Gurung Bisan Bahadur v.Wui Shing Cargo Transportation Co Ltd & others

DCEC665/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 665 OF 2002

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REASONS  FOR  JUDGMENT

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1. The applicant is a Nepalese. He was born and raised in Hong Kong up to the age of five. He then returned to his homeland and did not come back again until the year of 1997, when he was 35.

2. He then commenced employment with the 1st respondent, Wui Shing Cargo Transportation Company, up to sometime in the year of 2000 when he returned to Nepal for some personal business. I should say that when he went home in the year 2000, he was paid his arrears of salary and his accumulated leave pay.

3. A few months later he came back here. He asked a friend to speak to Mr Kwan Pui-kwan, a partner of the 1st respondent, for a job. He did it through a friend whom he called his 'interpreter' and this friend spoke to Mr Kwan and was given the reply that there was no vacancy and when vacancy should arise, he would be duly informed.

4. Later on he received a call from Kwan and was taken to an office for an interview by another gentleman and was then given a job. He said he commenced working on about 17 or 18 February 2001. He then signed certain document at the request of Kwan one or two months later.

5. For this employment that commenced in 2001, nobody ever told him that he was to be employed by the 1st respondent, but the fact was that he returned to work at the same container yard, doing the same old job, and his colleagues were the same old colleagues who used to work with him before his return to Nepal in 2000. So he thought that he was employed by the 1st respondent.

6. On 6 September 2001, when he was discharging his duties in unhooking a container, he fell off the top of a container and injured himself. There is no dispute that he was injured in the course of and arising out of his employment.

7. On the first day of trial, the parties also agreed that the quantum of compensation that he should be paid before interest should be $191,801 and interest, as accrued on that sum, should be $19,863, with a daily rate to accrue after the first day of trial at $21.01. But then the dispute remained on who was the direct employer.

8. The applicant said that he was employed by the 1st respondent, whilst the 1st respondent said that the applicant was in the direct employ of one Seawell Transportation Development (HK) Limited. The 2nd respondent used to take the stance that the applicant was employed directly by the 1st respondent. However, shortly before the commencement of trial, the 2nd respondent made a change in its stance and concurred with the 1st respondent.

9. As I have said, the applicant only assumed that he was employed by his previous employer, the 1st respondent, because he was doing the same work, at the same place, in the company of the same colleagues and he also got the job through a contact made with a partner of his former employer. But then nobody had ever told him that it was the 1st respondent who would take him on again in the year of 2001. And from all the documents as disclosed in the trial, they all point to the fact that the applicant was employed by Seawell and not by the 1st respondent.

10. To this I should say that there are certain hearsay evidence, certain declarations and reports by people involved in the operation of Seawell, in particular, one Cheung Chi-fai, saying that the applicant was in the employ of the 1st respondent. Mr Cheung has not been called to give evidence. There is also an investigation report purportedly made by a co-worker of the applicant, one Yeung Wai-keung, who also said that the applicant was in the employ of the 1st respondent. Again, Mr Yeung was not called and these are all hearsay evidence and I would prefer the primary evidence as disclosed in the documents, rather than the hearsay evidence.

11. As to the primary evidence, I would place particular reliance on certain MPF documents printed in the month of June 2001 by an MPF provider, Manulife. I also note that all parties herein accept the authenticity of such document. Therefore, on a balance of probability, the applicant was, in June 2001, in the employ of Seawell and not of the 1st respondent. In fact, these MPF documents also show that the applicant was in Seawell's employ since March 2001 until he was injured in September of the same year.

12. There is a point of difference in the evidence between the applicant and Mr Kwan, who was called by the 1st respondent. The applicant said that he made the first telephone contact with Kwan through an interpreter when he returned from Nepal, but Mr Kwan said that it was the applicant who called him up directly.

13. I would resolve this issue this way: I understand the interpretation, as referred to by the applicant, not as the type of interpretation as practised in court. What the applicant was saying was his friend made the talking for him and on his behalf and Mr Kwan, on the other side of the telephone line, did not know that it was not the applicant who was speaking to him but was his friend only. I accept the applicant's evidence that he had a very poor command of Cantonese or English and I also accept Mr Kwan's evidence that this person who talked to him, purportedly as the applicant, over the telephone had initially chatted with him before making the request for a job. So apparently the person who talked to Kwan on the phone had an efficient command of the Cantonese dialect.

14. I also accept Mr Kwan's evidence that he had told the applicant, on the phone (when in fact he was talking to the interpreter) that Wui Shing was no longer there and that Kwan himself was working for Seawell and if Seawell should have vacancy, he would telephone the applicant again.

15. In fact, the applicant also got the message from the interpreter that Kwan said that there was no job at that time, but obviously the interpreter would not have relayed to the applicant the full details of Kwan's conversation. Therefore, the fact that Wui Shing was no longer there and Kwan was working Seawell had not been put through to the applicant. I therefore hold that both persons were telling the truth.

16. Since I have come to the conclusion that the applicant was indeed in the employ of Seawell, I would therefore give judgment against the 2nd respondent on the basis of its admission that it was the principal contractor of the yard, and work as done by the applicant when he was injured was work subcontracted by the 2nd respondent to Seawell. For the same reason I would hold that the 1st respondent is not liable to the claim.

17. I now deal with the question of costs and I would like to hear submissions by the parties on what costs order I should make.

(Submissions re costs)

18. Now, this is my order of costs and brief reasons. For the applicant, he should get all the costs for the whole course of the litigation, but then I would order that the 2nd respondent should pay the applicant's costs just up to before the commencement of the trial. And for the first day of trial including the 3rd respondent's application to intervene, those costs should be borne by the 1st and 2nd respondents. And for the second and third days of trial, they should be borne by the 3rd respondent because without the 3rd respondent's intervention, the matter should have concluded on the first day.

19. Regarding the costs for the 1st respondent, I am asked to make an order in his favour because the 1st respondent has eventually succeeded in the action. But then the 1st respondent has failed appallingly in its obligation to make relevant discovery. If proper discovery should have been made to demonstrate the cessation of its operation by the end of November year 2000 and its laying off of all its then workers and to produce its returns to the Inland Revenue Department, it would have been demonstrated overwhelmingly that the applicant was not in its employ at the relevant time. The failure to produce these documents allowed the cloud of uncertainty to hang over the case until the trial. I therefore order that costs of the 1st respondent should be borne by the 2nd respondent up to 27 May 2003, when the 1st respondent made discovery.

20. As to why I should order the 2nd respondent to pay such costs and not, as Mr Lin has requested me to, order the 3rd respondent to pay them, I take the view that the conduct of the 2nd respondent, as caused by the 3rd respondent, before the 3rd respondent appeared as an independent party, should be a matter to be dealt with under the insurance contract between the 2nd and 3rd respondents. And, in any case, I have not heard enough and have not received sufficient evidence to enable me to come to any conclusion on this matter. Therefore, my order that the 2nd respondent should bear such cost in favour of the 1st respondent is without prejudice to any liability of the 3rd respondent to indemnify or reimburse the 3rd respondent. But that is a matter to be dealt with elsewhere.

21. And then on the costs of the 3rd respondent, for the application to intervene, as well as for the first day of trial, I order that they should be borne by the 1st and 2nd respondents because both of them opposed the application. For the applicant I think I have already covered that and it is the same order, that is those costs should be borne by the 1st and 2nd respondents.

22. And then for the costs of the second and third days of trial, I order that they should all be borne by the 3rd respondent in favour of the applicant and the 1st and 2nd respondents.

23. Save the above orders, I make no further order of costs.

24. I also give certificate for counsel for the three respondents.