Most Read Contributor in Hong Kong, September 2016
In Yeung Mei Hoi v Tam Cheuk Shing and Another 
HKCA 109, the Court of Appeal reversed the decision from the Court
of First Instance and held that the employer was vicariously liable
for an assault committed by its employee to another employee.
The Court of Appeal adopted and applied the "close
connection test" from Ming An Insurance Co (HK) Ltd v
Ritz-Carlton Ltd  3 HKLRD 884. In Ming An, the
Court of Final Appeal adopted the test for vicarious liability as
being where a connection between the employee's unauthorised
tortious act and his employment is so close as to make it fair and
just to hold his employer vicariously liable.
In Yeung Mei Hoi, a security guard of a residential
estate assaulted his supervisor when his supervisor inquired about
his failure to report promptly the location of a taxi that had
improperly entered into the estate and properly wear his uniform.
The Court of Appeal held that the First Instance Judge (who found
the employer was not vicariously liable for the security
guard's assault) adopted too narrow an approach on the scope of
employment. The security guard was on duty when he lost his temper
and assaulted his supervisor. At that moment of time the security
guard's scope of employment required him to be subject to the
supervision and discipline of the supervisor. The Court of Appeal
held that the security guard's unauthorised act of assault
during this moment was closely connected with his employment.
The Court of Appeal held that the system of supervision and
discipline of security guards by a supervising officer put in place
by the employer carried with it a risk that the subordinate may
react in an unauthorised way in the course of being subject to
supervision and discipline. The argument advanced on behalf of the
employer that what the security guard had done was an act of
insubordination which the employer should not be held vicariously
liable for was rejected. The Court of Appeal concluded that it was
fair and just to hold the employer vicariously liable because this
risk can be insured against by the employer.
Employers need to be aware that they can still be vicariously
liable for unauthorised acts of an employee. They should take steps
to mitigate any foreseeable risks.
Employees Compensation insurers should be mindful of the
implications of this decision in that their insured (i.e.
employers) could be vicariously liable for unauthorised acts of
insubordination of its employees and there is the potential of
greater exposure arising from cases of this nature.
Mayer Brown is a global legal services organization
comprising legal practices that are separate entities (the Mayer
Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a
limited liability partnership established in the United States;
Mayer Brown International LLP, a limited liability partnership
incorporated in England and Wales; Mayer Brown JSM, a Hong Kong
partnership, and its associated entities in Asia; and Tauil &
Chequer Advogados, a Brazilian law partnership with which Mayer
Brown is associated. "Mayer Brown" and the Mayer Brown
logo are the trademarks of the Mayer Brown Practices in their
This article provides information and comments on legal
issues and developments of interest. The foregoing is not a
comprehensive treatment of the subject matter covered and is not
intended to provide legal advice. Readers should seek specific
legal advice before taking any action with respect to the matters
discussed herein. Please also read the JSM legal publications
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Ministry of Human Resources has recently issued a string of new ministerial resolutions and decrees designed to address gaps in the employment regulatory framework and reinforce existing legislation...
Restraints of trade in the employment contract are quite often not given the attention they deserve until the time comes when the employer is under threat by a former employee and enforcement action is required to protect the business.
The employment tribunal system was established to provide an employee the regime in which to make a formal complaint that their employer has violated the Employment Act 2000.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).