法律援助署五十周年紀念特刊 | Legal Aid Department 50th Anniversary Commemorative Publication

法律援助署五十周年紀念特刊 P.65 Court of Appeal Judgment ． 1st Respondent's identity as the deceased's employer had been established. ． Discretion ought to be exercised in favour of the claimants, despite the illegality of the deceased's contract of employment. ． Public policy would not be served by disallowing claims by illegal employees. If an illegal employee suffered injuries in the course of his employment, and he had a remedy under the Employees Compensation Assistance Ordinance (Cap. 365) (Ordinance), he was likely to come forward and make a claim. ． In that case he would probably be available as a witness for the prosecution of the employer. If no compensation was payable, the employee would not come forward at all and the employer was very likely to get off scot-free. ． Unlike illegal employees who were likely to be driven by necessity, employers were usually driven by greed. Therefore hitting their pocket would be a good deterrent for those greedy employers. ． If judgment was obtained and not satisfied, there would probably be a petition for bankruptcy, the 1st Respondent's bank accounts would be frozen and very often that would bring a person who had gone underground to appear. ． Under the Ordinance, in the event that the 1st Respondent was unable to pay, the Board would be liable to pay. The Board could help in the fight against illegal employment if it took over the right given to it by the law to recover the compensation paid to the worker. ． There was very strong public policy reason to permit the deceased's family members to recover the compensation. 上訴法庭的判決 ． 第一答辯人作為死者僱主的身分已獲證實。 ． 雖然死者的僱傭合約不合法，但法庭應作出對申 索人有利的酌情決定。 ． 如果不准許非法僱員提出申索，將有違公共政策。 如果某非法勞工在受僱工作期間受傷，而他可根據 《僱員補償援助條例》（第365章）（《條例》） 獲得補償，他很可能會主動提出申索。 ． 在這情況下，他可能會成為檢控僱主的控方證人。 如不能獲得賠償，該僱員便不會採取任何行動，這 很可能讓僱主逍遙法外。 ． 僱員非法受僱大多是生活所迫，但僱主聘用非法勞 工，通常是出於貪婪。因此嚴懲他們會有效阻嚇這 類貪婪的僱主。 ． 如法庭頒布的判決未獲執行，有關人士可提出破 產呈請，第一答辯人的銀行帳戶會被凍結，此舉 往往會令幕後人士現身。 ． 根據《條例》，如第一答辯人無法支付賠償，管 理局有責任代為支付。管理局可利用法例賦予的 權力，向被告人討回管理局支付予有關工人的賠 償，此舉亦有助打擊僱用非法勞工。 ． 為了維護公共政策，有充分理由批准死者家屬追 討賠償。 Responsibility of the Board ． The Court of Appeal considered that although it was not the job of the Board to fight illegal employment, the Board could help in the fight if it took over the right given by the law to recover from the 1st Respondent the compensation already paid to the worker by the Board. ． Determination by the Board to pursue the illegal employer for his last cent would help fight illegal employment. ． The Ordinance was enacted to protect those uninsured employees. Under the Ordinance, a worker would be entitled to make a claim for employees' compensation and to recover on a "no fault" basis so long as he sustained injuries or death while at work. ． The Board sought leave to appeal to the Court of Final Appeal. 管理局的責任 ． 上訴法庭認為，雖然管理局的職責不是打擊僱用非 法勞工，但管理局可利用法例賦予的權力，向第 一答辯人討回管理局支付予有關工人的賠償。 ． 如當局銳意向違例僱主悉數追討所拖欠的賠償，將 有助打擊僱用非法勞工。 ． 制定《條例》是為了保障未受保的僱員。根據該條 例，只要工人是因工受傷或身亡，不論過失程度 為何，即有權提出申索，追討僱員補償。 ． 管理局向終審法院提出上訴許可申請。