The Court of Appeal was ruling on an appeal brought by Gammon Construction following the death of a worker at the construction site for a new viaduct in 2016. A Thai worker engaged by a subcontractor fell into the sea and drowned while working on the bridge after the metal fence to which he attached the lanyard of his safety harness suddenly detached from the bridge.
Gammon Construction, the main contractor for the project, was convicted of failing to provide and maintain a safety system of work under the Factories and Industrial Undertakings Ordinance (FIUO); failing to provide necessary instruction and supervision for the health and safety at work of persons employed at an industrial undertaking; and failing to develop, implement and maintain a safety management system.
Construction law expert Alvin Ho of Pinsent Masons, the law firm behind Out-Law, said: “Prosecutions of industrial summonses do not often find their way to the High Court and it is even more rare for these cases to come directly before the Court of Appeal. This case clarifies a number of important questions of law often encountered by practitioners. Main contractors in Hong Kong who are held criminally liable under the FIUO for violations committed by their subcontractors will find it even more difficult to defend these 'general duty' prosecutions, especially given that the primary offenders, the subcontractors, will typically give up defending and plead guilty to their summonses at the outset to avoid the time and cost of a full hearing process.”
The court found that section 18 of the FIUO put the onus on contractors to show that it was not practicable to do more than they had done to satisfy the duty or requirement to protect the safety of their workers.
The Court of Appeal also rejected Gammon’s argument that in addition to relying on a statutory defence it could also rely on the common defence that, on the balance of probabilities, it acted or failed to act in the honest and reasonable belief that it had taken all reasonably practicable steps to satisfy its duty under the FIUO.
“It would defeat the important objects of the ordinance if a defendant could plead that even if he could not prove that it was not reasonably practicable to do more, he nevertheless honestly and reasonably believed it was enough. Similarly, if a defendant must prove that he has taken all reasonably practicable steps to satisfy the duty, what is required is more than just a belief, however honestly or reasonably held. In either limb of the statutory defence, the availability of the common law defence would nullify what the law requires by this offence,” the court said.
Ho said the court had therefore confirmed that in the event a contractor facing these 'general duty offences failed to establish a statutory defence at trial, no other defence was available.
The Court also ruled that some industrial offences create absolute liability and are not defensible. Under section 8(1) of the FIUO, contractors in Hong Kong having an aggregate of 100 or more workers in a day working in a single construction site have to develop, implement, and maintain a safety management system.
The court agreed with the magistrate that an offence under section 8(1) creates absolute liability, so that the prosecution succeeds if the prohibited act or omission is proved against the contractor, regardless of his state of mind in respect of the relevant elements of the offence in question.