CHAN YUK PING v. NGAN CHO LIN and HUANG JIAN (in partnership trading as FOREST HILL CO) AND ANOTHER

CACV 33/2024, [2026] HKCA 1298

On Appeal From [2023] HKDC 1835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 33 OF 2024

(ON APPEAL FROM DCEC NO. 322 OF 2020)

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BETWEEN

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JUDGMENT

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Hon Anthony Chan JA (giving the Judgment of the Court):

1.  This is the appeal of the Respondents against the judgment dated 28 December 2023 (“Judgment”) given by Deputy District Judge CK Siu (“Judge”) after trial of an employees’ compensation case ([2023] HKDC 1835). By the Judgment the Judge ordered, inter alia, that the Respondents do pay the Applicant employee’s compensation and medical expenses in the total sum of HK$161,233 pursuant to ss.9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282, together with interest and 90% of the costs of the action.

2.  In this appeal, the Respondents seek to challenge the Judge’s factual findings on 6 areas, as well as contend that the Judge had erred in applying the burden of proof.

Background

3.  The material facts can be succinctly stated. The 1^st Respondent (“R1”) was a partnership business operated by Madam Ngan Cho Lin (“Ngan”) and Mr Huang Jian at 41A Tung Fong Kwu Tung Village, Sheung Shui, New Territories (“Tung Fong Premises”). R1 was engaged in trading, recycling of waste materials, hardware manufacturing and transportation. The 2^nd Respondent (“R2”) was a Hong Kong company in the business of resources and waste materials recycling and trading. Its registered address was No 13 Tie Keng[1] Village, Kwu Tung, Sheung Shui, New Territories (“Tie Keng Premises”), which was a property owned by R2. The sole director of R2 was Ngan. Her husband, Mr Lau Miu Sing (“Sing”) was the company secretary of R2. Sing’s brother, Mr Lau Miu Lung (“Lung”) was the sole shareholder of R2.

4.  The Applicant (“Chan”) resided at a place adjacent to the Tie Keng Premises. He and Sing knew one another since they were teenagers as they were living in the same village. Chan used to work for R1 and/or R2 from 2007 to 2013. According to employer’s MPF contribution records, Chan was employed by R1 from 21 February 2007 to 30 June 2012 and by R2 from 1 July 2012 to 1 June 2013.

5.  At the Tung Fong Premises, there were, inter alia, an office and a workshop. At the Tie Keung Premises, there were also an office and a workshop (“TK Office” and “TK Workshop”).

6.  According to Chan, he was employed by R1 and/or R2 from 19 August 2018 as a labourer at a daily wage of HK$600. He worked at both the Tung Fong Premises and the TK Workshop. On 26 December 2018, whilst Chan was working at the TK Workshop his right foot was rolled over by the wheel of a forklift truck resulting in injuries to him (“Accident”). A colleague by the name of Mr Chong Chong Sing (“Chong”) was the driver of the truck.

7.  Chan’s employee’s compensation claim was hotly contested. The Respondents denied that Chan was working for them at the time of the Accident. After a 5-day trial, the Judge found in favour of Chan.

The Judgment

8.  Chan gave evidence at trial and called one witness, Miss Cheng Hoi Yan (“Cheng”), who was working for R1 and/or R2 at the material times. The Respondents called 4 witnesses, namely, Sing, Ngan, Lung and Chong. The documentary evidence before the court was, apparently, not extensive.

9.  Various parts of the Judgment will be referred to when the Grounds of Appeal are examined below. As an overview, in a 95-page Judgment[2] the Judge set out comprehensively the evidence of the case, analysed it in light of the disputes between the parties and came to his findings, which were summarised in para 126 of the Judgment :

“126. As a summary, I set out the most salient parts of the above findings:

(a) The applicant had been employed by both Rs since about 19 August 2018 as a labour worker.

(b) On 26 December 2018, a breaking machine and the forklift truck mentioned hereinabove were placed at the Tit Hang Village Workshop by Rs. They were the equipment provided by Rs to their employees to use for the purpose of Rs’ trade and business.

