FENG JIANZHU v. HO SZE YEE AND OTHERS

DCEC 2613/2018

[2021] HKDC 1355

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2613 OF 2018

--------------------------------

--------------------------------

-------------------------

JUDGMENT

-------------------------

1.  The applicant was a 46 year-old plaster worker at the time of the accident.  On 19 August 2017, the applicant carried out renovation work in a domestic premises at Unit A2, 21st Floor, Block A, Smithfield Terrace, No 77 Smithfield, Kennedy Town, Hong Kong (“the Flat”).  At about 11:40 am, whilst the applicant was working in the toilet of the Flat, a piece of tile fell from the beam and struck his left wrist (“the Accident”).  As a result, the applicant sustained tendon cut over his left wrist.  After the Accident, the applicant attended the Accident & Emergency Department (“AED”) of Kwong Wah Hospital (“KWH”).  The applicant sustained disabilities as a result of the injury and now seeks compensation under section 9 (permanent partial incapacity), section 10 (temporary incapacity) and section 10A (medical expenses) of the Employees’ Compensation Ordinance (Cap 282) (“ECO”).[1]

2.  The 1^st and 2^nd respondents were alleged to be the employer(s) of the applicant. The 1^st respondent, Ho Sze Yee (何仕儀) (“R1”) is a plasterer who took up plastering work for the Flat and brought in the applicant to work at the Flat.  The 2^nd respondent, Chan Wan Nin (陳運年) is the uncle of the owner of the Flat (“R2”).  The 3^rd respondent, Employees Compensation Assistance Fund Board (“R3”), joins to fulfill its statutory duties.

THE TRIAL PROCEEDINGS

3.  R1 appeared in person at trial. He was assisted by his daughter Ms. Ho Ka Ki (何嘉琪), who has received university education and is proficient in both Chinese and English.  The trial was conducted in punti, witnesses gave evidence in punti and written final submissions were in Chinese and the oral submissions in punti.  All parties consented to this judgment to be delivered in English.

4.  The trial necessitated a longer than scheduled duration as the applicant has been taken ill on the second day of the trial with reported suspected symptoms of Covid-19.  The applicant was directed to receive immediate Covid-19 tests and the trial was adjourned to enable the applicant and those in close contact with him, including the respective legal representatives to receive medical check-up and self-quarantine in line with the HKSAR government Covid-19 measures at the time.  

5.  At the commencement of trial, counsel for R3, Mr. Yip, submitted that issue estoppel or res judicata applied in relation to the applicant’s evidence being found to be unreliable in the magistrate’s proceedings.  Upon objection from the applicant and after further discussions, in particular on whether the same point has been actually decided between the same parties in this case, Mr. Yip sensibly withdrew his submissions.

THE UNDISPUTED AND UNDISPUTABLE FACTS

6.  The following facts are either not disputed or indisputable.

7.  The applicant and R1 were both experienced plasterers, both having reached the sifu grade and have prior to the accident worked together in other sites. Since 2017, when they worked together, the applicant had received payment in cash for his daily wages from R1.  R1 has also provided all major tools and equipment for the plastering work.

8.  In August 2017, Mr. Cheung Wang Yip (“Cheung”), the owner of the Flat, decided to carry out renovation work to his apartment.  He asked his uncle, R2, who was a painting contractor to assist him in carrying out the painting work.  R2 agreed to carry out painting work to the Flat and upon Cheung’s request, he agreed to find for Cheung plasterers to carry out plastering work at the Flat. Since R2 had worked with R1 in the past, he approached R1 for the job.  R1 agreed, subject to his diary, to take up plastering work for the Flat.  There were no discussions between R2 and R1 in relation to the fees, wages, number of workers required or duration of R1’s work. 

9.  In the meantime, R1 and the applicant worked together in a site at MacDonnell Road under the head contractor Hung Gor (雄哥), R1 contacted the applicant and asked him to do plastering work at the Flat.  At the MacDonnell Road site, the applicant earned a daily wage of $1,500 and received payment of his daily wages from R1 in cash.

10.  On the morning of 11 August 2017, the applicant and R1 finished work at the MacDonnell Road site and moved R1’s tools and equipment by van to the Flat in the afternoon.  They then commenced work at the Flat.

11.  On 19 August 2017, at about 11:40 am, when the applicant had finished laying tiles on the walls and ceiling in the toilet of the Flat and was tidying up tools and equipment on the floor, a tile fell and cut his left wrist.  The applicant immediately used his right hand to press the wound on the left wrist to stop the bleeding.  R1, who was working in another room of the Flat, heard the applicant shout and went over to treat his wound.  The applicant did not think his injury was serious and deferred medical treatment. The applicant returned to work after lunch.  Eventually, at around 4 pm, the applicant informed R1 that he needed to leave early.  The applicant then went to the AED.

