An Ordinance to provide for the protection of the entitlement of employees and others to compensation for employment-related injury; for the making of relief payment to eligible persons in relation to damages for employment-related injury; for the establishment of a board and a fund for those purposes; and for incidental or connected matters. (Enacted 1991. Replaced 16 of 2002 s. 2) [1 July 1991] L.N. 239 of 1991 (Originally 54 of 1991) Cap 365 s 1 Short title PART I PRELIMINARY This Ordinance may be cited as the Employees Compensation Assistance Ordinance. (Enacted 1991) Cap 365 s 2 Interpretation (1) In this Ordinance, unless the context otherwise requires- (Amended 16 of 2002 s. 3) "Board" (管理局) means the Employees Compensation Assistance Fund Board constituted by section 3; "Chairman" (主席) means the chairman of the Employees Compensation Assistance Fund Board appointed under section 3(2)(a) or any other person when acting as such; "cohabitee" (同居者), in relation to an employee, means any person who, at the time of the death of the employee, was living with the employee as the employee's wife or husband; (Added 16 of 2002 s. 3) "Commissioner" (处长) means the Commissioner for Labour; "compensation" (补偿) has the meaning assigned to it under section 3 of the Employees' Compensation Ordinance (Cap 282); "damages" (损害赔偿) has the meaning assigned to it under section 3 of the Employees' Compensation Ordinance (Cap 282); "eligible person" (合资格人士), in relation to a relief payment- (a) where the employment-related injury concerned is non-fatal, means- (i) the injured employee; or (ii) in the case of the death of the injured employee whether before or after damages have been awarded- (A) any surviving spouse or cohabitee of the injured employee; (B) any surviving child of the injured employee, whether by blood or an adoption specified in subsection (2) made before the date on which the accident occurred to which the relief payment relates, who was under the age of 21 years at the time of the death of the injured employee; (C) if there is no surviving spouse or cohabitee, and no surviving child, as mentioned in sub-subparagraph (A) or (B), any surviving parent of the injured employee;(b) where the employment-related injury concerned is fatal, means a person who has any of the following relationship in respect of the deceased employee, whether by blood or an adoption specified in subsection (2) made before the date on which the accident occurred to which the relief payment relates- (i) a spouse or cohabitee; (ii) a child; (iii) a parent or grandparent; or (iv) a grandson, granddaughter, stepfather, stepmother, stepson, stepdaughter, son-in-law, daughter-in-law, brother, sister, half-brother, half-sister, father-in-law, mother-in-law, brother-in-law, sister-in-law, and child of a brother or sister of the whole blood; (Added 16 of 2002 s. 3)"employee" (雇员) has the meaning assigned to it under section 2 of the Employees' Compensation Ordinance (Cap 282); "Employees' Compensation Insurance Levies Management Board" (征款局) means the board established under section 3 of the Employees' Compensation Insurance Levies Ordinance (Cap 411); "employer" (雇主) means an employer for the purposes of the Employees' Compensation Ordinance (Cap 282), and includes a holding company (within the meaning of Part IV of that Ordinance) which is liable to pay an amount of compensation or damages to an employee of its subsidiary (within the meaning of that Part) under section 44B of that Ordinance; (Amended 47 of 1995 s. 13) "financial year" (财政年度) means the period fixed as the financial year of the Board under section 10(1); "Fund" (基金) means the Employees Compensation Assistance Fund established by section 7; "Insurance Authority" (保险业监督) means the Authority appointed under section 4 of the Insurance Companies Ordinance (Cap 41); "insurer" (承保人) has the meaning assigned to it under section 3 of the Employees' Compensation Ordinance (Cap 282); "member of the family" (家庭成员) has the meaning assigned to it under section 3 of the Employees' Compensation Ordinance (Cap 282) (Added 52 of 2000 s. 39) "policy of insurance" (保险单) means a policy of insurance issued for the purposes of Part IV of the Employees' Compensation Ordinance (Cap 282); "prescribed monthly amount" (订明每月数额) means the amount specified in Part 1 of Schedule 4; (Added 16 of 2002 s. 3) "prescribed monthly amount (extra)" (订明每月数额(额外)) means the amount specified in Part 2 of Schedule 4; (Added 16 of 2002 s. 3) "prescribed relief payment" (订明济助付款) means the amount specified in Part 3 of Schedule 4; (Added 16 of 2002 s. 3) "prescribed surcharge" (订明附加费) means the amount specified in Part 4 of Schedule 4; (Added 16 of 2002 s. 3) "relief payment" (济助付款) means a relief payment made or which may be made from the Fund pursuant to an application under section 20A; (Added 16 of 2002 s. 3) "Secretary" (局长) means the Secretary for Economic Development and Labour. (Replaced L.N. 106 of 2002) "severely injured relevant eligible person" (重伤的有关合资格人士), in relation to a relief payment, means an eligible person- (a) who falls within paragraph (a)(i) of the definition of "eligible person"; (b) who suffers from paraplegia or quadriplegia as a result of the employment-related injury concerned such that he is unable to perform the essential actions of life without the care and attention of another person; and (c) in respect of whom a court of competent jurisdiction in Hong Kong has, in relation to the employment-related injury concerned, awarded expenses for the care and attention by another person in respect of the period after the award is made; (Added 16 of 2002 s. 3)"spouse" (配偶), in relation to an employee, does not include a person who, at the time of the death of the employee, has ceased to be the employee's spouse; (Added 16 of 2002 s. 3) (Amended 52 of 2000 s. 39)(2) For the purposes of the definition of "eligible person"- (a) an adoption means an adoption- (i) made under an adoption order made in accordance with the Adoption Ordinance (Cap 290); (ii) to which section 17 of the Adoption Ordinance (Cap 290) applies; or (iii) made in Hong Kong in accordance with Chinese law and custom before 1 January 1973; and(b) any person so adopted shall be treated as the child of the adopter, and not as the child of any other person, and all relationships to the adopted person shall be deduced accordingly. (Added 16 of 2002 s. 3) (Enacted 1991) Cap 365 s 3 Constitution of the Board PART II EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD (1) There is constituted a body corporate to be known as the Employees Compensation Assistance Fund Board having perpetual succession and capable of suing and being sued. (2) The Board shall consist of- (a) a chairman appointed by the Chief Executive; (Amended 56 of 2000 s. 3) (b) 6 members appointed by the Chief Executive of whom- (Amended 16 of 2002 s. 4) (i) 2 are persons who in the opinion of the Chief Executive represent employers; (ii) 2 are persons who in the opinion of the Chief Executive represent employees; (Amended 16 of 2002 s. 4) (iii) 1 is a person having expertise in the practice of accounting, investment or law; and (Amended 56 of 2000 s. 3; 16 of 2002 s. 4) (iv) 1 is a person having expertise in the practice of insurance; (Added 16 of 2002 s. 4)(c) the Commissioner or his representative; and (d) the Director of Legal Aid or his representative. (3) Notice of any appointment made under this section shall be published in the Gazette. (4) Schedule 1 has effect as regards the Board and its members. (5) The Chief Executive may by order amend Schedule 1. (Amended 56 of 2000 s. 3) (6) The Board is not a servant or agent of the Government, nor does it enjoy any status, immunity or privilege of the Government. (Amended 23 of 2002 s. 30) (Enacted 1991) Cap 365 s 4 Functions of the Board The functions of the Board are- (a) to hold the Fund upon trust to administer the Fund in accordance with the objects of this Ordinance; (b) to receive on behalf of the Fund any sum representing the net resources of the