YU NONGXIAN v. NG KA WING AND ANOTHER

FAMV No. 64 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 64 OF 2007 (Civil)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV No. 270 of 2006)

_______________________

_______________________

________________________________

D E T E R M I N A T I O N

________________________________

Mr Justice Ribeiro PJ:

1.  The deceased was illegally in Hong Kong and was not lawfully employable, as is provided in the Immigration Ordinance.  He nevertheless took up employment and fell to his death when demolishing an illegal canopy. 

2.  His dependents brought a claim for employees’ compensation against the 1^st respondent, Ng Ka Wing, named as the employer.  Since Mr Ng was not insured, the Employees’ Compensation Assistance Fund Board was joined as 2^nd respondent.  The claim was dismissed by H H Judge Chow holding that the claimants had failed to establish that Ng was the employer of the deceased. 

3.  The Court of Appeal reversed the Judge, holding that on the evidence properly approached, Ng’s identity as the employer had plainly been established.  It held that the discretion given by s 2(2) of the Employees’ Compensation Ordinance to award compensation notwithstanding the illegality of the deceased’s contract of employment ought to be exercised in favour of the claimants, having canvassed policy considerations and having discussed the relevant case-law.

4.  The Board now seeks leave to appeal arguing that two questions of great general or public importance arise.  The first is as to whether the Court of Appeal correctly held that evidence given by witnesses in the coroner’s inquest was properly admissible at the trial pursuant to hearsay notices served.  Mr Horace Wong SC contends on the Board’s behalf that this was contrary to the Bird v Keep [1918] 2 KB 692 line of cases.  In Bird v Keep, the court held that the record of a coroner’s inquisition (ie, the jury’s finding), as well as the Certificate of Death were inadmissible in later civil liability proceedings.  However, hearsay notices had not yet been introduced in 1918 and it was not a case involving evidence introduced by such means.  The reasoning in Bird v Keep, properly understood, is therefore not to the point in the present case where, as Tang VP noted, one is concerned, not with any death certificate or the finding of a coroner’s inquest, but with hearsay statements covering witness testimony.  It is therefore not a point that is involved in the proposed appeal.  We would add that we consider Tang VP’s decision to be correct.  We can see no reason in principle why evidence given in the coroner’s inquest should somehow be excluded from the hearsay notice scheme.  As it happens, the point is also academic in the light of the Court of Appeal’s findings.

5.  Secondly, Mr Wong invites us to grant leave with a view to laying down principles as to how the s 2(2) discretion should be exercised.  He lists a number of questions raising a series of policy considerations which he suggests the Court should pronounce upon as relevant or otherwise.  We do not consider this a practicable or sensible task for the Court to undertake.  The discretion in s 2(2) is in the widest terms and is necessarily to be exercised on the facts of each case, involving its own mixture of discretionary factors.  In any event no basis has been shown in this case for interfering with the Court of Appeal’s exercise of discretion on the well-known grounds required for any such intervention.

6.  Mr Wong also seeks leave on the “or otherwise” basis, but none of the matters referred to justify the grant of leave on this exceptional ground.  Leave to appeal must therefore be refused with costs.