12.  Whilst the applicant was waiting for the repair operation in KWH, he called R1 and asked if R1 had taken out employees’ compensation insurance. R1 answered in the negative.

13.  The applicant was discharged on 20 August 2017 after the repair operation with sick leave.  He informed R1 of his discharge and sent the sick leave certificate to R1 by WhatsApp message.  Later, R1 visited the applicant and handed him $11,000 in cash.

14.  On 24 August 2017, the applicant submitted a notification of accident to the Labour Department[2]. Based on the information provided by R1, the applicant named Cheung as his employer in the notification.

15.  On 10 September 2017, at R1’s request, the applicant visited a coffee shop in Wan Chai to meet Cheung, R1, R2 and others.  At the meeting, it was proposed that a sum of $128,000 be paid to the applicant in full and final settlement of his claim in respect of the Accident.  A draft settlement agreement was handed over to the applicant. The applicant did not sign the draft agreement as it stated that he was self-employed.

16.  Subsequently, the applicant submitted an amended notification of accident on 14 October 2017 naming R1 as his employer[3].

THE ISSUES

17.  The accident and the injuries suffered by the applicant are not disputed.  The following are the remaining issues before the court:-

(1)  Whether the applicant was an employee at the time of the accident?

(2)  If the applicant was an employee, was any of the respondent(s) his employer(s)? 

(3)  If the answer to (2) is yes, was it R1 or R2 or both?

(4)  Quantum

THE APPLICANT’S CASE

18.  The applicant came to know R1 in about 2015 when they worked together at a construction site.  Since 2017, the applicant occasionally went and worked with R1 when asked by R1.  Although his wages were paid by R1, he was not too concerned as to whether R1 was his employer or not.

19.  The first time the applicant saw Cheung and Cheung’s mother was when he worked in the Flat.  He did not know who they were at that time.  R2 also visited the Flat when the applicant worked there.  R2 never gave any work instructions to the applicant.  All instructions were given to him by R1.

20.  On the date of the accident when R2 learnt of the accident during lunch, he asked if the applicant needed any medication.  Subsequently, at around 4 pm, when his pain became more severe, the applicant obtained R1’s permission to leave early for medical treatment.

21.  When R1 visited the applicant after his discharge from hospital, R1 paid him $11,000 as wages.

22.  The applicant has no knowledge as to the relationship and dealings between R1 and R2.  He nevertheless is adamant that at the time of the accident he was an employee and he was directly employed by R1.

R1’S CASE

23.  R1 was 65 years old and was semi-retired.  He did not actively find jobs and worked on a casual basis.  He received a daily wage of around $1,500.

24.  R1 came to know R2 a few years ago when they worked for the same head contractor.  R2 also did plaster-related work.  In August 2017, R2 told R1 that his nephew’s flat was under renovation and asked R1 to assist in the plastering work.  R1 agreed and told R2 that he would work on a daily rate basis.

25.  On 9 August 2017, R1 and R2 went to the Flat for inspection.  R2 explained to R1 in detail the works to be done and the requirements at various locations of the Flat.  In particular, R2 requested R1 to install large pieces of marble on the windowsills.  R1 told R2 that the marble pieces were too big for him to handle alone.  R2 then asked R1 whether he could introduce someone to help.  R1 agreed to ask around.  R1 later introduced the applicant to work at the Flat.  On 11 August 2017, by the time R1 and the applicant arrived at the Flat in the afternoon, all the renovation materials, including cement sand and bricks were already in place at the premises.

26.  On 12 August 2017, R2 went to the Flat to explain to R1 and the applicant the work requirements and gave them work instructions.  At the time R1 thought that R2 would take out employees’ compensation insurance.

27.  On 14 or 15 August 2017, R2 and Cheung went to the Flat to monitor the work and the progress.

28.  In the morning of the date of accident on 19 August 2017, R2 asked R1 to buy some tools.  After buying the tools, R1 gave a receipt of $140 to R2 which R2 reimbursed R1 in cash.  R2 also personally delivered some cement sand to the Flat in the afternoon.

