Abu Bakkr Shiddik v. M M & Co Auto Parts, Dismantling and General (A Firm)

DCEC 903/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 903 OF 2009

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IN THE MATTER OF AN APPLICATION

BETWEEN

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Before: His Hon Judge Leung in Court

Date of hearing: 8 December 2011

Date of judgment: 12 January 2011

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J U D G M E N T

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1.The applicant (“Shiddik”) claims compensation for injury at work in the course of employment with the respondent on 27 August 2007. Both liability and quantum are in dispute. The respondent has attended previous direction hearings in person except for the last one in October 2011. The respondent was absent from the trial.

2.There is documentary proof of service and notice of hearing to the respondent at the address last provided by the respondent at the direction hearing.  I was therefore satisfied that Shiddik should be allowed to proceed.

3.Shiddik is a Bangladeshi national who entered Hong Kong illegally, allegedly took employment and was injured in the course of such employment.  Upon his arrest and detention, Shiddik lodged a claim that he was a subject of torture back in his home country; and claimed protection under the Convention Against Torture and other Cruel and Degrading Treatment or Punishment (“CAT”).  He was subsequently released on recognizance pending the verification of his CAT claim.

4.This case raises the question of the entitlement of a person in Shiddik’s situation to employees’ compensation of the Employees’ Compensation Ordinance, Cap.282 (“ECO”).

Background

5.Shiddik was born on 29 December 1978.  After 6 years of education, he became a public bus driver there. He was married with 2 children, all living in Bangladesh.  In May 2007, Shiddik came to Hong Kong through the Mainland illegally.

6.Since arrival, he had been working for the respondent at its automobile scrap yard at Kam Tin, New Territories.  The proprietor that employed him was Elahi Manzor (“Manzor”). Shiddik worked as a labourer and was given HK$4,000 per month.  Meals and accommodation in a converted container were provided.  There were said to be other workers like Shiddik at the scrap yard.

7.On 27 August 2007, Shiddik was instructed to work on the tyres of an old van that was to be scrapped.  He went underneath the van which was lifted by a forklift truck. The van suddenly fell off the forklift and landed on him.  Upon the impact, he lost consciousness; and was sent to the hospital.

8.Soon the police and the Labour Department started their respective investigation into the identity of Shiddik and the circumstances surrounding the occurrence of the accident.  Shiddik then gave a declaration to the Labour Department.  When asked, Shiddik unequivocally denied that he took employment at the scrap yard or that he worked there. Shiddik also denied knowledge about the identity card presented for the purpose of his admission to the hospital on the date of the accident.

9.Not surprisingly, after his discharge from the hospital in early October 2007, Shiddik was arrested by the police and then transferred to the Immigration Detention Centre.  He was detained pursuant to section 32 of the Immigration Ordinance, Cap.115 (“IO”) pending the determination of whether a removal order should be made.  As mentioned, he lodged the CAT claim and was subsequently released.  He was allowed to remain at large in Hong Kong on the terms of the recognizance pursuant to 36(1) of the IO pending the verification of his CAT claim.

10.It was in January 2009 when Shiddik filed his notification to the Labour Department of the accident on 27 August 2007.  In August 2009, with legal aid, he filed the present application for employees’ compensation.

11.On the day of the trial, Shiddik was brought up by the Correctional Services Department.  He explained that after release on recognizance in October 2007, he was arrested for theft.  He was charged and convicted of the crime; and was then sentenced to 12 months of imprisonment.  After his release from prison, he was transferred to the Immigration Detention Centre for detention pursuant to section 32 of the IO.  On 4 July 2010, he was once again released on recognisance.  He then resided with his friend in the New Territories; and received assistance from the International Social Service.

12.On 25 October 2011, he was again arrested, this time for alleged illegal employment on that day contrary to the current section 38AA of the IO; and hence his current detention pending trial at the Magistracy later this month.

LIABILITY

Accident arising in and out of the course of employment

13.This is the claim for compensation for injury arising in and out of the course of Shiddik’s employment with the respondent pursuant to section 5 of the ECO.  By their answer, the respondent denied the allegations.  Chosen to be absent, the respondent was not heard in respect of its averments.

