾及清潔雲咸大廈的大堂及後樓梯。 ” This account fails to fully reflect the scope of her daily cleaning obligations, and omits reference to the additional weekly and monthly cleaning services as required from her expressly set out in the written contract.
62. Against the above background circumstances, it is this Court’s view that the version as stated in the IO’s letter is inherently more probable, especially given that the written contract sets out in considerable detail the nature and scope of cleaning services that the Applicant was required to perform at Wyndham Mansion. Accordingly, it would prima facie be in the IO’s interest to make sure that the Applicant was clearly informed of the contractual obligations, particularly where the specified terms relate to specific cleaning services essential to maintain the hygiene of Wyndham Mansion, and that the particular term characterising the Applicant as a self-employed-cleaner was apparently inserted by the IO to safeguard its interests with a view to mitigating the risk of future disputes concerning the status of the Applicant’s working engagement.
63. Notably, the Applicant failed to identify in either of her two witness statements which personnel of the Respondent had conveyed to her the working requirements set out in the written contract (if it was not Mr. Chan). On the other hand, if it was Mr. Chan who did so, it is difficult to comprehend why he would just convey only part of the contract contents to the Applicant but withholding the other material terms, particularly the provision stating that she was engaged as a self-employed cleaner. The burden rests with the Applicant to advance a credible account for the Court’s consideration, and the Court is not obliged to accept her assertions at face value.
64. Further, in the normal course of things, it would be incumbent upon the Applicant to fully understand the scope of cleaning services required by the IO as set out in the written contract prior to signing it. For, common sense dictated that she had to ensure that she only agreed to something that her then working schedule could permit her to undertake. Because she was not providing cleaning services merely for the IO of Wyndham Mansion at that time.
65. In this connection, according to the two IRD’s letters (as referred to in paragraph 53 above), although there was no record that the Applicant was employed by William International or Swan Hygiene when the Applicant entered into the cleaning services contract with the IO on 30 June 2020, she was however reported to be working for another company called “S S Cleaning Company Ltd” (who was named as her employer) during the period between 01.04.2020 and 28.02.2021 earning an income of HK$63,375[8] . She also worked for the Respondent though the latter had not filed any tax return for the cleaning fee paid to her.
66. In passing, the same IRD’s letters also state that the Applicant received incomes of HK$21,050 and HK$6,900 as sub-contractor’s fee from another company called “Kwok Kee Cleaning Services Limited” during two other periods: 01.07.2021 - 31.03.2022 (earning HK$21,050), and 01.04.2022 - 30.06.2022 (earning HK$6,900) respectively.[9]
67. On the totality of the evidence accepted by this Court, it is more probable than not that the Applicant was engaged as an independent contractor by the IO at all material times, without fixed work hours. In particular, the written contract did not prescribe specific daily work hours, but instead only provided for cleaning tasks to be performed by the Applicant on a daily, weekly, and monthly basis, as pointed out above.
68. In these circumstances, this Court further observes that after the Applicant took up cleaning job for William International, she would likely be required to finish her cleaning duties with William International first during the time slot between 7:00 am and 12:00 noon daily. Then, she could utilise the residual time within the same time slot, and potentially beyond, to perform cleaning services for the IO prior to commencing her duties with Swan Hygiene (between 4:00 pm and 9:00 pm). Or else, she could undertake cleaning work for the IO and the Respondent at the same time before 7:00 a.m. (especially also given her flexibility of having no fixed work hours for the Respondent), with any remaining tasks for the IO to be completed after finishing her daily cleaning duties for William International.
69. In any event, without prejudice to anything aforesaid, according to the Court of Appeal’s decision in Chan Kwok Kin v Mok Kwan Hing [1991] 1 HKLR 631, 636A–B (as cited by Mr Edward Poon, counsel for the Applicant), it is for the Court, not the parties, to evaluate the facts and determine the true nature of the parties’ legal relationship in determining disputes of the subject kind, and each party’s own classification of their relationship carries no significant evidential weight.
