TING KWOK KEUNG v. TAM DICK YUEN t/a TAM DICK YUEN ENGINEERING AND OTHERS

FACV No. 12 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 2001 (CIVIL)

(ON APPEAL FROM CACV NO. 751 OF 2000)

_____________________

_____________________

__________________

J U D G M E N T

__________________

Mr Justice Bokhary PJ:

Introduction

1. Ultimately this case turns on an issue of primary fact. However certain questions of legal principle arise. They concern the resolution of disputes of fact at trial and how such disputes are to be approached on intermediate appeal and on final appeal.

2. The broad circumstances of the case are as follow. On 19 July 1996 Mr Ting Kwok Keung was injured in an accident at a demolition site in Tsuen Wan. For the demolition work to be carried out, it was necessary to erect hoarding which included a covered walkway. The hoarding work involved welding. Mr Ting was one of the welders. On the day of the accident he was working at the site. He stepped onto a corrugated asbestos sheet canopy. It gave way beneath his feet. As a result, he fell about 5 metres and sustained injuries.

3. Mr Ting brought a claim for employees' compensation. On 29 September 2000 he won at the trial in the District Court (Deputy Judge Lok). He was awarded employees' compensation in the sum of $980,469 plus interest and costs. But the other side won in the Court of Appeal (Mayo VP and Wong and Stock JJA) on 4 May 2001. The award was set aside with costs. Now, by leave of the Court of Appeal (Mayo VP and Stock and Cheung JJA) granted on 14 September 2001, Mr Ting appeals to this Court.

4. The crucial issue was - and is - whether Mr Ting was an employee (as he contends) or an independent contractor (as the other side contends). If he was an employee, he is entitled to employees' compensation. But if he was an independent contractor, then he is not entitled to employees' compensation. That is the clear effect of the Employees' Compensation Ordinance, Cap. 282. The trial judge found that Mr Ting was an employee. This finding was reversed by the Court of Appeal which found instead that Mr Ting was an independent contractor. Thus Mr Ting won at the trial, but lost in the Court of Appeal.

5. Initially Mr Ting sued two persons: an individual, Mr Tam Dick Yuen trading as Tam Dick Yuen Engineering, and a company, Progress Construction Ltd. Mr Ting pleaded in the Application which he filed that Mr Tam was liable as his employer, and that Progress was liable as a principal contractor. As against Progress, Mr Ting relied on s.24(1) of the Employees' Compensation Ordinance. This subsection covers the situation where a principal contractor contracts with a sub-contractor for the execution by or under the sub-contractor of the whole or any part of any work undertaken by the principal contractor. It makes the principal contractor liable to pay employees' compensation to any employee employed by its or any other sub-contractor in the execution of the work.

6. At the trial, Mr Ting amended his Application to add another individual, Mr Lau Chun Kong, as a party. I will refer to him as "Kong". This is because there is another Mr Lau involved in this case. He is Mr Lau Chun Pang. I will refer to him as "Pang". Pang was Mr Tam's site supervisor at the material time. He also happens to be Kong's younger brother. Mr Ting added Kong as a party for the purpose of contending in the alternative that Kong was liable to pay him i.e. Mr Ting employees' compensation. This alternative contention involves the argument that Mr Ting was employed by a partnership consisting of himself and Kong.

7. Sometimes the question whether a person was an employee or an independent contractor is to be answered by applying the legal indicia to the primary facts. But in the present case this question is, subject to that alternative contention, to be answered, as we shall see, simply by resolving an issue of primary fact.

8. The trial judge found that Mr Ting was employed by Mr Tam and entered judgment for Mr Ting (as employee) against Mr Tam (as employer) and Progress (as principal contractor). The claim against Kong was dismissed by the trial judge. The trial judge did not award costs in Kong's favour. Instead the trial judge included Mr Kong amongst those against whom costs were awarded in Mr Ting's favour. Presumably this was because Kong was represented by the same counsel and solicitors as Mr Tam and Progress.

9. Mr Tam, Progress and Kong appealed to the Court of Appeal. The appeal was against both liability and quantum. By a respondent's notice, Mr Ting invited the Court of Appeal to consider an alternative basis for entering judgment for him against Progress. It was that provided that he i.e. Mr Ting was an employee working at the site, Progress would be liable as principal contractor to him no matter which sub-contractor was his employer.