14.Obviously Shiddik has changed his version of what happened from what he declared to the Labour Department in 2007.  He explained that this was because Manzor had visited him at the hospital.  He was advised that the authorities might come to investigate. Manzor assured him that he would be compensated; but he could not tell the truth to the investigating authorities.  He should deny knowledge about the identity card that was presented for his admission to the hospital, though he believed that it belonged to one of Manzor’s sons.  He acted accordingly.

15.After his release from the Immigration Detention Centre, he was indeed taken by Manzor back to the scrap yard where he was provided with meals and shelter.  But when the Labour Department officer came to the scrap yard to investigate, he was taken to another yard.  Shiddik had stayed there for 2 and half months.

16.Shiddik complained that whenever he asked Manzor about the compensation for his injury, Manzor would tell him to return to Bangladesh first before he would be sent HK$10,000. Shiddik has not received any money from the respondent at the end of the day.

17.In court, Shiddik was shown the photographs taken and provided by the Labour Department during its investigation.  He identified from one of them [*] the scrap yard, the van and the forklift truck in question as well as his cap that was left behind at the spot where the accident happened.  He also identified whom he addressed as his boss.

18.Considering the evidence and in the absence of contradiction, I accept what Shiddik said in respect of the above background to be true.  I am satisfied on balance that Shiddik was indeed employed by the respondent at the time of the accident.  I find the accident happened in the manner as described by Shiddik; and that it arose in and out of his course of employment at the time.

Whether it was lawful employment

19.Mr Middleton for Shiddik contemplated the need to address the question of whether his client’s status in Hong Kong at the time of the accident affects his entitlement to compensation under the ECO.  He submitted that if Shiddik’s CAT claim turns out to be unsubstantiated, that may mean the prosecution of Shiddik for having remained after landing illegally in Hong Kong, which was and still is an offence under section 38 of the IO, would proceed.  However, Shiddik could not be prosecuted for taking employment as there was no such offence at the time of the accident.  Therefore he argued that Shiddik’s employment was not unlawful or invalid for the purpose of the ECO.

20.As mentioned, currently an illegal immigrant taking employment commits an offence under section 38AA of the IO.  That was why Shiddik was arrested and charged last October.  The section reads:

“(1) A person-

(a) who, having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director under section 13; or

(b) in respect of whom a removal order or a deportation order is in force,

must not take any employment, whether paid or unpaid, or establish or join in any business.

(2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 3 years.”

21.But section 38AA was introduced with effect from 14 November 2009.  It is therefore true that the employment that Shiddik took with the respondent in the present case predated the introduction of the above offence.

22.So far I agree.  But Mr Middleton’s argument focuses on the criminality of the conduct of taking employment.  Does the fact that one committed no offence by taking employment mean he or she was lawfully employable?  In answering the question, one cannot ignore the legality of the conduct of employing.

23.Indeed Part IVB of the IO is entitled ‘Prohibition of Employment of Illegal Immigrants and Others’.  Section 17I makes it an offence for a person to employ a person who is not lawfully employable.  Subsection (1) reads:

“Any person who is the employer of an employee who is not lawfully employable commits an offence and is liable to a fine of $350,000 and to imprisonment for 3 years.”

24.As to whether a person is lawfully employable, section 17G(2)  (in its version prevailing at the time of the accident in the present case) provides that:

“Without prejudice to any provision of this Ordinance relating to conditions of stay which may be imposed on any person, a person is lawfully employable for the purposes of this Part only if-

(a) he is the holder of an identity card and he has not breached any condition of stay (if any) imposed on him under this Ordinance;

(b) he is the holder of an official passport; or

(c) he is not required to be registered under the Registration of Persons Ordinance (Cap. 177) and is the holder of-

(i) a valid travel document which is not endorsed with a condition of stay prohibiting him from taking employment;

(ii) repealed;

(iii) a Vietnamese refugee card which does not prohibit him from taking employment;

(iv) a certificate of exemption; or

(v) any other document of a type approved by the Governor by order published in the Gazette.”

