### Occupational Safety and Health Ordinance 《職業安全及健康條例》

34A. Prosecution deadline
A prosecution for a summary offence 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. 82)

35. Not necessary to specify certain matters in summons for offence
(1) A summons relating to an offence against this Ordinance may be addressed to the occupier of premises where a specified workplace is located without actually naming that occupier.
(2) In a summons for an offence against this Ordinance alleging a failure to comply with a requirement or an obligation that has to be complied with only in so far as it is practicable or is reasonably practicable to do so, it is not necessary to aver that it was practicable, or was reasonably practicable, for the defendant to comply with the requirement or obligation.

36. Evidentiary statements
(1) In proceedings for an offence against this Ordinance, a statement, purporting to be signed by the Commissioner, is admissible in all legal proceedings as evidence of the matters contained in the statement if the statement—
(a) relates to—
(i) a record kept by the Commissioner for the purposes of this Ordinance; or
(ii) any other matter relating to occupational safety or health at work contained in an official document of a kind prescribed by a regulation; and
(b) certifies that the contents of the statement are in accordance with particulars contained in the record or document.
(2) It is unnecessary to prove the signature of the Commissioner in a statement admissible under this section.

37. Evidence of employer-employee relationship
Evidence that a person is engaged or employed in a particular economic activity that is, or was at a relevant time, carried on by another person, or was engaged or employed in a business or undertaking of which another person is the proprietor, is, for the purposes of any legal proceedings arising under this Ordinance, evidence—
(a) that the person so engaged or employed is, or was at that time, an employee of the other person; and
(b) that the other person is, or was at that time, the employer of the person so engaged or employed.

### Occupational Safety and Health Ordinance 《職業安全及健康條例》

38. Onus on defendant to prove certain matters
In proceedings for an offence against this Ordinance involving a failure—
(a) to comply with a requirement or an obligation that has to be complied with only in so far as it is practicable or reasonably practicable to do so; or
(b) to take steps, reasonable steps or reasonably practicable steps to comply with the requirement or obligation,
the onus is on the defendant to establish that compliance with the requirement or obligation was not practicable or was not reasonably practicable, or that steps, reasonable steps or reasonably practicable steps were taken to comply with the requirement or obligation.

39. Person not liable to be prosecuted twice for same act or omission
A person who has been convicted or acquitted of having committed an offence under a provision of the Factories and Industrial Undertakings Ordinance (Cap. 59) 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.

### Occupational Safety and Health Ordinance 《職業安全及健康條例》

39A. Court to order convicted person to give financial information
(1) The court must order a convicted person to give information on the turnover of the convicted person’s business to determine the scale of operation of the convicted person.
(2) For the purpose of complying with an order made under subsection (1), the convicted person must provide—
(a) a copy of the return furnished by the convicted person for profits tax under section 51(1) of the Inland Revenue Ordinance (Cap. 112); or
(b) a document containing the turnover information of the convicted person’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 convicted person fails to comply with an order made under subsection (1) by giving sufficient information, the court may further order the convicted person to give any other financial information that the court considers relevant in determining the scale of operation of the convicted person.
(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—
convicted person (被定罪人士) means an employer, or an occupier of premises, who is convicted on indictment of an offence under this Ordinance;
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 convicted person, but excluding the revenue that arises incidentally or is exceptional in nature;
year (年份), in relation to a convicted person, means—(a) the financial year of the convicted person; or
(b) if the convicted person does not have a financial year, a calendar year.

(Added 5 of 2023 s. 83)

39B. Court to take into account financial information of convicted person
In determining the amount of the fine to be imposed on a convicted person (as defined by section 39A(5)), the court must take into account—
(a) any financial information given by the convicted person (whether or not given in compliance with an order under section 39A(1) or (3)) that is relevant in determining the scale of operation of the convicted person; and
(b) if no such information is given by the convicted person—any financial information from any other source provided by the prosecution that the court considers relevant in determining the scale of operation of the convicted person and reliable in the circumstances.
(Added 5 of 2023 s. 84)

### Occupational Safety and Health Ordinance 《職業安全及健康條例》

40. Workplace codes of practice
(1) The Commissioner may issue codes of practice for the purpose of providing practical guidance to employers and employees, and to occupiers of workplaces who are not employers.
(2) A workplace code of practice—
(a) may consist of a code, standard, rule, specification or provision relating to occupational safety or health approved by the Commissioner; and
(b) may apply, incorporate or refer to any document that has been formulated or published by a body or authority either as in force at the time when the document is approved by the Commissioner or as amended, formulated or published from time to time.
(3) The Commissioner may amend or revoke a code of practice issued under this section.
(4) The Commissioner is required to publish in both English and Chinese—
(a) any code of practice issued under this section; and
(b) if the code is subsequently amended, the amendments made to the code.
The publication may be in such form as the Commissioner considers will communicate the contents of the code or of the amendments to the people affected.
(5) Whenever a code of practice is issued under this section or the code is amended or revoked, the Commissioner is required to publish in the Gazette a notice of the issue, amendment or revocation.
(6) The Commissioner is required to make available at the head office of the Labour Department, during ordinary business hours, all workplace codes of practice for inspection by members of the public. No charge is to be made for the inspection of a workplace code of practice.
(7) A workplace code of practice takes effect on the date on which notice of the code is published in the Gazette or on such later date as is specified in the notice.
(8) An amendment to a workplace code of practice takes effect on the date on which notice of the amendment is published in the Gazette or on such later date as is specified in the notice.
(9) A workplace code of practice ceases to have effect on the date on which notice of revocation of the code is published in the Gazette or on such later date as is specified in the notice.