Employees' Compensation Insurance Levies Management Board distributed to the Board pursuant to section 7 of the Employees' Compensation Insurance Levies Ordinance (Cap 411); (c) to consider applications from persons applying for payment from or relief under the Fund; (d) from time to time to advise the Employees' Compensation Insurance Levies Management Board with respect to the amounts of known and anticipated claims against the Fund,and such other functions as may be assigned to it under this Ordinance. (Enacted 1991) Cap 365 s 5 Powers of the Board (1) The Board may do all such things as are expedient for or conducive to the attainment of the functions referred to in section 4 or which, in the opinion of the Board, are necessary to facilitate the proper carrying out of the functions of the Board. (2) Without restricting the generality of subsection (1) the Board may- (a) hold, acquire or take on lease movable and immovable property and sell, let or otherwise dispose of or deal with such property; (b) appoint such employees as it may determine on such terms and conditions of service as it thinks fit including the payment of allowances, benefits, gratuities, pensions and remuneration; (c) make or provide ex gratia payments to any employee of the Board, or to the personal representative of a deceased employee of the Board or to any other person who was dependent on such employee at his death; (d) subject to section 11, invest the moneys of the Fund in such manner and to such extent as it considers expedient and prudent; (e) subject to the approval of the Financial Secretary, borrow moneys, in such manner and on such securities or terms as it considers expedient and prudent, for payment into the Fund; and (f) exercise any of its powers either alone or in association with any person. (Enacted 1991) Cap 365 s 6 Board to be subject to directions of the Chief Executive in Council Remarks: Adaptation amendments retroactively made - see 56 of 2000 s. 3 The Chief Executive in Council may give to the Board such directions as he thinks fit for the purpose of securing the proper performance of the Board's functions and the Board shall comply with those directions. (Enacted 1991. Amended 56 of 2000 s. 3) Cap 365 s 7 Employees Compensation Assistance Fund PART III FINANCIAL PROVISIONS (1) There is established a fund to be known as the Employees Compensation Assistance Fund and comprising- (a) moneys received by the Board from the Employees' Compensation Insurance Levies Management Board; (aa) moneys received by the Board as surcharges under section 36A; (Added 16 of 2002 s. 5) (b) moneys received by the Board under Part V; (c) interest and other income derived from the moneys and investments included in the Fund; and (d) other moneys lawfully paid to the Board.(2) The Fund is vested in the Board. (Enacted 1991) Cap 365 s 8 Payments from the Fund The Board may pay from the Fund- (a) payments to or on behalf of persons eligible under Part IV; (b) expenses incurred by the Board for the purposes of this Ordinance; (c) capital, interest and charges in respect of any loan; and (d) any other sums required or permitted to be paid by the Board under this Ordinance. (Enacted 1991) Cap 365 s 9 Bank account (1) The Board shall open and maintain an account in the name of the Fund with a bank approved by the Financial Secretary. (2) The Board shall pay all moneys comprising the Fund into the account referred to in subsection (1). (Enacted 1991) Cap 365 s 10 Financial year and estimates (1) The Board shall fix any period of 12 months to be the financial year of the Board. (2) The Board shall, in each financial year, adopt estimates of income and expenditure in respect of the following financial year and, before a date to be appointed by the Secretary, send the estimates to the Secretary for his approval together with a programme of the Board's activities for that following financial year. (3) The Secretary may require the resubmission of estimates of income and expenditure or a programme of activities referred to in subsection (2), modified as he may direct. (4) The Board may from time to time vary the estimates submitted under subsection (2), including after their approval by the Secretary, and if it does so shall inform the Secretary in writing of the details of the variation. (Enacted 1991) Cap 365 s 11 Investment of surplus funds All moneys of the Board that are not immediately required to be expended shall be- (a) deposited in a bank approved by the Financial Secretary on fixed term or call deposits or in a savings account; or (b) invested in such other forms of investments approved by the Financial Secretary, either generally or in the particular case, for the purpose. (Enacted 1991) Cap 365 s 12 Accounts and statements (1) The Board shall keep proper books of account, vouchers, receipts and other records in relation to the accounts of the Board. (2) Within 4 months of the end of each financial year the Board shall cause to be prepared for the financial year immediately past statements of the accounts of the Board which shall- (a) include an income and expenditure account and balance sheet; and (b) be signed by the Chairman.(3) For the purposes of this section the Board may write off the whole or any part of any debt due to the Board which it reasonably considers irrecoverable. (Enacted 1991) Cap 365 s 13 Auditor (1) The Board shall appoint an auditor to audit the accounts of the Board. (2) The auditor appointed under this section is entitled at any time- (a) to have access to all books of account, vouchers, receipts and other records of the Board referred in section 12; and (b) to require such information and explanations, as he considers necessary to discharge his functions.(3) The auditor appointed under this section shall, as soon as is practicable and in any case not later than 3 months after the statements of account prepared under section 12 have become available, audit the accounts so prepared and submit a report on the accounts to the Board. (Enacted 1991) Cap 365 s 14 Director of Audit's examination (1) The Director of Audit may carry out such examination as he thinks fit into the economy, efficiency and effectiveness with which the Board has used its resources in performing its functions and exercising its powers. (2) The Director of Audit has a right of access at all reasonable times to all such documents in the custody or under the control of the Board as the Director may reasonably require for the purpose of carrying out an examination under subsection (1) and is entitled to require from any person holding or accountable for any such document such information and explanations (if any) as are reasonably necessary for that purpose. (3) The Director of Audit may submit to the Legislative Council the results of any examination carried out by him under subsection (1). (4) Subsection (1) shall not be construed as entitling the Director of Audit to question the merits of any of the Board's policy objectives. (Enacted 1991) Cap 365 s 15 Annual report Remarks: Adaptation amendments retroactively made - see 56 of 2000 s. 3 (1) The Board shall, not later than 9 months, or such longer period as the Chief Executive may determine, after the end of each financial year, submit- (a) a report on the activities and affairs of the Board for that year; (b) a copy of its statements of the accounts for that year; and (c) the auditor's report on the accounts,to the Chief Executive. (2) Any report or statement submitted to the Chief Executive under subsection (1) shall be laid on the table of the Legislative Council. (Enacted 1991. Amended 56 of 2000 s. 3) Cap 365 s 16 Application by employee etc. for payment from the Fund in relation to unpaid compensation PART IV PAYMENTS FROM THE FUND Claims against the Fund (1) A person who is unable to recover from an employer payment of an amount of compensation for which the employer is liable may apply for payment of that amount from the Fund. (Replaced 16 of 2002 s. 6) (2) For the purpose of this section an employer is not to be regarded as