70. Fourthly Chitty on Contracts (Hong Kong Specific Contracts) , 7th ed, vol 1, para 12-021.
71. In this regard, Ms Yeung gave the following evidence at paragraph 8 of her witness statement which was not really challenged under her cross-examination:
“8. 公司的员工如需放假，需要提前提交放假单供公司批准 ；如果公司的员工生病，需要递交病假单及医生签署的病假证明，否则视为年假 。但是，由于申请人是自雇人士 ，如申请人有事回鄉或生病，她无需申请放假、递交放假单、病假单或医生签署的病假证明，她只要提前知會本人即可，公司會自行或等她放假後處理清潔工作。如果申请人请假超過一天，她會自行安排替代人員 ，她不必（實際也沒有習慣）通知本人或公司任何有關替代者的資訊，如身份、資歷或薪酬等 。由於申請人會安排替工，公司不會扣她錢，公司也不必付款給替工。” (emphasis supplied)
72. In fact, the above account is largely consistent with (though more comprehensive than) a similar account given by the Applicant at paragraph 16 of her witness statement:-
“(16) 當我生病或有事需要請假未能出席工作，我都會通知會計楊小姐安排我的丈夫或兒子代我到該寫字樓進行該工作。答辯人每次都不會反對。如果我安排了我的丈夫或兒子代我到該寫字樓進行該工作，答辯人不會扣除我的薪金，也不會直接向我的丈夫或兒子支付任何金錢。”
73. I accept Ms Yeung’s evidence subject to the caveat that, as said, the question as to whether the Applicant should be legally characterised as an independent contractor or employee is ultimately a matter for the Court’s determination.
74. The Respondent did not vet or remunerate these substitutes, nor did it require any documentation from the Applicant, for instance, sick leave certificates. This freedom on the part of the Applicant to delegate work as and when she required also goes materially against the concept of personal service that underpins an employment relationship, but instead supports the view that she was in fact providing the cleaning services for the Respondent as a person in business on her own account.
75. Fifthly
76. However, for all practical purposes the payments for the Applicant’s services were not made by reference to the time of daily services she provided for the Respondent. The Applicant had no specific work hours (as so found by this Court), and as pointed out above, the Respondent in fact had no mechanism to gauge the number of hours of her daily attendance.
77. More importantly, notwithstanding the long period of the Applicant’s engagement as the sole cleaner for the Respondent’s business, the overall evidence remains that her services had been rendered under an overarching arrangement characterised by her complete autonomy in appointing substitute workers during her absence and that she was not subject to any fixed work hours in discharging her cleaning obligations to the Respondent.
78. In my judgment, this high degree of autonomy and flexibility in providing cleaning services to the Respondent was particularly important for her to work for four separate entities concurrently at the material times in a sustainable way . For, she was required to provide cleaning services for approximately 14 hours each day even according to her own case.
79. Furthermore, the fact that the Applicant was not subject to any requirement to obtain prior leave approval or to furnish medical certification in respect of her absence due to illness (as so found by this Court), is also in stark contrast with the Respondent’s own employees being subject to such requirements. This material differential treatment in a way further reinforces this Court’s view that the Applicant was not really integrated into the Respondent’s business in the manner characteristic of an employee.
80. Viewed from yet another perspective, if the Applicant was not an integral part of the Respondent’s and IO’s businesses but instead benefited from the autonomy / flexibility inherent in an independent contractor status, she would be at liberty to perform her cleaning duties for both entities in such manner, sequence, and timing as she deemed efficient and convenient. In particular, this could afford her the ability to undertake cleaning services for the IO before 7:00 am or after 12:00 noon each day (if the circumstances so required or if she wanted to) as discussed above. The absence of fixed work hours under both contracts (as so found by this Court) supports this observation. Logistically, such flexibility would also allow for consolidated trash removal across all units within Wyndham Mansion (including the Respondent’s office) thereby further enhancing her operational efficiency.
