HKSAR v. CHAN WAI SANG T/A KIN SANG ENGINEERING CO.

HCMA000940/2000

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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BETWEEN
HKSAR Respondent
AND
CHAN WAI SANG t/a KIN SANG ENGINEERING CO. Appellant

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Coram: Hon Beeson J in Court

Date of Hearing: 24 November 2000

Date of Judgment: 24 November 2000

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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, withoutreasonable excuse, failed to give notice to the Commissioner of Labour in the prescribed form within fourteen days of an accidentto 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. Heinjured his right ankle and subsequently received medical treatment and sick leave. The Appellant denied he was the employer andrefused to accept sick leave certificates, claiming that the workman was a sub-contractor. The Appellant gave evidence of an oralagreement allegedly made between him and the workman and also produced a written sub-contract agreement, which had been signed bythe 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 whetherthe Appellant had a reasonable excuse for failing to give notice, or a reasonable excuse for failing to pay the periodical paymentsrequired 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 giventools to work with; he had regular working hours; he had to apply in advance for leave; he followed instructions and was supervisedin 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 hireanyone 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 togive 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 rightlyconvicted the Appellant.

7. The appeal against conviction is dismissed.

(C-M Beeson)
Judge of the Court of First Instance

Representation:

Mr Jackson Poon, SGC, for DPP

Mr Chan Wai Sang t/a Kin Sang Eng. Co., the appellant in person