liable for the payment of an amount of compensation unless- (Amended 16 of 2002 s. 6) (a) the amount is payable- (Amended 16 of 2002 s. 6) (i) pursuant to a judgment or order of a court or tribunal of competent jurisdiction in Hong Kong; (ii) by virtue of section 16A(9) of the Employees' Compensation Ordinance (Cap 282) following an assessment of compensation by the Commissioner under that section; or (iii) pursuant to a Certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case issued under the Employees' Compensation Ordinance (Cap 282); (Amended 16 of 2002 s. 6) (iv) (Repealed 16 of 2002 s. 6)(b) in the case of an amount of medical expenses, a certificate has been issued by the Commissioner under section 10B(1) or (2) of the Employees' Compensation Ordinance (Cap 282) in respect of that amount; (Amended 1 of 1995 s. 17; 52 of 2000 s. 40) (c) in the case of a claim by the Director of Health ("the Director") for the cost of supplying and fitting a prosthesis or surgical appliance for which the employer is liable under section 36B of the Employees' Compensation Ordinance (Cap 282)- (i) a request for payment has been made by the Director in accordance with section 36D of that Ordinance; (ii) the time for service of a notice of grounds of dispute by the employer under section 36E of that Ordinance has expired; and (iii) no such notice has been served on the Director; or (Amended 52 of 2000 s. 40)(d) in the case of reimbursement of the expenses of the funeral of the deceased employee and expenses of the medical attendance on the deceased employee, a Certificate for Funeral and Medical Attendance Expenses or Review Certificate for Funeral and Medical Attendance Expenses has been issued under the Employees' Compensation Ordinance (Cap 282). (Added 52 of 2000 s. 40)(3) For the purpose of this section a person is not to be regarded as being unable to recover from an employer payment of an amount of compensation for which the employer is liable unless the person has taken such proceedings to recover payment of the amount- (a) from, wherever applicable- (i) the employer; (ii) the principal contractor who is liable to pay compensation to the person under section 24 of the Employees' Compensation Ordinance (Cap 282); and (iii) an insurer who has issued a policy of insurance- (A) which is in force in relation to the injured employee at the time of the accident concerned; and (B) indemnifying the employer, or the principal contractor mentioned in subparagraph (ii), in respect of such liability; and(b) as are reasonable in the circumstances, having regard to the likely cost of such proceedings, the resources available to the person and the amount likely to be recovered from, wherever applicable, the employer, the principal contractor and the insurer. (Replaced 16 of 2002 s. 6)(4) Notwithstanding subsections (1) and (3), where- (a) compensation under section 6(1) of the Employees' Compensation Ordinance (Cap 282) payable pursuant to- (i) a Certificate of Compensation Assessment for Fatal Case; or (ii) a Review Certificate of Compensation Assessment for Fatal Case; or(b) reimbursement under section 6(5) of that Ordinance payable pursuant to- (i) a Certificate for Funeral and Medical Attendance Expenses; or (ii) a Review Certificate for Funeral and Medical Attendance Expenses,has been fully paid by the employer or his insurer, no application shall lie for the payment thereof from the Fund. (Added 52 of 2000 s. 40) (Enacted 1991) Cap 365 s 17 (Repealed s. 46A(2) (see 16 of 2002 s. 30 & 37 of 2003 s. 4)) Cap 365 s 18 (Repealed s. 46A(2) (see 16 of 2002 s. 30 & 37 of 2003 s. 4)) Cap 365 s 18A (Repealed s. 46A(2) (see 16 of 2002 s. 30 & 37 of 2003 s. 4)) Cap 365 s 19 (Repealed s. 46A(2) (see 16 of 2002 s. 30 & 37 of 2003 s. 4)) Cap 365 s 20 (Repealed s. 46A(2) (see 16 of 2002 s. 30 & 37 of 2003 s. 4)) Cap 365 s 20A Application by employee etc. for relief payment from the Fund in relation to unpaid damages (1) An eligible person who is unable to recover from an employer payment of an amount of damages for which the employer is liable may apply for a relief payment of that amount from the Fund. (2) For the purposes of this section, an employer is not to be regarded as liable for the payment of an amount of damages unless the amount is payable pursuant to a judgment or order of a court of competent jurisdiction in Hong Kong. (3) For the purpose of this section, an eligible person is not to be regarded as being unable to recover from an employer payment of an amount of damages for which the employer is liable unless the eligible person has taken such proceedings to recover payment of the amount- (a) from, wherever applicable- (i) the employer; and (ii) an insurer who has issued a policy of insurance- (A) which is in force in relation to the injured employee at the time of the accident concerned; and (B) indemnifying the employer in respect of such liability; and(b) as are reasonable in the circumstances, having regard to the likely cost of such proceedings, the resources available to the eligible person and the amount likely to be recovered from, wherever applicable, the employer and the insurer.(4) Where- (a) an eligible person falls within paragraph (a)(ii) of the definition of "eligible person"; (b) the death of the injured employee concerned occurs before damages have been awarded; and (c) any amount of damages for which the employer concerned is liable is unable to be recovered from the employer,then the eligible person shall be deemed to be an eligible person who falls within subsection (1) in respect of those damages notwithstanding that the eligible person- (d) is not mentioned in the judgment or order concerned mentioned in subsection (2); and (e) is unable to take any proceedings mentioned in subsection (3). (Added 16 of 2002 s. 12) Cap 365 s 20B Amount of relief payment (1) Subject to section 20A(2) and subsection (3), the amount of a relief payment to an eligible person shall be the amount of damages for which the employer is liable to pay the eligible person after that amount is reduced by- (a) the amount, if any, of compensation which has been paid or is payable under the Employees' Compensation Ordinance (Cap 282) in respect of the injured employee in relation to the accident concerned; and (b) the amount, if any, of those damages already paid by the employer.(2) Subject to section 20A(2) and subsection (3), the aggregate amount of relief payment to one or more eligible persons who fall within section 20A(4) in the case of a particular injured employee shall be the amount of damages for which the employer concerned is liable to pay in relation to the accident concerned after that amount is reduced by- (a) the amount of compensation which has been paid or is payable under the Employees' Compensation Ordinance (Cap 282) in respect of the injured employee in relation to that accident; and (b) the amount, if any, of those damages already paid by the employer.(3) Notwithstanding the definitions of "compensation" and "damages", for the purposes of determining the amount of a relief payment- (a) any interest payable on any amount; and (b) any costs,arising from proceedings in respect of any damages or compensation claim shall not be included. (4) For the avoidance of doubt, it is hereby declared that where- (a) a non-fatal injury gives rise to a relief payment in relation to an eligible person who is the injured employee; and (b) that eligible person subsequently dies,then the balance, if any, of the relief payment shall be paid to the other eligible persons, if any- (c) remaining in relation to that first-mentioned eligible person; and (d) falling within paragraph (a)(ii) of the definition of "eligible person". (Added 16 of 2002 s. 12) Cap 365 s 20C Manner of payment of relief payment Expanded Cross Reference: 20D, 20E, 20F, 20G (1) Subject to subsections (3), (4) and (5) and sections 20D to 20G, where the amount of a relief payment does not exceed the prescribed relief payment, the Board shall pay the amount in full to the eligible person or eligible persons, as the case may be. <* Note - Exp. X-Ref.: Sections 20D, 20E, 20F, 20G *> (2) Subject to subsections (3), (4) and (5) and sections 20D to 20G, where the amount of a relief payment exceeds the prescribed relief payment, the Board shall pay the amount to the eligible person or eligible persons, as the case may be, as follows- <* Note - Exp. X-Ref.: Sections 20D, 20E, 20F, 20G *> (a) a first payment equivalent to the prescribed relief payment; and (b) subject to section 20D, subsequent monthly payments at the rate of- (i) the prescribed monthly amount; or (ii) the monthly earnings of the injured employee at the time of the accident concerned, whichever is the higher, together with, in the case of an eligible person who is a severely injured relevant eligible person, the prescribed monthly amount (extra).