HKSAR v. CHOW HAU MAN

HCMA497/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 497 OF 2007

(ON APPEAL FROM FLS 695 & 696/2007)

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J U D G M E N T

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1. This is an appeal against two convictions for offences contrary to the Employees Compensation Ordinance, Cap. 282:

“1) The Appellant, being the employer of an employee, Chow Po, who had an accident   on 14 January 2005 which resulted in that employee’s total incapacity for a period exceeding three days immediately following the accident, did at 803 Chuen Yiu Road, Sheung Tsuen, Kam Tin, New Territories on 11 January 2007 without reasonable excuse, fail to give notice to the Commissioner for Labour in the prescribed form within fourteen days of the accident, contrary to sections 15(1A)(a) and 15(6) of the Employees’ Compensation Ordinance, Cap. 282.

2)  The Appellant on 14 January 2005 in 803 Chuen Yiu Road, Sheung Tsuen, Kam Tin, New Territories, did employ 1 employee without there being in force in relation to such employee a policy of insurance issued by an insurer for an amount not less than the applicable amount specified in the Fourth Schedule of the Employees’ Compensation Ordinance, Cap. 282, in respect of the liability of the employer, contrary to sections 40(1) and 40(2) of the Employees’ Compensation Ordinance, Cap. 282.”

2. The issue in the case is whether or not PW1 was an employee of the appellant at the time, or an independent contractor.  The appellant himself did not give evidence but he called a witness, DW1, who gave evidence that contradicted the first two prosecution witnesses, who were brothers, concerning various facts of the history of the employment and how things happened and occurred.  I am not going to set out all the factual disputes that arose between them because it is not necessary for the disposition of this appeal today.

3. The magistrate, having heard the witnesses, came to the firm conclusion that she did not believe DW1 and that she did believe PWs 1 and 2.  As we have discussed today in court, this is a rehearing, but obviously that fact does not take away the force of the observation that the magistrate was in a much better position to judge issues of credibility because she saw and heard the various witnesses give evidence. 

4. The perfected grounds of appeal raise an allegation that the magistrate erred in shifting the burden of proof to the defendant. She said this,

“Defence counsel suggested to PW1 and PW2 that they had conspired to perpetuate a fraud in order to obtain the appellant's money.  Both PW1 and PW2 denied this allegation.  The defence did not provide any evidence to substantiate this allegation.  Under these circumstances, I do not accept this allegation.”

5. It is argued today that this remark in the Statement of Findings indicated that the magistrate had reversed the burden and standard of proof.  All I need say is I disagree.  The magistrate clearly set out what the right burden and standard of proof was in her written Statement of Findings very shortly before the passage in question and the idea that she did not then apply it is one that would take much to believe.  The idea that somehow she, in making that remark, forgot one of the basic principles of the job she was doing, is not easy to countenance.  All the remark does is make the point that it was a suggestion made to the witnesses which was rejected and there was no other evidence from the defence which would have supported it. Given her findings generally about the credibility of the witnesses, her conclusion was that the allegation should not be accepted.  I can see nothing wrong in what she said. 

6. The second ground of appeal was that the magistrate erred in concluding that PW1 was an honest and reliable witness and the main ground relied upon was that in his oral testimony PW1 stated that if he did not wish to attend work on a particular day, he was not required to seek permission from the appellant.  Whereas, in a witness statement he had made to a police officer, he had said that he did need to notify the appellant every time he wished to take leave off work.  It is thus that the evidence he actually gave at the trial was more favourable to the appellant's case than to the respondent's case and it was a move away from incrimination. In those circumstances, I cannot see how the contradiction can be used to demonstrate that PW1 was either a dishonest or a particularly on reliable witness.  The magistrate, in dealing with this, observed that he spoke with a very heavy accent in Cantonese and it may easily have been that there had been a misunderstanding.  I think that this remark is one justified to someone who had noticed that in the evidence. 

