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FACTORIES AND INDUSTRIAL UNDERTAKINGS ORDINANCE

FACTORIES AND INDUSTRIAL UNDERTAKINGS ORDINANCE (CHAPTER 59) CONTENTS Section 1. Short title 2. Interpretation 3. Appointment of Commissioner and other officers 4. Powers of officers 5. Duty of public officers not to disclose source of complaint, etc.

6. Employment not to be terminated, etc. by reason of fact that employee has given evidence in proceedings under Ordinance, etc.

6A. General duties of a proprietor 6B. General duties of persons employed 6C. Meaning of "at work" 7. Power of Commissioner for Labour to make regulations, etc.

8. Governor in Council may amend the Schedules 9. Notification of workplaces 9A. Prohibition notices 10. Offences and penalties 11. Power to make orders as to dangerous conditions and practices 11A. Inquiry by chief factory inspector in case of accident 11B. Power of Commissioner or deputy commissioner to hold formal inquiry 11C. Saving 12. Continuing offences 13. Liability of proprietor 14. Liability of directors, partners, etc.

14A. Protection of public officers 15. Procedure 16. Presumptions 17. Prosecution of offences 18. Onus of proving limits of what is practicable, etc.

19. Civil liability First Schedule Dangerous trades Second Schedule Scheduled trades Third Schedule Specified structures and works To amend the law relating to factories and industrial undertakings and to the employment of women, young persons and children therein.

[29 September 1955] Whole Document 1. Short title This Ordinance may be cited as the Factories and Industrial Undertakings Ordinance.

2. Interpretation (1) In this Ordinance, unless the context otherwise requires- "bodily injury" includes injury to health; "child" has the meaning assigned to it in the Employment Ordinance (Cap.

57); (Replaced 55 of 1979 s. 2) "Commissioner" means the Commissioner for Labour appointed under section 3, and, except where the expression "Commissioner for Labour" is used, includes any deputy commissioner, any assistant commissioner and any person appointed as a senior labour officer, a labour officer, an occupational health consultant, a senior occupational health officer, an occupational health officer, an occupational hygienist, a chief factory inspector, a deputy chief factory inspector, a superintendent of factory inspectors or a divisional factory inspector; (Replaced 72 of 1970 s. 2.

Amended 73 of 1977 s. 2; L. N. 248 of 1982; 37 of 1983 s. 2) "construction work" means- (a) the construction, erection, installation, reconstruction, repair, maintenance (including redecoration and external cleaning), renewal, removal, alteration, improvement, dismantling, or demolition of any structure or works specified in the Third Schedule; (b) any work involved in preparing for any operation referred to in paragraph (a), including the laying of foundations and the excavation of earth and rock prior to the laying of foundations; (c) the use of machinery, plant, tools, gear, and materials in connexion with any operation referred to in paragraph (a) or (b); (Added 52 of 1973 s. 2) "container" means an article of transport equipment- (a) of a permanent character and accordingly strong enough to be suitable for repeated use; (b) specially designed to facilitate the transport of goods, by one or more modes of transport, without intermediate reloading; (c) designed to be secured or readily handled or both and having corner fittings for these purposes; and (d) of a size such that the area enclosed by the 4 outer bottom corners is either- (i) at least 14 square metres; or (ii) at least 7 square metres if it is fitted with top corner fittings; (Added 32 of 1992 s. 2) "contractor", in relation to construction work, means any person or firm engaged in carrying out construction work by way of trade or business, either on his own account or pursuant to a contract or arrangement entered into with another person, including the Crown or any public body; (Added 52 of 1973 s. 2) "corner fittings" means an arrangement of apertures and faces either at the top or at the bottom or both at the top and the bottom of a container for the purposes of handling, stacking and securing or any of these purposes; (Added 32 of 1992 s. 2) "dangerous trade" means any trade, process or occupation specified in the First Schedule; "factory" means any premises or place, (other than a mine or quarry), in which articles are manufactured, altered, cleansed, repaired, ornamented, finished, adapted for sale, broken up or demolished or in which materials are transformed, and within the close or curtilage or precincts of which- (Amended 4 of 1969 s. 2) (a) any machinery other than machinery worked entirely by hand is used; or (b) 20 or more persons are employed in manual labour; (Replaced 37 of 1983 s. 2) "industrial undertaking" includes- (a) any factory; (b) any mine or quarry; (Amended 4 of 1969 s. 2) (c) any industry in which articles are manufactured, altered, cleansed, repaired, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed, including shipbuilding; (d) the generation, transformation, and transmission or electricity or motive power of any kind; (e) any construction work; (Replaced 52 of 1973 s. 2) (f) the loading, unloading, or handling of goods or cargo at any dock, quay, wharf, warehouse or airport; (Replaced 52 of 1973s. 2 Amended 73 of 1977 s. 2) (fa) the loading, unloading, handling, stacking, unstacking, storing, keeping or maintaining of containers; (Added 32 of 1992 s. 2) (g) the carriage of coal, building materials, or debris; (Added 52 of 1973 s.

2) (h) the transport of passengers or goods by road, rail, cableway or aerial ropeway; (Replaced 19 of 1976 s. 32. Amended 77 of 1990 s. 2) (ha) the preparation of food for consumption and sale on the premises where it is prepared; (Added 77 of 1990 s. 2) (i) any premises or site in or upon which, and the machinery, plant, tools, gear and materials with Which, any of the foregoing industrial undertakings is carried on; (Added 37 of 1978 s. 2) "inspector" means any person appointed under section 3 as chief factory inspector, a deputy chief factory inspector, a superintendent of factory inspectors, a divisional factory inspector, a factory or an assistant factory inspector, a chief labour inspector, a senior labour inspector or a labour inspector; (Replaced 10 of 1965 s. 2. Amended 73 of 1977 s. 2; 37 of 1983 s. 2) "mine" means any works or system of works for the extraction of minerals from the earth; (Replaced 4 of 1969 s. 2) "mineral" includes- (a) metalliferous ores and other substances in their natural state which are obtainable only by mining or in the course of prospecting operations; (b) metalliferous ores and other substances in their natural state mined or obtained in the course of prospecting operations; (c) the valuable parts of such ores or other substances when unmanufactured; (d) the product of treating or dressing such ores or other substances for marketing or export; and (e) kaolin, but does not include- (i) any clay other than kaolin; (ii) granite, porphyry, limestone or sand; (iii) any common mineral substance which the Governor by notice in the Gazette under the Mining Ordinance (Cap. 285) has declared not to be a mineral for the purposes of the provisions of that Ordinance other than section 3 thereof, or (iv) any mineral oil; (Added 4 of 1969 s. 2) "notifiable workplace" means- (a) any factory, mine or quarry; and (b) any premises or place in which a dangerous trade or scheduled trade is carried on or is proposed to be carried on, but does not include a construction site within the meaning of the Construction Sites (Safety) Regulations (Cap. 59 sub. leg.); (Added 50 of 1985 s. 2) "prohibition notice" means a notice issued under section 9A (1); (Added 50 of 1985 s. 2) "proprietor" in relation to any industrial undertaking or notifiable workplace includes the person for the time being having the management or control of the business carried on in such industrial undertaking or notifiable workplace and includes a body corporate and a firm and also the occupier of any industrial undertaking or notifiable workplace and the agent of such occupier; (Amended 50 of 1985 s. 2; 71 of 1989 s. 2) "quarry" means any works or system of works the principal purpose of which is to extract from the earth for commercial purposes any granite, porphyry or limestone; (Added 4 of 1969 s. 2) "scheduled trade" means any trade, process or occupation specified in the Second Schedule; "young person" has the meaning assigned to it in the Employment Ordinance (Cap. 57). (Replaced 55 of 1979 s. 2) (2) A woman, young person or child who works in an industrial undertaking, whether for wages or not, either in a process or in cleaning any part of the industrial undertaking used for any process, or in cleaning or oiling any part of the machinery or plant, or in any other kind of work whatsoever incidental to or connected with the process, or connected with the article made or otherwise the subject of the process therein, shall be deemed to be employed therein for the purposes of this Ordinance or any proceedings thereunder. (Added 51 of 1961 s. 2) (3) None of the provisions of this Ordinance shall apply to- (Amended 73 of 1977 s. 2; 11 of 1980 s. 2) (a) any undertaking which is not carried on by way of trade or for purposes of gain; or (b) any agricultural operation. (Amended 77 of 1990 s. 2) (c) (Repealed 77 of 1990 s. 2) (Amended 50 of 1985 s. 2) 3. Appointment of Commissioner and other officers The Governor may appoint a Commissioner for Labour, deputy commissioners for labour, assistant commissioners for labour, senior labour officers, labour officers, assistant labour officers, occupational health consultants, senior occupational health officers, occupational health officers, assistant occupational health officers, occupational hygienists, assistant occupational hygienists, a chief factory inspector, deputy chief factory inspectors, superintendents of factory inspectors, divisional factory inspectors, factory or assistant factory inspectors, chief labour inspectors, senior labour inspectors and labour inspectors and such other officers as he may consider necessary for carrying out the purpose of this Ordinance.

