MOHAMMAD RAFIQ v. KIN HONG TRANSPORTATION CO LTD

CACV 458/2021

[2023] HKCA 185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 458 OF 2021

(ON APPEAL FROM DCEC NO 2994 OF 2018)

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REASONS FOR JUDGMENT

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Hon G Lam JA (giving the Reasons for Judgment of the Court):

1.  The applicant was a delivery worker. He suffered injury from an accident at work on 14 March 2017. He claimed compensation pursuant to the Employees’ Compensation Ordinance (Cap 282)  (“Ordinance”)  in the District Court against the respondent, contending that it was his employer, which the respondent denied. After trial in February 2021, Deputy District Judge Charles Wong dismissed the applicant’s claim, on the ground that the respondent was not the employer. The applicant appealed to this court. At the conclusion of the hearing, we dismissed the appeal with costs, and ordered the applicant’s own costs to be taxed in accordance with the Legal Aid Regulations. These are the reasons for our decision.

Background

2.  The applicant is a Hong Kong resident.  He was born in Pakistan in 1969 and came to Hong Kong in 1987.  He speaks fluent Punjabi and Cantonese, but little English.

3.  The respondent, a Hong Kong company, was the owner of a lorry with registration mark TH8887 (“Lorry”).  A couple, Mr Lo King Hung (“Lo”)  and Madam Leung Siu Lan (“Leung”), were the directors and shareholders of the respondent.

4.  On the night in question, 14 March 2017, the Lorry was driven by Mr Tsui Kam Tong (or Xu Jintang)  (“Tong”)  to transport vegetables from Shenzhen to Hong Kong.  After he drove the Lorry into Hong Kong at around 8 or 9 pm, he picked up two delivery workers in Sheung Shui, one of whom was the applicant, who were responsible for unloading and delivering the vegetables on board to various vegetables stores along the route.  By whom the applicant was employed to perform such unloading and delivery work was the central issue at trial.

5.  At about 10:30 pm, while the Lorry had stopped at Pak Shing Street, Tai Po, and the applicant was doing unloading work on the tailgate of the Lorry, he slipped and fell face-down with outstretched hands on to the ground about 4 feet below the tailgate.  As a result, he suffered injury to his forehead and both wrists.  He did not immediately go to a hospital but went on with the Lorry, eventually arriving at about 3 to 4 am at the last stop, a vegetables shop in Tsuen Wan operated by a company called “Ho Shueng Ho” (好上好(財記)有限公司), which was also owned by Lo and Leung.  It was common ground that the applicant was engaged part-time to assist with laying out the vegetables there and opening the shop for business that morning.  There was, however, no suggestion that the accident occurred in the course of this employment and, indeed, Ho Shueng Ho was not a party to the proceedings.

6.  From the Ho Shueng Ho shop the applicant went to Yan Chai Hospital in the morning of 15 March 2017.  He saw a doctor at 8:48 am.  An X-ray showed bilateral intra-articular fracture of distal radius.  The applicant subsequently received treatment, including casts put on both of his wrists.

The parties’ contentions

7.  Beyond the skeletal common ground described above, the parties’ cases stood in stark contrast to each other.  The applicant’s case was that from 2015 onwards, he was employed by a firm called “So Kee” as a delivery worker for a lorry that transported vegetables.  When So Kee was about to go out of business in October 2016, Tong, who had worked as the lorry driver with the applicant and his co-worker, Khan, asked them if they were interested to continue working with him as vegetables delivery workers. An interview was subsequently arranged between Lo and Leung on the one hand and the applicant and Khan on the other, where it was agreed that the applicant and Khan would work on board the Lorry as delivery workers from 1 November 2016, at a part-time daily rate of $400.

8.  The applicant said that from 1 November 2016, he started working for the respondent in delivering and unloading vegetables from the Lorry.  On the first day, Lo and Leung, driving a car, led the Lorry driven by Tong with the applicant and Khan on board, and showed them the delivery route and the recipient shops.  From about mid-December 2016, the applicant also started working as a part-time shop assistant at Ho Sheung Ho at a daily rate of $450, helping with the opening of the shop for business in the early morning.  His combined daily wages were therefore $850, and he would be paid in cash by Lo and/or Leung every 15 days in the sum of $12,750.  The applicant contended, therefore, that the respondent was his employer in relation to the delivery work for the Lorry.

9.  In contrast, the respondent said that it carried on a business of supplying lorries (with drivers)  to facilitate vegetables delivery.  So far as the Lorry was concerned, at the material time the respondent had agreed with one Mr Chen Hongbiao (“Chen”), a resident of Shenzhen, to provide a Mainland-Hong Kong lorry with a gross vehicle weight of 24 tonnes and a driver to carry vegetables from Shenzhen to various districts of Hong Kong.  There was a written agreement in Chinese signed on 1 November 2016 (“Agreement”)  which provided, inter alia, that when the goods had been transported to Hong Kong, Chen had to arrange for workers to unload the goods, with the time for unloading limited to 4 hours.  A specified fee was agreed for each round trip, and the fees were to be paid by Chen in cash each week.