(c) The applicant was working at Tit Hang Village Workshop at about 4:30 p.m. on 26 December 2018 for both Rs. In the course of his work, the applicant’s right foot was rolled over by a forklift truck operated by Mr Chong. As a result, the applicant sustained personal injury.

(d) After the applicant had been injured, Lau Miu Lung went to Tit Hang Village Workshop. Mr Chong and Lau Miu Lung took the applicant to the A&E Department of Northern District Hospital.

(e) The applicant told the A&E Department that his right foot was rolled over by a forklift truck. After the applicant was admitted to hospital ward on that day, Lau Miu Sing came to visit him. Lau Miu Sing told a doctor that he was the boss of the applicant and that the applicant was injured by the falling of metal goods from 1m in height.

(f) After the Accident, Rs paid the applicant a total sum of HK$78,000 by five instalments as employee’s compensation.

(g) From January 2019 onwards, the payments to the applicant were not a personal loan from Lau Miu Sing and the amount of such payments was not HK$45,000 as alleged by Rs. Any money given to the applicant through Lau Miu Lung was in fact part of the abovementioned HK$78,000 being the employee’s compensation.

(h) Rs had paid the applicant his wages of December 2018. Hence, the wages of 26, 27, 28, 29 and 31 December 2018 had been paid by Rs to the applicant. The total wages of these 5 days were HK$3,000.

(i) The daily wage of the applicant was HK$600. The wage period was one month.

(j) The Time Card was the applicant’s time card when he was employed by Rs in December 2018. The applicant’s working time at Tung Fong District Workshop and that at Tit Hang Village Workshop were not separately marked on the Time Card because the applicant was in joint employment by both Rs at the same time. The Time Card recorded the working dates and hours that the applicant had worked for both Rs in December 2018. Likewise, the daily wage of HK$600 marked on the Time Card represented the applicant’s daily wage for his employment by both Rs jointly.

(k) Regarding another old time card for November 2012, I accept that it was the old time card of the applicant when he worked for R1 and/or R2 previously. It is a contemporaneous document accurately reflecting the applicant’s working dates and wages in November 2012. If there are any discrepancies on the amount of the applicant’s wages as recorded in his employer’s MPF contribution records, I prefer the figures stated on this old time card. It is possible that employers reported lesser wages for their employees out of many reasons.

(l) After the applicant had reported the Accident to the Labour Department, the breaking machine was transported from Tit Hang Village Workshop to 41A Tung Fong District.”

10.  The Judge’s findings that Chan was employed by both Respondents; the Accident took place in the course of Chan’s employment with them; and the Accident took place at the location and in the manner described by Chan are the focus of the Respondents’ Grounds of Appeal.

Grounds of appeal

11.  There are 22 paragraphs under the Grounds of Appeal contained in the Respondents’ Amended Notice of Appeal filed on 5 March 2024. As shown by the skeleton arguments of Mr Wong, who appeared for the Respondents, essentially 7 Grounds of Appeal are derived from these 22 paragraphs :

(1)  In paras 1 to 5, the Respondents challenge the Judge’s findings on Chan’s time card (“Time Card”). On its face, the Time Card recorded, inter alia, the time at which Chan reported for work and finished work. It was an important piece of evidence at the trial.

(2)  Paras 6 to 9 set out the Respondents’ contention that the Judge had erred in applying the burden of proof.

(3)  Paras 10 to 13 set out the Respondents’ challenge to the finding that R2 was not fully dormant after 31 March 2017 despite the contrary suggestion in its audited financial statements for the year ended 31 March 2017 (“Financial Statements”).

(4)  By paras 14 to 16, the Respondents challenge the finding that employee’s compensation of HK$78,000 had been paid by them to Chan.

(5)  By paras 17 to 18, the Respondents challenge the finding on the cause of the Accident.

(6)  The finding on the location of the Accident is challenged under paras 19 to 20.

(7)  The finding that Chan was working for both Respondents (“Joint Employment”) is challenged under paras 21 to 22 (respectively, “Ground (1)” to “Ground (7)”).