81. Sixthly [10] when circumstances so required, would bring her the flexibility to undertake multiple engagements concurrently on a sustainable basis . Viewed thus, this would in a way enable her to optimise the number of entities for which she could provide services and, in turn, maximise her overall income.
82. Seventhly , the absence of statutory benefits in relation to sick leave pay, annual leave, etc. or MPF contributions (as mentioned in paragraph 15 of Mr Tan’s witness statement which is not disputed by the Applicant) further reinforces this Court’s view of the lack of an employment relationship. The Respondent did not issue any Employer’s Tax Return in respect of the Applicant’s income, nor did the Applicant request such reporting. These arrangements are more consistent with a commercial engagement than with employment under the circumstances of this case.
83. When considering these matters, this Court firmly bears in mind Ribeiro PJ’s reminder made in Poon Chau Nam that the parties are not accorded with freedom to contract out of the ECO, and as such, even expressed intentions from the parties that that the claimant was self-employed, and arrangements flowing from such declared intentions, such as absence of MPF contributions or statutory entitlements paid under the Employment Ordinance, would not necessarily by themselves and without more prevent the Court from characterising the relationship as one between an employer and an employee. See : ECO, s 31(1); Poon Chau Nam case, paras 54 to 60.
84. As Ribeiro PJ instructively quoted Stephenson LJ’s observation made in Young & Woods Ltd v West [1980] IRLR 201 that it was “the court’s duty to see whether the label correctly represented the true relationship between the parties”, and accordingly, the court would still be required to view objectively the entire facts of each individual case and apply the indica of employment to discern whether the person injured is properly to be regarded as an employee. See : Poon Chau Nam , paras 57 and 58.
85. On the other hand, this Court should not impose self-restriction upon itself from considering and according due weight to these features (mentioned in paragraph 82 above) as they deserve according to the peculiar circumstances of the present case, especially noting His Lordship’s comments made at para 57 of the judgment that:-
“57. If, on the facts viewed objectively and applying the indicia of employment discussed above, the person injured is properly to be regarded as an employee, the ECO applies and any agreement seeking to remove that person from its scope is void. It may be, as Lord Denning suggested in the Massey case, that where the relationship is highly ambiguous and it is not at all clear that the injured person is an employee, the parties’ express agreement as to the status of that person may be important.
“The parties cannot transfer a statute-imposed duty of care for safety of workmen from an employer to the workman himself merely because the parties agree, in effect, that the workman shall be deemed to be self-employed, where the true essence of the contract is, otherwise, of a contract of service.”” (emphasis supplied)
86. In this case, even leaving aside the features mentioned in paragraph 82 above, this Court would still consider that the rest of the strands of evidence combined together already reveal a coherent outline of the picture, illuminating the true nature of the working relationship between the Applicant and the Respondent, allowing this Court to perceive a vivid image that the Applicant was an independent contractor, rather than an employee of the Respondent. The additional features only fill up the detail permitting this Court to arrive at the conclusion beyond doubts.
87. All in all, in light of the foregoing, and having regard to the purpose of the ECO and the guidance principles provided in Poon Chau Nam , this Court holds that the Applicant should be properly characterised as an independent contractor, and not an employee of the Respondent.
88. For completeness sake, I should also express my observation over a few other evidential points made by the Applicant, and an authority heavily relied on by Mr Poon. I have fully considered all of them, but they do not detract my conclusion about the Applicant’s legal status as reached above.