29.  R1 did not witness the Accident.  The applicant came out from the toilet at around 11:45 am and R1 saw the applicant’s left-hand bleeding.  R1 asked the applicant if he needed to go to hospital.  The applicant said he was fine and did not need medical treatment.  At lunch, when R2 learnt of the Accident and asked the applicant whether he needed to go to hospital, the applicant gave the same reply that he did not need to go to hospital as the injury was not serious.  After lunch, the applicant and R1 went back to work at the Flat. The applicant subsequently told R1 that he needed to go buy some fish food and left the Flat at about 5 pm.  At about 7 pm, R1 received a WhatsApp message from the applicant stating that there was a problem with his tendon and he needed to be admitted to hospital.  R1 called the applicant but no one answered.  The applicant sent another WhatsApp message to R1 at about 11 pm saying that he had an operation.

30.  A few days later, the applicant called R1 and asked for help as he was short in cash.  R1 was sympathetic towards the applicant and lent him $11,000 as a loan.

R2’S CASE

31.  In August 2017, Cheung, asked R2 to introduce someone to do some plastering work at the Flat.  R2 decided to introduce R1.

32.  On 10 August 2017, Cheung and R2 met R1 at the Flat.  Cheung explained to R1 his requirements including how the bricks were to be laid and the arrangement of tiles.  R2 did not participate in the discussion.  Nor did R2 give any opinion.  Cheung left R1 his telephone number so that they could communicate with each other directly.

33.  About a week later, Cheung asked R2 to help supervise the progress of the plastering work.  R2 agreed.  Cheung also transferred $20,000 to R2 in case of urgent need.  R2 later learned that Cheung was out of town.  R2 went to the Flat and found R1 and the applicant working there.  That was the first time R2 saw the applicant and thought he was employed by R1. R2 did not know the applicant and did not talk to him.

34.  In the morning of 19 August 2017, R2 went to the Flat to collect his own tools. He stayed in the Flat for a while and had lunch with R1.  At lunch, R2 learned of the Accident.  R1 also told R2 that there was insufficient cement sand to finish the work.  R2 said he could buy the cement sand and deliver it to the Flat.

35.  After lunch, R2 bought the cement sand and hired a van to deliver it to the Flat.  As he did not have sufficient change for the van, R2 borrowed less than $100 from R1.  R2 later withdrew cash from an ATM machine in the vicinity and repaid R1.

36.  On 21 August 2017, R2 went to the Flat to check the progress of the work.  R1 asked R2 to inform Cheung that the work fees were $31,000. R2 was surprised that R1 contacted him instead of Cheung and he asked R2 to pass the message to Cheung.  In any event, R2 passed the message to Cheung as requested.

37.  On 24 August 2017, R1 called R2 and told him further that the work fees, inclusive of tools and equipment, was $31,000.  R2 passed the message to Cheung accordingly.

38.  On 26 August 2017, R1 sent a message to R2 by WhatsApp in which R1 listed out the breakdown consisting wages of 7.5 workdays for the applicant and 10.5 workdays for R1.  R2 replied on 27 August 2017 and asked R1 to deal with Cheung directly.  R1 later sent another WhatsApp message to R2 and asked R2 to pay 18 workdays’ salary at $27,000 into the respective bank accounts of R1 and the applicant.

39.  On 10 September 2017, upon Cheung’s request, R2 accompanied Cheung and others to a coffee shop in Wan Chai to meet the applicant and R1.  R2 did not participate in the negotiation.

THE WITNESSES

40.  The applicant, R1, R2 and Cheung gave evidence.

THE LEGAL PRINCIPALS

41.  In Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156 at paras 9-18, it was held that the modern approach to the question of whether a person is an employee was to examine all the features of their relationship against the background of the indicia of employment with a view to deciding whether, as a matter of overall impression, the relationship was one of employment.  This involves a nuanced and not a mechanical approach: painting a picture from the accumulation of detail.  The indicia included the degree of control, exercised by the “employer”, whether the person performing the services provided his own equipment; whether he hired his own helpers; what degree of financial risk he took; what degree of responsibility for investment and management he had; and whether and how far he had an opportunity of profiting from sound management in the performance of task.  

THE ANALYSIS

THE APPLICANT

THE APPLICANT’S EVIDENCE

42.  In the magistrate’s proceedings on 5 June 2020, the applicant gave evidence that he did not receive any payment for his work at the Flat.[4] When he was challenged that this was inconsistent with his evidence in this court that he was paid by R1, he then denied having given such an answer in the magistrate’s court and challenged the accuracy of the transcript of the magistrate’s court.[5]

43.  When the applicant was asked about his describing R1 as his “workmate” in his declaration to the labour department.  The applicant explained that he gave a wrong answer to the labour department because he was not able to think straight at the time, as the air conditioning in the labour department was too cold.