10. The Court of Appeal heard argument on liability but not on quantum. When it reserved its judgment on the appeal against liability, the Court of Appeal indicated that the matter would be re-listed before it for argument on quantum if the appeal against liability failed. In the result, the appeal against liability succeeded before the Court of Appeal. So the Court of Appeal has not yet dealt with the appeal against quantum. The question of what is to be done in regard to quantum would arise if this Court were to restore liability.

11. In his appeal from the Court of Appeal to this Court, Mr Ting has made Mr Tam, Progress and Kong the respondents.

12. It was contended in Mr Tam, Progress and Kong's printed case that we should set aside the leave to appeal to us granted by the Court of Appeal. But this was not pursued at the hearing before us.

The rival accounts

13. I turn now to note the gist of the rival accounts. There is some common ground before the accounts diverge. The following three facts are common ground:

(i) Progress was the principal contractor for the demolition project;

(ii) Progress sub-contracted the hoarding work to Mr Tam; and

(iii) Mr Tam sub-sub-contracted the hoarding work to Mr Ting and Kong for a lump sum, the work to be completed within a specified period.

Did things change? Here the two sides' accounts diverge.

14. One account was given by Mr Ting. It was supported by Mr Kam Chun Kam, a worker at the site. A different account was given by Mr Tam, Pang and Kong. Some support for it came from the testimony of a factory inspector, Mr Lo Yiu Keung, about what Mr Ting said to him when he interviewed Mr Ting after the accident.

15. Shortly stated, Mr Ting's testimony was to the following effect. One or two days after the sub-sub-contract was signed, Mr Tam and Pang informed Mr Ting and Kong that there would be a change to the sub-sub-contracted work. This led to a heated argument. The upshot was that the sub-sub-contract was abandoned. However, because the hoarding work was urgent, Pang asked Mr Ting to continue working at the site. It was agreed that Mr Ting would do so, but only as an employee of Mr Tam's. A few days later, while Mr Ting was working at the site as an employee of Mr Tam's, the accident happened.

16. Mr Ting's account was supported in both material aspects by Mr Kam. Mr Kam testified that he overheard both the abandonment of the sub-sub-contract and Mr Ting's engagement as an employee of Mr Tam's following such abandonment.

17. Turning to the other side's account, the effect of the testimony given by Mr Tam, Pang and Kong was, shortly stated, to the following effect. Yes, there was a change to the sub-sub-contracted work. But the change was slight, and it was agreed to by Mr Ting and Kong. The sub-sub-contract remained on foot. Mr Ting was working at the site as an independent contractor when the accident happened.

18. Mr Lo's testimony concerned two statutory declarations made to him by Mr Ting. The first was made on 6 August 1996 shortly after Mr Ting came out of hospital. In this statutory declaration Mr Ting seems to say that he was an independent contractor. In the second statutory declaration, which was made about five weeks later on 11 September 1996, Mr Ting says that: "Due to changes in the work after the incident, the contract has been avoided". Mr Lo said that his impression was that the incident to which Mr Ting referred was the accident. The sequence, Mr Ting testified, was: sub-sub-contract; changes to work; heated argument; abandonment of sub-sub-contract; continuation as welder, now qua employee; and then accident.

The trial judge's findings of fact

19. The trial judge accepted the account given by Mr Ting and supported by Mr Kam. He rejected the account given by Mr Tam, Pang and Kong. Mr Ting was characterised by the trial judge as "a truthful and honest witness". Mr Kam's testimony was characterised by the trial judge as "independent and impartial".

20. As for Mr Ting's two statutory declarations, the trial judge summarised Mr Ting's testimony thus:

" When he was questioned in the trial as to why he did not clarify the true relationship between the parties in the first statutory declaration, [Mr Ting] replied that he did mention about the cancellation of the sub-contract to [Mr Lo]. He was told that he could make a supplemental statement at a later stage and so he did not press [Mr Lo] to amend the statement to reflect the true relationship in the first interview. Further, [Mr Tam, Pang and Kong] contacted him shortly after his release from hospital and asked him not to reveal the whole truth about the accident to the Labour Department, otherwise [Mr Ting] would not be able to get any compensation. By that time, [Mr Ting] had just been released from hospital and he was confused, and so he did not state fully the true relationship of the parties in the first statutory declaration."