Applicable legal principles

12.  The principles applied by this Court in an appeal against findings of facts are trite. In short, this Court can only intervene in respect of findings of fact when it is satisfied that the findings by the primary judge are plainly wrong, ie, the primary judge had fallen into palpable error such as where the finding was not supported by any evidence, was based on a misunderstanding of the evidence or was one which no reasonable judge could have reached. It is not a legitimate use of the appellate process by re-arguing a party’s case on the evidence with the hope that the appellate court may take a view different to that of the primary judge: see China Gold Finance Ltd v CIL Holdings Ltd & Ors, unrep, CACV 11/2015, 27 November 2015, [11]-[24].

Approach in this appeal

13.  We regret to say that much of the 22 paragraphs of the Grounds of Appeal consist of detailed references to the evidence and the contentions that the Judge was wrong in his findings. Such an exercise is not appropriate in an appeal. This Court was at pains to point out in China Golden Finance Ltd that for the purpose of an appeal on findings of fact, the appellant must identify the palpable error made by the primary judge which may justify the intervention of this Court. Submissions on facts which were made or should have been made at trial have no place in an appeal: see China Golden Finance Ltd, [14]-[16].

14.  In dealing with the Grounds of Appeal, we shall examine the main thrust of the arguments to see if it has been demonstrated that palpable error(s) had been made by the Judge. If no such error can be shown by the Respondents, the Ground(s) must be rejected.

Burden of proof (Ground (2))

15.  It is logical to deal firstly with this Ground. Mr Wong accepted that the Judge had correctly identified that (a) the legal burden of proof rested on Chan and (b) serious allegations had to be proved by cogent evidence commensurate with the gravity of the allegations.

16.  However, Mr Wong submitted that the Judge had erred by reversing the burden of proof when, eg, he expressed doubt over Sing’s evidence that the TK Workshop was “lent” to Chun Wah To and then to Mr Cheung at a rent because the transactions were not supported by a single piece of document, such as communication records and payments of the rent[3].

17.  With respect, there is conflation in the above submission. The proposition that the TK Workshop was lent to a friend when R2 was allegedly dormant was plainly advanced to strengthen the Respondents’ case that the Accident did not take place at the TK Workshop and/or did not take place in the course of Chan’s employment with the Respondents. It is trite that the party who asserts bares the evidential burden of proof of the assertion. The Judge was plainly right to have regard to the absence of documentary evidence in assessing the quality of the Respondents’ assertion that the TK Workshop was used by someone else.

18.  There is nothing in Ground (2).

Time Card (Ground (1))

19.  Grounds (1) (Time Card), (3) (Financial Statements) and (5) (cause of the Accident) were the focus of Mr Wong’s submissions.

20.  Mr Wong submitted that there was no evidence to prove how the Time Card was obtained and therefore its provenance was in doubt. The Judge regarded it as an important piece of contemporaneous evidence which supported the findings of Joint Employment, that the Accident occurred in the course of that employment and Chan’s daily wage. On the other hand, there was evidence from Sing and Chong that the Time Card was not the Respondents’ document. However, the Judge failed to make a finding on the provenance of the Time Card before relying on it.

21.  We do not believe that there could be any real issue of provenance concerning the Time Card. First, there was no dispute on the authenticity of that document. Second, both Chan and Cheng gave evidence about the Time Card. The former gave evidence on, inter alia, the use of a time clock machine with the Time Card. The evidence of the latter was set out in the Judgment, [42(g)] :

“A copy of [Chan’s] Time Card was exhibited to [Cheng’s] witness statement. She was able to recognize the handwritten words on the Time Card as her own hand-writing. She added that at the end of December 2018, she wrote the words “工傷 (job injury)” on the Time Card against the date of 26 December 2018, for the purpose of calculating the amount of wages payable to [Chan]. She said [Chan] Ping was also the name of [Chan], i.e. Chan Yuk Ping.”

22.  Third, the Judge accepted that both Chan and Cheng were credible witnesses, and rejected the evidence of Sing and Chong. In the premises, there could be no serious doubt on the provenance of the Time Card.

