Chapter 3
Cases of Public Interest or Concern

Employees Compensation and immigration status, is there a connection?

In June 2002, a mainlander (the deceased), fell to his death when demolishing an illegal canopy.  At the time of the accident, the deceased was a visitor having gained entry to Hong Kong on a two-way permit and it was a condition of his stay that he should not be lawfully employed.

In 2004, the deceased's widow was granted legal aid to claim employees' compensation against the deceased's employer (R1).  The Employees Compensation Assistance Fund Board (the Board), which protects the entitlement of employees or their dependants to compensation or damages for employment related injuries, was joined in the court proceedings as R1 was not insured.  The widow's claim was dismissed after trial as the court took the view that she failed to establish R1 was the employer of the deceased.  

Legal aid was granted to the widow to appeal to the Court of Appeal (CA).  The appeal raised two main issues.  The first one was whether the deceased was an employee at the time of the accident.  The second and more important issue was whether the Court should exercise its discretion under section 2(2) of the Employees' Compensation Ordinance (ECO), Cap. 282 to deal with the case as if the injured/deceased person had been working under a valid contract of service at the time of the accident despite the fact that the deceased was prohibited from working as a condition of his entry to Hong Kong. 

The CA reversed the decision made by the trial judge.  The CA was of the opinion that R1's identity as the deceased's employer had been established.  The CA also considered that discretion ought to be exercised in favour of the claimants despite the illegality of the deceased's contract of employment. 

The CA found that public policy would not be served by disallowing claims by illegal employees.  If an unemployable employee suffered injuries in the course of his employment, and he had a remedy under the Ordinance, he was likely to come forward and made 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.  In that case, the employer was very likely to get off scot-free.

The CA opined that to stop illegal employment, it was important to target the employers.  Unlike illegal employees who were likely to be driven by necessity, employers were usually driven by greed.  A good deterrent for a greedy person was to hit him in his pocket.

The CA further said that if judgment was obtained and not satisfied, there would probably be a petition for bankruptcy.  R1's bank accounts would be frozen and very often that would bring a person who had gone underground to the surface.  So there was every public policy reason to permit the deceased's widow to recover. 

The CA judges considered that in the event that R1 was unable to pay, the Board would be liable to pay under the Employees Compensation Assistance Ordinance, Cap. 365 ("the ECAO").  While it was not be the job of the Board to fight illegal employment, they could help in the fight if they took the right given to them by the law to recover the compensation paid to the worker by the Board.  The CA considered that determination to pursue the illegal employer for his last cent would help fight illegal employment.

The CA considered that ECAO was enacted to protect employees whose employers fail to take out the necessary employees compensation insurance (the uninsured employees).  Under the Ordinance, a worker would only be entitled to make a claim for employees' compensation when he sustained injuries or death, to recover on a "no fault" basis.  It was a recognised social need that an employee who met such a misfortune should not be without redress.  It would be ironic if the ECAO had the effect of "depriving" some uninsured employee of his claim against his employer.   Refusal of the court to enforce illegal contracts often led to injustice and unjust enrichment of the defendant.  It would be extremely cynical and indeed harsh 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. 

The CA did not see how the potential liability of the Board which might or might not arise depending on the outcome of the recovery proceedings against the employer could be considered a relevant factor in the exercise of the discretion.  Even if the potential liability of the Board to satisfy the award was a relevant factor, the judges opined that they would still exercise the discretion under Section 2(2) of the Ordinance in the widow's favour. 

Aggrieved by the CA's decision, the Board sought leave to appeal to the Court of Final Appeal (CFA) by arguing that this case gave rise to two questions of great general or public importance.  The first was whether the CA was correct in accepting that evidence given by witnesses in the coroner's inquest was admissible at the trial.   On this point, the CFA found no reason in principle why evidence given at the inquest should be excluded if hearsay notices had been properly served.  The second question was whether the court should lay down principles as to how the discretion in section 2(2) of the ECO should be exercised.  The CFA considered that it was not necessary to do so because whether the discretion should be exercised would depend upon the particular facts of each case.  The CFA therefore refused to grant leave to the Board to appeal.

April 18 Deputy Director of Legal Aid/Policy and Administration, Mr William Chan (first from left) and Assistant Director of Legal Aid/Policy and Development, Mrs Annie Williams (second from left), had a meeting with the Immediate Past Chairman of the General Council of the Bar of England and Wales, Mr Geoffrey Vos, QC, during his visit to the Department.

Judicial Review by torture claimants

Although Hong Kong is not a signatory to the 1951 International Refugee Convention, it has signed the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment which is known as the Convention Against Torture "CAT".

In carrying out the obligation under the CAT, the Secretary for Security ("Secretary")'s policy is that a person will not be deported to his home country if that person has a well founded claim that upon repatriation he will be subjected to torture or inhumane treatment ("the Policy").

In June 2004 the Court of Final Appeal ("CFA") in the case of The Secretary for Security v. Prabakar [2004] HKCFA 39 which was legally aided in the courts below found that a determination under the Policy was of momentous importance to the individual claimant concerned.  It adversely affects the life and limb of that person and his fundamental right not to be subjected to torture was involved.  Accordingly, high standards of fairness had to be demanded.  The Court would, on judicial review, subject the Secretary's determination to rigorous examination and scrutiny to ensure that the required high standards of fairness had been met.  To ensure such high standards are met, it is necessary that:

1. The claimant should be given every reasonable opportunity to establish his claim.
2. The claim must be properly assessed by the Secretary.
3. Where the claim was rejected, reasons should be given by the Secretary, which must be sufficient to enable the claimant to consider the possibilities of administrative review and judicial review.

Following that decision, the Secretary through his administrative arm, the Immigration Department ("the Department"), established a screening process for the consideration of claims under the CAT.

Six torture claimants from Africa and South Asia were granted legal aid to challenge, by way of judicial review, the lengthy period taken to process their claims in addition to the legality of the screening process.  The screening process under CAT involves clarification of facts, interviews and researching the home country before a claim can be determined.  Claimants who are unhappy with the Government's decision can appeal.  The six legally aided persons maintained that the procedures adopted for the screening process and for the appeal were fundamentally flawed and were procedurally unfair to them individually. 

The hearing of the judicial review application took 11 days in the Court of First Instance over a period of 6 months in 2008.   

Adopting the "high standards of fairness" approach laid down in the Court of Final Appeal for assessment of CAT claims, the court found that the policy of the Secretary and the Department firstly not to permit the presence of a legal representative of a CAT claimant during either the completion of a questionnaire by the CAT claimant, or during interview by the Department's examining officer and secondly not to provide, at the expense of the Secretary and the Department, legal representation to a CAT claimant who was unable to afford that legal representation was unlawful and in breach of the duty of the Government to assess CAT claims in accordance with high standards of fairness.
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The court also declared, inter alia, that it was wrong if an examining officer in relation to the CAT claim and the decision-maker are not the same person.

Subsequent to the ruling, the Government has suspended all determinations under CAT and is in the process of setting up a system which meets the high standards of procedural fairness.

June 4 Acting Assistant Principal Legal Aid Counsel/Legal and Management Support, Mr Steve Wong (left), presented a souvenir to a local law student on a summer training programme, after a briefing on the work of the Department.

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