Yam Lai Chau v Yam Hing Kuen
 3 HKLRD 547,  HKDC 826,  HKEC 1947
Personal Injuries Action No 726 of 2017
Deputy Judge Kate Li
11, 12, 14, 20 June 2019
Civil evidence — convictions as evidence in civil proceedings — effect — personal injury claim based on employer’s liability — employment relationship disputed — defendant’s conviction for failure to obtain compulsory employer’s liability insurance for employees’ compensation — effect on burden of proof
Tort — negligence — burden of proof — evidence of criminal conviction for breach of statutory duty — effect
P claimed damages for injuries allegedly suffered while working for D on 12 September 2014. D denied any employment relationship, asserting that P had insisted on helping him because they were fellow clansmen and D had similarly helped P for free a year before. In June 2016, D was convicted on his own plea of failing to obtain compulsory insurance against employer’s liability contrary to s.40 of the Employee’s Compensation Ordinance (Cap.282) and was fined $2,000. D explained that he pleaded guilty only to avoid incurring legal costs in defending the charge. At issue, inter alia, was the effect of this of the conviction and the unqualified admission of employment made in mitigation.
Held, dismissing the action, that:
- Both parties’ evidence on the existence of an employment relationship and on the alleged accident lacked credibility. (See paras.22, 36, 39, 47.)
- For the purpose of analysing the implications of D’s conviction under s.40 of the Ordinance and the admission, their subject matter was effectively the employment issue. (See para.49.)
- A criminal conviction for breach of statutory duty shifted the legal burden of proof in civil proceedings for negligence to the defendant to prove an absence of negligence. The weight to be given to the conviction depended on the circumstances to be decided by the judge in the civil trial. Here, the principle of reversing the burden, though arising in the context of breach of statutory duties on safety related matters and the negligence claim, applied to the issue of employment. However, P’s case had proceeded on the basis that the burden of proof concerning the employment issue rested with him. He could not proceed on the basis of a reversed burden, having only raised it in closing submissions (Lee Yam Kan v Ng Pui Kuen  6 HKC 318 followed). (See paras.50–53.)
- (Obiter) Nevertheless, for the sake of a fuller exposition of the issues, the Court made the following observations on the assumption that the burden regarding the employment issue was reversed and this was the basis adopted by the parties. Given the finding that both parties’ evidence was untrue, D had failed to discharge the burden, arising from his conviction, of disproving the employment issue; while P had failed to discharge the remaining burden for proving negligence, specifically the breach of employer’s duties. (See paras.53–54.)
- D’s admission in mitigation was also an unqualified admission of an employment relationship. However, a party’s own view of a relationship was only one indicia to consider and not conclusive. The legal relationship between parties was for the court to determine and the parties’ own classification had no significant evidential value (Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156 applied). (See para.55.)
This was a personal injuries action brought by the plaintiff against the defendant. The facts are set out in the judgment.