10.  The respondent said it deployed the Lorry for the purpose of the agreement with Chen.  The vegetables on board were Chen’s, to be delivered to his customers in Hong Kong.  The respondent in turn had an arrangement with Tong for him to be the driver of the Lorry, whereby the fees received from Chen were split between the respondent and Tong in the proportion of 60:40.  The respondent was not responsible for engaging and did not engage workers for the unloading and delivery from the Lorry.  That was arranged by another person, called Fazal Subhan, also known as “Ah John”, on Chen’s behalf. There would be two delivery workers during each round, who could be Ah John and the applicant or some other persons designated by Ah John.  Lo and Leung denied having had an interview with the applicant, and denied having paid any wages to the applicant or any other worker for the delivery work.

11.  The respondent said that the Ho Sheung Ho shop only commenced business towards the end of December 2016, and that, through the introduction of Tong, Ah John was engaged part-time to help open the shop and lay out the vegetables, either by himself or by procuring others to do so.  The wages, at the part-time daily rate of $450, were paid, around every 15 days, by Leung to Tong for him to pass on to Ah John for him in turn to distribute as appropriate.

12.  Accordingly, the respondent denied that it was the applicant’s employer.  The delivery work was an arrangement between the applicant, Ah John and Chen, to which the respondent was not privy.

13.  What happened on the night after the accident was also in dispute.  The applicant said that after the accident, he lost consciousness for around half an hour.  He believed that Tong and Khan lifted him on to the front passenger seat of the Lorry.  He saw that Khan was crying and attempted to perform cardiopulmonary resuscitation on him.  The applicant told Tong and Khan to call an ambulance, but they did not do so and said that Lo had said the applicant should go to the Ho Sheung Ho shop first.  The applicant was left in the front seat for 6 to 7 hours while Tong and Khan finished the unloading work.  The applicant eventually arrived at the Ho Sheung Ho shop, followed by Lo and Leung.  They asked how the accident happened and asked him to go to the hospital for a check-up.

14.  Tong, who was called by the respondent to testify, told a very different story.  After the accident he saw the applicant sitting on the ground next to Ah John.  Tong asked the applicant more than once whether an ambulance should be called but the applicant declined and said he only needed to rest a while.  So Tong and Ah John helped the applicant get on the passenger seat to rest.  After resting for 10 to 20 minutes, the applicant and Ah John resumed the delivery and unloading work and continued until completion at about 3 am.  The respondent said that Lo and Leung were not notified of the accident that night.  On the next morning at about 7 or 7:30 am, Leung went to the Ho Sheung Ho shop and saw the applicant there.  The applicant did not tell her he was injured, but simply left after completing the opening of the shop.

The proceedings below

15.  The trial took place before the judge on 22 – 26 February 2021.  The applicant himself was the only witness on his side.  The respondent called Lo, Leung and Tong to give evidence.  Chen was originally going to testify for the respondent and a witness statement had been filed. But being a Shenzhen resident, he apparently decided not to come to Hong Kong to give evidence because of the quarantine requirements in both places, and the respondent did not make any application for his evidence to be given via video-link.  Neither party called Khan or Ah John as a witness.

16.  On 3 September 2021, the judge handed down his judgment (“Judgment”).[1] He was unimpressed by the applicant as a witness.  In the Judgment the judge highlighted a number of aspects of the applicant’s evidence that he found improbable or incredible,[2] observed that the applicant’s case was full of contradictions, incapable of being believed and improbable.  In particular, the judge found that the applicant had made up excuses to avoid having to disclose his telephone number so that his telephone records could not be obtained to verify his assertion that Tong contacted him to arrange the interview with Lo and Leung.  The judge found the applicant’s supplementary statement to the Labour Department concerning how he obtained the job to be wholly inconsistent with his case at trial.  The judge also found that the applicant’s evidence regarding what happened after the accident did not make sense.  He rejected the applicant’s evidence that he was unconscious after the accident and that he requested for an ambulance but Tong and Khan refused to call one.  At the end the judge concluded that the applicant had failed to prove on a balance of probabilities that he was employed by the respondent as a delivery worker at the time of the accident.[3]

17.  In contrast, the judge found Lo, Leung and Tong to be honest and reliable witnesses.  In particular he considered Tong to be an independent witness whose evidence he accepted.[4] The judge found that Chen was the owner of the vegetables on board the Lorry.  The judge also found the Agreement to be a genuine document, which supported the respondent’s case.[5]

