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LC Paper No. CB(1) 1745/98-99(04)
Bills Committee on Shipping and Port Control (Amendment) Bill 1999
Follow up to the first meeting on 10 July 1999
1. Proposed increase in the penalty charges for breach of requirements of Part V of the Shipping and Port Control Ordinance
The existing penalty charges for offences to Part V of the Shipping and Port Control Ordinance (SAPCO) were set more than 20 years ago. The objective of the current proposed increase is to enhance the deterrent effects so as to minimize marine industrial accidents. In setting the revised level, we have made references to the Factories and Industrial Undertaking Ordinance (FIUO) and Occupational Safety and Health Ordinance (OSHO), the relevant legislation governing industrial safety for land-based operations. In fact, the revised level of penalty charges in the Bill are far less severe than those in FIUO and OSHO. We do not propose to bring the existing fines in SAPCO up to the same level of those in the two Ordinances just to avoid introducing huge increase of some 2000% in some cases. On the other hand, it is important to revise the level of fines to deter offenders, especially repeated offenders. Indeed, it is unacceptable that the existing penalty charges in marine industrial activities are substantially lower than those on land-based operation. The proposed increase will strike a balance and is considered acceptable by the industry.
(a) The following table provides details of the prosecution cases initiated by Marine Department between 1996 and 1998 against offenders of Part V of the Shipping and Port Control Ordinance.
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Offence Date
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Offender
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Sections of SAPCO Breached
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Plea
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Penalty/
Max. Fine
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% of Max. |
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12.2.96
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Person in charge of work
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s. 44(1) & 44(3)(a)
(carrying out works in dangerous condition)
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Pleaded Not Guilty
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$3,000/
$20,000
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15 |
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13.6.96
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Person in charge of work
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s. 40(1) & 40(3)
(carrying out ship repairs without permission)
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Pleaded Guilty
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$10,000/
$50,000
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20 |
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11.2.96
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Person in charge of work
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s. 44(1) & 44(3)(a)
(carrying out works in dangerous condition)
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Pleaded Not Guilty
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$4,000/
$20,000
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20 |
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4.6.96
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Person in charge of work
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s. 44(1) & 44(3)(a)
(carrying out works in dangerous condition)
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Pleaded Guilty
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$15,000/
$20,000
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75 | |
18.6.96
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Person in charge of work
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s. 44(1) & 44(3)(a)
(carrying out works in dangerous condition)
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Pleaded Guilty
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$3,500/
$20,000
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18 |
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2.9.98
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Person in charge of work
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s. 44(2)&44(3)(b)
(fails to comply with direction)
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Pleaded Guilty
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$4,000/
$10,000
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40 |
|
|
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Average:
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31 |
(b) The following table compares the penalty charges proposed under the Bill with those stipulated in FIUO and OSHO. |
Section of SAPCO
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Existing Penalty
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Proposed Penalty
in the Bill
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Penalty of Similar Provisions under
FIUO or OSHO |
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39 (3)
(fails to comply with any requirement of the Director or an inspector; fails to produce document; or withholds certain information)
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$10,000
and 6 months imprisonment
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Level 4
(max. $25,000)
and 6 months imprisonment
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Level 5
(max. 50,000)
(s. 10 (3) of FIUO;
s. 24 (2) of OSHO) |
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40 (3)
(repair without permission of the Director)
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$50,000
and 2 years imprisonment
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Level 6
(max. $100,000)
and 2 years imprisonment
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No comparable provision
Under FIUO or OSHO |
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41 (2)
(using machinery capable of providing an ignition source; or carrying out hot work in explosive atmosphere)
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$20,000
and 1 year imprisonment
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Level 5
(max. $50,000)
and 1 year imprisonment
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No comparable provision
Under FIUO or OSHO | |
42 (2)
(breach of direction served by the Director)
43 (3)(b)
(breach of prohibition or improvement directions)
44 (3)(b)
(breach of prohibition or improvement directions)
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$10,000
and 6 months imprisonment;
additional $1,000 for each day of continue offence
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Level 4