25.At the time of the accident, Shiddik had yet to lodge the CAT claim.  He did not fall into any of the categories of lawfully employable persons under section 17G(2).  By taking the employment with the respondent, Shiddik committed no offence under then section 38.  But the same cannot be said about the respondent that employed him, in view of section 17I.

26.As Shiddik was not lawfully employable; and it was illegal for the respondent to employ him, I find that the employment by the Respondent of Shiddik at the time of the accident was an unlawful one.

Discretion under section 2(2) of the ECO

27.Notwithstanding that, the court retains the discretion to deal with the matter as if the employee had been working under a valid employment.

28.Section 2(2) of the ECO provides that:

“If, in any proceedings for the recovery of compensation under this Ordinance, it appears to the Court that the contract of service or apprenticeship under which the injured person was working, at the time when the accident causing the injury happened, was illegal, the Court may, if having regard to all the circumstances of the case it thinks proper so to do, deal with the matter as if the injured person had at the time aforesaid been a person working under a valid contract of service or apprenticeship.”

29.The case often cited in this respect is Chan Cheuk Ting & Anor v Analogue Engineering Co Ltd & Anor [1986] 2 HKLRD 935.  Chan Cheuk Ting was a case involving an illegal immigrant obtaining employment by using a false identity card.  The case was recently referred to in Yu Nong Xian v Ng Ka Wing & Anor, CACV 270/2006 (6 September 2007), which Mr Middleton cited.  Yu Nong Xian was case involving a person taking employment in breach of his condition of stay pursuant to a two-way permit from the Mainland.  In both cases, the employee met a fatal accident.

30.In Chan Cheuk Ting, the Court of Appeal rejected the argument that public policy required the court to refuse to exercise the discretion under section 2(2) of the ECO.  One important consideration was that though not lawfully employable, the person was employed to perform lawful work; and was injured in the course of such work (see §19).

31.In Yu Nong Xian, there was the additional consideration of the recovery from the Employees’ Compensation Assistance Fund Board, which actually joined as a respondent. Tang VP had this to say:

“74. I believe the public policy would not be served by disallowing claims by illegal employees.

……

77. I believe that in order to stop illegal employment, it is important to target the employers. Unlike illegal employees who are likely to be driven by necessity, employers are driven by greed. A good deterrent for a greedy person is to hit him in the pocket. In the present case, the evidence showed that the 1^st respondent paid the 3 persons much less than what he stood to gain from his contract. So it was highly lucrative for him.

78. In the present case, if the applicant was not allowed to recover from the 1^st respondent, the 1^st respondent would have got off scot-free. There was no prosecution. Criminal prosecution is often difficult because of the requirement of a higher standard of proof and the lack of evidence, especially when the employee has no incentive to testify.

……

87. I do not believe it would offend the ordinary right-thinking citizen if the applicant is allowed to recover from the 1^st Respondent. Having regard to the public policy regarding illegal employment, I believe allowing recovery is also conducive to serving such public policy. As for the possibility of recovery against the Board ……

88. EACO was enacted to protect uninsured employees. It would be ironic if it has the effect of “depriving” some uninsured employee of his claim against his employer. Nevertheless the fact that the compensation may have to be paid by the Board is a relevant consideration. But its weight has to be balanced against all the other consideration.

89. After careful consideration, and after having regard to all the circumstances of the case including the matters …… I am of the view that we should exercise our discretion under section 2(2) in the applicant’s favour.

Cheung JA said:

“……

94. In considering this section, my view is that the focus must be first on the primary relationship of the employer and the employees. In this case the applicant sued the employer. She did not seek to sue the Employees’ Compensation Assistance Fund Board……the Court must decide whether as between the employee and his employer, the latter is entitled to claim employees’ compensation from the employer.

……

97. What is most important, for the purpose of exercising the discretion in favour of the employee, is……whether the employee was doing lawful work under that contract.