21. And the trial judge then said this:

"... having taking into account [Mr Ting's] condition after his release from hospital, and the conversations between [Mr Ting and Mr Tam, Pang and Kong] before the first interview, I do not find it unreasonable that [Mr Ting] did not give a full account of the relationship of the parties in the first statutory declaration. As Mr Lo had told him that he could always come back to make a supplemental declaration, it would be quite sensible for [Mr Ting] to approach [Mr Tam, Pang and Kong] again before the making of a further supplemental statement. I also accept [Mr Ting's evidence] that he was not referring to the accident when he used the word 'incident' in his second statutory declaration."

The Court of Appeal's reversal of the trial judge's findings of fact

22. In reversing the trial judge's findings of fact, the Court of Appeal, in its judgment given by Mayo VP, began by noting the approach adopted by Mr Neal Clough for Mr Tam, Progress and Kong. This approach was, the Court of Appeal said, to select two or three significant items of evidence, and then argue on the basis of such evidence that it was manifest that Mr Ting had been an independent contractor at the time of the accident.

23. The first of these items of evidence was a note of which no discovery had been made but which was produced while Pang was in the witness-box. This note was in Chinese. As translated into English, it reads:

"Paid to Kwong	$193,400.00
Paid to Keung	$250,768.00
Paid to Pang wages	$43,625.00
Paid to Kam wages	$12,000.00
Lyndhurst Street Paint	$9,400.00
Bought welding gas	$13,500.00
Bought materials	$216,488.00
Total project price	$800.000.00
Balance	$60,819.00
Per person	$20,273.00	"

Attached to this note was a printout from an ATM machine. This printout indicated that a sum of $20,273.00 had been transferred by Pang into Mr Ting's bank account. One of the respects in which Mr Ting's testimony conflicted with Pang's testimony was this. Mr Ting denied, while Pang alleged, that the two of them had been sub-contractors at another site on an earlier occasion. The Court of Appeal felt that the note undermined Mr Ting's denial. Referring to Mr Ting's testimony that he had received some $20,000 but that it represented his wages and a bonus paid to him by Pang, the Court of Appeal said that: "No plausible reason was given as to why Pang should out of the goodness of his heart see fit to pay a bonus to him". The Court of Appeal concluded its discussion of the note by saying that it was surprising that the trial judge had simply accepted Mr Ting's testimony and rejected Pang's.

24. The second item of evidence considered by the Court of Appeal is the item of evidence constituted by Mr Ting's two statutory declarations and Mr Lo's testimony about them. The Court of Appeal appears to have taken the view that this item of evidence told strongly against Mr Ting.

25. In regard to the first statutory declaration, the Court of Appeal began by saying:

" The way [Mr Ting] dealt with this evidence was to state that at the time when he made the declaration he had been confused as he had just come out of hospital. As earlier indicated he also said that he had informed Mr Lo that there was some uncertainty concerning his employment status and that Mr Lo had agreed that a further statement clarifying matters could be given later. Effectively Mr Lo denied that this had been agreed between them."

Then the Court of Appeal said:

" It will be noted that [Mr Ting] did not apparently have any difficulty in giving a detailed description of the circumstances leading up to the accident and how it actually occurred.

This would not appear to be consistent with someone being in such a confused state of mind as to be unable to recollect what his true employment status was.

It is also apparent from the transcript of the proceedings below that [Mr Ting] was fully aware that the question of the status of his employment was a live issue immediately before he made the first declaration. In his evidence he referred to conversations he had had particularly with [Kong] when there were discussions concerning [Mr Ting's] employment status."

26. Turning to the second statutory declaration, this is what the Court of Appeal said:

" Even the second declaration did not satisfactorily clarify the outstanding situation. What [Mr Ting] says falls short of a clear statement that he was an employee at the time of the accident and give particulars of his employer."

27. On the "incident/accident" issue, the Court of Appeal said:

" It is noteworthy to add that the parties agreed the Chinese characters for 'accident' and 'incident' are the same. Mr Lo gave evidence that it was his understanding that when [Mr Ting] was making his second declaration he had definitely been under the impression that [Mr Ting] had been referring to the accident which had occurred."

28. As to the weight of Mr Lo's testimony, the Court of Appeal said:

" What is perhaps of greatest significance is that the Judge attached so little importance to the evidence of Mr Lo.

He could truly be said to be an independent witness. There was every reason to suppose that he was an experienced person who was discharging a statutory function. He made a note of what was said by the applicant and additionally said that had the applicant indicated that there was any uncertainty as to his employment status he would have recorded this."