18.  The judge declined to draw any adverse inference against the respondent from Chen’s failure to give oral evidence.  He also decided that no adverse inference should be drawn against either side for not calling Khan or Ah John, who the judge found to be the same person.[6]

19.  Accordingly, the judge dismissed the applicant’s claim.

The appeal

20.  The applicant seeks on this appeal to reverse the judge’s finding that the respondent had not been proved to be the applicant’s employer.  The principal contentions advanced by Mr Lim and Mr Shek on the applicant’s behalf fall into the following 4 points:

(1)  First, it is said that the judge should have drawn an adverse inference against the respondent for not calling Chen to give oral evidence.  Chen had given a statement saying that he entered into the Agreement with the respondent, that he regularly contacted Tong to give him the delivery routes, and that he had an arrangement with Ah John for him to arrange for workers to unload and deliver the vegetables from the Lorry.  It is said that it did not make sense for Chen, a Shenzhen resident, to have to engage delivery workers in Hong Kong through a Pakistani agent, Ah John.  Chen was the most important witness for resolving the issue whether the Agreement was genuine.  If he was not prepared to undergo quarantine and travel to Hong Kong, it was imperative for the respondent to arrange for him to give evidence via video-link.  The quarantine requirement in Hong Kong had existed since February 2020.  Unwillingness to undergo quarantine was not a sufficient or valid reason to justify not drawing an adverse inference.  There was no evidence as to what efforts the respondent had made to arrange for Chen to give evidence via video-link, other than the assertions by the respondent’s counsel from the Bar table that the respondent had explored the possibility with firms in Shenzhen but none had the relevant experience and confidence to assist.

(2)  Secondly, it is said that when Leung was cross-examined at trial on the two exchanges between the respondent and the Labour Department in May and July 2017, she “disowned” any knowledge of the contents of the respondent’s replies, saying that they were prepared by a female clerk and that she (Leung)  had simply signed them.  It is submitted that an adverse inference should be drawn against the respondent for not calling the female clerk to give evidence.

(3)  Thirdly, it is said that despite previous communications about the accident, the respondent only mentioned the Agreement for the first time in its Answer filed on 25 January 2019.  The applicant’s solicitors thereupon asked for a copy on 1 February 2019, and the respondent’s solicitors supplied it on the same day.  It is submitted that an inference should be drawn from the late disclosure of the Agreement that it was not a genuine document.

(4)  Fourthly, the applicant refers to the respondent’s reply to the Labour Department dated 25 May 2017 in these terms:

“ 本公司建劻貨運公司, 並沒有聘請 Mohammad Rafiq 為本公司員工 … 由貨主搵人搬運貨物落車, 本公司員工並沒有幫忙上落貨, 故當日發生事故時本公司並不知情”

(In English: “Our company, Kin Hong Transportation Co Ltd, did not hire Mohammad Rafiq as our employee.  … Goods were then unloaded by personnel appointed by the goods owner.  Our staff did not assist in the loading/unloading process, so our company was unaware of the accident at the time of its happening.”)  (underlining added)

It is submitted that the underlined phrase “our staff” (本公司員工)  was an admission that the respondent did have employees, contrary to the case it advanced at trial that it did not have any employee at all.

Adverse inference – Chen

21.  In our view, there are insuperable difficulties for the applicant to seek to overturn the judge’s conclusion on the ground that an adverse inference should be drawn from the failure of Chen to give evidence at trial.  First, the drawing of adverse inference is not an automatic exercise.  There is no presumption for an adverse inference to be drawn from the mere absence of a witness or documents: Tjang Siu Thu v Profield Construction Engineering Ltd [2015] 5 HKC 22 at §33(1).  Whether an adverse inference should be drawn in a particular case is a matter of discretion for the trial judge based on all the relevant circumstances of the case including the quality of the other evidence.  The grounds for appellate interference with such a decision are limited.

22.  In the present case, one of the principal matters to which Chen’s evidence related is the Agreement.  That document was listed in the respondent’s list of documents, but no notice was served on behalf of the applicant to challenge its authenticity.  The respondent could reasonably expect to proceed to trial on the basis that Chen’s evidence was not needed for the purpose of establishing the authenticity of the Agreement.  It was only on the first day of trial that the applicant’s counsel told the court that it was not accepted that the Agreement was signed on the date of 1 November 2016, insinuating that it was a backdated document created by the respondent as a ruse to avoid liability.  Leaving aside whether that contention was legitimately open to the applicant who had not disputed authenticity, the fact is that the challenge was only raised after the respondent had decided not to call Chen.  Further, there were other witnesses for the respondent, namely, Lo and Leung, who could testify to the Agreement from their personal knowledge.  The other principal aspect of Chen’s evidence was the engagement of delivery workers in Hong Kong through Ah John.  This is a matter covered by Tong’s evidence.  This was therefore not a case where the relevant evidence could only come from Chen’s peculiar knowledge.

