CHOW PAK SHING SPINZA v. TAM YUEN MAN, executrix of the estate of TAM SIU KEUNG, deceased formerly trading as SIU ON SCAFFOLDING COMPANY AND ANOTHER

DCEC 1413/2023

[2025] HKDC 1952

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1413 OF 2023

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JUDGMENT

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Introduction

1.  The applicant was injured in the course of work on 3 July 2021 at Lycée Français International (French International School) – Maternelle, Primaire et College (Primary Section) at 34 Price Road, Jardine’s Lookout, Happy Valley, Hong Kong (“the school”).

2.  By these proceedings, the applicant claims compensations under ss 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”).

3.  The applicant claims against the 1^st respondent as his employer. The 2^nd respondent was the principal contractor for the works at the school, which is not in dispute.

Whether the applicant was the employee of the 1^st respondent

4.  The applicant said he has been a scaffolding worker for 38 years. He worked for different contractors and construction companies. He has never been a contractor himself.

5.  He came to know Mr Tam Siu Keung (“Mr Tam”) for over 30 years. He first worked for Mr Tam in 1999 as a scaffolding worker. All along he worked for Mr Tam and other contractors on a casual worker basis. He only knew the name of Mr Tam’s company was Siu On Scaffolding Company (紹安棚業). He did not know who was Mr Tam’s superior contractor nor whether Mr Tam had taken out employees’ compensation insurance.

6.  On 2 July 2021, he was employed by Mr Tam as a scaffolding worker. His place of work on that day was The French International School (Secondary School Section) at 165 Blue Pool Road, Happy Valley (“the Blue Pool Road school”). His co-workers that day were Ho Fan (何帆) (“Ho”), Wong Ka Ho (黃家豪) (“Wong”) and Hui Hing Ping (許慶平) (“Hui”). Ho seemed to be the contact person between Mr Tam and the workers. A person from the principal contractor led them to sign in and enter the school. He overheard that the name of the principal contractor was Pop. His daily wage was $1,950.

7.  In the afternoon on 3 July 2021, the people from Pop led them to the school to erect a scaffolding there. At about 2:30 pm in the course of work, the applicant fell from a concrete platform to the ground and was injured.

8.  Mr Tam passed away on 15 February 2023. His daughter, Miss Tam Yuen Man (“Miss Tam”), is the sole executrix of Mr Tam’s estate. A grant of probate was issued on 23 January 2024.

9.  Miss Tam used to assist Mr Tam in his business. Miss Tam said that scaffolding works in which the applicant was injured were subcontracted to Siu On Engineering Limited (“SOE Ltd”), not Siu On Scaffolding Company (“SOS Co”) of which Mr Tam was the sole proprietor.

10.  Miss Tam further said that Ho, whose full name is Ho Wai Fan but commonly referred to as Ho Fan, was a subcontractor of SOE Ltd. The applicant was an employee of Ho at the time of the accident. The applicant has never been employed by Mr Tam.

11.  In relation to the 2 cheques issued to the applicant by Mr Tam, Miss Tam explained that his father used to issue cheques under his own name for various purposes, including assisting other people or to make payments for and on behalf of SOE Ltd. The fact that a cheque was issued in SOS Co’ s name did not mean that the applicant was his employee.

12.  Mr Wong Wai Cheung (“Mr Wong WC”), a director of the 2^nd respondent, said that on 22 June 2021, the 2^nd respondent issued a contract No P21-067 for the erection of a scaffolding at the school to SOS Co for the sum of $5,900. The 2^nd respondent received an invoice of SOS Co No 21081602 dated 21 August 2021 for the sum of $5,900 which was settled accordingly.

13.  On the day of the accident at about 2 pm, Mr Wong WC attended the school and saw the truck of SOS Co came with several scaffolding workers. He discussed with the person in charge as to how the scaffolding was to be erected. At about 2:30 pm, the accident occurred.

14.  In my view, the evidence of Mr Wong WC is pertinent. He is the person dealing with Mr Tam directly for over 20 years. Over the years, they had established a practice whereby his company contracted out scaffolding works to Mr Tam. When cross-examined, he said that in recent years, his company would issue purchase orders to Mr Tam for every scaffolding works. After the works, Mr Tam would issue invoices to his company which would be settled accordingly. He did not mind which company Mr Tam was using.