29. The third and final item of evidence considered by the Court of Appeal was Mr Kam's testimony. As we have seen, Mr Kam's testimony was in Mr Ting's favour. But the Court of Appeal felt that Mr Kam had been "caught out in his evidence in a material way".

30. Having considered these three items of evidence, the Court of Appeal said this:

" What is of particular importance in this appeal is the amount of weight the Judge attached to [Mr Ting's] evidence. He proceeded on the basis that he was a truthful and reliable witness when there would appear to be good reason to suppose that he was nothing of the sort.

Having regard to the matters referred to by Mr Clough there must be a large element of uncertainty as to whether the Judge could properly have reached the conclusion he did. It may perhaps be the case that none of the matters specifically referred to by Mr Clough would of itself justify us in calling in question the way the Judge dealt with the matter. However the cumulative effect of all these matters is such that we consider that Mr Clough has succeeded in surmounting the very high threshold of convincing us that this is a case which calls for the intervention of this court. In our view if the Judge had properly weighed and considered all of these matters he would have been driven to the conclusion that at the time of the accident [Mr Ting] was a sub-contractor and not an employee and accordingly his claim should have been dismissed."

The Court of Appeal's reasons for granting leave to appeal

31. In a determination delivered by Mayo VP, the Court of Appeal gave three reasons for granting Mr Ting leave to appeal to this Court. First, the Court of Appeal outlined the submissions advanced by Mr Ting's counsel in support of the leave application, and then, very fairly as always, said:

" It suffices to say that his submissions caused the Court considerable disquiet as there may be sufficient reasons to lead it to a conclusion that it has substituted its own view of the evidence which was before the Judge rather than being satisfied that the Judge was plainly wrong which is the correct test."

Secondly, the Court of Appeal said:

" A further factor which we have weighed in the balance is that the Court did not order that there should be a retrial as it was of the opinion that in all the circumstances this would serve no useful purpose. This would appear to constitute a further reason for the matter to be considered further."

Thirdly, the Court of Appeal said:

" Finally, there is the fact that the amount of the award made by the Judge was only slightly less than the amount referred to in section 22(1)(a) of [the Hong Kong Court of Final Appeal Ordinance, Cap. 484]. This being the case we should more readily be disposed to grant the leave which is sought."

When the Court of Appeal may properly disturb findings of fact made by a trial judge and when it ought not to do so

32. Many statements have been made in the House of Lords on when the Court of Appeal in England may properly disturb findings of fact made by a trial judge and when it ought not to do so. In addition to the oft-cited case of Benmax v. Austin Motor Co. Ltd [1955] AC 370, the cases in which such statements are to be found include the earlier cases of Clarke v. Edinburgh Tramways 1919 SC (HL) 35, The Hontestroom [1927] AC 37, Powell v. Streatham Manor Nursing Home [1935] AC 243 and Thomas v. Thomas [1947] AC 484. They also include the later cases of Whitehouse v. Jordan [1981] 1 WLR 246 and Piglowska v. Piglowski [1999] 1 WLR 1360.

33. The guidance to be gained from those cases is - and has always been accepted in Hong Kong as being - equally apposite to the role of our Court of Appeal. I put it no higher than "guidance" because circumstances vary so much from case to case that, as Lord Somervell of Harrow said in Benmax's case at pp 377-378, it is impossible to lay down anything in the nature of a code on this subject. That said, I would emphasise that the guidance is nevertheless reasonably clear.

34. In discussing these guiding principles, the first thing to be noted is that appeals against findings of primary fact are approached very differently from appeals against findings of fact made by a process of inference. Benmax's case concerned a patent. The issue of fact was whether the invention claimed involved an inventive step. No question of credibility arose. By a process of inference, the trial judge found that the invention claimed involved an inventive step. Also by such a process, the Court of Appeal reversed that finding. The House of Lords affirmed the Court of Appeal's decision. As Viscount Simonds noted (at p.374) there is:

"... on the one hand, universal reluctance to reject a finding of specific fact, particularly where the finding could be founded on the credibility or bearing of a witness, and, on the other hand, no less a willingness to form an independent opinion about the proper inference of fact, subject only to the weight which should, as a matter of course, be given to the opinion of the learned judge."