(3) A surviving child who was an eligible person falling within paragraph (a)(ii)(B) of the definition of "eligible person" at the time of the death of the injured employee- (a) shall be entitled to the payment under subsection (1) or (2)(a) notwithstanding that he has attained the age of 21 years or above at the time the payment is made; (b) shall not be entitled to a payment under subsection (2)(b) if he has attained the age of 21 years or above at the time the payment would, but for this paragraph, be made.(4) Where 2 or more eligible persons are entitled to receive a relief payment, the amount of relief payment paid to each eligible person shall not exceed the amount to which they are respectively entitled under section 20F. (5) For the purposes of calculating the rate of payments under subsection (2)(b), the monthly earnings of the employee concerned shall mean the employee's earnings as determined in accordance with section 11 of the Employees' Compensation Ordinance (Cap 282). (Added 16 of 2002 s. 12) Cap 365 s 20D Cessation of payments under section 20C(2)(b) (1) Payments under section 20C(2)(b) (other than a prescribed monthly amount (extra)) shall be payable until- (a) subject to section 20G, the amount of relief payment has been fully paid; or (b) in the case of each eligible person entitled to receive such payments, the person- (i) dies; or (ii) ceases to be entitled to receive such payments pursuant to section 20E,whichever is the earlier. (2) A prescribed monthly amount (extra) under section 20C(2)(b) shall be payable until- (a) subject to section 20G, the amount of relief payment has been fully paid; or (b) the severely injured relevant eligible person entitled to receive such payment- (i) dies; or (ii) has been fully paid the amount to which he is entitled, whether as relief payment or payment of damages from the employer or insurer concerned, including any combination thereof,whichever is the earlier. (Added 16 of 2002 s. 12) Cap 365 s 20E When eligible person ceases to be entitled to relief payment An eligible person shall cease to be entitled to a relief payment where- (a) subject to section 20C(3) in the case of an eligible person falling within paragraph (a)(ii)(B) of the definition of "eligible person", the person attains the age of 21 years; (b) the eligible person has been paid the amount to which the eligible person is entitled, whether as relief payment or payment of damages from the employer concerned, including any combination thereof. (Added 16 of 2002 s. 12) Cap 365 s 20F Apportionment of relief payment (1) Where 2 or more eligible persons are entitled to receive a relief payment in respect of a deceased employee, then the relief payment shall be apportioned as follows- (a) either- (i) on a pro rata basis in accordance with the respective amounts awarded to the eligible persons by the court mentioned in section 20A(2); or (ii) on an equal share basis if subparagraph (i) is not applicable or that court has not otherwise made an order on how the amount of damages should be apportioned amongst the eligible persons;(b) where an eligible person has died or is no longer entitled to a relief payment, the relief payment shall be re-apportioned to the remaining eligible persons in proportion to the outstanding amount of relief payment respectively due to them; (c) where an eligible person makes a successful application to the Board for a relief payment at a time when the payments under section 20C(2)(b) are being made to other eligible persons, the payments shall be re-apportioned- (i) from the date the Board makes a determination under section 22 that the first-mentioned eligible person is entitled to the relief payment; and (ii) to the first-mentioned eligible person and the other eligible persons in proportion to the outstanding amount of relief payment respectively due to them.(2) For the avoidance of doubt, it is hereby declared that the reapportionment of a relief payment under this section shall correspond with whichever of subsection (1)(a)(i) or (ii) is applicable to the relief payment. (Added 16 of 2002 s. 12) Cap 365 s 20G Set-off Where an eligible person- (a) is receiving payments under section 20C(2)(b); and (b) during the course of receiving the payments, receives any payment of an amount of damages in relation to the injury to which the payments relate,then the Board shall set-off from the outstanding amount of the payments due to the eligible person the amount of damages (including damages by way of indemnity) so received by the eligible person. (Added 16 of 2002 s. 12) Cap 365 s 21 Applications (1) An application for payment from the Fund under this Part shall, subject to section 25- (a) be made to the Board; and (b) unless the Board otherwise directs, be made in the manner and form specified by the Board. (Amended 16 of 2002 s. 13)(2) Upon receipt of an application under this Part, the Board shall carry out such inquiries as it considers necessary to make a determination under section 22. (3) It is the duty of every applicant to assist the Board in carrying out inquiries under this section, and where an applicant fails without reasonable excuse so to assist the Board, the Board may, notwithstanding any other provision, determine that the applicant shall not be entitled to payment from the Fund. (4) For the purpose of carrying out inquiries under this section the Board may- (a) require the employer (or the employee's representative) or the employee or his member of the family or representative, the employer's insurer or any other employee of the employer to furnish such information or particulars relating to an application; and (Replaced 16 of 2002 s. 13) (b) make such inquiries from any other person connected or associated with the application,as the Board considers necessary. (5) Where, by reason of the failure of a person other than an applicant to comply with a requirement or respond to an inquiry of the Board under subsection (4) an applicant or the Board incurs additional expense in proving or determining an application under this Part, such additional expense is recoverable from that person by the applicant or the Board as a debt due to the applicant or the Board, as the case may be. (Enacted 1991) Cap 365 s 22 Determination of applications by the Board (1) The Board shall in respect of any application under a section of this Part determine- (a) whether or not it is satisfied as to an applicant's entitlement to apply under that section; and (b) if so, what amount should be paid from the Fund; and (c) to whom such amount should be paid,and shall advise the applicant and any interested person by written notice of its determinations and, in particular, the amount of each payment, if any, to be made from the Fund by virtue of those determinations. (Amended 16 of 2002 s. 14) (2) Subject to subsection (3), an amount payable by the Board following a determination under this section carries simple interest at half the rate determined from time to time by the Chief Justice for the purpose of section 49(1)(b) of the High Court Ordinance (Cap 4) on such part of the amount as remains unpaid by the Board. (Amended 25 of 1998 s. 2; 16 of 2002 s. 14) (3) No interest is payable on an amount mentioned in subsection (2)- (a) which is a relief payment; (b) where the application concerned under section 16 is made after the expiration of 180 days after the date on which the employer concerned is liable for the payment of the amount, in respect of the period beginning on that expiration and ending on the date on which the application is so made; (c) in respect of the period beginning on the date the application concerned under section 16 is made and ending upon the expiration of 180 days after that date; (d) where section 25B is applicable, in respect of the period between the expiration of the period mentioned in section 25B(1)(c) and the date on which an extension, if any, is granted under section 25B(2); (e) (Repealed s. 46A(2) (see 16 of 2002 s. 30 & 37 of 2003 s. 4)) (Added 16 of 2002 s. 14)(4) No surcharge mentioned in paragraph (e) of the definition of "compensation" in section 3 of the Employees' Compensation Ordinance (Cap 282) shall be included in an amount mentioned in subsection (2)- (a) where the application concerned under section 16 is made after the expiration of 180 days after the date on which the employer concerned is liable for the payment of the amount, to the extent that the surcharge arises in respect of the period beginning on that expiration and ending on the date on which the application is so made; (b) to the extent that the surcharge arises in respect of the period beginning on the date of the application concerned under section 16 is made and ending upon the expiration of 180 days after the date. (Added 16 of 2002 s. 14)(5) The interest payable on an amount mentioned in subsection (2) before the determination mentioned in that subsection is made shall be the rate mentioned in that subsection or the rate specified by the court or tribunal concerned, whichever is the lower. (Added 16 of 2002 s. 14) (6) Subject to the provisions of this Ordinance, the Board may vary a determination under this section to take account of- (a) a person who becomes an eligible person on or after the date of the determination; or (b) the existence of an eligible person which was not known to the Board before that date. (Added 16 of 2002 s. 14) Cap 365 s 23 Costs: Payment in favour of employees (1) Where the Board has determined an application under section 16 in favour of an applicant then in addition to any amounts of compensation to be paid from the Fund the Board shall, subject to this section, agree to pay from the Fund- (Amended 16 of 2002 s. 15) (a) the costs incurred by the applicant in making the application; and (b) an amount equal to any costs payable to the applicant pursuant to an order of a court for costs against the employer or the employer's insurer in proceedings claiming the compensation. (Amended 16 of 2002 s. 15)(2) The costs payable by the Board under subsection (1)(a) shall be such costs as in the opinion of the Board would be allowed on taxation of those costs by the District Court on the common fund basis. (3) The applicant may, within one month of service on him by the Board of notice of the amount of costs it proposes to pay pursuant to subsection (1)(a), apply to the District Court for, and the District Court shall order, taxation by the District Court of the applicant's bill of costs in respect of his application under section 16, which taxation shall be on the common fund basis, and the Board shall be liable to pay the costs of the applicant so taxed. (4) Where an application relates to compensation which are or have been the subject of proceedings in any court in which an order was made apportioning costs as between the Board and the employee, the Board shall only be liable for the purposes of subsection (1)(a) to pay the employee's costs in the same proportion as was so ordered in those proceedings. (Amended 16 of 2002 s. 15) (5) The amount payable by the Board pursuant to subsection (1)(b) in respect of costs ordered by a court shall be only such amount as has been allowed, or would in the opinion of the Board be allowed, on taxation of those costs on a party and party basis. (6) Section 37 applies in respect of a payment made from the Fund pursuant to subsection (1)(b) as if such payment were payment of an amount of compensation . (Amended 16 of 2002 s. 15) (7)-(10) (Repealed 37 of 2003 s. 2) (11) Amounts determined by the Board or by a court under this section become payable as and when the amount determined in respect of the application under section 16 becomes payable. (Amended 37 of 2003 s. 2) (Enacted 1991) Cap 365 s 23A (Repealed s. 46A(2) (see 16 of 2002 s. 30 & 37 of 2003 s. 4)) Cap 365 s 23B (Repealed s. 46A(2) (see 16 of 2002 s. 30 & 37 of 2003 s. 4)) Cap 365 s 24 Proceedings against the Board where applicant dissatisfied (1) An applicant who is dissatisfied with a determination of the Board under section 22 may commence proceedings in a court against the Board. (2) Proceedings under this section shall be commenced by writ. (Enacted 1991) Cap 365 s 25 Board liable in certain proceedings as if employer (1) This section applies to any claim against an employer for compensation where- (Amended 16 of 2002 s. 16) (a) the employer- (i) cannot be identified or, if identified, cannot be found; (ii) is insolvent; (iii) is dead or in the case of a company, has been dissolved, wound up or struck off the register; or (iv) for any reason, cannot be served with proceedings; and(b) no policy of insurance is known to be in force in relation to the employee.(2) Subject to this section, proceedings for any claim against an employer to which this section applies may issue against the Board as if it were the employer. (3) Proceedings against the Board under this section shall not issue unless the court is satisfied, on application made on notice to the Board, as to the matters specified in subsection (1)(a) and (b). (4) Where proceedings are brought against the Board under this section, the rights and liabilities of the employer in respect of the compensation the subject of the proceedings are vested in and transferred to the Board. (Amended 16 of 2002 s. 16) (Enacted 1991) Cap 365 s 25A Board may apply to be joined as party to proceedings If proceedings have been initiated to claim compensation or damages (whether initiated before, on or after the commencement* of this section), the Board may apply to the court to be joined as a party to the proceedings as follows- (a) where no policy of insurance is known to be in force at the time of the accident to which the proceedings relate, the Board may apply to the court to join in the proceedings as a party in accordance with Order 15, rule 6 of the Rules of the High Court (Cap 4 sub. leg. A) or Order 15, rule 6 of the Rules of the District Court (Cap 336 sub. leg. H), as the case may require, to take over the defence as if it were the employer in the proceedings if- (i) the employer cannot be identified or, if identified, cannot be found; (ii) the employer is insolvent; (iii) the employer is dead or has been dissolved, wound up or struck off the register; (iv) the employer, for any reason, cannot be served with the notice of proceedings; or (v) at any time when the employer fails to attend the hearing, leaving the claim uncontested;(b) where no policy of insurance is known to be in force at the time of the accident to which the proceedings relate and the employer is present at the proceedings, the Board may apply to the court to join in the proceedings as a party in accordance with Order 15, rule 6 of the Rules of the High Court (Cap 4 sub. leg. A) or Order 15, rule 6 of the Rules of the District Court (Cap 336 sub. leg. H), as the case may require; (c) where the insurer concerned is insolvent, the Board may apply to the court to join in the proceedings as a party in accordance with Order 15, rule 6 of the Rules of the High Court (Cap 4 sub. leg. A) or Order 15, rule 6 of the Rules of the District Court (Cap 336 sub. leg. H), as the case may require. (Added 16 of 2002 s. 17)___________________________________________________________________ Note: * Commencement date: 1 July 2002. Cap 365 s 25B Notification of proceedings (1) Where, after the commencement* of this section, a person commences by writ proceedings in respect of a claim for compensation or damages, the person shall serve on the Board and, where applicable, the insurer concerned a notice of the proceedings- (a) in writing in a form specified by the Board, signed by the person and accompanied by a copy of the writ; (b) by registered post; and (c) subject to subsection (2), not later than 30 days after the date on which the writ is filed with the court.