HKSAR v. CHAN WAI SANG t/a KIN SANG ENGINEERING CO.

HCMA 940/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 940 OF 2000

(ON APPEAL FROM KTS 14013-7/1999)

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J U D G M E N T

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1. The Appellant appeals today against his convictions in respect of 5 summonses laid against him, the first alleging that he, without reasonable excuse, failed to give notice to the Commissioner of Labour in the prescribed form within fourteen days of an accident to a workman. This was contrary to Section 15(1A)(a) and 15(6) of the Employees' Compensation Ordinance, Cap.282. He was also summonsed in respect of four failures to pay periodical payments which were required to be paid under the Employees' Compensation Ordinance, Cap.282, contrary to Section 10(10) of that ordinance.

2. The facts of the case were that the workman in question was demolishing a wall when he lost his balance and fell to the ground. He injured his right ankle and subsequently received medical treatment and sick leave. The Appellant denied he was the employer and refused to accept sick leave certificates, claiming that the workman was a sub-contractor. The Appellant gave evidence of an oral agreement allegedly made between him and the workman and also produced a written sub-contract agreement, which had been signed by the workman some days after the initial job interview.

3. The Magistrate correctly defined the main issues in this case as whether the workman was a sub-contractor or an employee, and whether the Appellant had a reasonable excuse for failing to give notice, or a reasonable excuse for failing to pay the periodical payments required under the Employees' Compensation Ordinance. Having examined the evidence and the incidents of the employment, the Magistrate found that the workman was in fact an employee.

4. The Magistrate considered that the matters relevant in that respect were that the workman did not supply his own tools, but was given tools to work with; he had regular working hours; he had to apply in advance for leave; he followed instructions and was supervised in his work; he was paid on a monthly basis and he played no part in the investment in, or management of, the work, nor did he hire anyone to work with him. On that evidence, the Magistrate found that the workman was an employee not a sub-contractor.

5. The Magistrate was satisfied that the Appellant had no reasonable excuse for failing to make periodical payments or for failing to give notice of the accident. He considered that the Appellant was fully conversant with these matters but deliberately took no action.

6. I am satisfied that the Magistrate approached this case correctly, that he gave himself the necessary directions and that he rightly convicted the Appellant.

7. The appeal against conviction is dismissed.