TSANG CHUN TO v. TAM SAN FUNG t/a CHING YING CLEANING CO

DCEC 1675/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1675 OF 2006

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

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

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

JUDGMENT

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

Introduction

1.  This is an application for damages under the Employees’ Compensation Ordinance.  At the outset of the hearing, Counsel informed that the parties had agreed on the quantum and so, the issues left to be decided by the Court are:

(a)  Was the Applicant an employee of the Respondent on 28 and 29 July 2005?

(b)   If so, did the Applicant meet the 2 accidents on the 2 days as he said?

Background

2.  The Respondent commenced business in 1998.  It provided a wide range of cleaning services, including collecting garbage, washing cars, and so forth, to her clients at different buildings and locations. She called the buildings and locations, sites(地盤).

3.  On 30 July 2005, the Applicant attended the A&E Department of the Prince of Wales Hospital.  On examination, the doctor found that:

“(1) Case of falling from height.

(2) Examination showed tenderness, swelling, reduced range of movement over left ankle.

(3)   X-ray of the left ankle did not show any fracture.” 

(Annexure I of the Closing Submission of the Applicant’s Counsel)

4.  The hospital granted sick leave certificates to the Applicant for 69 days until 6 October 2005.  Thereafter, he went to GHC Medical Centre which continued certifying sick leaves for a further 77 days up to 22 December 2005. There were 2 further single sick leave certificates granted by the hospital for 2 days in April and October 2006, for the reason of left ankle pain.  There are altogether 148 days of sick leave.

5.  The medical report of the hospital prepared in March 2006 stated that:

“……

Mr. Tsang alleged to have an injury-on-duty on 28/7/2005. He complained of left ankle pain and swelling after a fall from height.

He was first seen in our Li Ka Shing Specialist Clinic on 12/8/2005. Clinical and radiological examination confirmed the diagnosis of ankle sprain. He was treated conservatively with physiotherapy and protected weight-bearing exercise.

Upon the latest follow up on 23/12/2005, he has no instability symptom, but there was tenderness over the anterior joint line.

We will see him again in April 2006.

……”  

6.  It is the Applicant’s case that he suffered the above injury as a result of 2 accidents on 28 and 29 July 2005 when he worked for the Respondent.  In fact, on 13 August 2005, he reported the matter to the Labour Department.

7.  The Respondent denied the claim.  Upon the enquiry by the Labour Department, she wrote on 15 September 2005:

“ 有關：曾俊濤報稱工傷事宜

根據本公司真確無誤的資料，上述人士並沒有在為本公司任何工作期間發生任何工傷意外。

現特請貴處查證及核實有關事件之真相。

……” 

8.  On 5 December 2006, with the assistance of the legal aid, the Applicant commenced the present proceedings.

9.  Upon being served with the proceedings herein, the Respondent went to consult her then solicitor Mr. Chu.  They not only decided to defend the proceedings herein, but also went to report the matter to the police.  It was the Respondent’s case that the Applicant, together with a staff of the Respondent named Ho Koon Tai (何官帶)(commonly known as “阿Dee”), had attempted to persuade the Respondent to cheat the insurance company by making false report that the Applicant was injured in the course of the employment with the Respondent.  She did not agree to it.

10.  Upon investigations, the police brought a charge against the Applicant for copying a false instrument (製造虛假文書的副本) in STCC 4525/2008.  After trial, on 5 June 2009, the Applicant was acquitted. The Deputy Magistrate delivered her judgment orally in the followings:

“……

本法庭不再重複呢件案件每一個細節，法庭將判決嘅理由簡述如下。法庭謹記舉證嘅責任喺控方身上，舉證嘅標準毫無合理疑點嘅標準，被告人毋須證明自己無罪。法庭已經考慮過所有嘅證人嘅證供、呈堂嘅證物、雙方嘅陳詞。喺呢件案件裡面，被告人係冇任何嘅刑事紀錄，法庭亦都要考慮案例Berrada裡面嘅指引。