(Replaced 10 of 1965 s. 3. Amended 4 of 1969 s. 3; 72 of 1970 s. 3; 73 of 1977 s. 3; L.N. 248 of 1982; 37 of 1983 s. 3; 71 of 1989 s. 3) 4. Powers of officers (1) The Commissioner and any assistant labour or occupational health officer appointed under section 3, any occupational hygienist, any inspector, and any other officer authorized in writing generally or particularly by the Commissioner for Labour shall have the following powers-(Replaced 10 of 1965 s. 4. Amended 73 of 1977 s. 4; 71 of 1989 s.

4) (a) to enter, inspect and examine at all reasonable times, by day and night, any premises or place in which he knows or has reasonable cause to believe that an industrial undertaking is being carried on; (b) (Repealed 73 of 1977 s. 4) (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; (Amended 4 of 1969 s. 4) (f) to require any person who employs or has employed any woman, young person or child in an industrial undertaking or any agent or servant of any such employer to give to him all information in the possession of such person, agent or servant with reference to such woman, young person or child and to the labour conditions and treatment of every woman, young person and child employed by such employer; (g) to remove and detain for inquiries in a place of refuge appointed under any Ordinance for the time being in force relating to women, young persons or children any young person or child whom he finds in any place in or in respect of which he has reasonable cause to suspect that an offence against this Ordinance has been committed; (h) to require the posting up, in such place and manner and for such period as he may direct, of any notice in connexion with the provisions of this Ordinance or any matter related to the manufacture carried out, or machinery, plant, process or persons employed in any industrial undertaking; and (Amended 11 of 1980 s. 3) (i) any other powers which may be conferred by any regulation made under this Ordinance.

(2) Any Health Officer, any officer of the Fire Services Department with the written authority of the Director of Fire Services and any officer specially authorized by the Commissioner for Labour may, subject to such directions as the Commissioner for Labour may impose, at any time enter and inspect any industrial undertaking for the purpose of ascertaining whether the requirements of this Ordinance are complied with.

(Amended 11 of 1980 s. 3) (i) any other powers which may be conferred by any regulation made under this Ordinance.

(2) Any Health Officer, any officer of the Fire Services Department with the write authority of the Director of Fire Services and any officer specially authorized by the Commissioner for Labour may, subject to such directions as the Commissioner for Labour may impose, at any time enter and inspect any industrial undertaking for the purpose of ascertaining whether the requirements of this Ordinance are complied with.

(Amended 42 of 1961 s. 2; 4 of 1969 s. 4) (2A) An officer exercising any power conferred on him by subsection (1) may take with him any person, whether a public officer or not, whom he may reasonably need to assist him in carrying out his duties under this Ordinance and in particular may , for his assistance, take persons who have been engaged by the Commissioner for Labour, on account of their special expertise, to advise the Commissioner on the safety and health of persons employed in industrial undertakings. (Added 73 of 1977 s. 4) (2B) A person who accompanies an officer pursuant to subsection (2A)- (a) may give to the officer such assistance in the exercise of any power conferred on him by subsection (1) as the officer may reasonably require; (b) shall be deemed to be a public officer for the purposes of sections 5 and 6. (Added 73 of 1977 s. 4) (3) The powers conferred by this Ordinance on any officer shall be in addition to and not in substitution for any other powers which such officer may possess.

5. Duty of public officers not to disclose source of complaint, etc.

(1) Save as provided in subsection (4), no public officer shall disclose to any person, other than another public officer in the course of official duty, the name or identity of any person who has made a complaint alleging a contravention of any of the provisions of this Ordinance or as a result of which a contravention of any such provision has come to his notice or to the notice of any other public officer. (Amended 11 of 1980 s. 4) (2) No public officer shall disclose to the proprietor of an industrial undertaking or his representative or to any other employer who is carrying on business in the industrial undertaking or his representative that a visit to the industrial undertaking was made in consequence of the receipt of any such complaint as is referred to in subsection (1).

(3) Save as provided in subsection (4), where, arising out of, or in connexion with, the enforcement of any of the provisions of this Ordinance, any manufacturing or commercial secret or any working process comes to the knowledge of a public officer, such officer shall not at any time and notwithstanding that he is no longer a public officer disclose such secret or process to any person.

(4) Where in any proceedings a court or a magistrate considers that justice so requires, the court or magistrate may order the disclosure of the name or identity of any person who has made any such complaint as is referred to in subsection (1) or the disclosure of any such secret or process as is referred to in subsection (3).

(Added 51 of 1961 s. 3) 6. Employment not to be terminated, etc. by reason of fact that employee has given evidence in proceedings under Ordinance, etc.

No employer shall terminate, or threaten to terminate, the employment of, or in any way discriminate against, any of his employees by reason of the fact that the employee has- (a) given evidence, or agreed to give evidence, in any proceeding for the enforcement of any of the provisions of this Ordinance; or (b) given information to a public officer in any inquiry made by such officer for the purposes of or in connexion with the enforcement of any of the provisions of this Ordinance.

(Added 51 of 1961 s. 3. Amended 4 of 1969 s. 5) 6A. General duties of a proprietor (1) It shall be the duty of every proprietor of an industrial undertaking to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking.

