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Investigations following occupational incidents – The duties of Contractors and Employers to provide information: Recent High Court decision on appeal from the Magistracy

  • 28 September 2021 28 September 2021
  • Asia Pacific

  • Projects & Construction

Background

In Hong Kong, is there a duty on contractors or employers to provide information to the authorities for the purposes of their investigations when an occupational incident happens?   The simple and quick answer is yes, as confirmed in the judgment of HKSAR v Able Engineering Co Ltd (HCMA 55/2020)[1] handed down on 6th May 2021.   This is so even if such information may not be favorable to the contractors or employers.    

In HKSAR v Able Engineering Co Ltd, a fatal accident occurred on 20 August 2018 at a construction site for a public rental housing development.   Able Engineering Co Ltd (“the Appellant”) was the principal contractor of the project.  An employee of the Appellant’s sub-contractor was found unconscious with a head wound on the site without anyone having seen the cause for his injury. 

In relation to the duties to provide information to the authorities, there are two relevant pieces of legislation, namely, the Occupational Safety and Health Ordinance, Cap.509 (“OSHO”) and the Factories and Industrial Undertaking Ordinance, Cap.59 (“FIUO”).

OSHO gives the power to officers of the Labour Department to request information from anyone whom they reasonably believe that he has knowledge of the identity of the occupier of a premises, or whether a contravention of OSHO has been or is being committed.    

Section 24(1) of OSHO provides:

“An occupational safety officer may request a person to provide—

(a) information that may identify the occupier of premises that the officer reasonably believes to be a workplace; or

(b) information that may assist the officer to determine whether or not a contravention of this Ordinance is being or has been committed,

but only if the officer reasonably believes that the person has that information and cannot reasonably obtain the information from another source.”

Further, under section 24(2) of OSHO, it is an offence for anyone to refuse to comply with such requests without reasonable excuse, or to provide information which he knows or ought reasonably to know is false or misleading.  An offender in such circumstances is liable to a fine at level 5 (currently at $50,000). 

FIUO also contains a similar (although not identical) provision.  In section 4(1), it is provided that:

“An occupational safety officer may exercise the following powers—

…….

(c) to require the production of any register or other document required to be kept under this Ordinance and inspect, examine and copy the same;

(d) to make such examination and inquiry as may be necessary to ascertain whether the requirements of this Ordinance are complied with, and seize anything which may appear to be evidence of an offence against this Ordinance;

(e)to examine, either alone or in the presence of any other person, as he thinks fit, respecting matters under this Ordinance, any person whom he finds in any industrial undertaking, or whom he has reasonable cause to believe has been within the preceding 2 months employed in any industrial undertaking, or require any such person to be so examined and to sign a declaration of the truth of the matters respecting which he has been so examined;

……”

Under section 10(3) of the FIUO, anyone who fails to comply with a requirement made by an officer under section 4(1), or wilfully or recklessly gives false information or withholds information as to any of the matters in respect of which information is required to be given under section 4(1), or obstructs or delays any officer in the exercise of any of the powers conferred upon him by section 4, shall be guilty of an offence and shall be liable to a fine at level 5 ($50,000).

Recent judgment

Request for Information / Decision of the Magistrate

On 26 October 2018, which was a few days after the fatal accident, an Occupational Safety Officer of the Labour Department issued a letter to the Appellant requesting them to provide information listed in the appendix of the letter pursuant to section 24 of OSHO.  This request was not complied with by the deadline imposed.   Thereafter, the Labour Department reminded the Appellant of their request on 21 November 2018, 28 November 2018, 20 December 2018 and 11 January 2019 respectively.   The Appellant provided some of the information requested in batches.  However, the latest site safety plan, contractual documents between the Appellant and its sub-contractor who employed the deceased and the in-house safety rules, all of which would be significant to the investigation had still not been provided as at the end of January 2019. At this point the Appellant was summonsed for contravention of section 24 of the OSHO.

The Appellant argued that the Labour Department should have made the request under FIUO instead of OSHO because OSHO was designed to protect employees in the non-industrial sector, and that the Labour Department had failed to prove “refusal” which was an essential element under section 24 OSHO offence, and alternatively, the Appellant relied on the defence of “reasonable excuse”.