23.  Mr Wong also submitted that the Judge was wrong to rely on the Time Card to prove the credibility of Chan and Cheng. We do not agree with the criticism. It is clear from the Judgment that the evidence of Chan ([64] to [68]) and Cheng ([69] to [72]) was subjected to careful and detailed evaluation by the Judge. It was legitimate for the Judge to rely on the Time Card as being consistent with Chan’s evidence. There is no indication that the Judge used the Time Card to prove Cheng’s credibility. Rather, the Judge referred to her evidence on the Time Card as “clear” ([69]).

Financial Statements (Ground (3))

24.  On its front page, the Financial Statements stated: “FOR THE YEAR ENDED 31 MARCH 2017 (DATE OF CEASED)”. That statement was repeated on various pages of the Financial Statements. Mr Wong submitted that the document was prepared by professionals, and the Judge had made a palpable error in declining to find that by the time of the Accident R2 was fully dormant based on the Financial Statements.

25.  We are unable to agree with the submission. First, at its highest, the Financial Statements spoke to the financial affairs of R2 as of 31 March 2017. The Accident took place on 26 December 2018. Second, the accounts were prepared on a going concern basis, and it was recorded that the shareholders had indicated their willingness to provide continual financial support to the company for the next 12 months from 31 March 2017 to meet its liabilities as and when required (pp 3 and 7 of the Financial Statements). This suggests that any cessation of R2’s business would have been temporary.

26.  Third, the Judge had the evidence of Chan and Cheng about working for R2 after the alleged cessation of business on 31 March 2017. In particular, Chan denied in cross-examination that R2 had ceased operation on 31 March 2017. He said that he lived next door and he knew that in fact R2 was still operating. He added that in fact both Respondents were operating (Judgment, [39(f)]). Further, it was perfectly open to the Judge to take into account (a) the lack of financial documents to support the Respondents’ case that R2 was dormant; (b) the continual payment of salary to Lung by R2 despite the fact that it had net current liabilities of HK$4,219.24 according to the Financial Statements; and (c) no Notification of Cessation of Business for R2 was produced by the Respondents (Judgment, [73] and [92]).

27.  As to Mr Wong’s submission that the Judge made no finding to reject the Financial Statements, the criticism is misplaced. It is clear from the Judgment that, for the reasons given by the Judge, he did not accept that R2 was dormant at the material times.

Cause of the Accident (Ground (5))

28.  This Ground is based on the inconsistencies in the medical records on the cause of the Accident. In the Accident & Emergency Department record dated 26 December 2018, it was recorded: “R foot rolled over by 剷車 [forklift truck]”. Yet, all the other medical records, such as Occupational Therapy Reports, consistently recorded: “Right foot injured by metal goods falling from ~1m height”. It was submitted by Mr Wong that there was no basis for the Judge to have found that the Accident occurred in the manner suggested by Chan.

29.  The Judge was perfectly alive to the inconsistent records. The evidence was subjected to analysis by the Judge, and he gave his reasons for accepting Chan’s evidence on the cause of the Accident (Judgment, [114]-[117]). In particular, the Judge accepted Chan’s evidence that it was Sing who told the doctor that he was injured by a falling object. We agree with Mr Lau, who appeared for Chan, that it is inappropriate for the Respondents to invite this Court to re-visit the evidence with the hope of a different result. We see no palpable error under this Ground.

30.  In the course of Mr Wong’s submissions, he endeavoured to argue that the Judge had misunderstood Chan’s evidence on whether he had tried to rectify the record in an Occupational Therapy Report, and thereby made a wrong finding. This is a fresh argument not contained in the Grounds of Appeal. The Report in question is not in the appeal bundles, nor is there a complete transcript of Chan’s evidence. There is no adequate reason to allow the Respondents to argue this new point on appeal.

Grounds (4), (6) and (7)

31.  We have considered carefully the Respondents’ submissions on these Grounds. They appear to be a repetition of the arguments advanced below. There is nothing which may properly suggest that the Judge had made palpable errors in the findings in question. There is nothing in these Grounds.

Disposition

32.  For the reasons aforesaid, this appeal is dismissed. The parties had agreed that costs should follow the event. We order that the costs of this appeal be borne by the Respondents, to be taxed if not agreed. Chan’s own costs be taxed in accordance with the Legal Aid Regulations.