(2) Without prejudice to the generality of a proprietor's duty under subsection (1), the matters to which that duty extends include in particular- (a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; (b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking; (d) so far as is reasonably practicable as regards any part of the industrial undertaking under the proprietor's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; and (e) the provision and maintenance of a working environment for all persons employed by him at the industrial undertaking that is, so far as is reasonably practicable, safe, and without risks to health.

(3) Subject to subsection (4), a proprietor of an industrial undertaking who contravenes this section commits an offence and is liable to a fine of $ 30,000.

(4) A proprietor of an industrial undertaking who contravenes this section wilfully and without reasonable excuse commits an offence and is liable to a fine of $ 30,000 and to imprisonment for 6 months.

(Added 71 of 1989 s. 5) 6B. General duties of persons employed (1) It shall be the duty of every person employed at an industrial undertaking while at work- (a) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and (b) as regards any duty or requirement imposed on a proprietor of the industrial undertaking or on any other person by this Ordinance for securing the health and safety of persons employed at the industrial undertaking, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.

(2) A person who contravenes subsection (1) commits an offence and is liable to a fine of $ 10,000.

(3) A person employed at an industrial undertaking who wilfully and without reasonable excuse does anything while at work likely to endanger himself or other persons commits an offence and is liable to a fine of $ 30,000 and to imprisonment for 6 months. (Added 71 of 1989 s. 5) 6C. Meaning of "at work" For the purposes of sections 6A and 6B, a person is at work throughout the time when he is in the course of employment, but not otherwise.

(Added 71 of 1989 s. 5) 7. Power of Commissioner for Labour to make regulations, etc.

(1) The Commissioner for Labour may in respect of industrial undertakings by regulation prescribe or provide for- (a) prohibiting or controlling the employment of all persons or any class of persons in dangerous trades or scheduled trades; (b) prohibiting or controlling the employment of women, young persons and children in industrial undertakings, and requiring registers to be kept of women, young persons and children employed in industrial undertakings; (c) imposing obligations for securing compliance with the provisions of this Ordinance upon persons who employ women, young persons or children in industrial undertakings and upon the agents and servants of such persons; (d) defining the duties and powers of all officers appointed under section 3; (Amended 10 of 1965 s. 5) (e) exempting any industrial undertaking from the operation of this Ordinance or any part thereof; (f) the forms to be used for the purposes of this Ordinance and the manner of publishing such forms; (Replaced 50 of 1985 s. 3) (g) means of securing hygienic conditions; (h) means of ensuring the safety of persons in industrial undertakings and of relieving persons suffering from the effects of accidents in industrial undertakings; (Replaced 4 of 1969 s. 6) (i) means of securing the removal of any danger or defect; (j) requiring notifications to be made in relation to accidents and such dangerous occurrences as may be specified in the regulations; (k) precautions to be taken against fire and providing for means of escape from fire; (l) the taking for purposes of analysis of samples of materials or substances used or handled; (m) requiring notifications to be made in relation to the occurrence amongst person who have been or are employed in industrial undertakings of such diseases as may be specified in such regulations; (n) requiring the medical inspection by a Health Officer or by a medical practitioner employed by the proprietor of the industrial undertaking concerned of any person or of any class of person employed or intended to be employed in any industrial undertaking, and the keeping of records of any such inspections; (Amended 4 of 1969 s. 6) (o) imposing duties on proprietors, contractors and persons employed; (Amended 52 of 1973 s. 3) (p) generally, carrying into effect the provisions of this Ordinance.

(2) (a) Where the Commissioner for Labour is satisfied that any manufacture, machinery, plant, process or description of manual labour, used in industrial undertakings is of such a nature as to cause risk of bodily injury to persons employed in connexion therewith, or any class of those persons, he may, without prejudice to the generality of the power to make regulations under subsection (1), make such special regulations as appear to him to be reasonably practicable and to meet the necessity of the case and in particular such special regulations may- (i) prohibit or control the employment of all persons or any class of persons in connexion with any manufacture, machinery, plant, process, or description of manual labour; or (ii) prohibit or control the use of any material or process; and may impose duties on proprietors, contractors, employed persons and other persons. (Amended 52 of 1973 s. 3) (b) Special regulations so made may apply to all industrial undertakings in which the manufacture, machinery, plant, process, or description of manual labour is used or to any specified class or description of such undertaking, and may provide for the exemption of any specified class or description of undertaking either absolutely or subject to conditions.

(3) All regulations made by the Commissioner for Labour shall be submitted to the Governor, and shall be subject to the approval of the Legislative Council.

(4) The Commissioner for Labour in such cases as he shall think fit may, for such period and subject to such conditions as he may specify, exempt any industrial undertaking from any regulation made under this Ordinance and the Commissioner for Labour, or any officer authorized in writing by him, may order the adoption of special precautions in addition to any precautions required by any regulation made under this Ordinance: (Amended 7 of 1959 s. 2; 4 of 1969 s. 6) Provided that any person aggrieved by such exemption or order may within 14 days of being notified of such exemption or order appeal by way of petition to the Governor in Council, whose decision shall be final.

(Replaced 4 of 1969 s. 6) (5) Regulations made under this section may provide that contravention of specified provisions of such regulations shall be an offence and may provide penalties therefor: Provided that no penalty so provided shall exceed a fine of $ 50,000 and imprisonment for 12 months. (Amended 52 of 1973 s. 3; 57 of 1980 s. 2; 71 of 1989 s. 6) 8. Governor in Council may amend the Schedules The Governor in Council may by order amend the First, Second or Third Schedule. (Replaced 52 of 1973 s. 4. Amended 7 of 1976 s. 3; 50 of 1985 s. 4) 9. Notification of workplaces (1) The person having the management or control of a notifiable workplace shall, before the first occasion on which any industrial process is commenced or any industrial operation is carried on in the notifiable workplace, notify the Commissioner for Labour in the prescribed form of such particulars relating to the workplace and the industrial process or industrial operation proposed to be carried on there as may be specified in the prescribed form.

(2) The person having the management or control of a notifiable workplace in respect of which any change in the location or name of the notifiable workplace or in the nature of the industrial process or industrial operation carried on there is proposed shall notify the Commissioner for Labour in the prescribed form of the proposed change before it takes effect.

(3) Where there has been a change in the identity of the person having the management or control of a notifiable workplace, that person shall notify the Commissioner for Labour of the fact of such change within 21 days after it takes effect. (Replaced 50 of 1985 s. 5) 9A. Prohibition notices (1) If at any time the Commissioner for Labour considers that any notifiable workplace, whether a notifiable workplace which has been notified to him under section 9 or not, is not suitable- (a) for use as a factory, mine or quarry; or (b) for the carrying on therein of any dangerous trade or scheduled trade; or (c) for the carrying on therein of any industrial process or industrial operation or any part thereof, he may issue to the proprietor of the notifiable workplace a notice in the prescribed form prohibiting- (i) its use as a factory, mine or quarry; (ii) the carrying on therein of any dangerous trade or scheduled trade; or (iii) the carrying on therein of such industrial process or industrial operation, or such part thereof, as may be specified in the notice.

(2)Upon issuing a prohibition notice in respect of any notifiable workplace the Commissioner for Labour shall on the notice state the reasons for the issue of the notice and specify a date by which it is to be complied with.