44.  The applicant initially denied having a business registration but later had to admit to having formed a company Xin Jun Ya Engineering Company Limited (“Xin Jun Ya”) after being shown a copy of its business registration.[6]

45.  I find the applicant’s evidence shifty.  He has been evasive in answering questions.  The applicant changed his evidence to support his claim and had made denials irrespective of objective evidence against him.  On the whole, I find the applicant to be an untruthful witness and I find his evidence unreliable.  I have in the course of considering the merits of his claim attached little weight to his uncorroborated evidence.

THE CIRCUMSTNCES SURRONDING THE APPLICANT’S WORK

46.  The applicant worked for different sites for the month before the accident.  This shows that he worked on a casual work basis not attached to a particular organization or in a fixed workplace.  He admits that he can refuse work.[7] His main duties as a plasterer included laying bricks, applying cement sand and cement coating.  His daily rate was at $1,500 ($1,450 plus $50 for lunch and afternoon tea allowance)[8].  The applicant said he worked 26 days a month.

47.  The applicant did bring his own small tools to work, including a mortar tray and plastering trowel.

48.  Prior to the work at the Flat, the applicant had worked on a casual basis for different contractors.  In the past, whenever the applicant worked on a job introduced by R1, he received his wages from R1 in cash and R1 provided all the necessary tools and equipment, including drying fan, water machine and cutting machine.

THE APPLICANT HAS A BUSINESS REGISTRATION

49.  The applicant has in around 2016, on the advice of other contractors formed Xin Jun Ya to receive contracts from head contractors.  He accepted that he has occasionally employed other workers under Xin Jun Ya.  He nevertheless stated that he has taken up only a few projects in the name of Xin Jun Ya.  In other words, in most cases, he has taken up work as an individual.  Whilst the applicant has his own company and has operated in the past as a contractor, there is no evidence that Xin Jun Ya had played any part in the work at the Flat.

THE APPLICANT HAD INITIALLY NOT CONSIDERED R1 AS HIS EMPLOYER

50.  The applicant in the declaration to the labour department on 24 August 2017 referred to R1 as his “workmate”.[9] Further, in his first notification of accident, the applicant named Cheung but not R1 as his employer.

51.  I take into account the fact that in the WhatsApp messages, the applicant has addressed R1 as Sze Gor (仕哥), or elder brother Sze.  This shows that the applicant had respect for R1.  At the initial stages after the accident, after confirming with R1 that he had not taken out employees’ compensation insurance, it was clear from the WhatsApp messages between the applicant and R1 that the applicant sought advice from R1 as how to proceed with his claim.  Up to the stage of discussing the terms of settlement agreement, R1 had been advising the applicant.  The applicant had at one stage commented on the draft settlement agreement that the description of the applicant being “self- employed” was a term that was “to our great disadvantage” (看了後對我哋相當不利).[10] It was clear that the applicant has at that stage regarded R1 and himself as a team.

52.  Having considered the WhatsApp messages, I accept the applicant’s evidence that he named Cheung as his employer in the notification of accident on R1’s advice and I do not consider the applicant’s failure to name R1 as his employer in the initial notification of accident detrimental to his claim against R1.

53.  Whether R1 was an employer or just a co-worker under ECO is a matter of law which requires looking into all the circumstances, and in the circumstances of this case, I attach little weight to the applicant’s perception of the status of R1 at the time of making the declaration.

THE OBJECTIVE EVIDENCE

54.  Having considered the features below, I find the applicant to be an employee under the definition of S.2 (1) (b) ECO who was employed to work as a casual plastering worker to work at the Flat.

(1)  The applicant received wages at a daily rate of $1,500.

(2)  There is no evidence that the applicant received the work in the capacity of his company Xin Jun Ya.  When R1 engaged the applicant to work in the flat, neither of them made any reference to the applicant’s company Xin Jun Ya.  Neither R1, R2 nor Cheung had made contracts with Xin Jun Ya for the applicant’s services at the Flat.  In fact, it seems that neither R1, R2 nor Cheung were aware of the existence of Xin Jun Ya.  Further, the tax return of Xin Jun Ya shows the company had no income for the fiscal year of 2017 to 2018.[11] I find the applicant in this occasion had accepted work at the Flat in his capacity as a casual worker.

(3)  Although the applicant preferred to use his own small tools and brought them to work, he did not charge extra fees for his tools.  The applicant relied on R1 to supply major tools and equipment when discharge his plastering duties.