(2) The Board may extend the period specified in subsection (1) in the case of a person who satisfies the Board, by notice in writing served on the Board, that there are good reasons why the person cannot, or failed to, comply with subsection (1) within that period. (3) A person who has served a notice under subsection (1) on the Board and who intends, within 45 days after the date on which the notice has been so served, to- (a) enter into an agreement with the other party in respect of the settlement of the claim to which the notice relates; or (b) obtain any judgment against the other party in respect of the claim to which the notice relates,shall, subject to subsection (4), not less than 10 days before the date of such agreement or judgment, as the case may be, serve a notice in writing on the Board informing the Board that the person intends to enter into an agreement or obtain a judgment, as the case may be, in respect of that claim within 45 days after the date on which the first-mentioned notice has been served on the Board. (4) The Board may shorten the period of 10 days specified in subsection (3) in the case of a person who satisfies the Board, by notice in writing served on the Board, that there are good reasons why the person cannot, or failed to, comply with that subsection in relation to that period. (5) It is hereby declared that- (a) separate notices are required under subsection (1) in respect of a claim for compensation and a claim for damages; (b) a notice under subsection (1) may be accompanied by a notice under subsection (3).(6) A person who fails to comply with subsection (1) or (3) in respect of a claim mentioned in that subsection shall not be entitled to any payment under this Ordinance in respect of the claim, and notwithstanding the other provisions of this Ordinance. (7) Upon receipt of a notice under this section, the Board shall carry out such inquiries as it considers necessary to facilitate the proper carrying out of the functions of the Board in relation to the claim to which the notice relates. (8) For the purpose of carrying out inquiries under this section, the Board may- (a) require the employer (or the employer's representative) or the employee or his member of the family or representative, the employer's insurer or any other employee of the employer to furnish such information or particulars relating to the claim; and (b) make such inquiries from any other person connected or associated with the claim,as the Board considers necessary. (Added 16 of 2002 s. 17)___________________________________________________________________ Note: * Commencement date: 1 July 2002. Cap 365 s 26 Priority of payments from the Fund Miscellaneous (1) Notwithstanding this Ordinance or any other law, where an amount is liable to be paid from the Fund under this Part, no part of such amount becomes payable by the Board unless and until- (a) there are sufficient moneys available to the Fund to pay the whole of such amount; and (b) all other such amounts which have priority over that amount for the purposes of this section, being amounts which would otherwise be payable by the Board, have been paid from the Fund or have been provided for by the Board.(2) Payments from the Fund shall be made only in accordance with the following priority- (a) amounts liable to be paid in respect of applications under section 16 shall have priority over amounts liable to be paid in respect of applications under section 20A; (Replaced 16 of 2002 s. 18. Amended s. 46A(3) (see 16 of 2002 s. 30)) (b) (Repealed s. 46A(3) (see 16 of 2002 s. 30)) (ba) (Repealed s. 46A(3) (see 16 of 2002 s. 30)) (bb) amounts liable to be paid in respect of applications under section 20A where section 20C(1) or (2)(a) is applicable shall have priority over amounts liable to be paid in respect of applications under that section where section 20C(2)(b) is applicable; (Added 16 of 2002 s. 18. Amended s. 46A(3) (see 16 of 2002 s. 30)) (bc)-(bd) (Repealed s. 46A(3) (see 16 of 2002 s. 30)) (c) in particular as between amounts liable to be paid in respect of applications under the same section, the amount to which the earliest date of accident applies shall have priority over all other such amounts.(3) For the purposes of this section- (a) a judgment debt in proceedings against the Board under section 24 is to be treated as an amount liable to be paid from the Fund in respect of an application under the section in respect of which the judgment is given; (b) a judgment debt in proceedings against the Board under section 25(2) is to be treated as an amount liable to be paid from the Fund in respect of an application under section 16; and (c) the date of accident applicable to an amount liable to be paid from the Fund in respect of an application under this Part is the date of the accident giving rise to the injury to which the application relates. (Enacted 1991) Cap 365 s 27 Payments by the Brewin Trust Fund For the purposes of any application or proceedings under this Part, the amount of compensation or damages for which an employer is liable is reduced by the value, as decided by the Board or the court, of any payment made by the Brewin Trust Fund established under section 3 of the Brewin Trust Fund Ordinance (Cap 1077) in respect of the injury for which the compensation or damages is claimed. (Enacted 1991) Cap 365 s 28 Payments in anticipation of entitlement under section 16, etc. (1) Where it appears to the Board that a person is or might be entitled to apply under section 16 for a payment from the Fund, the Board may, in the interests of the protection of the Fund, and on such terms as it sees fit, offer to pay from the Fund to or on behalf of that person an amount in satisfaction of such entitlement. (Amended 16 of 2002 s. 19; s. 46A(4) (see 16 of 2002 s. 30)) (2) (Repealed s. 46A(4) (see 16 of 2002 s. 30)) (3) If a person accepts an offer made under subsection (1) and receives payment accordingly, that person shall not have the right to make an application under section 16 in respect of the claim to which the offer relates. (Added 16 of 2002 s. 19. Amended s. 46A(4) (see 16 of 2002 s. 30)) (4) If an offer made under subsection (1) is not accepted by a person, and in subsequent proceedings in respect of the claim to which the offer relates the person is awarded an amount not more than the amount offered by the Board, then the Board- (a) shall not be required to pay more than the amount as awarded by the court or tribunal concerned; and (b) shall not be liable to pay the costs incurred by the person after the date of the offer to which the claim relates. (Added 16 of 2002 s. 19)(5) Where the Board takes part in proceedings in respect of a claim for compensation, the Board shall have the right to agree costs with the parties involved in the proceedings prior to taxation. (Added 16 of 2002 s. 19) (Enacted 1991) Cap 365 s 29 Written offers by the Board in proceedings (1) Notwithstanding any other law where, in proceedings to which the Board is a party under this Part, the Board makes a written offer to any other party in the proceedings which is expressed to be "without prejudice save as to costs" and which relates to an issue in the proceedings, then in deciding the question of costs the court shall take into account any such offer which has been brought to its attention. (2) An offer made under subsection (1) shall not be communicated to the court until the question of costs falls to be decided. (Enacted 1991) Cap 365 s 30 Ex gratia payment Where it appears