(3) Where at any time after issuing a prohibition notice in respect of a notifiable workplace the Commissioner for Labour is satisfied that the matter leading to the issuing of the notice has been remedied, he may, and if so requested by the proprietor of the notifiable workplace shall, cancel the prohibition notice, but may upon doing so give directions in writing to the proprietor of the notifiable workplace in respect of any matter which led to the issuing of the notice.

(4) Any proprietor of a notifiable workplace who is aggrieved by- (a) the issue of a prohibition notice in respect of that notifiable workplace; (b) a refusal by the Commissioner for Labour to cancel a prohibition notice; or (c) the giving of any direction upon the cancellation of a prohibition notice, may, within 14 days of being notified of such issue, refusal or direction, appeal against it by way of petition to the Governor in Council, whose decision thereon shall be final.

(5) In this section- (a) "Commissioner for Labour" includes any person authorized by the Commissioner for Labour in writing for the purposes of this section; (b) "suitable" means,- (i) in the case of a notifiable workplace designed and constructed for industrial use, suitable in respect of the safety, health and welfare of persons employed therein; (ii) in the case of a notifiable workplace not so designed and constructed, suitable in respect of the safety, health and welfare of persons generally other than in respect of noise affecting persons not employed therein. (Amended 75 of 1988 s. 40) (Added 50 of 1985 s. 5) 10. Offences and penalties (1) A person who contravenes section 9 commits an offence and is liable to a fine of $ 10,000.(Replaced 50 of 1985 s. 6) (1A) Subject to subsection (1C) a proprietor of a notifiable workplace who fails to comply with the terms of a prohibition notice relating to that notifiable workplace within the period specified in the prohibition notice commits an offence and is liable to a fine of $ 30,000 and to imprisonment for 6 months. (Replaced 50 of 1985 s. 6. Amended 71 of 1989 s. 7) (1B) Where a proprietor has appealed to the Governor in Council under section 9A (4), the period for compliance with the terms of a prohibition notice shall be as specified in the decision on the appeal or, if it is not so specified, shall run from the date when the proprietor is notified of the result of the appeal. (Added 50 of 1985 s. 6) (1C) Where under section 9A (3) the Commissioner for Labour has upon cancelling a prohibition notice issued in respect of a notifiable workplace given any directions, a proprietor who carries on an industrial process or industrial operation in the notifiable workplace without complying with those directions commits an offence and is liable to a fine of $ 30,000 and to imprisonment for 6 months. (Added 50 of 1985 s. 6. Amended 71 of 1989 s. 7) (2) Any person who fails to comply with any order made under section 7 (4) or who fails to comply with any condition imposed on the granting thereunder of any exemption shall be guilty of an offence and shall be liable to a fine of $ 30,000 and to imprisonment for 6 months. (Amended 71 of 1989 s. 7) (3) Any person who- (a) fails to comply with a requirement made by any officer under section 4 (1); or (b) 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 (c) 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 of $ 20,000.

(4) Any person who contravenes any of the provisions of section 5 (1), (2) or (3) shall be guilty of an offence and shall be liable to a fine of $10,000.

(4A) Any person who contravenes section 6 commits an offence and is liable on conviction to a fine of $ 20,000. (Added 30 of 1992 s. 2) (5) The proprietor of a notifiable workplace shall be deemed to have complied with section 9 (1) if before the commencement [1] of the Factories and Industrial Undertakings (Amendment) Ordinance 1985 (50 of 1985) the workplace was registered or provisionally registered under repealed section 9 (5). (Added 50 of 1985 s. 6) (6) The proprietor of a notifiable workplace which before the commencement of Factories and Industrial Undertakings (Amendment) Ordinance 1985 (50 of 1985) was a registrable workplace under repealed section 9 (1) but which was not registered or provisionally registered under repealed section 9 (5) may be exempted from the requirements of section 9 (1) by the Commissioner for Labour by notice in writing not later than 6 months after the commencement of that Ordinance.(Added 50 of 1985 s. 6) (7) In this section "repealed" means repealed by section 5 of the Factories and Industrial Undertakings (Amendment) Ordinance 1985 (50 of 1985). (Added 50 of 1985 s. 6) (Replaced 19 of 1963 s. 3. Amended 4 of 1969 s. 8; 37 of 1983 s. 5) 11. Power to make orders as to dangerous conditions and practices (1) Notwithstanding the provisions of section 9A, if on complaint by an inspector a magistrate is satisfied either-(Amended 50 of 1985 s. 7) (a) that any part of the ways, works, machinery or plant used in an industrial undertaking is in such condition or so constructed or so placed that it cannot be used without risk of bodily injury; or (b) that any process or work is carried on or anything is or has been done in any industrial undertaking in such a manner as to cause risk or bodily injury, the magistrate shall, by order, as the case may require- (i) prohibit the use of that part of the ways, works, machinery or plant, or, if it is capable of repair or alteration, prohibit its use until it is duly repaired or altered; (ii) require the proprietor to take such steps as may be specified in the order for remedying the danger complained of; or (iii) direct that such machinery or plant shall be secured by a seal, lock or other device by an inspector in such manner as the inspector may think necessary to prevent the operation of the machinery or plant without the seal, lock or other device being broken or removed, for such period as the magistrate may specify in such order.

(2) Where a complaint is or has been made under subsection (1) the magistrate may, on application ex parte by an inspector, and on receiving evidence that the use of any such part of the ways, works, machinery or plant, or, as the case may be, the carrying on of any process or work or the doing of anything in such a manner as aforesaid, involves imminent risk of serious bodily injury, make an interim order prohibiting either absolutely or subject to conditions, the use, carrying on or doing thereof until the earliest opportunity for hearing and determining the complaint and may include in such interim order a direction that any machinery or plant located in such industrial undertaking shall be secured by a seal, lock or other device by an inspector in such manner as the inspector may think necessary to prevent the operation of the machinery or plant without the seal, lock or other device being broken or removed, and where such an interim order or direction has been made, the magistrate may at any time rescind or vary the interim order or direction. (Amended 4 of 1969 s. 9) (3) In the event of any contravention of or failure to comply with any order made by a magistrate under this section or of any condition or direction contained in such order the proprietor of the industrial undertaking in respect of which the order is made shall be guilty of an offence and shall be liable to a fine of $ 50,000 and to imprisonment for 12 months. (Amended 57 of 1980 s. 3; 71 of 1989 s. 8) (Added 19 of 1963 s.

8) 11A. Inquiry by chief factory inspector in case of accident (1) Whenever an accident whether or not involving injury to any person occurs in an industrial undertaking, the Commissioner for Labour, if he is of the opinion that an inquiry into the cause and circumstances of the accident should be held, shall direct the chief factory inspector to hold such inquiry.

(2) An inquiry by the chief factory inspector shall be held informally in the first instance in such manner as the chief factory inspector may think fit and the chief factory inspector shall record his findings in writing and submit the record to the Commissioner for Labour.

(3) Where the chief factory inspector is of the opinion that an inquiry by him under this section is likely to be frustrated or delayed owing to the unwillingness of any person to provide any information relating to the accident or to produce books or records for inspection or to answer any question, or for any other cause, the chief factory inspector shall submit a statement in writing to the Commissioner for Labour to that effect.

