KHALID ALI v. LI HING ON

DCEC 338/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATIONCASENO. 338 OF 2010

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JUDGMENT

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1.  The Applicant, Mr. Khalid Ali, was aged 36 in February 2009.  He met a Mr. Singh in Tsim Sha Tsui who later introduced him to a Mr. Chung so that he could work at a construction site.

2.  On 19^th February 2009, Mr. Singh telephoned Mr. Ali and asked him to meet the next day at Kam Sheung Road West Rail where there would be a job for him at $400 per day.

3.  They met the next day and subsequently took the bus to Tai Po.  At Tai Po they met a Chinese man surnamed Chung.  Mr. Chung drove Mr. Ali to a site at Kam Tin at Wang Toi Shan Tsuen, Pat Heung.  At this site Mr. Ali met Mr. Li who is the Respondent in these proceedings.

4.  According to Mr. Ali, he said the Respondent told him that he would be paid $400 per day and he would have to work 26 days a month.  And if there was no work on a given day there would be no pay.

5.  At around 1:30 p.m., Mr. Ali fell from the roof of a temporary structure which he was trying to dismantle with a wrench.  It was from a height of about 2 to 3 metres.

6.  At around 2 p.m., Mr. Li came back and was informed by Mr. Ali that he had an accident and Mr. Li took him to a medical centre and the doctor suggested that they should go to Pok Oi Hospital.  At Pok Oi Hospital, Mr. Ali was examined and X-rayed.

7.  It seems that Mr. Li was discharged from Pok Oi Hospital, according to his witness statement, on the same day.  He had to visit the hospital at Tuen Mun for continuous treatment and also the Department of Orthopaedics & Traumatology for follow-up treatment.

8.  He was given 55 days of sick leave and according to the Employee’s Compensation Assessment Board, his loss of earning capacity caused by the fall was assessed at 1%.

9.  The case of the Respondent is that he was not the employer of Mr. Ali, it was Mr. Chung.  There is a paucity of documentary evidence in support of the Respondent’s case.  On the other hand, there are quite a number of statements made by Mr. Li himself that points to the fact that he was the employer.

10.  The first document is a Chinese document entitled Reply which was signed by the Respondent on 10^th March 2009.  In it, he stated that Mr. Chung and him received a demolition project at Kam Tin on 20^th February and they both decided to employ a worker so that they could finish the job in 1 day.

11.  Together with this document, Mr. Li also filed a Form 2 pursuant to the Employees’ Compensation Ordinance. There is no doubt that part of this form was not filled in by Mr. Li himself because he did not know English. During cross-examination he admitted he filled in some of the boxes himself which included that he was a partner and he was the employer.  He also stated that the Applicant was a hired help in Box F.

12.  About 1 month thereafter, Mr. Li was interviewed at the Labour Department.  The date was 6 April 2009.  He stated he was the proprietor of Lee Kee Metal and Construction Material (“Lee Kee”), and he admitted that Lee Kee did not have any business registration and he did not purchase any insurance cover.

13.  He said on 20^th February 2009 he employed Mr. Ali to work for him at Kam Tin and Mr. Ali was responsible for dismantling the metal plates.  Mr. Li also said the working hours were from 10 a.m. to 6 p.m. and the daily wage was $300.

14.  Mr. Li admitted there was an accident and he took Mr. Ali to Pok Oi Hospital.  At the bottom of this declaration, on which he signed, there is a statement which says:

“the above statement was given verbally by me and written and read out to me by Inspector of Labour Department Yue Cheong Yun. After reading it, I confirmed it is true and accurate. He told me I could correct or amend as I like.”

15.  Mr. Law appearing on behalf of the Respondent urged me not to place any weight on the Reply of 10^th March 2009 and the Declaration on 6^th April 2009 on 2 grounds:(1) the Respondent is not a very well educated person and he could not express himself in a very legible way and (2) there must have been miscommunication between the Respondent and the person at the Labour Department, i.e. Mr. Yue. 

16.  I do not  agree that one can deal with these 2 documents as suggested because the first document (the Reply) was given by Mr. Li voluntarily which he also filed with the Form 2.  The Reply and Form 2 were filed soon after the accident by the Mr. Li.

17.  Mr. Li was not under any pressure to give the information contained therein.  I cannot see why I should not rely on the information contained in the Form 2 and his Reply dated 10^th March 2009.

18.  The first declaration made by Mr. Li was dated 6^th April 2009. It was basically an expansion of his Reply of the 10^th March 2009.  The said declaration was not inconsistent with the Reply but more information about his employer/employee relationship with Mr. Ali was provided.

19.  More important, a document dated 28^th April 2009 which was another declaration or record of interview also given at Shatin in the offices of the Labour Department.  This declaration recorded what was said by Mr. Li and was written and read out to him by his daughter.  After reading what was written by his daughter, Mr. Li confirmed the contents in the declaration were true and accurate.  He also confirmed that his daughter told him he could correct or amend as he liked.  And in this declaration at paragraph 2 he stated:

“Mr. Chung did not discuss with me regarding the employment of worker (Mr. Ali). I thought that as the job was shared between us then this worker should be employed by both of us. Therefore, besides me Mr. Chung was also the employer.”

This paragraph is consistent with what he filled out in Form 2.  That is, he was a partner in the sense that he was in partnership in hiring Mr. Ali.

20.  In light of the documentary evidence, I cannot accept Mr. Li’s explanation that what he said prior to his witness statement were all wrong and arose as a result of a miscommunication between him and the Labour Department officer.  Therefore, I find that Mr. Ali was an employee of the Respondent on the day of accident.

21.  The only issue remaining is quantum.

22.  Mr. Ali has also filed a Notice of Appeal against the Employee’s Compensation Assessment Board’s assessment. It was submitted that the percentage of incapacity should be 2% instead of 1%.

23.  Mr. Middleton appearing on behalf of the Applicant relies on the expert report of a Dr. Wong in which Dr. Wong assessed Mr. Ali’s loss of earning capacity to be between 1 to 2% as a result of the accident.  Dr. Wong is not unequivocal in this regard. He did not say 1% or 2% but 1-2%. I do not see any reason why I should disturb the finding of the Employee’s Compensation Assessment Board’ finding of 1%.  So therefore I dismiss the appeal against the Employee’s Compensation Assessment Board’s finding.

24.  The only matter outstanding is the order I should make and the issue of costs and interests.  I shall hear the parties on this matter now.

Parties :