OVERVIEW
The Labour Department enforces stringent statutory frameworks to maintain industrial safety and protect worker welfare across Hong Kong. Construction companies and site operators frequently face the immediate threat of regulatory investigations, suspension notices and criminal prosecutions following routine inspections or industrial site accidents.
Our legal team has advised and represented construction companies in these complex matters since 1995, providing robust defence strategies in the Magistrates' Courts, which serve as the standard jurisdiction for these offences.
- Industrial Safety and Site Regulations
- Criminal liability for construction and site-safety failures is governed principally by two pieces of legislation:
- The Factories and Industrial Undertakings Ordinance (Cap. 59): This Ordinance sets out overarching statutory duties of proprietors and employers to ensure the health and safety of persons employed at industrial undertakings.
- The Construction Sites (Safety) Regulations (Cap. 59I): This subsidiary legislation prescribes detailed safety requirements for construction sites, including scaffolds and working platforms, work at height, lifting appliances and protection against falling objects.
- Following significant legislative amendments in 2023, the maximum penalties for occupational-safety violations increased substantially. A serious failure to ensure site safety can expose a company to substantial fines. Directors, managers or site personnel may also face personal prosecution and imprisonment where the elements of the applicable offence and individual liability are proved.
- Employment Ordinance Offences - Non-payment of Wages
- Beyond physical site safety, the Labour Department prosecutes construction companies and corporate officers for failing to meet statutory wage-payment obligations. Our firm routinely defends clients facing prosecution under the following provisions of the Employment Ordinance (Cap. 57):
- Section 25 - Failure to pay wages following termination: Wages due to an employee upon termination must be paid as soon as practicable and, in any event, no later than seven days after the date of termination.
- Section 63C - Wage-payment offence: An employer who wilfully and without reasonable excuse fails to pay wages when they become due commits a criminal offence.
- Section 64B(1) - Liability of corporate officers: Where a wage-payment offence committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to neglect by, a director, manager, secretary or similar officer, that individual may be convicted of the same offence alongside the company.
- Maximum penalty for these three offences: A fine of HK$350,000 and imprisonment for three years.
LEGISLATIVE UPDATE
Amendments in 2023
The Occupational Safety and Occupational Health Legislation (Miscellaneous Amendments) Ordinance 2023 came into operation on 28 April 2023. It substantially increased the penalties under the Factories and Industrial Undertakings Ordinance (Cap. 59), the Occupational Safety and Health Ordinance (Cap. 509) and their subsidiary legislation to strengthen deterrence against occupational-safety and health breaches.
A major change is that an extremely serious contravention of an employer, proprietor or occupier's general-duty provisions may now be prosecuted on indictment. This enables the most serious cases to proceed beyond the ordinary summary jurisdiction of the Magistrates' Courts.
- Employer general-duty offences prosecuted on indictment: The maximum penalty is a fine of HK$10 million and imprisonment for two years where the applicable wilfulness and absence-of-reasonable-excuse requirements are proved.
- Employer general-duty offences prosecuted summarily: The maximum fine was increased to HK$3 million. Where the offence is committed wilfully and without reasonable excuse, imprisonment for six months may also be imposed.
- Employee general-duty offences: The maximum fine for summary prosecution was increased to HK$150,000.
- Other occupational-safety offences: Maximum summary fines were increased and differentiated according to the seriousness of the offence and whether it concerns an employer or employee duty.
- Time limit: The limitation period for bringing proceedings for offences triable summarily was extended from six months to nine months.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.