(4)  Whilst the applicant was free to refuse work, once accepted, he was subject to standard manual worker’s working hours.  For instance, when he was working at the Wong Tai Sin site, he asked R1 to seek consent from the contractor, Yuen Gor before taking up the MacDonnell Road project.  Up until the date of accident, during the occasions when he worked with R1, the applicant has not taken any leave.  Given his respect and apparent good relationship with R1, I find it more likely that he had asked permission from R1 before leaving the Flat for hospital visit.  This shows that the applicant was subject to the usual daily casual worker’s constrains.

(5)  The applicant received instructions from R1.  All instructions of work came from R1.  He had to work in accordance with R1’s instructions.

(6)  On day one of the work at the Flat, the applicant assisted R1 in moving R1’s tools and equipment to the Flat. Whilst R1 could charge separately and would profit from the supply of the tools and equipment, the applicant made no financial gains for assisting in the transportation of R1’s tools and equipment.  I find this to be more consistent with the applicant being an employee and following instructions and assignments given to him by R1.  This act of the applicant assisting R1 in moving R1’s tools and equipment also goes against R1’s allegation that they both were self- employed and enjoyed equal status.

(7)  The applicant received his wages in cash from R1.

(8)  Apart from bringing his small tools and having to pay for his own travel expenses, the applicant has made no investment in taking up the work at the Flat.  His wages depend on the numbers of days and hours he had put into the work. 

(9)  The applicant’s earnings were not subject to the quality of his services provided.  Apart from the agreed daily wages, the applicant does not profit from the sound management of how he conducts his work at the Flat. 

(10)  Apart from the risk of not receiving his wages, he bears no other financial risk in his work at the Flat.

R1

PROVIDED TOOLS AND EQUIPMENT

55.  R1 provided all the major tools and equipment for the plastering work.  These tools and equipment were so abundant that they required a van to be moved from one site to another.

56.  R1 says these tools and equipment were to enable him to earn more by charging tools and equipment fees.  R1 however said if the applicant wished, he was happy for the applicant to provide the tools and equipment and charge for such fees.  I do not accept that the applicant could have provided the tools and equipment and charge for the same. This was not their practice in the past.  There is no evidence that the applicant was made aware of such on option.  I find that it was R1’s practice to bring in his own large tools and equipment.  R1 clearly needed to invest in his tools and equipment and for their maintenance. 

PROVIDING THE APPLICANT WORK INSTRUCTIONS

57.  The applicant states that all work instructions at the site came from R1.  R1 admits that he would from time to time check the applicant’s work progress at the Flat.  R1 even instructed the applicant to move his tools and equipment to the Flat. 

HAVING CONTROL OVER THE TOTAL SUM TO BE CHARGED FOR THE WORK DONE

58.  R1 on 21 August 2017 informed R2 that the project fee was $31,000.  He said on 24 August 2017 that he informed R2 that $31,000 was for 19 workdays plus tools and expenses.  When R2 asked about the project fees, R1 then stated that there were in total 19 workdays: 10.5 workdays was for R1 and 7.5 workdays was for the applicant.  1 workday was pending.  So based on R1’s calculation, up till 24 August 2017, there was actually only 18 workdays and the correct sum was 18 x $1,500 = $27,000 only.[12]

59.  That being the case, on R1’s own figures, when taking into account the one pending workday, the work fees based on the workdays should amount to $1,500 x 19 days = $28,500.  In other words, R1 would earned an extra $2,500 ($31,000 - $28,500) for the supply of tool and equipment or as profit.

R1 POACHED THE APPLICANT FOR THE MACDONNELL ROAD PROJECT

60.  R1 had approached the applicant to work with him at the MacDonnell Road’s project.  At the time the applicant was working for a contractor Yuen Gor (源哥) at a site in Wong Tai Sin.  The applicant agreed to work at the MacDonnell Road’s site but subject to Yuen Gor agreeing to release him and the applicant asked R1 to seek for Yuen Gor’s approval.  R1 then contacted Yuen Gor who agreed to release the applicant.

61.  At the time when R1 tried to get the applicant to work at the MacDonnell Road site, the applicant was already engaged by Yuen Gor, earning the same rate of $1,500 per day.  As such, he was apparently not in need of work.  R1 in that case poached the applicant to work with him at the MacDonnell Road project. Had R1 been a mere co-worker, there was no need for him to go through all this trouble to get Yuen Gor’s consent to release the applicant, he could have simply left it to Hung Gor who was the principal contractor of the MacDonnell Road site to engage his co-worker. 

