### Factories and Industrial Undertakings Ordinance 《工廠及工業經營條例》

17. Prosecution of offences
(1) A prosecution for an offence under this Ordinance, or an offence of conspiracy to commit such an offence, may—
(a) be brought by the Commissioner in the Commissioner’s own name; and
(b) be commenced and conducted by an officer of the Labour Department. (Replaced 5 of 2023 s. 11)
(1A) For the purposes of subsection (1), the offence must be tried before a magistrate as an offence that is triable summarily. (Added 5 of 2023 s. 11)
(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. (Amended 39 of 1997 s. 48)
(3) Nothing in this section shall be deemed to derogate from the powers of the Secretary for Justice in relation to the prosecution of criminal offences. (Amended L.N. 362 of 1997)
(4) A person who has been convicted or acquitted of having committed an offence under a provision of the Occupational Safety and Health Ordinance (Cap. 509) in relation to an act or omission is not liable to be proceeded against for an offence under a corresponding provision of this Ordinance relating to the same act or omission. (Added 39 of 1997 s. 48)
(5) (Repealed 5 of 2023 s. 11)(Amended E.R. 3 of 2015)

17A. Prosecution deadline
(1) A prosecution for an offence specified in Schedule 5 may only be started before the end of 9 months beginning on the date on which the offence is discovered by, or comes to the notice of, the Commissioner.
(2) A prosecution for a summary offence (other than an offence specified in Schedule 5) under this Ordinance, or an indictable offence under this Ordinance that is to be tried summarily, may only be started before the end of 9 months beginning on the date on which the offence is committed.
Note—This replaces the time limit under section 26 of the Magistrates Ordinance (Cap. 227) in respect of a summary offence.
(Added 5 of 2023 s. 12)

### Factories and Industrial Undertakings Ordinance 《工廠及工業經營條例》

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* of this section.
(Added 71 of 1989 s. 12) Editorial Note:     * Commencement date: 15 December 1989. 

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, 6B or 6BA; and (Amended 53 of 1999 s. 8)
(b) affect the extent (if any) to which breach of any other provision is actionable.
(Added 71 of 1989 s. 12)

### Factories and Industrial Undertakings Ordinance 《工廠及工業經營條例》

20. Court to order convicted proprietor to give financial information
(1) If a proprietor of an industrial undertaking is convicted on indictment of an offence under this Ordinance, the court must order the proprietor to give information on the turnover of the proprietor’s business to determine the scale of operation of the proprietor.
(2) For the purpose of complying with an order made under subsection (1), the proprietor must provide—
(a) a copy of the return furnished by the proprietor for profits tax under section 51(1) of the Inland Revenue Ordinance (Cap. 112); or
(b) a document containing the turnover information of the proprietor’s business that has been audited by a certified public accountant (practising) as defined by section 2(1) of the Accounting and Financial Reporting Council Ordinance (Cap. 588).
(3) If the proprietor fails to comply with an order made under subsection (1) by giving sufficient information, the court may further order the proprietor to give any other financial information that the court considers relevant in determining the scale of operation of the proprietor.
(4) Information given in compliance with an order made under subsection (1) or an order made under subsection (3), or both, must cover the year in which the offence is committed.
(5) In this section—
turnover (營業額) means the revenue arising in or derived from Hong Kong from the principal business activities carried on in Hong Kong by a proprietor, but excluding the revenue that arises incidentally or is exceptional in nature;

year (年份), in relation to a proprietor, means—
(a) the financial year of the proprietor; or
(b) if the proprietor does not have a financial year, a calendar year.

(Added 5 of 2023 s. 13)

21. Court to take into account financial information of convicted proprietor
In determining the amount of the fine to be imposed on a proprietor of an industrial undertaking who is convicted on indictment of an offence under this Ordinance, the court must take into account—
(a) any financial information given by the proprietor (whether or not given in compliance with an order under section 20(1) or (3)) that is relevant in determining the scale of operation of the proprietor; and
(b) if no such information is given by the proprietor—any financial information from any other source provided by the prosecution that the court considers relevant in determining the scale of operation of the proprietor and reliable in the circumstances.
(Added 5 of 2023 s. 14)