to the Board that a person is unable to establish entitlement to payment from the Fund pursuant to section 16 by reason, and by reason only, of the operation of a period of limitation in respect of a claim against an employer, the Board may, if it sees fit and in such amount as it considers appropriate in the circumstances, determine to make an ex gratia payment to the person from the Fund. (Enacted 1991) Cap 365 s 31 (Repealed s. 46A(5) (see 16 of 2002 s. 30)) Cap 365 s 32 Rules of Court The Chief Justice may make rules for proceedings to which this Part relates. (Enacted 1991) Cap 365 s 33 Application of this Part No claim lies under this Part in respect of- (a) any compensation or damages for injury to an employee where the accident by which the injury was sustained occurred before 1 January 1984 (being the date on which Part IV of the Employees' Compensation Ordinance (Cap 282) came into operation); (b) any indemnification under a policy of insurance for such compensation or damages as are referred to in paragraph (a); (c) any liability of an employer to which section 40(1A) of the Employees' Compensation Ordinance (Cap 282) applies; or (d) any compensation or damages for injury to an employee who has been engaged outside Hong Kong by an employer who- (i) is outside Hong Kong; and (ii) has no place of business in Hong Kong (and whether or not the employer's business is for gain). (Added 16 of 2002 s. 21) (Enacted 1991. Amended 16 of 2002 s. 21) Cap 365 s 34 Application of law of limitations For the purposes of any proceedings under this Part, the operation of any period of limitation for an action against an employer in respect of injury to an employee sustained by an accident shall, where the accident occurred on or after 1 January 1984 but before the commencement of this Ordinance, take effect as if the accident had occurred on the date on which this Ordinance commences. (Enacted 1991) Cap 365 s 35 Survival of rights (1) Subject to subsection (2), on the death of any person in whose favour the Board has determined an application under section 22, the rights and entitlement of that person as against the Board survive for the benefit of his estate. (Amended 16 of 2002 s. 22) (2) Subsection (1) does not apply in the case of any rights and entitlement of a person in respect of a relief payment. (Added 16 of 2002 s. 22) (Enacted 1991) Cap 365 s 36 Saving as to rights and liabilities under Cap. 282 Nothing in this Ordinance affects the rights or liabilities of any person under the Employees' Compensation Ordinance (Cap 282). (Enacted 1991) Cap 365 s 36A Surcharge (1) An employer who contravenes section 40(1) of the Employees' Compensation Ordinance (Cap 282) shall be liable to pay a surcharge to the Board in accordance with this section. (2) Subject to subsections (3) and (4), the amount of surcharge payable by an employer under subsection (1) shall be 3 times the levy payable to the Board under the Employees' Compensation Insurance Levies Ordinance (Cap 411) on the premium paid in respect of the policy of insurance obtained to cause the cessation of the contravention referred to in that subsection to which the surcharge relates. (3) Subject to subsection (4), the amount of surcharge payable by an employer under subsection (1) shall be the prescribed surcharge where- (a) the employer fails to comply with a requirement under subsection (5) in any case where paragraph (b) is not applicable and the Board is otherwise unable to obtain the information and particulars necessary for subsection (2) to apply in the case of the employer; or (b) the employer is not required to comply with section 40(1) of the Employees' Compensation Ordinance (Cap 282) to cause the cessation of the contravention referred to in that subsection to which the surcharge relates.(4) Where- (a) an employer has contravened section 40(1) of the Employees' Compensation Ordinance (Cap 282) ("first contravention"); (b) a notice in writing under subsection (6)(a) has been served on the employer in respect of the first contravention; and (c) the employer has, not later than 24 months after the date on which that notice was so served, again contravened section 40(1) of that Ordinance ("second contravention"),then, in the case of the second contravention, the amount of surcharge payable by the employer under subsection (1) by virtue of subsection (2) or (3) shall be multiplied by a factor of 2. (5) The Board may serve a notice in writing on an employer or insurer requiring the employer or insurer, as the case may be, to furnish information and particulars- (a) which enables the Board to determine, to its satisfaction, the amount of surcharge payable by the employer under subsection (1); and (b) within the period specified in the notice, being a period reasonable in all the circumstances of the case.(6) Where a surcharge is payable under this section by an employer- (a) the Board shall serve a notice in writing ("demand notice") on the employer, accompanied by a copy of this section in the Chinese and English languages, advising the employer- (i) of the surcharge, its amount, the grounds therefor and the period, being a period of not less than 30 days after the date of service of the demand notice, within which the employer shall pay the surcharge to the Board; and (ii) that the employer may, not later than 14 days after the date of service of the demand notice, serve a notice in writing ("review notice") on the Board requesting the Board to review, on the grounds specified in the review notice, the amount of the surcharge or the grounds therefor or both;(b) the Board shall carry out a review requested in a review notice and serve a notice in writing ("final notice") on the employer- (i) advising the employer that the demand notice is- (A) confirmed; (B) varied in the manner specified in the final notice and for the reasons stated therein; or (C) withdrawn; and(ii) not later than 30 days after receipt of the review notice.(7) An employer who is not satisfied with a determination of the Board as specified in a final notice under subsection (6)(b) may appeal against the determination to the District Court not later than 30 days after the final notice is served on the employer. (8) The District Court may in a particular case extend the period specified in subsection (7) where it thinks fit to do so. (9) On an appeal under subsection (7), the District Court may- (a) by order confirm, vary or cancel the determination of the Board as specified in the final notice the subject of the appeal; (b) make such order as to costs as it thinks fit.(10) A surcharge under this section shall be recoverable as a civil debt due to the Board. (11) In this section, "employer" (雇主) includes a former employer. (Added 16 of 2002 s. 23) Cap 365 s 37 Subrogation PART V RECOVERY OF PAYMENTS (1) Where a payment is made from the Fund under Part IV to any person ("the recipient"), being payment of an amount of compensation or damages which an employer, insurer or third party is liable to pay the recipient, all the rights and remedies of the recipient with respect to- (a) the compensation or damages existing immediately before the payment are, to the extent of the amount of the payment; and (b) any sum payable in respect of interest or costs in respect of the compensation or damages are,transferred to and vested in the Board for the benefit of the Fund. (Replaced 16 of 2002 s. 24) (2) (Repealed s. 46A(5) (see 16 of 2002 s. 30)) (3) The Board may take such steps as it considers necessary to enforce the rights and remedies transferred and vested in it under this section, including steps where the Board permits in writing the recipient or employer from whom the rights and remedies were transferred to take proceedings to recover, for the benefit of the Fund, the amount (or any part thereof) to which the rights and remedies relate. (Replaced 16 of 2002 s. 24) (4) Where the amount of compensation or damages for which an employer is liable exceeds the amount of any payment from the Fund in respect of that liability, nothing in