Mohamed Azmi J:

This is an appeal against the decision of the arbitrator appointed under s. 30 of the Workmen's Compensation Ordinance, 1952 wherein the arbitrator held that one Lim Chuan, deceased, the husband of the appellant, was not a 'workman' within the meaning of the Ordinance and thereby dismissed the appellant's application for compensation against the respondent.

The facts of the case are not in dispute. At the time of his death, the deceased was a member of a gang of twenty-five workers, whose duty was to extract tin in the respondent's time at Kepong. The terms and conditions of the service of the gang are contained in an agreement written in Chinese dated 1 May 1967 which was executed by all the twenty-five workers of the one part and the respondent of the other part. The deceased died on 11 February 1968 whilst tightening up the screws of the cover to the water pump at the mine by using two spanners. The cause of death was coronary arteriosclerosis with heart failure.

There are three grounds of appeal. First, it is argued that the learned arbitrator erred in law in failing to consider the written agreement dated 1 May 1967 as a whole, and in not coming to the conclusion that upon the proper construction of the agreement there was a relationship of employer and workman between the respondent and the deceased. Secondly, the learned arbitrator erred in law in that he failed to construe the said written agreement first without inquiring into the fact situation of the case; and lastly, the learned arbitrator erred in law and fact in holding that the deceased was not a workman under s. 2(1) of the Ordinance.

Taking the first two grounds together, it is convenient at this stage to refer to the terms of the agreement in Chinese. They may be tabulated as follows:

(1)Nam Sing Mining Company opened a tin mine at Kepong.

(2)Both parties agreed to the price of $36 per hundred-weight of tin ore produced on the basis of seventy hundred-weight per 'palong' each month.

(3)The total for two 'palongs' shall be 140 hundred-weight.

(4)The management shall be responsible for all the machineries, furniture and workmen's compensation matters.

(5)Lodging but not food is provided.

(6)This agreement has been agreed by both parties and becomes valid immediately.

(7)In future, if either party has any dissatisfaction, the party concerned shall give one month's notice officially before it could be effective.

(8)It is feared that there is no evidence later on. Thus two copies of the agreement have been made and either party shall hold a copy as proof.

Referring to the agreement, the learned arbitrator was of the view that it was part of a bigger agreement based on a certain understanding of the existing working system. As such, he was of the view that the written agreement did not cover this case exclusively but should be read with that part of Lai Woon's evidence relating to the working terms. It should be noted that Lai Woon is one of the signatories to the written agreement and he was a witness called by the appellant during the inquiry held before the Junior Assistant Commissioner of Labour. Before the arbitrator, both parties did not adduce any evidence but agreed that they would argue their case based on the evidence recorded at the inquiry held under s. 27 of the Ordinance. Having regard to the nature of the written agreement, I am in agreement with the learned arbitrator that in determining whether or not the deceased was a 'workman', it is necessary to consider both the terms of the agreement and the evidence of Lai Woon together. In my judgment, there is no merit in the first two grounds of appeal.

As regards the last ground of appeal, the learned arbitrator came to the conclusion that the deceased was not a workman under s. 2(1) of the Ordinance after applying the various tests established by decided cases in determining whether a contract is one of service or for service. After referring to the "control test" a