35. The finding which the Court of Appeal reversed in the present case is a finding of primary fact which the trial judge made upon his assessment of the relative credibility of the main witnesses on each side. That being so, I turn at once to this well-known passage in Lord Reid's speech in Benmax's case at p.375:

" Apart from cases where appeal is expressly limited to questions of law, an appellant is entitled to appeal against any finding of the trial judge, whether it be a finding of law, a finding of fact or a finding involving both law and fact. But the trial judge has seen and heard the witnesses, whereas the appeal court is denied that advantage and only has before it a written transcript of their evidence. No one would seek to minimize the advantage enjoyed by the trial judge in determining any question whether a witness is or is not trying to tell what he believes to be the truth, and it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness. But the advantage of seeing and hearing a witness goes beyond that: the trial judge may be led to a conclusion about the reliability of a witness's memory or his powers of observation by material not available to an appeal court. Evidence may read well in print but may be rightly discounted by the trial judge or, on the other hand, he may rightly attach importance to evidence which reads badly in print. Of course, the weight of the other evidence may be such as to show that the judge must have formed a wrong impression, but an appeal court is and should be slow to reverse any finding which appears to be based on any such considerations."

36. It is common to speak of a trial's judge's advantage of having "seen and heard" the witnesses. I have no quarrel with that way of putting it. But it may be preferable to speak instead of a trial judge's advantage of having received the evidence at first-hand. There would appear to be two reasons why. First, it is as well to guard against giving the impression that no blind or deaf person can ever constitute an effective tribunal of fact. Secondly, the words "seen and heard" are perhaps capable of giving an exaggerated impression of the role which demeanour plays in the resolution of disputes of fact - demeanour being, as Lord Pearce put it in Onassis v. Vergottis [1968] 2 Lloyd's Rep. 403 at p.431, "mostly concerned with whether the witness appears to be telling the truth as he now believes it to be". (Emphasis supplied)

37. Having said that about demeanour, I should make it clear that I accept that trial judges are entitled to take demeanour into account when assessing testimony. In life what really happened is not always what afterwards seems objectively probable. So demeanour has a role to play. Of course trial judges must bear in mind that demeanour can be deceptive and is therefore to be approached with care. In general, I would trust them to do that. Unless good reason to think otherwise appears, trial judges should be taken to have considered demeanour with caution, doing so only in the context of such inherent probabilities as may exist and the whole of the evidence.

38. It can of course happen that neither rival account is appreciably more inherently probable or improbable than the other, and there may be little or no evidence other than the testimony of the protagonists, each with an interest to serve. In such a situation, there will be little or nothing for the fact-finding judge to go on apart from demeanour. At the other extreme, there can be situations like the one in a case I remember conducting as counsel before Cons J (as he then was). That learned judge said that he got nothing from the demeanour of the witnesses there, and then proceeded to choose between their rival accounts according to the inherent probabilities (doing so very satisfactorily, as I thought).

39. As Lord Shaw of Dunfermline said in Clarke v. Edinburgh Tramways at p.36 and Lord Edmund-Davies repeated in Whitehouse v. Jordan at p.257 C-D, the great respect due to a trial judge's choice of whom to believe is "quite irrespective of whether the Judge makes any observation with regard to credibility or not". The same point was made by McHugh J in Abalos v. Australian Postal Commission (1990) 171 CLR 167. There, in a judgment with which all the other members of the High Court of Australia hearing that appeal agreed, His Honour said (at p.179) that: "It does not follow that, because [the trial judge] made no express reference to the demeanour or credibility of either [of the two witnesses who gave evidence on the issue of fact concerned], demeanour or credibility played no part in her findings on [that issue of fact]." One can therefore see why Cons J very properly felt it right to reveal in terms that demeanour played no part in his choice.

40. The reality to be recognised is that resolving disputes of fact can be very difficult. No judge can afford to be complacent about his ability to arrive at the truth by assessing demeanour. Nor can a judge afford to be complacent about his ability accurately to say which story is the more probable. In The Hontestroom at p.49 Lord Sumner himself frankly acknowledged that he was "a poor hand at answering that kind of question". A valid and valuable point was made in this connection by Sir Patrick Browne (formerly Lord Justice Browne) in a lecture delivered on 15 October 1981 and later published as "Judicial Reflections" Current Legal Problems (1982) 1. At p.6, while expressing the view that "probabilities and circumstantial evidence" were "less unreliable than oral evidence", he went on to say:

"But the judge's own opinion about probabilities can be dangerous, being based on his own, perhaps limited, experience. Like all motorists, I thought I could see what the probabilities of a motor accident were, but I was quite incapable of judging the probabilities of a factory accident."