喺呢件案件裡面，第三控方證人喺庭上面稱佢從來冇僱用過被告人，被告人從來冇同佢打過工，亦都冇任何，同佢冇任何嘅僱傭關係，亦都冇出過糧畀被告。但係根據P11同埋12，裡面牽涉係03年5月30號記項，05年7月25號記項、05年7月27號嘅記項、05年7月10號嘅記項，05年7月30號嘅記項，被告人嘅「濤」，「濤」呢個字係出現咗喺該兩份文件裡面。呢兩份文件係譚新鳳所聘用嘅員工，同埋佢出糧，有關員工出糧嘅有關嘅紀錄。喺呢件案件裡面，係P12裡面亦都有一個特別嘅記項，就係清楚寫明「阿濤出晒800元」。而第三控方證人稱被告人去馬鞍山Osim只係探阿Dee。第三控方證人亦都稱被告人喺禾輋學校係只係間接嘅問佢借50鈫入油。簡單嚟講，佢嘅證供就係完全否認有出過糧畀被告，否認被告人係曾經係為佢去工作。

而根據第四控方證人喺主問中嘅證供，佢就稱被告人為第三控方證人嘅伙計。佢見過被告人喺工地，被告人以前係為譚新鳳做過嘢，佢係伙計。第四控方證人亦都講，佢係見到被告人係做過拖地嘅工作。

第五控方證人稱佢間中係見過被告人喺沙田做嘢，而喺呢件案件裡面，被告人所提供嘅咭片，P8，呢一張嘅咭片喺較早時間被辯方係提供過畀警方作出有關嘅調查。而P16（a）呢一張嘅咭片，就係第三控方證人所提供嘅咭片。喺背後有同一嘅印刷錯誤，喺P8同埋P16(a)有同一個錯誤 ，就係話應該係寫「專業清拆」嘅，但係錯誤嘅印刷為「專業清折」，好奇怪嘅就係被告人提供嘅咭片同控方證人，第三證人所提供嘅咭片都有著同樣嘅錯誤。而D1何官帶嘅咭片，亦都有呢一個同樣嘅印刷錯誤，所以本席有理由相信，呢一啲嘅咭片係來自同一個人或者公司，以作承擔印刷嘅，即係話同一個印刷人。

本席對第三控方證人所講，佢同被告人冇任何嘅僱傭關係，十分存疑。事實上，就精英同被告人嘅關係、或者僱傭關係，警方亦為第三控方證人錄取過數份嘅口供，似乎第三控方證人嘅解釋，針對P11、P12嘅公司員工、或者係帳務紀錄，第三控方證人實在難以自圓其說。法庭亦都對第三控方證人對於筆記簿上面嘅記頂嘅解釋，甚感懷疑。

而有關提及到，辯方所提及到嘅有關公司嘅紀錄，法庭好小心考慮過辯方喺第五十四至到五十九段，喺辯方嘅書面陳詞裡面嘅有關嘅陳述。簡單嚟講，法庭接納有關嘅書面陳述，第三控方證人，法庭認為佢並冇如實披露佢同被告人真實嘅關係，本席對第三控方證人嘅可信性存疑，因此亦難以倚賴其關於第P7文件嘅供詞。

正如法庭所講，舉證嘅責任喺控方嘅身上面，而舉證嘅標準係相當之嚴格嘅標準，亦都係非常之高嘅標準。喺呢件案件裡面，本席認為疑點甚多，因此法庭認為控方唔能夠喺毫無合理疑點之下，證明被告人干犯咗本條控罪，因此判被告人罪名不成立，控罪撤銷。

……”   

11.  Coming back to the present proceedings, they were conducted in the usual way through pleadings and discovery stages.  In the end, parties appeared before me for a trial of 5 days.  Mr. Lo of Counsel acted for the Applicant and Mr. Gidwani represented the Respondent.  Upon conclusion of the parties’ cases, I reserved my judgment to be handed down.  I now do so.

Ruling

12.  To answer on the 2 issues identified, one has to make findings of factual arguments between the parties.  Upon thought, I have decided to accept the Respondent’s case on balance.  We are not living in a perfect world. Although there are some contradiction and inconsistency in the Respondent’s case, that of the Applicant is even worse.  As burden lies on the Applicant, I find that he has failed to come up with the necessary proof.