R2’S EVIDENCE ON R1’S STATUS AS A SUB-CONTRACTOR

62.  R2 says his understanding is that in the past for the projects that he worked with R1, under the head contractor were sub-contractors for different fields.  R2 himself took up these projects as a painting contractor and it was his understanding that R1 has taken up these projects as a plastering contractor.  

R1 PAID THE APPLICANT’S WAGES

63.  On 16 August 2017, R1 paid the applicant $14,000 as wages for his work at MacDonnell Road and for the first three and a half days work at the Flat.  The wages were paid bi-monthly and paid to the applicant before R1 received payment from Hung Gor or Cheung.

64.  R1 says a few days after the accident, he provided $11,000 to the applicant as a loan.  The applicant says out of this $11,000, $6,000 was for his 4 days’ work at the Flat and $5,000 was given to him by R1 for him to yum cha. On balance, this is more in line with R1’s practice of paying the applicant his wages bi-weekly.

65.  The fact that R1 paid the applicant his wages for the work at the Flat before Cheung had paid R1 and in the MacDonnell Road project R1 also paid the applicant before Hung Gor paid R1, shows that R1 has assumed the financial risk of payment of wages to the applicant in case of default in payment by Cheung or Hung Gor.  Indeed, up to date R1 has not collected payment for the work done for the Flat.

66.  As a person who introduced the work to the applicant, R1 regarded it his duty to see to it that the applicant received his wages.  This self-imposed duty is not in line with R1’s notion that he and the applicant were co-workers enjoying equal status.  Had the applicant merely been a co-worker of the applicant, it would have made more sense for the applicant’s wages to be paid directly by Cheung or R2. 

67.  The fact that the applicant’s wages were paid bi-weekly and he and R1 worked for different contractors within the same month means R1 would have had to keep track of the number of working days of the applicant.  This exercise of the applicant receiving his wages through R1 not only adds to the administrative work of R1 but is also potentially troublesome.  Should the head contractor default or delay payments, R1 may then have to assume the role of chasing for outstanding wages on behalf of the applicant. 

68.  Payment of wages and collection of payment of wages would in normal circumstances be a matter between the worker and the employer.  I find it illogical for R1 to have assumed the responsibility of paying the applicant’s wage had he been a co-workers or a mere go-between.  I find R1 paying the applicant’s wages in this case shows that R1 was not just an intermediary and co-worker, but was more consistent with the practice of an employer.

CHEUNG GAVE DIRECT INSTRUCTIONS TO R1

69.  Cheung and R1 communicated via WhatsApp messages. From 15 to 21 August 2017, Cheung sent R1 photographs, drawings and invoice of marble stones to instruct R1 the measurements of the toilet wall, the pattern of tiles.[13]  On 16 August 2017, Cheung sent R1 an invoice for the purchase of marble stones.  Cheung asked R1 to take delivery of these marble pieces on his behalf,[14] which R1 on 21 August 2017 confirmed having taken delivery.[15]

70.  This shows that apart from having Cheung’s telephone contact, R1 received direct instructions from Cheung.  Cheung also at a later stage asked R1 to send him the bill for the project.  These direct dealings with Cheung as the owner of the Flat is consistent with R1 being a contractor. 

CONCLUSION ON R1’S STATUS

71.  I am satisfied that the totality of the evidence substantiates the fact that R1 took up the project at the Flat as a plastering contractor and has employed the applicant as a plastering worker at the time of the accident.

R2

WAS R2 REMUNERATED?

72.  R2 took up supervisory work for his nephew Cheung.  R2 said, being a close relative he was not remunerated for his work done at the Flat.

73.  Whilst admitting Cheung gave him $20,000 for the project, R2 states that he did not use the $20,000, as it was only to be used in case of emergency.  He later gave the whole sum of $20,000 back to Cheung through Cheung’s mother.  R2 emphasised that he did not receive any payment for his work at the Flat and did not ask Cheung for the reimbursement for the cost of extra cement sand and its transportation costs which amounted to a few hundred dollars that he paid upfront as it was a small sum.

74.  However, Cheung gave evidence that he did reimburse R2 for the purchase of ICI paints that R2 bought for him. Payment to R2 was made through Cheung’s mother.

R2 GAVE INSTRUCTIONS TO R1

75.  R1 says R2 gave detailed instructions to R1 at the Flat. He instructed R1 on the work required, positions and requirement.  R2 says Cheung gave instructions to R1 and he did not express any opinion.  Cheung gave evidence that he knew nothing about construction work.

