30 December 2020
Background
In Hong Kong, the law imposes general duties on contractors to ensure the safety and health of their employees. Section 6 of the Factories and Industrial Undertakings Ordinance, Cap. 59 ("FIUO") provides:
"It shall be the duty of every proprietor of an industrial undertaking to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking."
In this article, by reference to a recent Court of Appeal decision, we will look at common law defence of "honest and reasonable belief" and whether this defence is available to contractors allegedly in breach of their general duties.
Recent judgment
The Accident / The Decision Below
In HKSAR v Gammon Construction Limited [2020] HKCA 752 (HCMA 97/2019)1 , a fatal industrial accident happened on 23 April 2016 during the construction of a viaduct between the Hong Kong-Zhuhai-Macau Bridge and the North Lantau Highway. A metal fence suddenly detached from a pre-cast segment and a worker who had attached the lanyard of his safety harness to the metal fence fell into the sea together with the metal fence.
The prosecution alleged that the principal contractor, Gammon Construction Limited ("the Appellant"), had, amongst others, failed to: provide and maintain a safe system of work; provide necessary instructions and supervision for the health and safety at work of persons employed at an industrial undertaking, contrary to sections 6 and 13 of the FIUO.
At the trial, the magistrate ruled that the prosecution had on evidence made out their case and the Appellant was convicted of the offences.
The Appeal / "Honest and Reasonable Belief"
The Appellant appealed against the decision of the magistrate.
One of the grounds of appeal involved the examination of the nature of section 18 of the FIUO and whether the common law defence of "honest and reasonable belief" would be available .
Section 18 of the FIUO provides:
"(1)In a proceeding for an offence under a provision in this Ordinance consisting of a failure to comply with a duty or requirement to do something so far as is necessary, where practicable, so far as is reasonably practicable, or so far as practicable or to take all reasonable steps, all practicable steps, adequate steps or all reasonably practicable steps to do something, the onus is on the accused to prove that it was not necessary, not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that he has taken all reasonable steps, or practicable steps or done the appropriate thing to satisfy the duty or requirement." (Emphasis added)
The Appellant contended that section 18 was limited to putting the onus of proving what is reasonably practicable upon the defence, and that a good defence is made out if the defendant could show "on the balance of probabilities that he acted or omitted to act in the honest and reasonable belief that the circumstances of likely consequences of his conduct were such that, if true, he would not be guilty of the offence" 2 ("the Common Law Defence").
The Court of Appeal, however, made it clear that section 18 provides a statutory defence, and does not leave any room for the Common Law Defence. 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 held. 3
Importantly, the Court said4 :
"In our judgment, the two limbs of the defence under section 18 of the Ordinance do not, as a matter of construction, leave room for the common law defence in the present case. For, if a defendant must prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty under section 6A, then an honest and reasonable belief that it was not reasonably practicable to do more should not excuse him. 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."
In other words, if a contractor is unable to show a statutory defence (i.e. "prove that it was not necessary, not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement" or "prove that he has taken all reasonably practicable steps to satisfy the duty "), it is unlikely to have any further options.
Implication / Way Forward
Given that the Court of Appeal has now made it clear that the Common Law Defence is not a valid defence for general duties offences, it is likely that contractors will find it more difficult when defending cases arising out of a general duty (particularly if brought about by failures of sub-contractors). Contractors will need to be more prudent in devising their safety protocols in order to stand a better chance to defend their cases successfully if they are prosecuted.
For example, contractors should review their method statements and risk assessments for those works which involve dangerous activities, update their internal safety rules and guidelines to cater for possible dangerous situations, provide more frequent and comprehensive trainings to workers, conduct more frequent inspections on the sites, etc. It is recommended to make detailed documentation so that in case there is prosecution, contractors may be able to use this documentation to defend successfully on the basis it can be shown and proved that it was not practicable or not reasonably practicable to do more than was in fact done.
For further information, please contact
Christopher Short, Partner, Clyde & Co
Christopher.Short@clydeco.com
1https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=130626&currpage=T
2The Appellant contended that the offences laid against it should fall under the third category in Kulemesin v HKSAR (2013) HKCFAR 195, vide para 83(c). In Kulemesin, the CFA identified five alternative regimes regarding mens rea (i.e. guilty mind), ranging from the presumption of mens rea to the complete displacement of mens rea, with a number of halfway house alternatives.
3The Court of Appeal considered that the mental state applicable came within the fourth category of Kulemesin, namely, the presumption of mens rea has been displaced and that the defendant is confined to relying on the statutory defences expressly provided for.
4Paragraph 39 of the Judgment