(1) First, the Applicant contends that both she and her mother‑in‑law worked for the Respondent as its employees. The Respondent denied this. The Applicant’s witness statement fails to describe the mode of operation by which her mother‑in‑law performed the cleaning services to the Respondent. Each party’s unilateral characterisation of the working status of the Applicant or her mother-in-law by itself is of little probative value as pointed out above. Nor would the bare assertion that the mother‑in‑law worked as a part‑time employee-cleaner for the Respondent in the past assist the Applicant in establishing the alleged employee status of her mother-in-law, absent any evidence of indicia of employment with respect to her mother-in-law’s working relationship with the Respondent in the first place.
(2) Second, Mr Poon drew my attention to paragraph 12 of the Applicant’s witness statement, which stated that she was unable to reject cleaning requests made by Ms Yeung and Mr Tan regarding the areas she was required to clean.
(3) But in this Court’s view, this statement does not per se demonstrate that the Respondent exercised control over her work. Even from the standpoint of an independent contractor, the Applicant’s response can equally be interpreted as reflecting her practical compliance with client’s preferences for commercial reasons. The Applicant may have described her obligations in terms that resemble an employment relationship, but this does not alter the true legal nature of the arrangement. Her willingness to accommodate requests from Ms Yeung and Mr Tan equally aligned with maintaining client’s satisfaction, but not necessarily with being directed or managed by the Respondent as its employee when the evidence is viewed as a whole.
(4) Third, Mr Poon also highlighted the Applicant’s answer given in response to the Labour Department’s questionnaire, saying that she could not work for other employers or negotiate other business while working for the Respondent. This answer must be viewed in practical context. Naturally, when the Applicant was physically engaged in work at a particular location, it is of course not feasible to simultaneously perform services for other entity(ies). This limitation arises from the nature of time and presence, but not from any contractual restriction imposed by the Respondent. Importantly, after she finished her works with the Respondent, the Applicant did work for the other 3 entities without the need of seeking the Respondent’s consent.
(5) Viewed thus, the more Mr Poon presented the Applicant’s case in this manner, the more it revealed that the Applicant’s position has all along been resting on her own mischaracterisation of the parties’ working relationship.
(6) Further, Mr Poon also drew this Court’s attention to the case of Ting Shuk Yan v Ko Kwai Kai Tony (unrep, DCEC 546 / 2007, 25/9/2008), and submitted that the trial judge in that case observed that even where applicants did not have holidays, nor staff benefits, and needed to arrange for their own substitute workers, and even having to take up a foreman-like role, it did not mean that the applicants were running their own businesses, but were actually working in menial jobs, earning modest wages through labour. And, the trial judge also found Madam Ting in that case an employee rather than an independent contractor.
(7) However, each case must be decided on its own merits. In Chitty on Contracts (Hong Kong Specific Contracts) , 7th ed, vol 1, the learned editors at Chapter 12 of the text have provided a comprehensive commentary on how previous courts approached the various tests / factors for identifying a contract of employment (in contradistinction to a contract for service by independent contractor). The learned editors at para 12-009 aptly observed that:-
“12-009 The weight placed on each test or factor may also be inconsistent from case to case making it difficult to rely on earlier decisions unless the facts are absolutely identical (a rare occurrence) . As a consequence, the outcome of any balancing of factors will be almost impossible to predict in advance without exploring the entirety of the factual circumstances...” (emphasis supplied)
(8) In this Court’s view, Ting Shuk Yan is materially distinguishable from the present case. In Ting case, the respondent previously held some ownership in a chain of restaurants known as “Seven Heavens”, one branch of which he thereafter operated as a sole proprietor under the trade name “K’s Kitchen”. The trial judge appeared to have accepted the applicant’s evidence and found a continuity of the applicant’s previous employment package for discharging her dishwashing duties to “Seven Heavens” being retained on similar terms but at a reduced salary following the transition to K’s Kitchen (see the judgment at paras 5, 6, 9, 13, 14, 47 and 53).
(9) By contrast, there is no evidence in the present case apart from the Applicant’s bare assertion (which this Court does not accept) that the Applicant’s mother was ever employed by the Respondent. On the contrary, Mr Tan gave evidence that the Applicant’s mother‑in‑law had provided cleaning services for the Respondent as an independent contractor (which was not challenged during cross-examination).