(Added 37 of 1983 s. 6) 11B. Power of Commissioner or deputy commissioner to hold formal inquiry (1) Where a statement is submitted to the Commissioner for Labour under section 11A (3) in respect of any accident, the Commissioner for Labour or a deputy commissioner for labour may hold an inquiry into the cause and circumstances of the accident.

(2) The Commissioner for Labour or a deputy commissioner for labour, for the purposes of holding an inquiry- (a) shall have all the powers of a magistrate to summon witnesses, to call for the production of books and documents and examine witnesses and other persons concerned on oath; and (b) may, on application made to him in that behalf, hold the inquiry otherwise than in public to such extent as he considers necessary for the purpose of hearing evidence, the giving of which is in his opinion likely to disclose information relating to a trade secret.

(3) Any person summoned to attend before an inquiry held under this section or to produce books or documents as evidence in the inquiry who fails to do so, or who refuses to answer any question put to him by or with the concurrence of the person holding the inquiry, shall be guilty of an offence and be liable to a fine of $ 10,000 and to imprisonment for 3 months: Provided that no person shall be bound to incriminate himself, and every witness shall, in respect of any evidence given by him at such inquiry, be entitled to the same privileges to which he would be entitled in proceeding before a magistrate.

(4) Any person who behaves in an insulting manner or uses any threatening or insulting expression to or in the presence of the person holding the inquiry commits an offence and is liable to a fine of $ 5,000 and to imprisonment for 3 months. (Added 37 of 1983 s. 6) 11C. Saving Any inquiry held by virtue of section 11B shall not derogate in any way from the powers or jurisdiction exercisable by coroners under the Coroners Ordinance (Cap. 14). (Added 37 of 1983 s. 6) 12. Continuing offences Any person guilty of an offence against this Ordinance shall, in addition to any other penalty prescribed for such offence, be liable to a fine of $ 5,000 for every day during the whole or any part of which such offence is knowingly and wilfully continued. (Amended 52 of 1973 s. 5; 37 of 1983 s.

7) 13. Liability of proprietor (1) Except as may be otherwise provided by regulations made under this Ordinance, the proprietor of every industrial undertaking in or in respect of which any offence against this Ordinance has been committed shall be guilty of a like offence, and shall be liable to the penalty prescribed for such offence.

(2) It shall be no defence to a prosecution of the proprietor of an industrial undertaking for an offence against this Ordinance that the offence was committed without his knowledge or consent or that the actual offender has not been convicted of the offence.

(3) Nothing in this section shall apply to an offence under section 6B.

(Added 71 of 1989 s. 9) 14. Liability of directors, partners, etc.

(1) Where the person convicted of an offence against this Ordinance is a company and it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part or, any director, manager, secretary or other similar officer of the company, the director, manager, secretary or other similar officer shall be guilty of the like offence.

(2) Where the person convicted of an offence against this Ordinance is a firm and it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, any partner in the firm or any person concerned in the management of the firm, the partner or the person concerned in the management of the firm shall be guilty of the like offence. (Replaced 71 of 1989 s. 10) 14A. Protection of public officers (1) A public officer is not personally liable in respect of any act or omission of his if it was done or made by him in the honest belief that it was required or authorized in the exercise of any function, duty or power of his under this Ordinance.

(2) The protection conferred on public officers by subsection (1) in respect of any act or omission shall not in any way affect any liability of the Crown in tort for that act or omission.

(Added 71 of 1989 s. 11) 15. Procedure (1) (a) Any summons relating to an offence against this Ordinance by a proprietor of an industrial undertaking may be served by leaving a copy of the summons with some person for him at the industrial undertaking mentioned in the summons.

(b) Any such summons may be addressed to the proprietor of an industrial undertaking without specifying the name of the proprietor.

(c) If on the hearing of any such summons the offence is proved to the satisfaction of the magistrate, he may, in addition to any other power which he may possess, order that any fine imposed, if not duly paid, shall be recovered by distress and sale of the machinery, goods and chattels found in the industrial undertaking in question, and the provisions of the Magistrates Ordinance (Cap. 227) shall apply in the case of such distress and sale as they apply to any distress and sale under that Ordinance.

(2) Any summons relating to an offence against this Ordinance by a person employed in an industrial undertaking may be served by leaving a copy of the summons either with some person for him at his last or most usual place of abode or with some person for him at the industrial undertaking mentioned in the summons.

16. Presumptions In any prosecution under this Ordinance- (a) if it appears to the magistrate that any person who is alleged in the charge to have been a young person or child at the date of the alleged offence was a young person or child at the said date, it shall, until the contrary is proved, be presumed that such person was a young person or child at the said date; (b) if it appears to the magistrate that any young person or child who is alleged in the charge to have been under any particular age at the date of the alleged offence was under that particular age at the said date, it shall, until the contrary is proved, be presumed that the said young person or child was under the said age at the said date; (c) if the charge alleges the contravention of any of the provisions of this Ordinance prohibiting or controlling the employment of women, young persons or children and the defendant in such prosecution is the proprietor of the industrial undertaking in or in respect of which the offence is alleged to have been committed, it shall, until the contrary is proved, be presumed that any woman, young person or child to whom the charge relates and who was employed in the industrial undertaking on the day on which the offence is alleged to have been committed was employed therein on that day by such proprietor.(Added 51 of 1961 s. 5) 17. Prosecution of offences (1) Prosecutions for offences against this Ordinance may be brought in the name of the Commissioner for Labour, and may be commenced and conducted by any officer of the Labour Department.

(2) Save as is provided in subsection (1), no prosecution for an offence against this Ordinance shall be commenced without the written consent of the Commissioner for Labour.

(3) Nothing in this section shall be deemed to derogate from the powers of the Attorney General in relation to the prosecution of criminal offences.

18. Onus of proving limits of what is practicable, etc.

(1) In a proceeding for an offence under a provision in this Ordinance consisting of a failure to comply with a duty or requirement to do something so far as is necessary, where practicable, so far as is reasonably practicable, or so far as practicable or to take all reasonable steps, all practicable steps, adequate steps or all reasonably practicable steps to do something, the onus is on the accused to prove that it was not necessary, not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that he has taken all reasonable steps, or practicable steps or done the appropriate thing to satisfy the duty or requirement.

(2) In a proceeding for an offence under a provision in this Ordinance consisting of an exemption from compliance with a duty or requirement to do something where it is impracticable, not reasonably practicable or rendered impracticable to comply with that duty or requirement, the onus is on the accused to prove that it was impracticable or not reasonably practicable to do more than was in fact done to comply with the duty or requirement.

(3) Subsections (1) and (2) do not apply where the offence is committed on or before the commencement [1] of this section.

(Added 71 of 1989 s. 12) 19. Civil liability This Ordinance does not- (a) confer a right of action in civil proceedings in respect of a failure to comply with section 6A or 6B; and (b) affect the extent (if any) to which breach of any other provision is actionable. (Added 71 of 1989 s. 12) FIRST SCHEDULE [ss. 2 & 8] DANGEROUS TRADES 1. Boiler chipping.