(max. $25,000)
and 6 months imprisonment;
additional
$2,000 for each day of continue offence
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$200,000
and 1 year imprisonment
(s. 9 (5) of OSHO, breach of improvement notice)
$500,000
and 1 year imprisonment;
additional
$5,000 for each day of continue offence
(s. 10 (6) of OSHO,
breach of suspension notice) |
(c)
(i) Marine industrial casualty statistics between 1992 and 1998:
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Casualty (Fatality) in different marine industries
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Year
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Shipboard
Cargo Handling
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Ship breaking &
Ship-repairing
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Marine
Construction |
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1992
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364 (8)
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329 (2)
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80 (1) |
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1993
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400 (7)
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228 (1)
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60 (1) |
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1994
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399 (7)
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243 (3)
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97 (0) |
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1995
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502 (5)
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244 (2)
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82 (3) |
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1996
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438 (7)
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200 (2)
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46 (0) |
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1997
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445 (10)
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112 (0)
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42 (1) |
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1998
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419 (4)
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87 (0)
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30 (1) |
(ii) Between 1996 and 1998, Marine Department initiated 6 prosecution cases against offenders of Part V of SAPCO. There was no repeated offender. Although the accident figures during the period do not depict an upward trend, the number is still high. There are 10 deaths in 1994 and 1995 respectively, and the figure increased to 11 in 1997. The decrease in fatality and casualty figures in 1998 was probably due to the economic downturn and increased awareness of safety practices in the industry, with the launching of the one-day safety course for operators by the Vocational Training Council. 2. Shipping and Port Control (Cargo Handling) (Amendment) Regulation 1999
The following table compares the proposed occupational safety provisions of the Shipping and Port Control (Cargo Handling) (Amendment) Regulation 1999 (Amendment Regulation) with the relevant provisions of FIUO and subsidiary legislation.
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Proposed provision under the Amendment Regulation
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Comparable regulation
under FIUO and sub-leg. |
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1
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Protective clothing and equipment
New regulation 15B imposes a duty on employers and persons in charge of works to
(a) provide suitable safety helmets and, as far as reasonably practicable, other protective clothing and equipment; and
(b) take reasonable steps to ensure that person employed is wearing a suitable safety helmet and using other protective clothing and equipment provided;
proposed fine-Level 3 (max. 10,000).
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r. 48 Construction Sites (Safety) Regulations Cap. 59 Sub-leg. (CSSR) imposes a duty on a contractor responsible for a construction site to
(a) provide suitable safety helmet; and
(b) take reasonable steps to ensure that workman is wearing a suitable safety helmet;
fine-$50,000.
r. 38Q, CSSR provides the requirement for wearing safety belt; fine-$200,000.
r. 42, CSSR provides the requirement for wearing suitable respirators;
fine-$50,000.
r. 43, CSSR provides the requirement for wearing eye protection equipment;
fine-$50,000.
r. 6, FIU (Noise at Work) Regulations provides the requirement for wearing suitable ear protector;
fine-$50,000. | |
2
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General duties of employer and person in charge of works
New regulation 15D stipulates that
"An employer and a person in charge of works shall ensure-
(a) that any machinery, equipment or appliance provided for use in a workplace by the persons employed in the works shall be in safe working conditions; and
(b) the provision of such information, instruction, training and supervision as is necessary to ensure, as far as is reasonably practicable, the health and safety at work of all persons employed."
Proposed fine-Level 4 (max. $25,000).
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s. 6A, FIUO impose general duties on a proprietor to ensure the health and safety at work of all persons employed; in particular his duty includes
(a) the provision and maintenance of plant and system 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, as far as is reasonably practicable, safe, and without risks to health."
Fine-$500,000. | |
3
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General duties of employee
New regulation 15E stipulates that
"A person employed in any works shall
(a) 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;
(b) as regards any duty or requirement imposed on an employer, a person in charge of works or any other person by these regulations for securing the health and safety of persons employed, co-operate with that person so far as is necessary to enable that duty or requirement to be performed or complied with; and
(c) wear a suitable safety helmet and use other appropriate protective clothing and equipment provided to him under regulation 15B(1)(a)."
Proposed fine-Level 2 (max. $5,000).
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s. 6B, FIUO imposed general duties on a person employed 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.
Fine-$50,000.
r. 48(2), CSSR requires any person entering a construction site to wear a safety helmet; fine-$10,000.
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