13.  There are my views over the Respondent’s case.

14.  The Respondent called 8 witnesses:

(a)  The Respondent herself,

(b)   The Respondent’s daughter,

(c)  5 former and/or current staff of the Respondent, and

(d)   The Respondent’s former solicitor, Mr. Chu.

15.  To start with, I find Mr. Chu a credible witness.  Indeed, his evidence was not or not substantively challenged.  Under oath, he confirmed what had happened at 2 telephone conversations with the witness of the Applicant, 阿Dee, on 19 December 2006.

“8. ……

Using the speaker phone function, the line went through and I explained to Mr. Ho that the reason why I called was to get information from him about the circumstances of the alleged accident that happened to the Applicant at a work site at Wong Yi Au Tsuen, Tai Po, Hong Kong on 28^th & 29^th July 2005. Mr. Ho was reluctant to tell us very much. All he could confirm was the Applicant was present at the work site that day but refused to say who instructed the Applicant to be there. Mr. Ho also confirmed that he did not see the Applicant had an accident that day. Mr. Ho told us the reception of his phone is very poor so he hung up.

9. Mr. Ho called back after a short while and in this subsequent telephone conference, he expressed concern for his own position as he had previously committed himself to support the Applicant’s injury claim by confirming to the Applicant’s solicitors his concurrence with the Applicant’s version. He then added that he would assist neither the Applicant nor Madam Tam in this case and then he hung up.

10.  Some of the contents of the telephone conversations were recorded in the attendance notes attached and I would not repeat in here.  A large part of these notes were written during the respective telephone conferences.  I did not write down every word of the dialogues engaged by the parties in these telephone conferences, but after having read these attendance notes, I can recall the gist of these dialogues and also the thoughts that I had during these telephone conferences, particularly the impression that I was given by Mr. Ho Koon Tai through his admission and his own acquiescence as to the nature of the presence of the Applicant at the subject village hours on 28^th July, 2005 [sic. 2006]

11.  I recall that Mr. Ho Koon Tai concurred with us during the 2^nd telephone conference that on 28^th July, 2005 [sic. 2006], the Applicant had not been assigned any work at the subject village house; the Applicant only volunteered to carry a water pump; and the Applicant could not or unlikely to have sustained injury to body during his stay at the village house on that occasion.

12.  …..”

16.  The solicitor also produced his contemporaneous attendance notes to this Court.  I have no hesitation to accept his evidence.

17.  Among the said 5 staff, Mr. Leung Wai Hung (梁偉雄) （commonly known as “高佬雄”） is more important.  He left the employment with the Respondent for some time.  Parties agreed that he was working at the subject site on both 28 and 29 July 2005.  His evidence corroborated with those of the solicitor Mr. Chu.

“1. …..

2. 在2006年12月中，譚新鳳女士曾致電給我查詢曾否記得在2005年約7月28日及29日在香港大埔黃宜坳村精英工地的事，…在該工地工作是否祇有何官帶（花名“亞Dee”）及我本人工作。我肯定地回覆她在該日期、時段在該工地祇有我和亞Dee 在做清潔工作，並無其他工人。

3. …根據我記憶所及，亞濤不在該精英工作地點工作，但我曾見過他在2005年7月28日曾前往該精英工地找亞Dee 傾談了很久，時間約在當日下午飯後左右。跟着亞濤更主動幫亞Dee 將一個水泵拿埋一邊，亞濤跟着便同亞Dee 講Bye Bye，便走了。當時我看見他並無受傷。

4.  在2005年7月29日，我如常在大埔黃宜坳村與亞Dee 一起做清潔工作。當日由早上開工直至下午約6時收工。均沒有看見亞濤在上述工地出現過。當日在該工地亦並無任何工傷意外發生。

5.  在2006年12月中，譚新鳳女士約了我在2007年12月19日下午一同前往朱昌傑律師事務所對這件事尋求法律意見。律師意見是可能涉及串謀欺詐保險金刑事罪行。

