Is the Hong Kong Government changing tack on Industrial Accidents?
By HK Lawyer AJ Halkes Barrister-at-Law
Recent Hong Kong government moves in relation to a tragic workplace accident at a Mass Transit Railway Corporation (MTRC) property have seen a swift, yet seemingly unusual Police response to what at first glance looks like an industrial accident. Multiple arrests, manslaughter allegations, denial of bail and statements related to the accident came with unprecedented speed with the shock of the timing, being on a major family holiday which compounded the grief. But who is being alleged to be at fault and why are the Police involved? That the Hong Kong Police are first on a scene and leading investigations into a multiple death at the time those involved are discovered, rather than the Labour Department; is not entirely unusual.
For an obvious industrial accident (or workplace disaster) on a construction site, during normal working hours; matters would normally be then (mainly) left with Labour Department investigators; there may also be questions as to who was the “proprietor” as in the Lucky Engineering case this writer was involved in.
A Labour Department investigation is, logical given the nature of the environment and investigation needed plus the extensive powers to investigate that exist with the Labour Department; designed for swift and effective investigations into industrial accidents.
On the timing from a reported Sunday 07.30 am involvement of the Police and emergency services; a Police investigation, early on, would be normal. The bodies were reportedly discovered in a ventilation area and so far no reported obvious injury was involved.
To any officers on arrival perhaps this was not even an obvious “construction site” or “industrial undertaking”.
In light of that one may speculate that if no very obvious causes of death were present, there could have been reluctance to hand-over the matter, or the scene in totality, to the Labour Department. The cautious and indeed the only logical approach would have been:
“we do not know what happened here… yet”
Once Police investigations are underway they continue and that seems to have been the case so far. However there was an unusually swift move to make an arrest and lay a charge of manslaughter against a person reported as being the “contractor” who was undertaking contract works at the MTRC property. It was later reported that the “contractor” was a company called Raft (E&M) Engineering Limited, a company now listed as “suspended”.
To broadcast a manslaughter investigation as underway swiftly, have arrests take place and individuals in custody (denied bail) is however of note. Whilst Police involvement (in what now looks like a workplace accident) is not unusual; many are asking who decided to move with a manslaughter charge against an individual and why?
Clearly the government is concerned about industrial accidents and is fighting hard to discipline those found lacking in safety awareness or compliance. What makes this case unusual is that early statements were also made suggesting aspects of safety had been neglected and a degree of confusion developed as to what was actually being investigated due to a possible “manslaughter” case involving the Police Force.
The Chief Executive has since confirmed that the Labour Department will be involved and has strongly urged all relevant government departments, and society at large, to make every effort to promote occupational safety; a crystal clear message.
As construction work in the HKSAR increases this will involve more working from height and risk factors will increase in tandem. Perhaps knowing this, and as the Chief Executive has urged, we will see “routine inspections” that we saw years ago stepped up. Long distance site observations and zoom photography was always a part of site monitoring by the Labour Department and was the basis for many past prosecutions; however Covid seems to have reduced that type of routine “outside work”.
What was the location involved? Another aspect of interest is the location itself and what type of workplace it was; as a location may fall within an area that exists between multiple health and safety legislative provisions. We have ordinances and regulations for many different types of “workplace” ranging from highly regulated “confined spaces” to operating an automatic ring binder in an office or a pasta making machine in a restaurant; it is not always easy to define a location, or the appliable laws. It is too early to say if this swift manslaughter charging is part of a new Government policy that is going to be adopted in the event of all workplace accidents involving deaths or if this was a set of events, driven by very specific facts, timing and the location involved; together with evidence not as yet disclosed.
One of the most public manslaughter cases in an “at work” context was the Sea Smooth ferry disaster; where the skipper was prosecuted for multiple counts; however these types of prosecution and trial are rare.
One thing is for sure : the Labour Department will be dusting off their cameras and zoom lenses, heading for vantage points around construction sites in Hong Kong and examining underground working compliance measures; an absence of which can result in a prosecution; without any underlying accident taking place.
Links
LUCKY ENGINEERING CO LTD V. HKSAR FACC 5 of 2012
https://www.hklii.hk/en/cases/hkcfa/2013/69
Industrial safety legislation Cap 59
https://www.elegislation.gov.hk/hk/cap59
Confined spaces Code of Practice
https://www.labour.gov.hk/eng/public/os/B/space.pdf
Workplace safety legislation Cap 509
https://www.elegislation.gov.hk/hk/cap509
Labour Dept statement
https://www.info.gov.hk/gia/general/202309/24/P2023092400553.htm
SCMP report
Contractor status
https://www.info.gov.hk/gia/general/202309/26/P2023092600601.htm
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