41. "On an appeal against a judgment of a judge sitting alone" - Lord Sankey LC said in Powell v. Streatham Manor Nursing Home at p.249 - "the Court of Appeal will not set aside the judgment unless the appellant satisfies the Court that the judge was wrong and that his decision ought to have been the other way". I would reinforce that by respectfully adopting what Lord Hoffmann said in Biogen Inc v. Medeva Plc [1997] RPC 1 at p.45 and repeated in Piglowska v. Piglowski at p.1372 D-F:

"The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."

42. Where the judgment turns on an issue of fact, the Court of Appeal must have regard to the nature of that issue of fact. And it must have regard to the advantages enjoyed by a trial judge who received the evidence on such an issue at first-hand, in other words, in whose presence the whole of the evidence unfolded in its living state. Such advantages can be, as Lord Shaw of Dunfermline put it in Clarke v. Edinburgh Tramways at p.36, "sometimes broad and sometimes subtle". The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge's conclusion even if in some doubt as to its correctness.

43. The specific circumstances capable of justifying the Court of Appeal in feeling satisfied that a trial judge's decision on the facts is wrong are infinitely various. No useful purpose would be served by attempting to catalogue such circumstances. Illustrations of such circumstances can, however, be useful. I offer three. The first is taken from Whitehouse v. Jordan where the House of Lords affirmed the decision of the Court of Appeal in England which had reversed a trial judge's conclusion on the facts. The second is taken from Universal Dockyard Ltd v. Trinity General Insurance Co. Ltd [1989] 2 HKLR 160 where the Privy Council affirmed the decision of our Court of Appeal which had reversed a trial judge's conclusion on the facts. And the third is taken from Rainfield Design & Associates Ltd v. Siu (2000) 3 HKCFAR 134 where this Court affirmed the decision of the Court of Appeal which had reversed a trial judge's conclusion on the facts.

44. In Whitehouse v. Jordan, as Lord Wilberforce noted (at p.253 E-G), the trial judge had rejected a witness's account and then reconstructed it. The result was, as Lord Edmund-Davies characterised it (at p.260 F), "in truth a finding without an evidential basis".

45. In the Universal Dockyard case it was contended that the Court of Appeal had no right to interfere with the trial judge's findings of primary fact. Delivering the advice of the Privy Council, Lord Goff of Chieveley said (at p.167 I) that the Court of Appeal was entitled to so interfere where, as happened in that case, the trial judge "had misdirected himself as to the effect of certain evidence which he understood to support his conclusion".

46. In the Rainfield Design case the general impression which the trial judge formed of the plaintiff's credibility was a favourable one. The plaintiff was, the trial judge said, "a very frank witness who gave his evidence with admirable composure and honesty". Notwithstanding that favourable impression, the trial judge resolved the crucial issue of fact against the plaintiff. That was done by taking a view opposite to an answer which the plaintiff gave on a matter on which the onus was on the defendant since the plaintiff had already made out a prima facie case on it. And that view was taken merely because the plaintiff had hesitated before answering. But what the plaintiff was responding to had amounted to two hypothetical questions rolled into one. And the trial judge had failed to direct his mind to what I described (at p.142 F) as the inherent likelihood "that this frank witness hesitated merely because he was puzzled at being asked two hypothetical questions rolled into one, and not because he was thinking up a false answer".

47. Finally before examining the evidence on which the Court of Appeal concentrated in reversing the trial judge on the facts, I should mention one of the submissions made by Mr Ronny Tong SC who now leads Mr Clough for Mr Tam, Progress and Mr Kong. It is a submission made in reaction to the other side's criticism of the Court of Appeal's treatment of such evidence. Mr Tong submits in effect that even if the Court of Appeal's reasons for reversing the trial judge on the facts are wrong, we still have to consider whether there is any other and compelling reason for doing what the Court of Appeal did. As to that, I would emphasise that it is not for a final appellate court to function as an intermediate appellate court. But if it is glaringly obvious that a trial judge's finding of fact is wrong, this Court will not undo the Court of Appeal's reversal of that finding just because the Court of Appeal's reasons are flawed.