……

100. Under the ECO a worker would only be entitled to make a claim for employees’ compensation when he sustained injuries or death. The ECO is an ordinance which allows an employee to recover compensation on a ‘no fault’ basis so long as the injury or death was the result of an incident that arose out of and in the course of the employment. The authority obviously recognised the social need for this type of legislation: an employee who met such a misfortune should not be without redress.

101. In my view, in the context of a modern Hong Kong which is by all accounts a caring society, it would take an extremely cynical and indeed harsh view to say that public policy should deprive an employee who was physically injured or killed in an industrial accident from recovering compensation from an employer who knowingly employed him to carry out lawful work despite his lack of permission to work in Hong Kong.

102. How would an exclusion of the claim in such a situation protect the local work force? On the other hand, if compensation is allowed, how would the integrity of the legal system be affected? It is said that to allow compensation will encourage more illegal workers to work here. But how many of these workers were injured or killed in the course of their employment which was the prerequisite before they could claim compensation?

103. These questions are asked to show that one cannot simply say ‘public policy requires the claim to be rejected’, it is necessary to go further and ask what is the mischief that the public policy wishes to avoid? The situation is quite different from the case of an illegal worker claiming wages from his employer where, without expressing a concluded view on the matter, because of the rice bowl consideration, public policy may require the claim to be excluded. In my view it is precisely because the so called public policy does not provide the justification for exclusion of employees compensation that this Court in Chan Cheuk-ting held that

‘there is no consideration of policy of such weight that it would require the Court to refuse to exercise its discretion.’

104. In that case the employer has effected an insurance for his employees but I do not regard the presence of insurance coverage to be the distinguishing feature which resulted in this Court overturning the decision of the first instance and exercising the discretion in favour of the employee. Irrespective of whether an employer has provided insurance coverage for his employees or not, he is still personally responsible towards the employees for compensation. In this case the deceased like the worker in Chan Cheuk-ting was doing lawful work. I cannot see why this Court should not follow the previous decision in Chan Cheuk-ting and exercise the discretion in favour of the applicant.

105. An employee or his family must exhaust all attempts to recover the award against the employer before he could seek payment from the Employees’ Compensation Assistance Fund (“the Fund”). The Fund is governed by a separate legislation, namely, EACO which was enacted in 1991 well after the enactment of the ECO in 1953. If the primary responsibility to compensate the employee lies with the employer, I do not see how, for the purpose of exercising the discretion under section 2(2), the Fund has any bearing on this issue.

106. While section 2(2) of the ECO requires the Court to consider all the circumstances of the case in the exercise of discretion, I do not see how the potential liability of the Fund which may or may not arise depending on the outcome of the recovery proceeding against the employer can be considered a relevant factor in the exercise of the discretion at this stage of the proceedings. In my view whether on one hand an employee can recover from the employer and whether on the other hand he can seek payment from the Fund are two separate matters.

107. Even if, for the purpose of argument, the potential liability of the Fund to satisfy the award is a relevant factor, I would nonetheless still exercise the discretion in favour of the applicant. If the authority does not wish illegal workers to recover payment from the Fund, the surely this can be achieved by legislative means.

…..”

Lam J agreed.

32.I echo with respect the appellate court’s discussion of the policy considerations in the above cases.

33.Whether Shiddik’s CAT claim was genuinely made is a question beyond this court.  If his CAT claim is eventually proved to be unmeritorious, what he did at the material time was taking employment as an illegal immigrant.  As mentioned, that per se at the material time was not an offence.  In terms of the criminality of taking employment at the material time, Shiddik cannot be worse than the illegal immigrant who obtained employment by using a false identity card as in Chan Cheuk Ting and the person who took employment in breach of express contrary conditions of stay in Yu Nong Xian.

34.Likewise, and more importantly, Shiddik was employed to carry out lawful work; and injured in the course of such work.  The respondent employed Shiddik and probably with knowledge that he was not lawfully employable.  In return for the heavy labour, the respondent provided Shiddik with a modest monthly income, meals and accommodation in a converted container.

35.Considering all the circumstances, I am satisfied that I should exercise the discretion under section 2(2) of the ECO in favour of Shiddik, notwithstanding that he was not lawfully employable at the time of the accident.