(10) Most significantly, the salient features of this case, namely, the Applicant’s possession of her own tools of trade, and her operational autonomy in managing her working hours with the Respondent and the IO of Wyndham Mansion to facilitate her provision of cleaning services to multiple principals in order to optimise her income (as discussed above), being hallmarks of her carrying on the “business on her own account” (vis-a-vis the Respondent) in light of the above analysis, were wholly absent in Ting Shuk Yan .
89. Lastly, I have also considered all the other evidence adduced by the Applicant, as well as the other authorities and submissions from Mr. Poon. They cannot advance the Applicant’s case any farther. They are largely tangential, neither here nor there, or are otherwise effectively addressed by way of the foregoing analysis. It is therefore unnecessary for this Court to list out and deal with each of them separately, so as to avoid unduly lengthening this judgment.
90. Since the Applicant fails to establish liability, this case can already be disposed of. However, in the unlikely event that this Court is wrong in finding the Applicant to be an independent contractor (but not an employee) working for the Respondent at the time of the accident, below is this Court’s finding on the quantum of compensation based on the figures agreed between the parties.
Quantum
91. On quantum, both parties’ counsel are commended for adopting a pragmatic approach and very fairly agreeing upon the following figures and terms without prejudice to the respective parties’ positions on the issues of liability:-
(1) The Applicant’s aggregate monthly income (only sourced from monthly incomes earned from William International, Swan Hygiene and the Respondent respectively) : HK$21,450;
(2) The Applicant’s percentage loss of earning capacity under section 9 of the ECO : 5%;
(3) The number of sick leaves for calculating section 10 compensation : 350 days;
(4) Previous gratuitous payments from the Respondent totaling HK$57,600 shall be given credit in the calculation of section 10 compensation;
(5) Medical expenses in the total sum of HK$4,545 is agreed as the section 10A compensation.
92. On this basis, the parties’ counsel further agreed (and as accepted by this Court) that the Applicant’s entitlements under the respective heads of compensation (if liability is established) are as follows:-
(1)
Section 9 :
HK$51,480
(2)
Section 10 :
HK$142,600
(3)
Section 10A :
HK$4,545
Total :
HK$198,625
93. In that event, interest at half judgment rate would accrue on the said sum of HK$198,625 from the date of accident until the date of judgment.
Disposition
94. Due to the above reasons, judgment is entered for the Respondent and it is ordered that the action be dismissed.
Costs
95. Costs normally follow the event.
96. This Court therefore makes an order nisi that the Applicant shall pay the Respondent costs of this action (including any previously reserved costs orders), together with a certificate for counsel, to be taxed if not agreed. The Applicant’s own costs shall be taxed in accordance with Legal Aid Regulations.
97. The aforesaid costs order nisi shall become absolute in the absence of any application within 14 days to vary the same.
98. Lastly, it remains for me to thank counsel for their helpful assistance rendered to the Court.
( Simon Ho )
Mr Edward Poon, instructed by Or & Lau, assigned by the Director of Legal Aid, for the applicant
Mr Francis Chung, instructed by Deacons, for the respondent
[1] Trial Bundle, p 544
[2] Trial Bundle, p 795
[3] Trial Bundle, p 793
[4] Trial Bundle, p 791
[5] Quoted from the Applicant's closing submissions, para 5j(i).
[6] Quoted from the Applicant's closing submissions, para 5j(iii).
[7] Trial Bundle, p 693
[8] There is another record stating that the Applicant earned an income of HK$68,175 from "S S Cleaning Company Ltd" (who was also named as her employer) during the period between 01.04.2019 and 28.02.2020. (see Trial Bundle, p 795)
[9] Trial Bundle, p 793
[10] See clause 10 of the written contract with the IO (as recited in paragraph 59 above).