The Magistrate found that the request made by the Labour Department under section 24 of OSHO was a valid request.  In respect of the prosecution’s failure to prove the “refusal” element contended by the Appellant, the Magistrate stated that:

“Having regard to the overall attitude and behaviour of the Defendant [the Appellant], I am of the view that the Defendant [the Appellant] had abused the generosity of the Labour Department.  Time and again, the Labour Department had repeatedly allowed the extension of time but the Defendant [the Appellant] had taken it for granted.  Although the Defendant [the Appellant] did not expressly refuse to provide the remaining documents by words, the Defendant’s [the Appellant’s] conduct speaks otherwise.  The fact that the Defendant [the Appellant] had not provided the outstanding documents to the Labour Department in spite of repeated reminders spanning over a period of two and a half months, I have no doubt that the conduct of the Defendant [the Appellant] amounts to refusal.”

In relation to the defence of “reasonable excuse”, the Magistrate rejected the explanation of relevant witnesses who gave evidence on this defence. The Magistrate then convicted the Appellant of the summons.

The Appeal

The Appellant appealed against the decision of the Magistrate. 

The Court had considered various issues in the appeal, amongst those which are worth noting include (1) the applicability of OSHO or FIUO; (2) what amounts to a refusal; (3) what is required to be proved and by whom for reasonable excuse. 

In relation to the applicability of OSHO or FIUO, the Appellant submitted that OSHO was inapplicable because the workplace in question was an industrial undertaking (a construction site) and the Labour Department was required to carry out an investigation under the FIUO. 

The Court considered this argument to be fundamentally flawed.  At the time when the request for information was made by the Labour Department, it was clear that the Labour Department was seeking to investigate the accident under both OSHO and FIUO.  In addition, the Court considered that these two Ordinances are not mutually exclusive. 

In relation to the point on “refusal” to comply with the request, the Court disagreed with the Appellant’s argument that there was no refusal to comply on their part.  In particular, the Court stated that:

“……Those documents clearly show a failure to comply.  This was evidenced by simply not responding to the s.24 request……; late and limited compliance without explanation; a belated request for more time without explanation and a request for clarification only after four separate s.24 requests.  Whether that amounts to a refusal is a question of the application of simple English……At what stage does …… ”ongoing cooperation” become a non-compliance?  It becomes non-compliance when they miss a deadline without reasonable excuse……” 

In respect of whether the Appellant had a reasonable excuse for its non-compliance, the burden was for the Appellant to raise reasonable excuse and then for the prosecution to rebut it beyond reasonable doubt.  The Magistrate had already rejected the evidence of the witnesses who gave evidence on this aspect of the defence (which finding the Court would not interfere with).  In considering the remaining evidence, the Court stated that there was no explanation for the failure to comply with the request for information, and considered that the Appellant’s attitude towards the Labour officer evidenced considerable disrespect, and that the Appellant had not come clean as the Appellant had never disclosed that it had no written contract with its sub-contractor who employed the deceased and the Appellant had never sought to explain why it was being so dilatory.   The Court then dismissed the appeal on all of the grounds raised by the Appellant.

In light of HKSAR v Able Engineering, what should contractors and employers do?

It is clear from the case that the Court takes quite a strict approach in interpreting what is considered as “refusal to comply”, namely missing deadlines without giving reasonable excuse can be considered as refusal.

When occupational incidents occur at the workplace, in particular involving fatal accidents, contractors and employers are often reluctant to provide information to the authorities which may tend to show that they have failed to provide sufficient safety measures.   Contractors and employers, when facing requests for information made by Labour Department, will need to consider very carefully the information that they are required to provide in order to avoid prosecution for safety failures, whilst at the same time they will need to ensure that they comply with their obligations to provide sufficient and prompt information in order to avoid contravention of the failure to provide information provisions set out in FIUO and OSHO.  

It is essential that when a fatal accident has occurred, those individuals or organisations approached by the Labour Department for information under s.24 OSHO or s.4(1) FIUO should seek legal assistance without delay to assist them with dealing with the authorities and assessing and collecting evidence at an early stage should any prosecution arise out of the accident.

If you wish to discuss this article or any Occupational, Health and Safety issues, please contact Christopher Short or Stephanie Lau.


[1] The full text of the judgment can be read here: https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=135540&QS=%2B&TP=JU

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