Quantum

Injuries and treatment

36.According to the medical reports, Shiddik was alert and spontaneous movement of all limbs was observed upon his admission to the hospital after the accident.  After examination, he was admitted to the surgical ward for further management.

37.CT thorax showed left haemopneumothorax with fractured ribs.  Chest drain was inserted and managed by cardiothoracic surgery.  No free fluid was found in the abdomen.  CT brain showed fluid at sphenoid sinus and was managed by neurosurgery.  CT cervical spine showed fracture of the 5^th and 6^th laminae as well as the 7^th spinuous process; fractured sternum and multiple fractured ribs.  X-ray and CT thoracolumbar spine showed bony chance fracture of the 11^th thoracic spine (T11), compression fracture of the 12^th thoracic spine (T12) and the 1^st lumbar spine.  X-ray pelvis also showed fracture of the right superior and inferior pubic rami.  All the fractures were treated conservatively with analgesic.

38.In late September 2007, Shiddik was transferred to the Department of Orthopaedics and Traumatology for rehabilitation.  Physiotherapy was offered.  As mentioned, he was discharged from the hospital in early October 2007.

39.Shiddik attended the Hong Kong Eye Hospital in late September 2007 where he was diagnosed to have suffered blunt trauma to his left eye resulting in macula comotio retinae.  His left eye visual acuity was 1/60 and right eye visual acuity was 6/5.  He defaulted follow up treatment in early October 2007.  There was no active treatment for commotion retinae; but subsequent follow up was arranged to monitor the progress.

Form 7

40.Shiddik was examined by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) on 6 April 2011.  By Form 7 dated 20 April 2011, the Board certified that due to “back, chest and left eye injuries resulting in (i) cervical spine, T11, T12 and L1 fracture; (ii) left eye visual loss”, Shiddik suffered from 26% permanent loss of earning capacity.  By notice dated 28 April 2011, Shiddik appeals against such assessment.

Medical expert evidence

41.Shiddik was examined by Dr Johnson Lam, orthopaedic specialist, on 15 July 2011.  Dr Lam produced his expert report dated 21 July 2011.  The report recorded the recent complaint by Shiddik about his condition.  Dr Lam confirmed the diagnosis of multiple fractures mentioned above.  The treatment was considered to be appropriate.  The fractures had united well; and further treatment or surgery was unnecessary. Sick leave of at least 12 months was necessary.

42.Dr Lam opined that it was likely that as a result of the accident, there was genuine pain and residual disability in the back, neck, chest and pelvis.  However the degree might not be as severe as that described by Shiddik.  The pain should be moderate to severe; moderate in the neck; and mild in the chest and pelvis.

43.In practical terms, activities that would cause increased physical demand on the back (e.g., prolonged or frequent bending of back; heavy lifting over 30 lbs; long hours of standing or walking) would likely cause discomfort or even pain in the back. Extreme ranges of motion of the neck or back would also cause some pain and discomfort over these regions.  On the other hand, Shiddik should be independent in activities of daily living.

44.Dr Lam believed that Shiddik should be unable to return to his pre-accident work or similar jobs that required frequent bending of the his back and lifting of objects of a few to 40 kg.  He was considered to be fit to cope with light to moderate physical demand such as that as a security guard, driver or gas station worker.  For the purpose of assessment herein, Dr Lam suggested 24% loss of earning capacity as a result of the orthopaedic injuries.

45.Shiddik was examined by his ophthalmological expert, Dr Cheung Sek Hong, on 30 June and 21 July 2011. Shiddik complained about blurred vision and pain in his left eye as well as headache when reading.  He had difficulty in focusing.

46.Examination and visual field investigation confirmed atrophic changes at macula of the left eye consisting of thinning of macular layer, disruption of outer plexiform layer and loss of smoothness of the foveal depression.  The right macula was found to be normal.  The result of investigation, Dr Cheung believed, suggested that Shiddik suffered from blunt trauma to his left eye during the accident in August 2007.