23.  Further, as explained in the authorities, where “there is some credible explanation given [for the absence of a witness], “even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified”: Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340.  In the present case, there were stringent quarantine requirements arising from the pandemic. Even though the reasons for not having Chen’s evidence might not have been entirely satisfactory, they were matters that the Judge was entitled to take into account in the exercise of his discretion.

24.  Furthermore, it is well established that there must be a case to answer in order for the court to draw an adverse inference that the evidence of the absent witness would not have assisted in displacing that prima facie case.  In the present case, the judge, for reasons that seem to us to be unconnected with Chen’s evidence, came to the view that the applicant’s own evidence was “full of contradictions” and “incapable of being believed”.[7]  There was in these circumstances little in the applicant’s own evidence that an adverse inference could be drawn from Chen’s absence to bolster.  The situation is similar to that in Tjang Siu Thu, where McWalters JA, giving the judgment of the Court of Appeal,[8] said:

“ 34. One of the relevant circumstances in the present case is that the judge was dealing with a bare assertion from a plaintiff whom he regarded as totally unreliable as a witness and who was prone to exaggerating the seriousness of her medical condition. This is an assessment of the witness that the judge was perfectly entitled to make and his assessment that the plaintiff was lacking in credibility and that he could not rely on her was not challenged on appeal. Put simply, the witness who was the source of the assertion was not capable of belief.

…

  36.  Thus, the Master was faced with a bare assertion made by an unreliable witness supported by explanations which were inherently incredible and contradicted by the plaintiff’s own conduct.  These are all circumstances relevant to whether any adverse inference should be drawn against the defendant.  Mr Lim seeks to make use of the Wisniewski principles to transform an unbelievable witness making an unbelievable claim into a proven claim.  The Wisniewski principles were never intended to be used in this way.  …”

25.  As Mr Lim accepted before us, based on the reasons given by the judge, it would be very difficult for him to challenge the judge’s unfavourable findings as regards the credibility of the applicant’s own case.  Counsel did not in fact advance any reasoned challenge against those findings.  That being the case, there was nothing in the applicant’s own case that could be augmented by an adverse inference against the respondent.

26.  For these reasons, the applicant’s contention failed.

Adverse inference – female clerk

27.  The second contention failed, in our view, at the first hurdle.  In her oral evidence Leung did not disavow all knowledge of the respondent’s replies to the Labour Department.  What she said was that she did not herself read the Labour Department’s letters but the clerk informed her of their contents, and that she knew the contents of the respondent’s replies as she signed them (indeed, Leung said she gave the information about the goods owner to the clerk).[9] On this basis, the respondent could not reasonably be expected to call the clerk in addition to Leung to give evidence.  There is no basis to suggest that any adverse inference should be drawn from her absence.

Adverse inference – late disclosure of the Agreement

28.  The third contention was also, with respect, without merit.  The point was advanced before the judge who did not consider there was any unreasonable delay in disclosing the Agreement and concluded that the Agreement was genuine.  The judge noted that in its reply to the Labour Department on 25 May 2017, the respondent had already pointed out that it was not the applicant’s employer and had provided two contact telephone numbers of Chen, who it said was the employer, to the Labour Department.  The judge had also considered Leung’s explanation as to why she did not send the Agreement to the Labour Department.  The judge noted that the Agreement was disclosed to the applicant’s solicitors at an early stage of the legal proceedings, on the very day when it was requested.  In these circumstances there is no basis whatsoever to say that the judge’s finding on the authenticity of the Agreement was plainly wrong.  Nor is there any basis to suggest that there was any reviewable error in the judge’s decision not to draw an adverse inference that the Agreement had been backdated.

“Admission” in the respondent’s reply to the Labour Department

29.  This point was faintly mentioned as an issue in the skeleton argument of the applicant’s counsel, but no submissions were made on it.  It does not appear to be a point that was advanced at trial or put to Leung in cross-examination.  In any event it was not in dispute that there were other companies owned by Lo and Leung which did have employees, such as the female clerk.  The respondent itself had also engaged Tong as the driver of the Lorry, even though its case was that Tong was an independent contractor, not an employee.  In these circumstances, the phrase “our staff” (本公司員工)  in the respondent’s letter of 25 May 2017 could not bear the weight the applicant’s counsel sought to place on it.  In any event, even if the respondent admitted it had employees, the letter was absolutely clear in stating that the applicant was not the respondent’s employee.  This contention is nowhere near sufficient to show that the judge’s finding was plainly wrong.

Conclusion

30.  For the above reasons, we did not see any merit in the grounds advanced, and the appeal was accordingly dismissed at the conclusion of the hearing.