The three items of evidence: first, the note

48. Reverting now to the three items of evidence on which the Court of Appeal concentrated, I come first to the note with an ATM printout attached. The first point made in regard to this note by Mr John Bleach SC who now appears for Mr Ting is to the following effect. Evidence that Mr Ting had been a sub-contractor on an earlier occasion would have been directly relevant if he had denied ever having been a sub-contractor on this occasion. But he never denied that. What he said was that he had been a sub-contractor on this occasion, but had ceased to be one prior to the accident. So any evidence that he had, contrary to his denial, been a sub-contractor on an earlier occasion would, at most, go to his credibility.

49. That is true as far as it goes. But since Mr Ting's credibility was crucial, I turn to Mr Bleach's next point on the note. It is that the Court of Appeal had overlooked an important part of the evidence when it said that no plausible reason had been given as to why Pang should pay Mr Ting a bonus.

50. As to that, Mr Bleach points to the answers given by Mr Ting under cross-examination before the note was produced and therefore before he had any cause to trim his testimony to account for the note. The questions and answers were in respect of two earlier projects, one in Yau Tong and the other in Lyndhurst Terrace. Mr Ting's recollection of what had happened in regard to these two earlier projects was not very clear. But the effect of his answers thereon was as follows. He had been a worker, not a sub-contractor, at the Yau Tong and Lyndhurst Terrace sites. But, additionally, he had agreed with Pang to take on the supervision of the workers at those two sites. In respect of those two sites, he received some $10,000 in wages and a further $10,000 by way of bonus.

51. It would appear that the Court of Appeal had overlooked Mr Ting's testimony explaining why Pang paid him a bonus. The trial judge, on the other hand, did have this explanation in mind. Having received it at first-hand, he said in terms that he accepted it.

52. Faced with this difficulty, Mr Tong raised a number of other points on this note. None of them impress me as anything like conclusive. In any event, they are all points on which Mr Ting might have provided satisfactory answers if he had been cross-examined on the note. But he was not cross-examined on it. So it would not be fair to decide against him on the basis of any of these other points.

Secondly, the two statutory declarations

53. I turn now to Mr Bleach's criticism of the Court of Appeal view that Mr Ting's two statutory declarations and the testimony of the factory inspector Mr Lo told strongly against Mr Ting.

54. As to the Court of Appeal's view that Mr Ting's detailed recollection of the circumstances of the accident was inconsistent with a confused state of mind in regard to his true employment status, Mr Bleach makes this point. The circumstances of the accident were straightforward in comparison with the question of Mr Ting's true employment status. In my view, there is force in this point. Some illustration of the complexity of the question of Mr Ting's true employment status is to be found in the fact that the Court of Appeal disagreed with the trial judge on this question, and then felt considerable disquiet over having done so.

55. I can deal quite briefly with Mr Lo's impression that Mr Ting was referring to the accident when he used the Chinese character which can denote incident or accident. As Mr Bleach correctly submits, what matters is what Mr Ting meant and not what Mr Lo thought he meant.

56. The next point is less simple. Mr Ting testified that he had informed Mr Lo that there was some uncertainty over his employment status. Mr Lo testified that he has no note of Mr Ting having said that, and that he i.e. Mr Lo would have made a note of it if Mr Ting had said that. Mr Bleach contends that officials invariably maintain that they record everything said to them while experience has shown that this is often not so. In my view, this contention is too sweeping. A tribunal of fact should not start with a predisposition either to accept or to reject an interviewer's disputed testimony that he wrote down every material thing said to him. Such an issue should be approached with an open mind, and resolved on the whole of the evidence.

57. Consulting the transcript, I see that Mr Lo conceded under cross-examination by Mr Erik Shum who appeared for Mr Ting at the trial that his main purpose in interviewing Mr Ting was to "ascertain the cause of the accident". I see that Mr Lo also conceded under such cross-examination that he "concentrated on the cause of the accident and what remedial measures could be taken". Did Mr Ting inform Mr Lo that there was some uncertainty over his employment status? As we have just seen, such information would be outside what Mr Lo was concentrating on. Therefore just because Mr Lo has no note of being so informed and believes that he would have if he had been, it does not follow that the trial judge can be denied the right to accept Mr Ting's testimony that he had so informed Mr Lo.

58. Mr Tong took a number of points on these two statutory declarations. But neither the language of these two statutory declarations nor the evidence as to how they were made is clear enough to sustain any of these points.