this section affects the rights or remedies of the recipient of the payment as regards the amount of the excess. (5) (Repealed s. 46A(5) (see 16 of 2002 s. 30)) (6) For the purposes of this section- (a) any payment made under section 28 to a person shall be deemed as a payment which the employer is liable to make to the person; (b) a relief payment shall be deemed to be payment of an amount of damages,and the provisions of this section shall be construed accordingly. (Added 16 of 2002 s. 24) (Enacted 1991) Cap 365 s 37A Recovery of payment Where an eligible person receives any amount of damages in respect of an injury for which a relief payment has already been made, then the Board shall be entitled to recover from the eligible person as a civil debt such part, if any, of that amount which, taken together with the relief payment, is in excess of the amount of damages to which the eligible person is entitled. (Added 16 of 2002 s. 25) Cap 365 s 38 Recovery of payment made by mistake (1) Where any payment is made from the Fund under a mistake of law or fact, the payment is recoverable by the Board from the person to whom such payment was made as a debt due to the Board. (Amended 16 of 2002 s. 26) (2) (Repealed 16 of 2002 s. 26) (Enacted 1991) Cap 365 s 39 Recovery of payment where false statement by recipient (1) Where- (a) a payment is made from the Fund to a person ("the recipient" (收款人)) under Part IV; and (b) the recipient had, for the purposes of the application in respect of which the payment was made- (i) made any statement which he knew to be false in a material particular, or recklessly made a statement which was false in a material particular; or (ii) with intent to deceive, produced, supplied or sent or otherwise made use of any document or record which was false in a material particular,the payment is recoverable by the Board from the recipient as a debt due to the Board. (2) In this section "application" (申请) includes an inquiry by the Board under this Ordinance in respect of the application. (Enacted 1991) Cap 365 s 40 Offences PART VI MISCELLANEOUS (1) Any person who- (a) in providing information for the purposes of this Ordinance, including any inquiry under this Ordinance, makes any statement which he knows to be false, or does not believe to be true, in a material particular or recklessly makes a statement which is false in a material particular; or (b) for the purposes of this Ordinance, including any inquiry under this Ordinance, and with intent to deceive, produces, supplies or sends, or otherwise makes use of, any document or record or makes any declaration which is to his knowledge false, or which he does not believe to be true, in a material particular,commits an offence and is liable to a fine at level 6 and to imprisonment for 12 months. (Amended 16 of 2002 s. 27) (2) Any person who, without reasonable excuse, fails to comply with any requirement, or respond to any inquiry, imposed or made by the Board under section 21(4) or 25B(8) or, where the person is an insurer, 36A(5) commits an offence and is liable to a fine at level 2 and to imprisonment for 1 month. (Amended 16 of 2002 s. 27) (3) Without prejudice to any Ordinance relating to the prosecution of offences or to the powers of the Secretary for Justice in respect of the prosecution of criminal offences, a prosecution for an offence under this Ordinance may be brought in the name of the Board and commenced and conducted by a member, or an officer, of the Board authorized in that behalf in writing by the Board. (Amended L.N. 362 of 1997) (4) Where the Board or any officer authorized under subsection (3) makes a complaint or lays an information for an offence under this Ordinance, the complainant or informant is deemed to be acting on behalf of the Secretary for Justice. (Amended L.N. 362 of 1997; 23 of 2002 s. 3) (Enacted 1991) Cap 365 s 41 Regulations (1) The Chief Executive in Council may make regulations- (Amended 56 of 2000 s. 3) (a) providing for- (i) the making of applications under Part IV; (ii) the carrying out of inquiries by the Board into an applicant's eligibility for relief; (iii) the procedures for making payments from the Fund; (iv) (Repealed s. 46A(5) (see 16 of 2002 s. 30)) (v) the recovery of payments by the Board under Part V;(b) for any matter or any form which is to be or may be prescribed; and (c) generally for the better carrying out of the provisions and purposes of this Ordinance.(2) Regulations made under this section may provide that a contravention of any specified provision of any such regulation is an offence and may provide penalties for breach of the offence not exceeding a fine at level 3 and imprisonment for 3 months. (Amended 16 of 2002 s. 28) (Enacted 1991) Cap 365 s 42 Protection of members, etc. of Board (1) No- (a) member of the Board; (b) member of any committee of the Board; (c) employee of the Board; or (d) person exercising powers in association with the Board under section 5(2)(f),acting in good faith is personally liable for any act done or default made by- (i) the Board; (ii) any committee of the Board; or (iii) any such member, employee or person,in the exercise or performance (or the purported exercise or performance) of any of the powers or functions conferred or imposed on the Board under this Ordinance. (2) The protection afforded under subsection (1) to any member, employee or other person in respect of any act or default does not affect any liability of the Board for that act or default. (Enacted 1991) Cap 365 s 43 Evidence by certificate A certificate purporting to be signed by the Chairman or any member authorized by the Board stating- (a) that an amount of money has been paid from the Fund to the person named in the certificate on the date specified; or (b) the nature of the liability of the employer in respect of which the amount was paid, (Amended s. 46A(6) (see 16 of 2002 s. 30))is sufficient evidence of that fact in any proceedings until the contrary is proved. (Enacted 1991) Cap 365 s 44 Service by post Any document required to be served under this Ordinance may be served by post. (Enacted 1991) Cap 365 s 45 Financial Secretary may charge fees The Financial Secretary may charge fees for any service provided to the Board by the Government. (Enacted 1991) Cap 365 s 45A Amendment of Schedule 4 The Secretary may, by notice published in the Gazette, amend Schedule 4. (Added 16 of 2002 s. 29) Cap 365 s 46 Transitional (1) Nothing in the Employees' Compensation (Amendment) Ordinance 1996 (36 of 1996) ("the amending Ordinance") shall apply to applications for payment under section 16, 17 or 18 in respect of claims for compensation arising from accidents occurring before the commencement* of the amending Ordinance and section 16(2)(a)(ii) shall continue to apply to such applications as if it had not been repealed by the amending Ordinance. (Amended 52 of 2000 s. 42) (2) Nothing in the Employees' Compensation (Amendment) (No. 2) Ordinance 2000 (52 of 2000) shall apply to applications for payment from the Fund in respect of claims for compensation arising from accidents occurring before the commencement# of that Ordinance, and the provisions in force immediately before the commencement# of that Ordinance shall continue to apply to such applications as if they had not been repealed or amended by that Ordinance. (Added 52 of 2000 s. 42) (Added 36 of 1996 s. 34)___________________________________________________________________ Note: * Commencement date: 1 July 1996. # Commencement date: 1 August 2000. Cap 365 s 46A Transitional provisions in relation to Employees Compensation Assistance (Amendment) Ordinance 2002 (1) Where before the commencement+ of section 6 of the Employees Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002) an employer is liable for the payment of an amount of compensation or damages for the purposes of section 16 as in force immediately before that commencement+, then- (a) the provisions of this Ordinance as amended by that Ordinance shall n
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