15.  Mr Wong WC’s evidence is corroborated by the purchase order the 2^nd respondent issued in respect of the scaffolding works of the school.

16.  First, the purchase order was directed to Siu On (紹安) without specifying SOS Co or SOE Ltd. Secondly, it was for the attention of Mr Tam or Miss Yam (who was Mr Tam’s assistant in SOS Co according to Miss Tam in her evidence under cross-examination).

17.  More importantly, the purchase order was followed by an invoice in the name of SOS Co and Mr Tam dated 16 August 2021 (“the invoice”). The payment instruction was that cheque should be drawn in favour of Mr Tam personally.

18.  To my mind, this is the clearest evidence that the scaffolding works were contracted out to SOS Co. SOE Ltd had no place in the transaction.

19.  Mr Wong Cheuk Hei, counsel for the 1^st respondent, submitted that by reason of mistakes as to the date, street name and name of the 2^nd respondent that appeared in the invoice, this Court should not accept that it was referring to the scaffolding works of the school.

20.  While Mr Wong of counsel is finding faults in the invoice, the 2^nd respondent, as the recipient of the invoice, did not find anything wrong and settled the same accordingly. It is a clear demonstration that from the principal contractor’s perspective, the invoice was relating to the scaffolding works of the school. With respect, Mr Wong’s submission is a non-starter.

21.  Lastly, I do not accept Miss Tam’s belittling description that her father was just a scaffolding man (棚佬) who randomly issued invoices to clients. It seems to me that Miss Tam said so in order to exonerate the 1^st respondent from liability. I also reject Miss Tam’s evidence that the scaffolding works were contracted out to SOE Ltd by the 2^nd respondent.

22.  Miss Tam also alleged that the applicant was an employee of Ho, who was a subcontractor of SOE Ltd.

23.  In the light of my finding that SOE Ltd was not related to the scaffolding works of the school, whether or not Ho was a subcontractor of SOE Ltd is irrelevant.

24.  As Ho was also working in the scaffolding works of the school, I shall consider whether the applicant was employed by Ho instead of SOS Co.

25.  Under cross-examination, the applicant said that in 2021, because the boss of Chun Fai Kee passed away, he asked Ho to approach Mr Tam to see if Mr Tam had works for them to do. One or two days before 2 July 2021, Ho told him that Mr Tam had scaffolding works for them to do and asked if he would want to do too. They (ie the applicant, Ho, Wong and Hui) went to the Blue Pool Road school to start working on 2 July 2021.

26.  After the applicant was discharged from hospital, both Ho and himself had contacted Mr Tam asking for compensation. Mr Tam told him not to report the matter to the Labour Department and gave him a cheque. The cheque for the sum of $15,000 was given to him by Ho, telling him that it was from Mr Tam. As he was still on sick leave, he continued to chase Mr Tam for compensation. Mr Tam told him not to chase him for compensation. Some time later, Ah Wing, who is also a scaffolding worker, gave him a second cheque from Mr Tam for the sum of $15,000.

27.  In her evidence-in-chief, Miss Tam said her father told her that the 2 cheques were lent to Ho because Ho did not have money. She also relied on a conversation between her father and Ho in February 2023 in which Ho acknowledged that the scaffolding works were subcontracted to him.

28.  Leaving aside the question of admissibility, the conversation does not seem to support Miss Tam’s assertion.

29.  First, Mr Tam in the conversation repeatedly stressed that he subcontracted the scaffolding works to Ho, who did not respond to in a positive way. Secondly, when Mr Tam said that Ho asked him to pay the applicant the employees’ compensation money in the meantime, Ho also did not acknowledge positively.

30.  As Ho was not called to testify at the trial, I am not prepared to find any facts based on the conversation.

31.  In my judgment, there is no evidence to suggest that the scaffolding works of the school were subcontracted to Ho. Ho was just a contact person between the applicant and Mr Tam. Mr Tam was the direct employer of Ho and the applicant. That explains why after the accident, both Ho and the applicant asked Mr Tam for employees’ compensation money and Mr Tam did so twice by SOS Co’s cheques.

32.  By reasons of the above, I find as a fact that the applicant was an employee of the 1^st respondent at the time of the accident.