2. (Repealed L. N. 222 of 1983) 3. The manufacture of glass from basic raw materials. (Replaced L. N. 222 of 1983) 4. Manufacturing processes involving the use of arsenic, lead, manganese, mercury, phosphorus, or any compound of any of them. (Amended L. N. 222 of 1983) 5. Vermilion manufacture.

6. Chromium plating.

7. The machining or grinding of celluloid or magnesium, or of any article wholly or partly made of celluloid or magnesium in any manufacturing process. (Replace L. N. 222 of 1983) 8. The manufacture of hydrochloric, nitric or sulphuric acids.

SECOND SCHEDULE [ss. 2 & 8] SCHEDULED TRADES 1. Any industrial undertaking involving the use of any dangerous goods specified in Category 5 in the Schedule to the Dangerous Goods (Classification) Regulations (Cap. 295 sub. leg) and for which a licence is required under the Dangerous Goods Ordinance (Cap. 295). (Amended L. N.

222 of 1983) 2. Any industrial undertaking involving the use of coal gas.

3. Any industrial undertaking involving the use of electricity as motive power or for heating or in any electrolytic process, other than electricity used solely for the ventilation, heating or lighting of a building.

4. Any industrial undertaking involving the use of any X-ray or radioactive substance. (Added G. N. A. 62 of 1956) THIRD SCHEDULE [ss 2 & 8] SPECIFIED STRUCTURES AND WORKS 1. Any building, edifice, wall, fence, or chimney, whether constructed wholly or partly above or below ground level.

2. Any road, motorway, railway, tramway, cableway, aerial ropeway or canal. (Amended 19 of 1976 s. 32) 3. Any harbour works, dock, pier, sea defence work, or lighthouse.

4. Any aqueduct, viaduct, bridge, or tunnel.

5. Any sewer, sewage disposal works, or filter bed.

6. Any airport or works connect with air navigation.

7. Any dam, reservoir, well, pipeline, culvert, shaft, or reclamation, 8. Any drainage, irrigation, or river control work.

9. Any water, electrical, gas, telephonic, telegraphic, radio, or television installation or works, or any other works designed for the manufacturing or transmission of power or the transmission or reception of radio or sound waves.

10. Any structure designed for the support of machinery, plant, or power transmission lines.

(Added 52 of 1973 s. 6)
fit may, for such period and subject to such conditions as he may specify, exempt any industrial undertaking from any regulation made under this Ordinance and the Commissioner for Labour, or any officer authorized in writing by him, may order the adoption of special precautions in addition to any precautions required by any regulation made under this Ordinance: (Amended 7 of 1959 s. 2; 4 of 1969 s. 6) Provided that any person aggrieved by such exemption or order may within 14 days of being notified of such exemption or order appeal by way of petition to the Governor in Council, whose decision shall be final.

(Replaced 4 of 1969 s. 6) (5) Regulations made under this section may provide that contravention of specified provisions of such regulations shall be an offence and may provide penalties therefor: Provided that no penalty so provided shall exceed a fine of $ 50,000 and imprisonment for 12 months. (Amended 52 of 1973 s. 3; 57 of 1980 s. 2; 71 of 1989 s. 6) 8. Governor in Council may amend the Schedules The Governor in Council may by order amend the First, Second or Third Schedule. (Replaced 52 of 1973 s. 4. Amended 7 of 1976 s. 3; 50 of 1985 s. 4) 9. Notification of workplaces (1) The person having the management or control of a notifiable workplace shall, before the first occasion on which any industrial process is commenced or any industrial operation is carried on in the notifiable workplace, notify the Commissioner for Labour in the prescribed form of such particulars relating to the workplace and the industrial process or industrial operation proposed to be carried on there as may be specified in the prescribed form.

(2) The person having the management or control of a notifiable workplace in respect of which any change in the location or name of the notifiable workplace or in the nature of the industrial process or industrial operation carried on there is proposed shall notify the Commissioner for Labour in the prescribed form of the proposed change before it takes effect.

(3) Where there has been a change in the identity of the person having the management or control of a notifiable workplace, that person shall notify the Commissioner for Labour of the fact of such change within 21 days after it takes effect. (Replaced 50 of 1985 s. 5) 9A. Prohibition notices (1) If at any time the Commissioner for Labour considers that any notifiable workplace, whether a notifiable workplace which has been notified to him under section 9 or not, is not suitable- (a) for use as a factory, mine or quarry; or (b) for the carrying on therein of any dangerous trade or scheduled trade; or (c) for the carrying on therein of any industrial process or industrial operation or any part thereof, he may issue to the proprietor of the notifiable workplace a notice in the prescribed form prohibiting- (i) its use as a factory, mine or quarry; (ii) the carrying on therein of any dangerous trade or scheduled trade; or (iii) the carrying on therein of such industrial process or industrial operation, or such part thereof, as may be specified in the notice.

(2)Upon issuing a prohibition notice in respect of any notifiable workplace the Commissioner for Labour shall on the notice state the reasons for the issue of the notice and specify a date by which it is to be complied with.

(3) Where at any time after issuing a prohibition notice in respect of a notifiable workplace the Commissioner for Labour is satisfied that the matter leading to the issuing of the notice has been remedied, he may, and if so requested by the proprietor of the notifiable workplace shall, cancel the prohibition notice, but may upon doing so give directions in writing to the proprietor of the notifiable workplace in respect of any matter which led to the issuing of the notice.

(4) Any proprietor of a notifiable workplace who is aggrieved by- (a) the issue of a prohibition notice in respect of that notifiable workplace; (b) a refusal by the Commissioner for Labour to cancel a prohibition notice; or (c) the giving of any direction upon the cancellation of a prohibition notice, may, within 14 days of being notified of such issue, refusal or direction, appeal against it by way of petition to the Governor in Council, whose decision thereon shall be final.

(5) In this section- (a) "Commissioner for Labour" includes any person authorized by the Commissioner for Labour in writing for the purposes of this section; (b) "suitable" means,- (i) in the case of a notifiable workplace designed and constructed for industrial use, suitable in respect of the safety, health and welfare of persons employed therein; (ii) in the case of a notifiable workplace not so designed and constructed, suitable in respect of the safety, health and welfare of persons generally other than in respect of noise affecting persons not employed therein. (Amended 75 of 1988 s. 40) (Added 50 of 1985 s. 5) 10. Offences and penalties (1) A person who contravenes section 9 commits an offence and is liable to a fine of $ 10,000.(Replaced 50 of 1985 s. 6) (1A) Subject to subsection (1C) a proprietor of a notifiable workplace who fails to comply with the terms of a prohibition notice relating to that notifiable workplace within the period specified in the prohibition notice commits an offence and is liable to a fine of $ 30,000 and to imprisonment for 6 months. (Replaced 50 of 1985 s. 6. Amended 71 of 1989 s. 7) (1B) Where a proprietor has appealed to the Governor in Council under section 9A (4), the period for compliance with the terms of a prohibition notice shall be as specified in the decision on the appeal or, if it is not so specified, shall run from the date when the proprietor is notified of the result of the appeal. (Added 50 of 1985 s. 6) (1C) Where under section 9A (3) the Commissioner for Labour has upon cancelling a prohibition notice issued in respect of a notifiable workplace given any directions, a proprietor who carries on an industrial process or industrial operation in the notifiable workplace without complying with those directions commits an offence and is liable to a fine of $ 30,000 and to imprisonment for 6 months. (Added 50 of 1985 s. 6. Amended 71 of 1989 s. 7) (2) Any person who fails to comply with any order made under section 7 (4) or who fails to comply with any condition imposed on the granting thereunder of any exemption shall be guilty of an offence and shall be liable to a fine of $ 30,000 and to imprisonment for 6 months. (Amended 71 of 1989 s. 7) (3) Any person who- (a) fails to comply with a requirement made by any officer under section 4 (1); or (b) 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 (c) 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 of $ 20,000.

