Read the full judgment text of CACV 270/2006 on BabelCite. This Court of Appeal judgment was delivered on 6 September 2007 before Tang VP, Cheung JA, Lam J.
Employees' compensation – illegal employment – whether deceased was employee of 1st respondent – admissibility of hearsay declarations given to Labour Department and of evidence given at coroner's inquest – sections 47 and 49 of Evidence Ordinance – whether court should exercise discretion under section 2(2) of Employees' Compensation Ordinance, Cap. 282 in favour of dependents of deceased illegal worker who was not lawfully employable in Hong Kong – potential liability of Employees' Compensation Assistance Fund Board under Employees Compensation Assistance Ordinance, Cap. 365 – whether public policy requires refusal of discretion – first issue: hearsay declarations of Madam Fu, Ng Keung and the 1st respondent were admissible and should have been weighed; on the balance of probabilities the 1st respondent was the employer – second issue: the discretion under s.2(2) should be exercised in the applicant's favour because the deceased was doing lawful work under an illegal contract, allowing recovery encourages illegal employees to come forward and supports prosecution of greedy employers, and the potential liability of the Board is a relevant but not decisive factor – appeal allowed with costs against 2nd respondent – 1st respondent ordered to pay compensation of $303,000 with interest at half the judgment rate from 21 May 2004 until judgment and at the judgment rate thereafter – costs below to the applicant against 1st and 2nd respondents – costs to be taxed in accordance with Legal Aid Regulations
Legal issues: Whether the deceased was the employee of the 1st respondent at the material time · Whether discretion under section 2(2) of the Employees' Compensation Ordinance should be exercised in the applicant's favour
Outcome: Appeal allowed; the 1st respondent was the employer of the deceased and the discretion under s.2(2) of the Employees' Compensation Ordinance was exercised in the applicant's favour.
Cites 4 cases