Personal Injuries — DCC Members acted for both Plaintiff and Insurer in a rare personal injuries case where one of the Defendants initially admitted being the employer of the Plaintiff but subsequently changed track
Factual Matrix
In Tse Chi Wai v Chan Kwan Ho & Ors [2025] HKDC 1105, the Plaintiff was physically assaulted by his supervisor, the 1st Defendant, in the workplace in 2017. The 1st Defendant was convicted of common assault and inflicting grievous bodily harm in criminal proceeding.
Unlike the usual cases where the identity of employer is straight-forward. The Plaintiff adopted a double-barreled approach by naming two possible employers as the 2nd Defendant and the 3rd Defendant respectively. All along, the Plaintiff believed that the 2nd Defendant was the employer, which was admitted by the 2nd Defendant. However, about two years into the proceedings, the 2nd Defendant suddenly changed its stance and alleged that the Plaintiff was actually employed by the 3rd Defendant but worked under the direction of the 2nd Defendant. The 2nd Defendant produced MPF record showing that the Plaintiff was regarded as an employee of the 3rd Defendant. Afterwards, the 2nd Defendant no longer continued defending itself in any of the proceedings.
The 1st to 3rd Defendants did not appear to defend themselves in these proceedings. As a result, the 4th Defendant, being the insurer of the 3rd Defendant, applied to intervene in these proceedings thereafter, with the purpose of disputing any employment relationship existed between the 3rd Defendant and the Plaintiff / the 1st Defendant, as well as the 3rd Defendant’s alleged vicarious liability and the quantum claimed.
At the trial, the Plaintiff’s advanced his primary case that the 3rd Defendant was the employer, with the 2nd Defendant being the employer as the alternative case.
Analysis
In order to ascertain which defendant was the true employer of the Plaintiff, the Court applied the long-standing approach set down by the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung t/a Yat Cheung Airconditioning & Electric Co (2007) 10 HKCFAR 156, and reiterated that the Court would examine all the features of the alleged employment relationship against the indicia of employment, to deciding whether as a matter of overall impression, the relationship is one of employment.
The Court emphasised the importance of forming its view based on indicia of employment and the contemporaneous documents. In the reasoning process, the Court sheds light on two features in the factual matrix.
First, although the 3rd Defendant was responsible for contributing to the Plaintiff’s MPF and paying his wages for a certain period of time and reported itself as the employer of the Plaintiff to the Inland Revenue Department, the Court found these were insufficient to show that the 3rd Defendant was the actual employer of the Plaintiff.
The reason behind this is because there is insufficient evidence as to the arrangement or agreement between the 2nd Defendant and 3rd Defendant regarding how the 3rd Defendant contributed to the MPF payments, but the 2nd Defendant gave direct instructions and having control over the employment of the Plaintiff (the 2nd Defendant terminated the Plaintiff’s employment after he assaulted the 1st Defendant).
Second, the Plaintiff relies on the 2nd Defendant’s alleged contravention of section 40(2) of the Employees’ Compensation Ordinance (Cap. 282), i.e. no employer shall employ any employee in any form of employment unless there is in force in relation to such an employee a policy of insurance issued by an insurer. Based on this statutory requirement, the Plaintiff invited the Court to infer that it would be inherently improbable that the persons controlling the 2nd Defendant would use it as a corporate vehicle to employ workers but then the 3rd Defendant, which had a valid insurance coverage, could be used in compliance with the law.
The Court refused to make any speculative analysis in regard to any of the reason behind the 2nd Defendant’s failure to have insurance coverage for its employees and the relationship or arrangement made between the 2nd Defendant and the 3rd Defendant in the absence of evidence.
Accordingly, the Plaintiff failed to prove that the 3rd Defendant was his employer. The Court dismissed the Plaintiff’s claims against the 3rd Defendant and the 4th Defendant, but allowed the Plaintiff’s alternative claim against the 2nd Defendant.
This is one of the rare cases where the issue of whether contributory negligence is legally available as a defence in intentional tort such as assault was debated. The Court applied the UK Court of Appeal decision of Co-operative Group (CWS) Ltd v Pritchard [2011] EWCA Civ 329 and held that, as a matter of law, a defendant could not rely on contributory negligence to defeat the Plaintiff’s claim or to reduce the damages otherwise awarded to the Plaintiff.
Richard Yip, instructed by Messrs. Or & Partners, appeared for the Plaintiff.
Angela Mui (together with Ms Ann Lui), instructed by Messrs. W. H. Chik & Co., appeared for the 4th Defendant.
Richard Yip
“One of the strongest junior barristers around, his stand-out qualities include an excellent handle on the detail, an insightful legal mind, and sound commercial sense.”
Legal 500 Asia-Pacific 2021 – 2025, Commercial Disputes — Leading Juniors, Tier 1
Richard has a broad civil practice with a focus on shareholder disputes, commercial litigation, financial regulation, competition law and personal injuries. He joined Denis Chang’s Chambers in 2011. Prior to joining the bar, Richard was a corporate finance solicitor at Herbert Smith Freehills.
He represented four respondents in the second case before the Hong Kong Competition Tribunal, where the economic efficiency defence was raised for the very first time in Hong Kong. He was also involved in a number of substantial shareholder disputes, including Acropolis Ltd v W&Q Investment Ltd, 2018 HKCA 379 (appeal against interlocutory injunction concerning the EGM voting results of a listed company) and Waddington Ltd v Chan Chun Hoo Thomas, HCA 3291/2003 (trial of a double derivative action). Richard is also actively involved in the community and academia. He is a part-time lecturer at the University of Hong Kong.
Richard was recognised as “Tier 1 Leading Junior” in Commercial Disputes by Legal 500 (Asia-Pacific) from 2021 to 2025.
Visit Richard’s profile for more details.
Angela Mui
Angela’s civil practice encompasses matters such as defamation, commercial, probate, family trust, personal injuries, land and conveyancing, securities and finance, employment disputes, professional disciplinary actions and judicial review.
In the area of defamation, she has advised authors of the publisher, Penguin Books, on potential issues of defamation; she has also appeared before the Court of Appeal and the Court of Final Appeal in Chang Wa Shan v Esther Chan Pui Kwan (2018) 21 HKCFAR 370, which is also reported in the UK Entertainment and Media Law Reports [2019] EMLR 10.
She represented a securities broker in Re Grand Cartel Securities Company Limited (HCMP 783/2021) [2022] HKCFI 743 in successfully obtaining the Court’s permission to pay unclaimed client assets into Court under sections 56 and 62 of the Trustee Ordinance (Cap. 29) and Order 92 of the Rules of the High Court (Cap. 4A) (with Jeffrey Tam).
Angela is an appointed member of the Film Censorship Board’s Panel of Advisers since 2022. She was also an appointed member of the Social Workers Registration Board’s Disciplinary Committee Panel from 2023 to 2025.
Visit Angela’s profile for more details.
This article was first published on 31 July 2025.
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.