47.As it was already years after the accident, the left eye residual maculopathy was stable and required no further treatment or surgery.  Ophthalmologically Shiddik was considered to be able to resume his pre-accident work after 6 weeks to 2 months of sick leave.

48.Dr Cheung found that reduced VA of 6/12 of the left eye caused 15% loss of central vision of the eye; and that in turn amounted to 3% acuity-related impairment of both eyes. Shiddik should have normal or near-normal ability to perform activities of daily living with reserve capacity.  Purely for reference, Dr Cheung suggested 7.5% loss of earning capacity.

Section 18 appeal

49.Mr Middleton submitted that the medical experts present a fuller picture than that behind the conclusion of the Board in issuing Form 7.  He submitted that a combined percentage of loss of earning capacity suffered by Shiddik should exceed 26% as assessed by the Board.  He suggested an effectively summation of the percentages suggested by the experts respectively, i.e., 31.5%.

50.I accept the expert evidence of Dr Lam and Dr Cheung.  In particular, they did express their respective reservation about the projection by Shiddik of the degree of pain (at the back, neck, chest and pelvis) and the degree of constriction of visibility during the visual field investigation.  I believe their conclusions represent the genuine degree of disability suffered by Shiddik as a result of the injury.  Such degree, I accept, is materially higher than that assessed by the Board.

51.I allow the section 18 appeal.  For the purpose of assessment, I adopt 31.5% loss of earning capacity as submitted.

Section 9 compensation

52.At his age, the compensation pursuant to sections 7 and 9 of the ECO will be HK$4,000 x 96 x 31.5% = HK$120,960.

Section 10 compensation

53.For the orthopaedic injury, Dr Lam opined that Shiddik needed at least a year’s sick leave while Dr Cheung opined that 6 weeks to 2 months of sick leave would be appropriate for his eye injury.  The 2 periods of course overlapped.  Reasonable sick leave should therefore last until end of August 2008.

54.Form 7 suggests that reference should be made to an annex with respect to sick leave.  Mr Middleton was unable to assist on the production of the annex.  I can only treat that there is no evidence of sick leave having actually been given to Shiddik by the hospital.  Nevertheless, I accept the expert evidence that 12 months from the date of accident until the end of August 2008 was the reasonable period of temporary incapacity suffered by Shiddik for the purpose of section 10.

55.On this basis, I raised with Mr Middleton the question of whether Shiddik, in his circumstances, is entitled to compensation for temporary incapacity under section 10.  The fact was that Shiddik had no employment obviously during his detention after the accident and even after his release from detention.  Not only that, the question is really whether Shiddik would have been lawfully employable, but for the temporary incapacity.

56.In fatal cases, such as Chan Cheuk Ting and Yu Nong Xian (above), compensation is awarded in a lump sum calculated in accordance with the statutory formulae pursuant to section 6 of the ECO.    No issue of compensation for temporary incapacity arises.

57.In non-fatal cases, compensation under section 9 of the ECO is awarded for the degree of permanent loss of earning capacity suffered by the employee.  It matters not whether the employee could have lawfully worked after the accident.  Compensation under section 10 of the ECO is different.

58.The statutory scheme of compensation under section 10, in particular subsections (1) and (2), is this:

“(1) Where temporary incapacity whether total or partial results from the injury, the compensation shall be the periodical payments hereinafter mentioned, or a lump sum calculated accordingly, having regard to the probable duration, and probable changes in the degree, of the incapacity. Such periodical payments shall be, or shall be at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident.

(2) For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medical practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.

……” [emphasis added]

59.Section 10(1) makes clear that compensation is awarded on the basis that the employee would at least have been capable of earning in some suitable employment or business but for the temporary incapacity after the accident.  If the person is not lawfully employable, he could not be said to be capable of earning income from any suitable employment or business during the period of temporary incapacity.  That was the situation of Shiddik when he was detained first by the police and then by the Immigration Department after the accident.