76.  R2 did send R1 instructions via WhatsApp for R1 to start work on the right wall floor boarder. [16]

R2 WAS NOT A DIRECT EMPLOYER OF THE APPLICANT

77.  R2 did not know the applicant.  He did not engage the applicant to work at the Flat.  He had no agreement with the applicant.  The applicant confirmed that R2 did not give him direct instructions and R2 had no control over him.  R2 was not responsible for paying the applicant’s wages.  There is no evidence that R2 was the direct employer of the applicant.

78.  The other possible means for R2 to be liable under ECO is as the principal contractor of the Flat and to be liable for the sub-contractor’s employee under S24 ECO.

S24 OF ECO

79.  Liability in case of employees employed by sub-contractors:-

“(1) Where any person (in this section referred to as the principal contractor), in the course of or for the purposes of his trade or business, 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, the principal contractor shall be liable to pay to any employee employed by that sub-contractor or by any other sub-contractor in the execution of the work any compensation under this Ordinance which the principal contractor would have been liable to pay if that employee had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal contractor, then, in the application of this Ordinance, references to the principal contractor shall be substituted for references to the employer, except that the amount of any compensation calculated by reference to earnings shall be calculated by reference to the earnings of the employee under the employer by whom he is immediately employed.”

WAS R2 THE PRINCIPAL CONTRACTOR?

CHEUNG HAD CONTROL OVER THE FLAT?

80.  R2 was entrusted with the task of supervising the progress of the project.  He was given the keys to the Flat to allow R1 to gain access. 

R2 WAS A PAINTING CONTRACTOR

81.  R2 is a painting contractor.  He took up painting work for the Flat on a pro bono basis.  He bought paint for the painting work.  He also agreed to supervise the plastering work carried out by R1.  At the time of the accident, R2 has already finished removing the old paint from the walls.  The question is whether R2, by agreeing to take up supervisory work, has also assumed the role of the principal contractor?

TOOLS AND EQUIPMENT IN THE FLAT

82.  Apart from R1’s own tools and equipment, there were some other large tools and equipment that were used by R1 and the applicant, such as jack hammer in the Flat which R2 denies being the owner.  It was probable that they were owned by other contractors at the Flat. For instance, the electric contract Wing Gor (榮哥).

R2 PAID UNFRONT FOR CONSTRUCTION MATERIALS

83.  It is not disputed that by the time R1 started work at the Flat, construction materials including cement sand and bricks were already in the Flat.  R2 denies having anything to do with these construction materials

84.  It is not R2’s case that R1 made arrangements for the cement sand and bricks.  Indeed, R1’s final bill made no reference to the cost of these construction materials.

85.  Cheung says he did not place any order and he expected the costs of these construction materials to come out from R1’s final bill.

86.  When R1 informed R2 that there was not enough cement sand, R2 did purchase and transport extra cement sand to the Flat. 

87.  Had R1 been responsible for the purchase of the construction materials, it would have been more logical for R1 to purchase the extra cement sand to make up for the shortage.  It was also illogical for R2 to assume the responsibility of buying the extra cement sand, as according to Cheung, he expected R1 to buy the construction materials and it would later be included in the final bill from R1.  That being the case, the act of R2 volunteering his services to purchase the extra cement did not fit into the notion of R1 being responsible for the purchase of construction materials.

88.  I accept that apart from the marble stones, Cheung did not purchase the construction materials.  He had no reason to lie on this subject.  I also accept R1 did not purchase the construction material.  Neither Cheung nor R2 alleges that there were instructions for R1 to purchase the construction materials.  R2 also confirms that unless there were specific agreement, the practice was for the construction materials to be supplied by the owner of the Flat.  By elimination, the irresistible inference is the bricks and cement sand were ordered and paid by R2. 

89.  R2 paid R1 about $100 in cash.  R1 says it was about $140 for the reimbursement of R1 for the purchase of tools for R2.  R2 nevertheless says this $100 was what R1 lent him for the transportation of extra cement sand.  In any event, the evidence shows that R2 had paid for the additional cement sand along with the cost of its transportation.

90.  I accordingly find R2 made payment for construction materials for the plastering work, including cement sand and bricks.

CHEUNG COMMUNICATED DIRECT TO R1

91.  Had R2 been the principal contractor, all work related instructions and building materials should have gone through R2.  Cheung being the flat owner in normal situation would not have had any direct communication with R1.  The direct communications between Cheung and R1 plus the fact Cheung himself placed order for the marble stones are against the notion of R2 being the principal contractor. 

