HK Construction Law regulatory, environmental and health and safety

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Construction Law and Regulatory Challenges

High-rise or underground construction law environments are the most dangerous places in Hong Kong and as such are highly regulated.  Criminal prosecutions of contractors, sub-contractors, joint-ventures and even directors and managers now seem to take place after almost any accident as the approach of the authorities is that accidents are preventable and there should be “zero” accidents on construction sites of a type that are anything less than the most minor. 

For public works this means, every contractor is expected to aim at zero fatal accidents, to aim at zero dangerous occurrences and to see an accident frequency rate of less than about 22 reportable accidents per 1,000 workers per year.

Strict Liability Law

The major challenge in Construction Law, as drafted and enacted in Hong Kong, is that it is mostly criminal, enforced by the Labour Department and falls in the area of “strict liability” law.

As such defending at trial is almost always directly related to actions taken, by the defendant company, directors or managers and frontline staff; such as trainers and supervisors, these all matter as do documentary records of such. Actions taken well before any accident has occurred are what prove and can make out a defence, as the burden of proof resting on a defendant is high in order to show what measures were taken to prevent an accident, of the type concerned before it happened.

Training, supervision, provision of information and the like are common areas in which experts in a prosecution case will seek to pinpoint deficient procedures, inadequate action steps or faulty and ineffective systems of supervision.

The development of systems, procedures and plans with a mind to not only the prevention of accidents but also the manner in which those efforts were developed, implemented and reviewed and deployed is essential. This is also where defence lawyers with extensive experience in the complexities of those environments can provide valuable input. Input will, down the line, result in higher compliance scoring arising from the ability to defend successfully at trial or even avert prosecutions via effective lobbying and representations based on what was done before any accident occurred.