Thirdly and finally, Mr Kam's testimony

59. Mr Kam's testimony was in favour of Mr Ting, and was accepted by the trial judge. But the Court of Appeal took the view that Mr Kam had been "caught out in his evidence in a material way". In what way did the Court of Appeal think this happened? That appears by this passage in the Court of Appeal's judgment:

" [Mr Kam] gave evidence concerning the conversation which had taken place between [Mr Ting] and Pang on the subject of the variation to the terms of the contract after [Mr Ting] had become a sub-contactor. When [Mr Ting] gave evidence concerning this he said that the conversation had taken place over the telephone".

60. That, as Mr Bleach points out, involves an error on the Court of Appeal's part as to the state of the evidence. It is true that in his witness-statement which he adopted when in the witness-box, Mr Ting spoke of a telephone conversation in which he told Pang that "it was impossible to do it and called it quits". But he also testified that he thereafter spoke to Pang about the matter again, this time face-to-face. In answer to his counsel's question "So what happened when you saw Pang?", Mr Ting replied:

"That is, I repeated - I told him about what we had talked about the previous night, that we were not going to do it. And when he talked to me, he talked to me very impolitely. So at that time, I was not that happy too, so I just told him that I quit. And then he said, 'Even if you are not going to do it, then we need people to come to the site to do the work.' So his attitude at that time was softened. And then I told him that we would not do it, but he persuaded us to work there. And then I asked him whether he would give me wages. And then Lau Chun-pang told me that he would pay me wages on daily basis and asked me to stay there and also together with the whole group of other colleagues to work there."

Pang, it will be remembered, was Mr Tam's site supervisor.

61. Mr Tong now places reliance on a different discrepancy between Mr Ting's testimony and Mr Kam's testimony. Mr Kam said that he witnessed an argument between Mr Ting, Mr Tam and Pang. Mr Ting, on the other hand, spoke of arguing with Mr Tam and Pang separately. But how far these two arguments were separated by time and space is unknown. The discrepancy, for all we know, may be more apparent than real. And even if real, it was not one which disabled the trial judge from finding the facts as he did.

Subsidiary points

62. Finally Mr Tong took a number of what he called "subsidiary points". They all go to minor mistakes which Mr Bleach very properly conceded that the trial judge did indeed make in his appreciation of the evidence. For his part, Mr Tong very properly conceded that these subsidiary points cannot on their own bring him success. And in my view, there is nothing of substance to which these subsidiary points can be added so as to affect the result of this appeal.

Conclusion

63. The trial judge made a finding of primary fact that Mr Ting was an employee at the time of the accident. The Court of Appeal thought that the trial judge had, in reaching that finding, overlooked some important evidence and misapprehended the effect of other important evidence. And the Court of Appeal thought that the cumulative effect of such errors was pivotal. However, for the reasons which I have given, I do not think that the trial judge overlooked, or misapprehended the effect of, any important evidence in finding that Mr Ting was an employee at the time of the accident. In my view, the reasons which the Court of Appeal gave for reversing that finding of the trial judge's were - as the Court of Appeal itself very fairly acknowledged might well be the case when granting Mr Ting leave to appeal to us - wrong.

64. Those reasons for reversing that finding being bad, is there some other and compelling reason for doing so? For the reasons which I have given, I am of the view that, despite Mr Tong's able arguments to the contrary, there is none.

65. Mr Tong raised the possibility of our ordering a new trial if we were not prepared to affirm the Court of Appeal's decision. I see no warrant for ordering a new trial.

66. Accordingly, I would allow this appeal so as to restore the trial judge's judgment in favour of Mr Ting against Mr Tam and Progress on liability, and remit this matter to the Court of Appeal for it to hear Mr Tam and Progress's appeal on quantum. It was conceded by Mr Tong at the hearing that, in the event of our allowing this appeal, Mr Ting should be awarded costs here and below against Mr Tam, Progress and Kong. I would make such an order as to costs. Finally I would of course order legal aid taxation of Mr Ting's own costs.

Mr Justice Chan PJ:

67. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ribeiro PJ:

68. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Mortimer NPJ:

69. I agree with the judgment of Mr Justice Bokhary PJ.

Lord Hoffmann NPJ:

70. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ:

71. Our decision is unanimous. This appeal is allowed. The trial judge's judgment in favour of Mr Ting against Mr Tam and Progress on liability is restored. This matter is remitted to the Court of Appeal for it to hear Mr Tam and Progress's appeal on quantum. Mr Ting is awarded costs here and below against Mr Tam, Progress and Kong. There will be an order for legal aid taxation of Mr Ting's own costs.