6.  在朱昌傑律師事務所朱律師曾詢問譚新鳳女士有否亞Dee 的聯絡電話。譚新鳳女士隨即在其手機找出亞Dee 的手提電話號碼給朱律師。朱律師便用其辦公室電話以免提方式打電話給亞Dee 以便我們可以一起傾談。

7.  在2006年（12月19日，added in the course of his giving evidence）下午約1655時，朱昌傑律師接通了亞Dee 的電話。從亞Dee 口中證實亞濤在事發當日並沒有受任何工傷，但亞Dee 亦拒絕說明誰准許亞濤在該工地出現/工作但他亦承認亞濤沒有得到譚新鳳女士批准聘請。

8.  亞Dee 亦承認他從亞濤處得知亞濤有向勞工處報工傷及索取賠償，但拒絕詳細說明事件。

9.  當朱律師要求亞Dee 協助譚新鳳女士向警方報案作刑事案件調查證人時，亞Dee 即時拒絕並稱他不會做亞濤或譚新鳳的證人。

10.  …..”

(Statement dated 27 February 2007)

18.  I further find his explanation of the working procedures more reasonable and convincing than those of the Applicant and 阿Dee。

“14. 我們在該工地的工作是清洗外牆，這工作是兩個人一組做的。我們要站在竹棚上，各自配戴一套安全帶，一個人負責把洗石水噴在外牆上，另外一個人用水槍向外牆射水，立即用水沖走洗石水。這兩項工序一定要兩個人合作和在短時間內完成，否則洗石水會損壞外牆的表面，所以阿濤在他的陳述書的第6段說，他和阿Dee 及我在村屋不同位置工作是不可能的。

15.    當時我和阿Dee 兩個人一組，由於我們只有兩套安全帶，所以不可能有第二組人在村屋的另外一面清洗外牆 。此外，我不相信阿濤的傷患是由於在旁協助我和阿Dee 而造成的，因為如果他在我附近的話，我一定會看見他。”

(Supplemental statement dated 15 July 2010)

19.  As to the other 4 staff, their evidences are relatively less important as they only talked about their impression over the Applicant and their understanding of the relationship between him and the Respondent.  These are not directly relevant to the 2 issues identified. 

20.  I should only mention that 2 of these staff陳金源and謝國強did at different occasions “heard” about the underlying reason for the Applicant to set the scheme against the Respondent.

“22. 我記得那時是2005年夏天的某個時候，阿Dee 和我在傍晚時分一同在大埔花園下班。當時沒有其他人在我們附近。阿Dee 看來心事重重，並告訴我阿濤剛剛和弟弟打架及受了傷。我並沒有問他事件如何發生的細節或阿濤身體哪一個部位受傷。阿Dee 還告訴我，他想和譚姑娘商量一下，向提供僱員補償保障的保險公司呈報有關事宜。我不肯定他是否在徵詢我的意見，但我的即時反應是，這是非法的，所以我告訴阿Dee，阿濤並不是譚姑娘的僱員，在任何情況下這都不是一宗和工作有關的意外。阿Dee 沒有反對我的說話，我以為他同意我的說法，所以我沒有再在對話當中與他談及這件事情。

23.   直至警方大約在2007年8月聯絡我就串謀詐騙僱員補償案件提供協助之後，我才知道阿濤真的那麼大膽提出申索。”

(Statement of 陳金源dated 15 July 2010)

“12. 於該份警誡口供內，我告訴警方在2006年某個時候，我和阿Dee 在大埔花園做完工作後，他帶我到阿濤位於大埔的新居坐了一會兒，然後再到附近的一間祥基餐廳飲茶。我無意中聽到阿濤說他已經委託了律師處理他的僱員補償案件。我告訴譥方我不太清楚他們討論的確實內容，因為我真的不明白為何阿濤可以在並非受僱於譚姑娘的情況下申索僱員補償。我感到阿Dee 當時也不認同阿濤的做法，正因為這個原因，我告訴警方阿Dee 表示他不會插手這事件。當我與警方會面時，他們沒有進一步問我其他問題以澄清有關事宜，所以我沒有提供進一步的資料。