60.Did Shiddik’s situation change upon his release on recognizance in October 2007?  Mr Middleton referred to the judgment in Iqbal Shahid & Ors v Secretary for Justice, HCAL 150/2008 and Waseem Abbas & Ors v Secretary for Justice, HCAL 8/2009 (2 March 2009).  Indeed Wright J made the following observation that there was apparently no prohibition in the recognizance pursuant to section 36 of the IO against taking employment:

“76. It is also of significance that there is nothing contained in the recognizance itself that provides any indication to the holder of that recognizance that any form of restriction, for example by way of a prohibition against taking up employment, is imposed on him once he is released and whilst he remains in Hong Kong. The annexure to the recognizance …… purports to “remind” the holder of a recognizance about certain matters: those matters are not common to every recognizance. In any event, it is now quite plain that there is no power to impose conditions on a recognizance (see V v Director of Immigration [2006] 3 HKC 362) so whatever the contents of the annexure may be, they cannot be binding on the holder of the recognizance.”

61.However, what was considered in that case was the policy behind the prosecution of persons who entered and remained in Hong Kong illegally but were released on recognizance pursuant to section 36 of the IO.  The issue was whether the applicants there could be considered as remaining in Hong Kong without the authority of the Director of Immigration.  This was made clear in the subsequent paragraph of the judgment:

“77. It seems to me that if the factual situation which I have outlined in the preceding three paragraphs were made known to the hypothetical reasonable person …… and he or she were asked whether the applicants were in Hong Kong without the authority of the Director, the response would be “no”.”

62.In my judgment, for the present purpose, what one should ask is not whether there was any restriction in the recognizance against taking employment; but rather whether Shiddik was permitted to do so.  Only if the answer is in the affirmative may Shiddik be considered as a lawfully employable person under section 17G(2) of the IO.

63.As mentioned, section 17G(2) of the IO exhaustively defines what categories of person are lawfully employable.  There is no suggestion that a person released on recognizance pursuant to section 36 of the IO falls into the categories of a holder of a certificate of exemption (section 17G(2)(c)(iv)) or document of a type approved by the Governor by order published in the Gazette (section 17G(2)(c)(v)).

64.The issue of whether a person in the circumstances of Shiddik may take employment in Hong Kong was actually considered in the recent case of MA v Director of Immigration, HCAL 75/2010 (6 January 2011).  In that case, the applicants were 4 mandated refugees and 1 screened-in CAT claimant.  The judgment recited the immigration policy in respect of permitting foreign nationals to come to Hong Kong to take employment; and mandated refugees and screen-in CAT claimant do not fall within any of the established categories in the immigration guidelines (see §§25-32). The constitutional challenge laid by the applicants there against such immigration policy failed.

65.I have no basis to believe that Shiddik was permitted to take employment while he remained in Hong Kong on the recognizance during the period of temporary incapacity.  As it is not shown that Shiddik was capable of being lawfully employed during the period of temporary incapacity, the premise for awarding section 10 compensation is lacking.

66.For the above reasons, I decline to make an award under section 10 of the ECO.  For completeness, in the event that I am wrong, the compensation under the section should have been HK$4,000 x 12 months x 4/5 = HK$38,400.

Section 10A compensation

67.It is accepted that medical expenses had been provided for, in view of Shiddik’s status.  No claim under this section is made.

Order

68.Judgment is entered against the respondent in the sum of HK$120,960 with interest thereon from the date of accident to today at half judgment rate, and from today until payment at the judgment rate.  The respondent shall pay the costs of this application, including any costs reserved.  Costs shall be taxed, if not agreed.  Shiddik’s own costs shall be taxed subject to legal aid regulations.

OTHERS

69.Shiddik is currently in the custody of the authorities for another prosecution.  Nevertheless, in view of the above findings, the respondent has employed Shiddik who was at the time not lawfully employable; and Shiddik has effectively made false declaration to the Labour Department.  In the circumstances, the Director of Legal Aid should ensure that the Labour Department is duly informed of this judgment for consideration of any necessary step to take.

Mr Derek MIDDLETON of Messrs Massie & Clement for the applicant upon the assignment by the Director of Legal Aid

The respondent, in person, absent

[*] page 131 of the bundle