Is it Still a Defence to Construction Site Safety Prosecutions?
Following the case of AG v. Fong Chin Yue [1995] 1 HKC 21, it was generally believed that there was a sweeping introduction of the defence of honest and reasonable mistake in respect of all strict liability offences. In that case, the Court of Appeal, dealing with a strict liability offence under the Dutiable Commodities Ordinance, held that it would be a defence if the accused could prove on a balance of probabilities that he believed for good and sufficient reason, though erroneously, that the provisions of the Ordinance had been complied with, which included a reasonable belief that duty had been paid. This is often described as the common law defence. Based on the Fong case, a number of contractors have attempted this common law defence when being prosecuted for site safety offences that have been categorized by the Court as imposing strict liability. In HKSAR v. China Civil Engineering Construction Corporation [2002] 2 HKC 418, the contractor appealed against the conviction for an