13． 事實上，我在該次會面時由阿Dee 口中得知，因阿濤有財政因難，希望譚姑娘將他和弟弟打架受傷一事當作因工受傷報工傷，這樣提供僱員補償保障的保險公司便會支付一些賠償給他，屆時他便可以利用那些賠償還清他的債務。但譚姑娘不允許，所以他就決定將這次騙取工傷的計劃轉而向譚姑娘追討，同時阿濤向阿Dee 表示他已找到律師，向譚姑娘索償，並表示他的目的是得到港幣80萬元。阿Dee 當時講譚姑娘可能沒有港幣80萬元這麼多，阿濤講就算告到譚姑娘賣樓都要告。

14． 我坐在那裏作為旁觀者，由於我只是阿Dee 的朋友而不是阿濤的朋友，阿濤沒有要求我參與這事宜。但阿濤叫阿Dee 配合他的計劃便可得到利益，不過阿Dee 立即拒絕參與。

(Statement of 謝國強dated 15 July 2010)

21.  During the trial, I did for some time have some hesitation to accept such accusation as it was strange for somebody to discuss their improper plans in front of others who are not part of it.  However, having accepted the Respondent’s case, as well as observing the way of giving evidence by both the Applicant and 阿Dee，on second thought, on balance, I will accept these parts of evidence of 陳金源 and 謝國强.  It simply put everything in picture to make a logical story as a whole.

22.  Ms Lam Hin Ling (林曉玲) is the daughter of the Respondent.  There is no dispute that she was educated up to Form 4.  In about July 2007, she was 21 and did not have a job.  The Respondent then arranged her to work as a clerk in her cleaning business.  She was asked to keep the daily working record of the staff in a note book.  Senior staff of the Respondent, including 阿Dee, would call her by phone to take down record.  Thereafter, the Respondent would check it.  Indeed, the accuracy and reliability of such record kept by Ms Lam is one of the major disputes in these proceedings.

23.  Upon thought, and on balance, I did find her reliable in that she did work according to what the Respondent had told her.

“6. 我的母親只告訴我一些員工會致電給我，告訴我當日工作的員工的名字，而我只需在該記事簿記下他們的名字及他們跟我說過的話。但她沒有告訴我誰會致電給我。所有我記下的名字大都只是花名或名字。一些人會告訴我他們的全名，即使是全名，我所寫的中文字亦可能是錯的。”

（Statement of Ms Lam dated 15 July 2010）

Such finding is important because, as a matter of fact, the starting point is that the name of the Applicant does not appear on the daily entry of 28 and 29 July 2005 in the note book.

24.  When the Applicant argued that Ms Lam’s record was not accurate, he also said that an entry therein on 30 July 2005 would help him.

He explained that he worked on 28 and 29 July 2005 at the rate of $400 each day.  The Respondent thereafter paid her on 30 July 2005.

25.  In relation to it, Ms Lam said in her statement:

“21. 我可以肯定地說，當我在2005年7月30日的項目加上一顆星星「★阿濤出曬 $800」，那顆星星表示我想問我母親關於該項目的事，因為我不明白它的意思。那是阿Dee 叫我寫下來的，我沒有問他那是什麼意思，因為那並非我的職責的一部份。”

26.  In my view, the aforesaid entry does not add much to the Applicant’s case:

(a)  It is nothing more than a “recording” of statement made by 阿 Dee to Ms Lam.

(b)  It was not recorded under the heading of the subject site, but another site of the Respondent.

(c)   As I will demonstrate below, I will not rely on the explanation of the Respondent herself to the record kept by Ms Lam.

27.  With respect to the Respondent, I do not intend to rely on any of her evidence because it is simply unreliable to do so.  I say so, not due to her integrity or dishonesty, but the inaccuracies of her evidence.  During her examinations at these proceedings, she gave inconsistent answers from time to time.  She came up with different explanations as to the said “阿濤出曬 $800”.  I also find her corrections to the record kept by Ms Lam not systematic.  She forgot what she meant by the crossing out and symbols she put thereon.

