Out-Law News 1 min. read
28 Apr 2023, 1:18 am
Contractors in Hong Kong Special Administrative Region (SAR) could be imprisoned for two years and fined up to HK$10 million (US$1.27m) for failing to protecting workers employed by themselves and their subcontractors.
The Legislative Council of Hong Kong SAR (LegCo) passed the third reading of the amendment bill to the Occupational Safety and Health Ordinance. The maximum fine for offenses under the legislation has been increased to HK$10 million from HK$500,000.
Alvin Ho of Pinsent Masons said: “A number of recent high-profile fatal accidents at construction sites have provided the catalyst for passing this amendment bill. Whilst a wholesale reform to the occupational safety regime in Hong Kong has been long overdue, the focus of the amendment bill rests primarily on increasing the penalties imposed on contractors.”
“This will be a gamer-changer for the construction industry. The consequences of being prosecuted and convicted for safety offences have increased dramatically for contractors following the passing of the amendment bill. The maximum fines of HK$10 million for extremely serious breaches triable as indictable offences and HK$3 million for summary offences are daunting. For many contractors this will be one of the first issues for immediate boardroom discussion,” he said.
According to the amendment bill, the court is required to take into account any financial information provided by the convicted contractor to determine the scale of the convicted contractor's operations and therefore determine an appropriate fine with sufficient deterrent effect. If the convicted contractor ultimately fails to provide any financial information to the court, the court must take into account any other sources of financial information provided by the prosecution.
Hinson Cheung of Pinsent Masons said: “The reform also allows prosecutions to be made under indictment, in case of very serious offences where the accused is considered highly culpable and the negligence level is very serious. This is a drastic change to the occupational safety and health regime in Hong Kong. While the Labour minister stated that it requires a very high threshold, it remains to be seen how the prosecution would approach the same. “
“Clear guidelines should be given to the industry. The Labour Department should also consider devising more codes of practice, in consultation with the industry, for different trades of works in order to let the industry to have clear ideas what are the standard or requirements expected,” Cheung said.
The amendment to the Occupational Safety and Health Ordinance also extends the period for prosecuting summary offences from six months to nine months “to strike a balance between allowing sufficient time for investigations and avoiding undue delay in prosecution,” said Ho.
The bill to amend the occupational health and safety regime was published in June
14 Jun 2022