(4) Any person who contravenes any of the provisions of section 5 (1), (2) or (3) shall be guilty of an offence and shall be liable to a fine of $10,000.

(4A) Any person who contravenes section 6 commits an offence and is liable on conviction to a fine of $ 20,000. (Added 30 of 1992 s. 2) (5) The proprietor of a notifiable workplace shall be deemed to have complied with section 9 (1) if before the commencement [1] of the Factories and Industrial Undertakings (Amendment) Ordinance 1985 (50 of 1985) the workplace was registered or provisionally registered under repealed section 9 (5). (Added 50 of 1985 s. 6) (6) The proprietor of a notifiable workplace which before the commencement of Factories and Industrial Undertakings (Amendment) Ordinance 1985 (50 of 1985) was a registrable workplace under repealed section 9 (1) but which was not registered or provisionally registered under repealed section 9 (5) may be exempted from the requirements of section 9 (1) by the Commissioner for Labour by notice in writing not later than 6 months after the commencement of that Ordinance.(Added 50 of 1985 s. 6) (7) In this section "repealed" means repealed by section 5 of the Factories and Industrial Undertakings (Amendment) Ordinance 1985 (50 of 1985). (Added 50 of 1985 s. 6) (Replaced 19 of 1963 s. 3. Amended 4 of 1969 s. 8; 37 of 1983 s. 5) 11. Power to make orders as to dangerous conditions and practices (1) Notwithstanding the provisions of section 9A, if on complaint by an inspector a magistrate is satisfied either-(Amended 50 of 1985 s. 7) (a) that any part of the ways, works, machinery or plant used in an industrial undertaking is in such condition or so constructed or so placed that it cannot be used without risk of bodily injury; or (b) that any process or work is carried on or anything is or has been done in any industrial undertaking in such a manner as to cause risk or bodily injury, the magistrate shall, by order, as the case may require- (i) prohibit the use of that part of the ways, works, machinery or plant, or, if it is capable of repair or alteration, prohibit its use until it is duly repaired or altered; (ii) require the proprietor to take such steps as may be specified in the order for remedying the danger complained of; or (iii) direct that such machinery or plant shall be secured by a seal, lock or other device by an inspector in such manner as the inspector may think necessary to prevent the operation of the machinery or plant without the seal, lock or other device being broken or removed, for such period as the magistrate may specify in such order.

(2) Where a complaint is or has been made under subsection (1) the magistrate may, on application ex parte by an inspector, and on receiving evidence that the use of any such part of the ways, works, machinery or plant, or, as the case may be, the carrying on of any process or work or the doing of anything in such a manner as aforesaid, involves imminent risk of serious bodily injury, make an interim order prohibiting either absolutely or subject to conditions, the use, carrying on or doing thereof until the earliest opportunity for hearing and determining the complaint and may include in such interim order a direction that any machinery or plant located in such industrial undertaking shall be secured by a seal, lock or other device by an inspector in such manner as the inspector may think necessary to prevent the operation of the machinery or plant without the seal, lock or other device being broken or removed, and where such an interim order or direction has been made, the magistrate may at any time rescind or vary the interim order or direction. (Amended 4 of 1969 s. 9) (3) In the event of any contravention of or failure to comply with any order made by a magistrate under this section or of any condition or direction contained in such order the proprietor of the industrial undertaking in respect of which the order is made shall be guilty of an offence and shall be liable to a fine of $ 50,000 and to imprisonment for 12 months. (Amended 57 of 1980 s. 3; 71 of 1989 s. 8) (Added 19 of 1963 s.

8) 11A. Inquiry by chief factory inspector in case of accident (1) Whenever an accident whether or not involving injury to any person occurs in an industrial undertaking, the Commissioner for Labour, if he is of the opinion that an inquiry into the cause and circumstances of the accident should be held, shall direct the chief factory inspector to hold such inquiry.

(2) An inquiry by the chief factory inspector shall be held informally in the first instance in such manner as the chief factory inspector may think fit and the chief factory inspector shall record his findings in writing and submit the record to the Commissioner for Labour.

(3) Where the chief factory inspector is of the opinion that an inquiry by him under this section is likely to be frustrated or delayed owing to the unwillingness of any person to provide any information relating to the accident or to produce books or records for inspection or to answer any question, or for any other cause, the chief factory inspector shall submit a statement in writing to the Commissioner for Labour to that effect.

(Added 37 of 1983 s. 6) 11B. Power of Commissioner or deputy commissioner to hold formal inquiry (1) Where a statement is submitted to the Commissioner for Labour under section 11A (3) in respect of any accident, the Commissioner for Labour or a deputy commissioner for labour may hold an inquiry into the cause and circumstances of the accident.

(2) The Commissioner for Labour or a deputy commissioner for labour, for the purposes of holding an inquiry- (a) shall have all the powers of a magistrate to summon witnesses, to call for the production of books and documents and examine witnesses and other persons concerned on oath; and (b) may, on application made to him in that behalf, hold the inquiry otherwise than in public to such extent as he considers necessary for the purpose of hearing evidence, the giving of which is in his opinion likely to disclose information relating to a trade secret.

(3) Any person summoned to attend before an inquiry held under this section or to produce books or documents as evidence in the inquiry who fails to do so, or who refuses to answer any question put to him by or with the concurrence of the person holding the inquiry, shall be guilty of an offence and be liable to a fine of $ 10,000 and to imprisonment for 3 months: Provided that no person shall be bound to incriminate himself, and every witness shall, in respect of any evidence given by him at such inquiry, be entitled to the same privileges to which he would be entitled in proceeding before a magistrate.

(4) Any person who behaves in an insulting manner or uses any threatening or insulting expression to or in the presence of the person holding the inquiry commits an offence and is liable to a fine of $ 5,000 and to imprisonment for 3 months. (Added 37 of 1983 s. 6) 11C. Saving Any inquiry held by virtue of section 11B shall not derogate in any way from the powers or jurisdiction exercisable by coroners under the Coroners Ordinance (Cap. 14). (Added 37 of 1983 s. 6) 12. Continuing offences Any person guilty of an offence against this Ordinance shall, in addition to any other penalty prescribed for such offence, be liable to a fine of $ 5,000 for every day during the whole or any part of which such offence is knowingly and wilfully continued. (Amended 52 of 1973 s. 5; 37 of 1983 s.

7) 13. Liability of proprietor (1) Except as may be otherwise provided by regulations made under this Ordinance, the proprietor of every industrial undertaking in or in respect of which any offence against this Ordinance has been committed shall be guilty of a like offence, and shall be liable to the penalty prescribed for such offence.