28.  Finally, I certainly do not forget about all the loopholes pointed out by Mr. Lo in the witnesses of the Respondent’s case.  However, it suffices for me to say that:

(a)  STCC 4525/2008 is a separate proceedings touching on different subjects.

(b)  As Counsel for the Applicant in STCC 4525/2008, Mr. Lo no doubt had detailed knowledge about the evidence of the witnesses therein.  However, as a civil case is distinguished from a criminal one in relation to the burden as well as standard of proof, by merely pointing to the inconsistencies of witnesses and creating doubt, cannot help the Applicant on this occasion.

(c)   In so far as these inconsistencies pointed out by Mr. Lo, I take the view that the witnesses were not telling lies, but could not remember the exact details or the events only.  In any event, they again do not touch directly on the issues in these proceedings.

(d)  Regarding the argument of the parties as to the “authenticity” of the name cards of the Applicant and 阿Dee as well as the employment letter of the Applicant, I find it unnecessary to make any findings as they also do not have any direct bearing on the issues herein. However, in the unlikely event that it should be decided, I would prefer the case of the Respondent to those of the Applicant.

29.  Having discussed about the evidence adduced by Respondent, I then turn to those of the Applicant.  He called 3 witnesses:

(a)  The Applicant himself,

(b)  阿Dee, and

(c)   The Applicant’s mother.

30.  First, the evidence of the Applicant’s mother is neither here nor there because she could only confirm that the Applicant had informed her of the industrial accident.  It is hearsay evidence only.

31.  As to 阿Dee, I take the view that he is not a witness to be trusted.  His case on how the Applicant was injured is far from believable.

(a)  He deposed in paragraph 7 of his 1^st witness statement that the Applicant “…..狀甚痛苦一瘸一拐地走來告訴本人和阿雄他發生了意外…..”, but at Court, his evidence was that the Applicant made a phone call to inform him of the injury.  Such contradiction is something that cannot be easily made.

(b)  He also informed this Court that the Applicant fell from about 12-13 feet onto the ground.  However, he heard no sound, no yelling and no calling for help at all.  I find it difficult to accept.

(c)   In spite of the injury, the Applicant drove him to lunch.  After it, they returned to the subject site and took the Applicant to the roof to rest for 5 hours there.  I also find such narration not to be believed.

32.  Finally, the evidence of Applicant also contains lots of problem.  As pointed out by Mr. Gidwani in his closing submission:

“44. There was no injury to other parts of the Applicant’s body, apart from left leg or left ankle. No to the wrist, to the spine, to the buttock or to the neck. The 1^st fall was allegedly from 2/3 floor to ground. The Applicant somehow landed on left foot, stood still, and called Ah Dee on a mobile phone – alleged under rain and on loose ground. There was no expert report commenting on the plausibility of the Applicant’s alleged mechanism. However, common sense must raise concern to any reasonable jury. The Applicant was too trivially inured from the fall.”

45.  It adds to the surprising events when the Applicant seriously suggested that he was then moved to and stored at the top floor until close of business whereupon he was carried back to ground level.  He then drove his Lexus away from the site.  Ah Dee had no driving licence.

46.  And the Applicant drove to site in Lexus again on 29 July 2005, so he said, and he was unstopped by his ankle pain and continued with scaffolding duties – all for the sake of $400.  His friend Ah Dee did not seem to be much concerned with his health and safety – and indeed with the quality of work.

47.  …..

48.  In the medical report, based on clinical presentation on 12 August 2005 and the Labour Department form based on interview on 13 August 2005, the date 29 July 2005 was never recorded.”

Conclusion

33.  To conclude, the Applicant’s claim is dismissed.

34.  I see no reason to depart from the general rule that costs follow the event. There is as such an order nisi that the Applicant shall pay costs of the Respondent, including Certificate for Counsel for the hearing dates on 14, 17-20 January 2011, on District Court Scale, to be taxed if not agreed.  The Applicant’s own costs are taxed in accordance with Legal Aid Regulations.