POON CHAU NAM v. YIM SIU CHEUNG t/a YAT CHEUNG AIRCONDITIONING & ELECTRIC CO

        CACV 86/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 86 OF 2005

(ON APPEAL FROM DCEC NO. 410 OF 2003)

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J U D G M E N T

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Hon Woo VP (giving the judgment of the Court):

1. This is an application by the applicant for leave to appeal to the Court of Final appeal from our judgment given on 4 November 2005, with our Reasons handed down on 15 November 2005. 

2. As accepted by Ms Mok SC and Mr Clough on behalf of the applicant, this is not a case where an appeal as of right under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 is available.  The application is made pursuant only to section 22(1)(b) of the Ordinance, based on two proposed questions of great general and public importance and under the “or otherwise” ground of discretion. 

3. The two questions that are set out in the Notice of Motion are as follows:

(1)   Whether the relationship of a casual worker having more than one “employer” and who may not be obliged to work continuously for that “employer” who is not obliged to give the worker any work is inconsistent with an employer/employee relationship or is otherwise indicative of a contract of service rather than a contract for services.

(2)   Whether the fact that a worker joined the MPF scheme as a self-employed person is indicative of the true relationship between him and the person engaging his services and the parties’ intentions should be respected by the courts to hold that there was no an employer/employee relationship since otherwise “there would be serious ramifications.”

4. In our Reasons for Judgment dated 15 November 2005, we referred to a number of factors which will need to be taken into account in determining whether the relationship of employer/employee existed between the parties, which has been described as “a most elusive question and despite a plethora of authorities the courts have not been able to devise a single test that will conclusively point to the distinction in all cases”: Lee Ting Sang v Chung Chi-keung & another [1990] 2 AC 374, at 382D, per Lord Griffiths. 

5. The proposed questions said to be of great general and public importance are but factors that will be considered by the court in ascertaining the true relationship between the parties.  We did not lay down as a matter of law or principle how the courts should approach the two issues now posed as questions for the consideration of the Court of Final Appeal. 

6. In her written submission, Ms Mok addressed us on the appropriate weight that ought to be placed on the two factual matters referred to in the proposed questions.  In the Notion of Motion settled by Mr Clough, he also mentioned a number of factual situations in this case to say that we were plainly wrong in our Reasons to have affirmed the trial judge’s conclusion.  All these factual situations relate to the factors considered by the trial judge in ascertaining the relationship of the parties. 

7. The matter is fact-sensitive, and appropriate weight must be given to the court’s findings of fact at first instance.  Our affirmation of the trial judge’s judgment was due to the fact that having examined the evidence and his findings of fact we did not feel that we were entitled to interfere with his decision which depended upon, as Lord Griffiths said in Lee Ting Sang at 385E, “the evaluation of many facts and there will be many borderline cases in which similarly instructed minds may come to different conclusions.”

8. We are not satisfied that we should exercise our discretion on the “or otherwise” ground to allow this matter to proceed to the Court of Final Appeal. 

9. In the circumstances, the application is dismissed with costs.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.