(2) It shall be no defence to a prosecution of the proprietor of an industrial undertaking for an offence against this Ordinance that the offence was committed without his knowledge or consent or that the actual offender has not been convicted of the offence.

(3) Nothing in this section shall apply to an offence under section 6B.

(Added 71 of 1989 s. 9) 14. Liability of directors, partners, etc.

(1) Where the person convicted of an offence against this Ordinance is a company and it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part or, any director, manager, secretary or other similar officer of the company, the director, manager, secretary or other similar officer shall be guilty of the like offence.

(2) Where the person convicted of an offence against this Ordinance is a firm and it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, any partner in the firm or any person concerned in the management of the firm, the partner or the person concerned in the management of the firm shall be guilty of the like offence. (Replaced 71 of 1989 s. 10) 14A. Protection of public officers (1) A public officer is not personally liable in respect of any act or omission of his if it was done or made by him in the honest belief that it was required or authorized in the exercise of any function, duty or power of his under this Ordinance.

(2) The protection conferred on public officers by subsection (1) in respect of any act or omission shall not in any way affect any liability of the Crown in tort for that act or omission.

(Added 71 of 1989 s. 11) 15. Procedure (1) (a) Any summons relating to an offence against this Ordinance by a proprietor of an industrial undertaking may be served by leaving a copy of the summons with some person for him at the industrial undertaking mentioned in the summons.

(b) Any such summons may be addressed to the proprietor of an industrial undertaking without specifying the name of the proprietor.

(c) If on the hearing of any such summons the offence is proved to the satisfaction of the magistrate, he may, in addition to any other power which he may possess, order that any fine imposed, if not duly paid, shall be recovered by distress and sale of the machinery, goods and chattels found in the industrial undertaking in question, and the provisions of the Magistrates Ordinance (Cap. 227) shall apply in the case of such distress and sale as they apply to any distress and sale under that Ordinance.

(2) Any summons relating to an offence against this Ordinance by a person employed in an industrial undertaking may be served by leaving a copy of the summons either with some person for him at his last or most usual place of abode or with some person for him at the industrial undertaking mentioned in the summons.

16. Presumptions In any prosecution under this Ordinance- (a) if it appears to the magistrate that any person who is alleged in the charge to have been a young person or child at the date of the alleged offence was a young person or child at the said date, it shall, until the contrary is proved, be presumed that such person was a young person or child at the said date; (b) if it appears to the magistrate that any young person or child who is alleged in the charge to have been under any particular age at the date of the alleged offence was under that particular age at the said date, it shall, until the contrary is proved, be presumed that the said young person or child was under the said age at the said date; (c) if the charge alleges the contravention of any of the provisions of this Ordinance prohibiting or controlling the employment of women, young persons or children and the defendant in such prosecution is the proprietor of the industrial undertaking in or in respect of which the offence is alleged to have been committed, it shall, until the contrary is proved, be presumed that any woman, young person or child to whom the charge relates and who was employed in the industrial undertaking on the day on which the offence is alleged to have been committed was employed therein on that day by such proprietor.(Added 51 of 1961 s. 5) 17. Prosecution of offences (1) Prosecutions for offences against this Ordinance may be brought in the name of the Commissioner for Labour, and may be commenced and conducted by any officer of the Labour Department.

(2) Save as is provided in subsection (1), no prosecution for an offence against this Ordinance shall be commenced without the written consent of the Commissioner for Labour.

(3) Nothing in this section shall be deemed to derogate from the powers of the Attorney General in relation to the prosecution of criminal offences.

18. Onus of proving limits of what is practicable, etc.

(1) In a proceeding for an offence under a provision in this Ordinance consisting of a failure to comply with a duty or requirement to do something so far as is necessary, where practicable, so far as is reasonably practicable, or so far as practicable or to take all reasonable steps, all practicable steps, adequate steps or all reasonably practicable steps to do something, the onus is on the accused to prove that it was not necessary, not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that he has taken all reasonable steps, or practicable steps or done the appropriate thing to satisfy the duty or requirement.

(2) In a proceeding for an offence under a provision in this Ordinance consisting of an exemption from compliance with a duty or requirement to do something where it is impracticable, not reasonably practicable or rendered impracticable to comply with that duty or requirement, the onus is on the accused to prove that it was impracticable or not reasonably practicable to do more than was in fact done to comply with the duty or requirement.

(3) Subsections (1) and (2) do not apply where the offence is committed on or before the commencement [1] of this section.

(Added 71 of 1989 s. 12) 19. Civil liability This Ordinance does not- (a) confer a right of action in civil proceedings in respect of a failure to comply with section 6A or 6B; and (b) affect the extent (if any) to which breach of any other provision is actionable. (Added 71 of 1989 s. 12) FIRST SCHEDULE [ss. 2 & 8] DANGEROUS TRADES 1. Boiler chipping.

2. (Repealed L. N. 222 of 1983) 3. The manufacture of glass from basic raw materials. (Replaced L. N. 222 of 1983) 4. Manufacturing processes involving the use of arsenic, lead, manganese, mercury, phosphorus, or any compound of any of them. (Amended L. N. 222 of 1983) 5. Vermilion manufacture.

6. Chromium plating.

7. The machining or grinding of celluloid or magnesium, or of any article wholly or partly made of celluloid or magnesium in any manufacturing process. (Replace L. N. 222 of 1983) 8. The manufacture of hydrochloric, nitric or sulphuric acids.

SECOND SCHEDULE [ss. 2 & 8] SCHEDULED TRADES 1. Any industrial undertaking involving the use of any dangerous goods specified in Category 5 in the Schedule to the Dangerous Goods (Classification) Regulations (Cap. 295 sub. leg) and for which a licence is required under the Dangerous Goods Ordinance (Cap. 295). (Amended L. N.

222 of 1983) 2. Any industrial undertaking involving the use of coal gas.

3. Any industrial undertaking involving the use of electricity as motive power or for heating or in any electrolytic process, other than electricity used solely for the ventilation, heating or lighting of a building.

4. Any industrial undertaking involving the use of any X-ray or radioactive substance. (Added G. N. A. 62 of 1956) THIRD SCHEDULE [ss 2 & 8] SPECIFIED STRUCTURES AND WORKS 1. Any building, edifice, wall, fence, or chimney, whether constructed wholly or partly above or below ground level.

2. Any road, motorway, railway, tramway, cableway, aerial ropeway or canal. (Amended 19 of 1976 s. 32) 3. Any harbour works, dock, pier, sea defence work, or lighthouse.

4. Any aqueduct, viaduct, bridge, or tunnel.

5. Any sewer, sewage disposal works, or filter bed.

6. Any airport or works connect with air navigation.

7. Any dam, reservoir, well, pipeline, culvert, shaft, or reclamation, 8. Any drainage, irrigation, or river control work.

9. Any water, electrical, gas, telephonic, telegraphic, radio, or television installation or works, or any other works designed for the manufacturing or transmission of power or the transmission or reception of radio or sound waves.

10. Any structure designed for the support of machinery, plant, or power transmission lines.

(Added 52 of 1973 s. 6)


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