Following the Hong Kong Government’s commitment in the 2017 Policy Address to review the penalty regimes of the relevant occupational safety and health legislations (OSH) in Hong Kong, the Occupational Safety and Occupational Health Legislation (Miscellaneous Amendments) Bill 2022 (Bill) was published on 13 May 2022, with a view to reducing the number of serious and fatal industrial accidents in Hong Kong (which have been hovering at around 20 cases annually in recent years).
The Bill seeks to amend the Factories and Industrial Undertakings Ordinance (Cap. 59) (FIUO) and the Occupational Safety and Health Ordinance (Cap. 509) (OSHO), as well as the subsidiary regulations, to increase the penalties for OSH offences and enhance their deterrent effect.
(a) Offences under general duty provisions for employers, proprietors and occupiers of premises will become indictable
Between them, the FIUO and OSHO impose “general duties” of care on employers, proprietors, occupiers of premises, and employees in relation to health and safety matters.
Under the Bill, it is proposed that offences under the general duty provisions for employers, proprietors and occupiers of premises will become triable as indictable offences, so that extremely serious OSH offences can be tried at higher levels of Court. The Government envisages that offences involving extremely high culpability due to wilful or reckless acts or omissions resulting in the death or serious injury of workers would be prosecuted under this route.
The proposed maximum fines and imprisonment terms of such offences on conviction are HK$10 million (increased from the current maximum of HK$500,000) and two years (increased from the current maximum of six months) respectively. When determining the amount of the fine, it is proposed that the Court will take into account the turnover of the defendant, with the intention being that the penalty awarded will achieve a deterrent effect on the defendant.
(b) Increasing maximum penalties for offences under employer and employee general duty provisions on summary conviction
The employer and employee general duty provisions can be applied in a wide range of workplace conditions, work processes and industries carrying different risk levels, and are commonly invoked in fatal or serious cases.
The existing maximum fines for offences under the employer general duty provisions in the FIUO and OSHO are HK$500,000 and HK$200,000 respectively on summary conviction. The Bill proposes to raise the maximum penalty to HK$3 million, with six months of imprisonment.
The maximum penalty for offences under the employee general duty provisions on summary conviction is also proposed to be increased to HK$150,000, and with a maximum imprisonment term of six months.
(c) Increasing maximum fines for offences under other statutory OSH provisions
The Government reviewed over 600 other provisions covering a wide range of statutory OSH requirements, from prescriptive risk-mitigating measures to general safety management requirements. Under the Bill, it is proposed that these provisions would be re-categorised according to their seriousness to three levels – “minor”, “serious” and “very serious”. The maximum fine levels for employer-related offences are proposed at HK$25,000, HK$100,000 and HK$400,000 respectively, and employee-related offences at HK$10,000, HK$50,000 and HK$150,000 respectively.
(d) Extending the time-bar for prosecution
The time limit for prosecution of a summary offence or an indictable offence tried summarily is proposed to be increased from six months to twelve months. This will allow sufficient time for the Labour Department to conduct more in-depth investigation of serious cases and collect sufficient evidence, which will better assist the Court with adjudging the cases, including its determination of whether imprisonment should be ordered.
Key Takeaways
The proposed changes under the Bill are likely to significantly increase the risk exposure for employers, contractors and other occupiers of premises under the relevant OSH laws. The Hong Kong Government has announced plans to pass and enact the Bill as soon as possible, as the maximum penalties for relevant OSH provisions have not been reviewed for more than two decades. While the Bill is currently under scrutiny by the Legislative Council, employers, contractors and occupiers of premises can consider revisiting and reviewing their existing OSH policies and mechanisms and ramp up any safeguards as needed.
For further information, please contact:
Tess Lumsdaine, Herbert Smith Freehills
tess.lumsdaine@hsf.com