What was the applicant’s monthly earnings

33.  The applicant said that he was earning $1,950 per day and worked for 24 days per month.

34.  This is challenged by the 1^st respondent.

35.  First, Mr Wong of counsel submitted that the applicant has not produced any evidence of his qualification as a skilled scaffolding worker. Furthermore, when the applicant was cross-examined on the declarations to the Housing Department in 2020 and 2022 that his incomes were $10,000 and $8,000 per month respectively, he elected not to answer. Also, when the applicant was asked that for the tax years from 2018/2019 to 2021/2022, he did not declare any income to the Inland Revenue Department, he elected not to answer. Therefore, the applicant was not an honest and reliable witness. Mr Wong pointed out that for the 12 months before the accident, only a total of $166,025 was deposited into the applicant’s account. It did not support the applicant’s assertion that his monthly earnings were $46,800 per month.

36.  Mr Patrick Lim, counsel for the applicant, submitted that while the failure to make true declaration to the Housing Department and the Inland Revenue Department should not be condoned, this Court should only be concerned with how much the applicant earned.

37.  When the applicant was cross-examined on the inconsistencies between the earnings he was claiming in the present proceedings and those he declared to be true to the Housing Department and the Inland Revenue Department, he was caught in the dilemma that his answer one way or the other would impact him unfavourably.

38.  Given that the applicant has elected not to answer the questions relating to his declared income, I have reservation on the truthfulness of the applicant’s claimed earnings in these proceedings nor those declared to the government departments.

39.  Before the closing submission, Mr Lim sought to produce documents on the applicant’s qualification as a scaffolding worker, which was objected to by Mr Wong of counsel. As both parties have already closed their cases, it would be unfair to the 1^st and 2^nd respondents to allow the applicant to adduce new evidence. This is not a trial by ambush. Therefore, I declined Mr Lim’s application.

40.  There is no evidence before this Court for the purpose of s 11(2) of the Ordinance. Mr Lim tried to rely on Government statistics from the Census and Statistics Department on the wages of bamboo scaffolder for the month of July 2021 which was attached to the opening submission. The said document was not previously disclosed. With respect, such evidence should not be adduced from the bar table and therefore cannot be accepted.

41.  That being the case, I accept Mr Wong of counsel’s submission that the income of the applicant should be that he declared to the Housing Department, ie $10,000 per month. Accordingly, I find as a fact that the monthly earnings of the applicant at the time of the accident was $10,000.

Section 9

42.  It is not disputed that the applicant was 60 years of age at the time of the accident. Under s 7(1)(c) of the Ordinance, the multiplier is 48.

43.  By a Certificate of Review of Assessment dated 2 November 2023 (“Form 9”), the applicant’s loss of earning capacity permanently caused by the injury was assessed under review at 4%.

44.  Accordingly, the compensation under s 9 is $19,200 ($10,000 x 48 x 4%).

Section 10

45.  It is not disputed that the applicant was granted 706 days of sick leave.

46.  Accordingly, the compensation under s 10 is $185,180 ($10,000 x 706/30.5 x 4/5).

Section 10A

47.  It is not in dispute that the compensation under s 10A should be $4,380 and I so allow.

Advance payment

48.  There is no dispute that the applicant has received advance payment in the sum of $30,000.

Liability of the 2^nd respondent

49.  By virtue of s 24(1) of the Ordinance, the 2^nd respondent is also liable as the principal contractor.

Conclusion and Order

50.  In the result, the applicant is entitled to compensation in the sum of $178,760 ($19,200 + $185,180 + $4,380 - $30,000).

Interest

51.  The applicant is entitled to interest at half judgment rate from the date of accident (ie 3 July 2021) to the date of judgment and thereafter at judgment rate until the date of payment.

Costs

52.  The 2^nd respondent in effect did not resist the applicant’s claim and Mr Wong WC gave truthful evidence at the trial which are of assistance to this Court in the fact-finding process.

53.  Therefore, I make a costs order nisi that:

(a)  the 1^st respondent shall pay the applicant the costs of these proceedings with certificate for counsel, to be taxed if not agreed; and

(b)  there be no order as to costs between the applicant and the 2^nd respondent.

54.  In the absence of any application by summons for variation within 14 days from the date of this judgment, the costs order nisi shall become absolute.

55.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.