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

法援服務、關愛惠民 Legal Aid for the People Grounds of Appeal and Court of Final Appeal’s Determination ． Firstly, whether the Court of Appeal was correct in accepting that evidence given by witnesses in the coroner's inquest was admissible as evidence at the trial. ． Secondly, whether the court should lay down principles as to how the discretion in section 2(2) of the Ordinance should be exercised. ． On the first point, the Court of Final Appeal found no reason in principle why evidence given at the inquest should be excluded if hearsay notices had been properly served; on the second point, the Court of Final Appeal considered that whether the discretion should be exercised would depend upon the particular facts of each case. ． The Court of Final Appeal therefore refused to grant leave to the Board to appeal. 上訴理據及終審法院的裁定 ． 第一，上訴法庭同意證人在死因研訊中的供詞可 在審訊中獲接納為證據，此決定是否正確。 ． 第二，法院應否訂立原則，說明如何行使《條例》 第2（2）條賦予的酌情權。 ． 關於第一點，終審法院認為如傳聞證據通知書已妥 為送達，原則上沒有理由豁除死因研訊的供詞； 第二點，終審法院認為應否行使酌情權，須視乎 個別案件的案情而定。 ． 終審法院因此拒絕批准管理局的上訴許可申請。 P.66 Going Forward ． The Court of Appeal considered that refusal of the court to enforce illegal contracts often led to injustice and unjust enrichment of the respondent. If the Ordinance had the effect of "depriving" some uninsured employee of his claim against his employer, it would be ironic. ． The case demonstrated the court’s approach in exercising its discretion under Section 2(2) of the Ordinance. ． The judgment reminded employers that even though the employment is illegal, it does not necessarily mean that they would not be held liable for the employees’ compensation in the event such employee sustains injury in the course of his employment. 發展路向 ． 上訴法庭認為法院若拒絕執行非法合約，往往造成 不公，令答辯人獲得不義利潤。假如條例的作用 是「剝奪」一些未受保僱員向僱主索償的權利， 這是十分諷刺的。 ． 案件說明法院如何根據《條例》第2（2）條行使 其酌情權。 ． 案件的判決提醒僱主，即使僱員是非法勞工，但該 僱員若在受僱工作期間受傷，僱主不一定可獲免 除對該僱員的補償責任。