NO CONTRACT BETWEEN R1 AND R2

92.  There is no contract between R1 and R2.  It is not R1’s case that R2 was responsible for the payment of R1’s work.

THE APPLICANT’S LEGAL ADVISERS HAVE DRAWN A CONCLUSION THAT THERE’S NO PRINCIPAL CONTRACTOR

93.  The applicant’s solicitors Messrs. Or & Lau’s letter to the Labour Department dated 21 March 2019 states, “We have already investigated upon and hereby confirm that there is no principal contractor exists”.  Having considered the evidence before this court, I accept that this may have been a fair statement.

CONCLUSION ON R2’S STATUS

94.  I find that R2 was not the principal contractor.  In making this finding, I have taken into account the following factors:-

(1)  Whilst R2 has given instructions to R1 and may have been involved in the order and purchase of construction materials, these are conducts that are consistent with his role as a close relative of Cheung who relied on his experiences and as a supervisor in Cheung’s absence.

(2)  There is no evidence that R2 had control or supervision over other contractors in the Flat.  For instance, Wing Gor the electric work contractor.

(3)  There is no evidence of any contractual relationship between Cheung and R2 for R2 to act as principal contractor for the project at the Flat.  

(4)  Cheung’s hands-on instructions to R1 on how to carry out work in the Flat supports the case that Cheung did not rely on R2 to take up the role of principal contractor. 

(5)  Cheung asked R1 to give him the bill for his work done.  This shows that Cheung dealt directly with R1 and was to make direct payment to R1, which is also inconsistent with the notion of R2 being the principal contractor. 

95.  Having evaluated the overall effect of the evidence before me, I find that the evidence neither supports a case of R2 being the employer of the applicant nor the principal contractor of the Flat.  

COMPENSATION

Section 9

96.  The applicant was born in April 1971 and was 46 years old at the time of the Accident on 19 August 2017.  The applicant was within the age group of over 40 years of age but under 56 years of age at the time of the accident, a lump sum equal to 72 months’earnings or 72 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1) (b) specified in the first column of that Schedule, whichever is the less applies. 

97.  It is the applicant’s evidence that, at the time of the Accident, he worked 26 days each month on average with a daily rate of $1,500.  His calendar diary[17] shows that apart from R1, he worked for Yuen Gor and he worked back to back from one site to another.  For the month prior to the accident, he worked 27 days.  This is corroborated by the evidence of R1 confirming his work days with R1.  The applicant was clearly quite popular and busy.  This could be seen from the fact that R1 had to poach him from Yuen Gor.  I accept that the applicant was capable of commanding on average 26 days working days.  I accordingly allow 26 days per month as claimed. 

98.  The applicant’s monthly income for the purpose of ECO is therefore assessed at $1,500 x 26 = $39,000.

99.  The assessed sum of $39,000 exceeds the “Specific Amount of Compensation” stated in Sixth Schedule at the time of the Accident (i.e. $28,360), the statutory maximum should be adopted.

100.  According to Form 7, the applicant was assessed to have suffered 1.5% permanent total incapacity. Compensation under section 9 is therefore assessed at: $28,360 x 72 x 1.5% = $30,628.80.

Section 10

101.  A sick leave period of 105 days (i.e. 3.5 months) is endorsed in Form 7.  The compensation under section 10 should be: $39,000 x 3.5 x 4/5 = $109,200.

Section 10A

102.  The medical expenses incurred by the applicant consists of the following:-

(1)  Hospital fee for 19 and 20 August 2017 is at $240.

(2)  Fee for 11 sessions of physiotherapy ($100 each) is at $1,100.

(3)  Fee for (at least) 2 sessions of occupational therapy ($100 each) at $200.

103.  The total sum is at $1,540.

SUMMARY

104.  The applicant’s claim is summarised as follows:-

Section 9	$30,628.80
Section 10	$109,200.00
Section 10A	$1,540.00
	__________
Total:	$141,368.80

ORDER

105.  (1)     I award the applicant the sum of $141,368.80 against R1 with interest at half the judgment rate from the date of the Accident to the date of judgment and thereafter at the judgment rate until payment. 

   (2)  The applicant’s claim against R2 be dismissed.

COSTS

106.  (1)     I make a cost order against R1 in favour of the applicant to be taxed if not agreed with certificate for counsel.

   (2)  R2’s costs shall be paid by R1 to be taxed if not agreed, with certificate for counsel. 

   (3)  There shall be no cost order for or against R3.

   (4)  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations. 

   (5)  The above costs order are made nisi. In absence of any application for variation, the costs order shall be made absolute in 14 days from the date hereof.