7. The third ground was that the magistrate failed to have sufficient regard to the fact that PW1 and PW2 were brothers.  It is right that she did not specifically warn herself against the prospect of collusion but the relationship was clearly well known to her because it appears so described throughout the Statement of Findings and it is common ground that she had listened to a speech where counsel had been addressing her on the basis that they had put their heads together.  Magistrates do not, in their Statements of Findings, have to cover every single aspect of a case and the fact it is not there does not make me think that she did not have it in mind.

8. However, those points are really all directed to criticising the magistrate.  Since the case of Chiu Shu Bin in the Court of Final Appeal, it has been clear that these appeals are rehearings on the evidence which the Ordinance puts before the court.  So even if I were wrong in how I have dealt with the points that have been raised, it seems to me that it is my judgment today, based on the relevant material, that matters and I hope I will not reverse the burden of proof or make the mistakes that it is said that the magistrate had made. 

9. I am not going to disturb the findings made in relation to credibility in a case like this where I did not see and hear the witnesses but, for the purpose of argument, I am willing to assume that there is a good argument in this regard and I will not now proceed by relying heavily on those findings, though I would add that the reasons given for dismissing DW1's evidence seem to me good and strong reasons, and they are reasons which I could well adopt today as they are based on what he said, rather than on the impression he made as a witness.

10. Mr Cheng Huan, SC, rightly makes the point that this case relates to a rather unusual world concerned with the collecting of scrap metal with a system whereby the appellant would go out looking for scrap in his car, he would find it, he would then take workers to where the scrap was, they would collect it, deliver it to a scrap merchant or an ironworks, the money would be collected there, and out of the moneys that were collected, the workers would be paid but they were always paid the same wage for their day's work.  It did not depend upon how much scrap they actually collected. 

11. The question of whether there was employment or not, is one which is well known to the law and the indications as to whether it was employment or not are commonly looked for by courts.  The magistrate identified four such points.  It seemed to me the fourth point she identified was one that carried the greatest force.  By itself, it may not be decisive but, given the general background and the acceptance of PW1's evidence in the main, the conclusion it pointed to was clearly employment. That is because this was a situation where there clearly was not a great deal of money about.  These were people earning small amounts of money per day.  Out of limited funds and limited income, what happened was that after PW1 was injured, the appellant gave him periodical payments for a few months.  It seems to me that is quite inconsistent with the relationship of contractors and it is entirely consistent with a relationship based on a contract of employment.  It is a point that has very significant force in the case and, exercising my judgment on the all material before me today, it is one that carries the day.

12. There was no evidence from the appellant to deal with why those payments were made and the evidence of DW1 did not touch upon that topic. 

13. Today in court, Mr Cheng Huan, SC, referred me to the contents of an affirmation that had been made in some civil proceedings.  This was not, in fact, evidence before the court but I listened to what was in it and it was said that an application might be made to have that properly produced in evidence before me.  In the event, none was made but I will deal with the topic nonetheless.  What that affirmation revealed was an assertion that the periodical payments were not handed directly by the appellant to PW1 but came through his brother, PW2.  What the Statement of Findings reveals about the evidence in this regard is set out at page 7 of the English Statement of Findings and it says this:

“Upon receiving a sick leave certificate, PW1 would ask PW2 to give it to the appellant.  From the time of the accident to May 2005, PW1 had not gone to the appellant's company to work, however, the appellant did give him periodical payments until 7 May 2005.”

14. It seems to me that even if that affirmation were properly admitted into evidence, it would just add detail; it would not add contradiction to the facts that existed before the magistrate.  Accordingly, it does nothing to raise any reasonable doubt in mind as to the propriety of this conviction.

15. It was argued that it could be that these periodical payments were made just out of the kindness of the appellant's heart, albeit that other submissions stress that the parties were at daggers drawn between them by this time. 

16. All I need say is that the payment of periodical payments after an injury when a man ceases to work for his employer, is a good indication that there was a contract of employment.  If the circumstances were such that that usual indication did not apply in this case, it was up to the defence to call evidence as to it.  If they did not call evidence to it, then I am afraid the usual implications are to be followed and that is not to reverse the burden of proof in any way. 

17. So, accordingly, despite the efforts of Mr Cheng Huan, SC, the result is that the appeal against the convictions is dismissed.