XU HUAXIAN v. CHAN HOK LIK formerly t/a WAI KON SIN YU AND ANOTHER

XU HUAXIAN v. CHAN HOK LIK formerly t/a WAI KON SIN YU AND ANOTHER

The court accepted that an employment relationship existed but held the injury did not arise out of and in the course of employment because purchasing a newspaper was a personal deviation not incidental to the employee's duties; further, even if the accident were in course of employment the court would not exercise its discretion under s2(2) in favour of the illegal worker given the public policy and funding considerations of the statutory assistance board and the employer's insolvency.

Citation
XU HUAXIAN v. CHAN HOK LIK formerly t/a WAI KON SIN YU AND ANOTHER
Parties
Applicant: Xu Huaxian; 1st Respondent: Chan Hok Lik formerly trading as Wai Kon Sin Yu; 2nd Respondent: Employees Compensation Assistance Fund Board
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
28 May 2007
Case Number
DCEC922/2006
Procedural Posture
Employees Compensation Claim Under ECO / Judgment Delivered
Outcome
Application dismissed
Legal Topics
Employees Compensation Ordinance S2(2), Illegal Employment, Discretion to Treat Illegal Contract as Valid, Employees Compensation Assistance Ordinance, Quantum Assessment Under ECO
Source Language
EN
Employment Personal Injury Compensation Immigration/public Policy Employees Compensation Ordinance S2(2) Illegal Employment Discretion to Treat Illegal Contract as Valid Employees Compensation Assistance Ordinance +1 more

Case Brief

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Parties

Xu Huaxian

Applicant

Chan Hok Lik formerly trading as Wai Kon Sin Yu

1st Respondent

Employees Compensation Assistance Fund Board

2nd Respondent

Procedural Posture

Employees Compensation Claim Under ECO / Judgment Delivered

Legal Issues

  1. 1 Whether there existed an employment relationship between Applicant and 1st Respondent
  2. 2 Whether the accident arose out of and in the course of employment
  3. 3 Whether the Court should exercise its discretion under s2(2) of the ECO despite illegality

Ratio Decidendi

The court accepted that an employment relationship existed but held the injury did not arise out of and in the course of employment because purchasing a newspaper was a personal deviation not incidental to the employee's duties; further, even if the accident were in course of employment the court would not exercise its discretion under s2(2) in favour of the illegal worker given the public policy and funding considerations of the statutory assistance board and the employer's insolvency.

Court Disposition

Application dismissed

Orders

  • Application dismissed
  • Costs to 2nd Respondent to be taxed if not agreed; order nisi to become absolute after 14 days from handing down of judgment; with certificate of counsel