Employees’ Compensation — Court finds Deceased to be Employee of One Respondent but not the Other
In Lam Kong So, the Administrator of the estate of Lam Chun Sing, deceased v Shui Dian Bao Air Conditioning Limited and 冼鎮浩 [2024] HKDC 1507, the Court dismissed the Applicant’s employees’ compensation claim against the 1st Respondent, but found the 2nd Respondent to be the employer of the deceased worker.
Valerie Tang, instructed by Messrs. Ng Au-Yeung & Partners, acted for both the 1st and 2nd Respondents. The trial was conducted in Punti.
Facts
At the material time, the 2nd Respondent was operating an air-conditioning business, and engaged Lam Chun Sing (the “Deceased”) as a casual worker for a day. The 1st Respondent, on the other hand, was a company whose sole shareholder and director was the 2nd Respondent’s ex-girlfriend (“Ms Ho”). During work for the 2nd Respondent, the Deceased fell and suffered from a right shoulder injury (the “Accident”). Thereafter, due to reasons unrelated to the Accident and prior to Trial, the Deceased passed away and the Applicant continued the conduct of these proceedings.
The Respondents did not dispute the Accident, and the only issue in these proceedings is the identity of the employer of the Deceased.
Decision
The Court ruled in favour of the 1st Respondent but against the 2nd Respondent.
Vis-à-vis the 1st Respondent, the Court found that it was an innocent party which got caught up in these proceedings. On examination, it transpired that while Ms Ho was in a romantic relationship with the 2nd Respondent previously, they had long separated, and her company (the 1st Respondent) was entirely unrelated to the business of the 2nd Respondent and the Accident.
Further, applying the considerations in Sections 49 of the Evidence Ordinance (Cap.8) and Amrol v Rivera [2008] 4 HKLRD 110, the Court declined to give any weight to the hearsay evidence of the Deceased’s witness statement. The content of the witness statement was largely speculative, and the Deceased had a motive to lie in order to receive employees’ compensation. The Applicant’s witness, being the Deceased’s sister, was also found to be incredible, and the Court even went so far as to comment that she may have committed perjury.
However, the Court found the 2nd Respondent’s oral evidence at trial to be unbelievable, and that his relationship with the Deceased bore the indica of employment after applying the principles set out in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKFAR 156.
In terms of costs, a Sanderson Order was made, namely that the 2nd Respondent shall pay the costs of both the Applicant and the 1st Respondent. Specifically, the Court took the view that it was reasonable for the Applicant to pursue a claim against the 1st Respondent, as it was the 2nd Respondent who misled the Applicant to believe that the 1st Respondent was responsible.
Valerie Tang
Valerie was called to the Bar in 2019. Since joining Chambers, Valerie has established a broad civil practice with an emphasis on commercial and matrimonial matters. Valerie has been a Member of the Chartered Institute of Arbitrators since 2020.
In A v B (HCMP 1625/2021), Valerie (with Mr Jose Remedios) acted for the successful Plaintiff in obtaining a Mareva injunction and Anton Piller Order under Section 21M in aid of foreign proceedings concerning HK$708 million worth of cryptocurrency.
More recently, Valerie obtained a return and non-removal order for children abducted from Hong Kong to a non-Hague Convention contracting state in MF v LJL (FCMC 655/2023).
In addition to her commercial and family practice, Valerie also regularly acts as sole advocate in land, probate, PI and employment matters. She is similarly well-versed in mental health related applications, such as Part II inquiries.
Prior to obtaining her law degree from the Chinese University of Hong Kong, Valerie read International Relations at the London School of Economics and Political Science. During her legal studies, she also served at the Legislative Council of Hong Kong from 2015 to 2018 where she was involved in, inter alia, bill drafting and policy research.
More details can be found in Valerie’s profile.
This article was first published on 10 October 2024.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.