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In general, any person holding a licence or
permit issued under the Entertainment Special Effects Ordinance (Cap. 560) (the Ordinance) shall be held liable for
the offences committed by his employees or agents and a director or an
officer concerned in the management of a body corporate shall be guilty of offences
committed by the body corporate.
However, sections 50 and 51(1) of the Ordinance provide for defences
to such charges.
For
ease of reference, sections 50 and 51(1) of the Ordinance are reproduced
below :
Section 50
– Liability of holder of licence or permit for offences committed by
his employees and agents
(1) Subject
to this section, where it is proved to the satisfaction of a court that an
offence against this Ordinance has been committed by any employee or agent
of any person holding any licence or permit issued under this Ordinance,
such person shall, unless -
(a)
the
offence was committed without his knowledge or consent; and
(b) he had exercised all due
diligence to prevent the commission of the offence,
also be held to be liable for such
offence and to the penalty therefor.
(2) No
such person shall be sentenced to imprisonment (except in default of
payment of a fine) for any offence under this section.
(3) Nothing
in this section shall be deemed to exempt the employee or agent from the penalties
provided for the offence committed by such employee or agent.
(4) In
any proceedings against the person in relation to which subsection(1) is
alleged to apply, it shall, in relation to the offence against this
Ordinance concerned committed by the employee or agent concerned of the
person, be presumed, in the absence of evidence to the contrary, that -
(a) the offence was committed
with the knowledge and consent of the person; and
(b) the person did not
exercise all due diligence to prevent the commission of the offence.
Section
51 – Liability for offences by body corporate, etc.
(1) Where
an offence under this Ordinance has been committed by a body corporate, any
person who at the time of commission of the offence was a director or an officer
concerned in the management of the body corporate shall also be guilty of
such offence unless he proves that the offence was committed without his
consent or connivance, and that he exercised all such diligence to prevent
the commission of the offence as he ought to have exercised having regard
to the nature of his functions in that capacity and to all the
circumstances.
A. Liability for Offences
Committed by Employees/Agents
In
essence, section 50 of the Ordinance provides that any person holding a
licence or permit issued under this Ordinance shall not be held liable for
an offence committed by his employees or agents if he can prove to the
satisfaction of the court that :
l
the offence
was committed without his knowledge or consent; and
l
he had
exercised all due diligence to prevent the commission of the offence.
It
should be noted that the operative words in this section is that any person
who can prove that “the
offence was committed without his consent” and “he had exercised all due
diligence to prevent the commission of the offence” will not be
guilty of the offence.
B. Liability for
Offences Committed by a Body Corporate
According
to section 51(1) of the Ordinance, where an offence has been committed by a
body corporate, any person who at the time of commission of the offence was
a director or an officer concerned in the management of the body corporate shall also be guilty
of such offence unless he proves that :
l
the
offence was committed without his consent or connivance; and
l
he
exercised all such diligence to prevent the commission of the offence as he
ought to have exercised.
Similar
to section 50, any person who can prove that “the offence was committed without his consent” and
“he had exercised all such
diligence to prevent the commission of the offence” will not be
guilty of the offence.
Another
important phrase in section 51(1) is “at
the time of commission”.
Even though the body corporate was dissolved after the commission of
the offence, the person who at the time of commission of the offence was a
director or an officer concerned in the management of the body corporate
shall still be held liable for the offence.
C. Points to be Observed in using Special Effects Materials
In
view of their liability under the Ordinance, employers and directors or
officers concerned in the management of body corporates are advised to
observe the following with respect to the use of special effects materials
(SEM) in producing entertainment special effects -
(a)
Section
10 of the Ordinance provides that no person shall discharge or cause or permit to be discharged
any SEM except under and in accordance with a discharge permit. Hence, prior to the discharge of
SEM, apply to the Authority for a discharge permit. It should be noted that
under section 11(1) of the Ordinance, an application for a discharge permit
may be made by the person who organizes the entertainment programme which
involves the use of SEM or the licensed special effects operator (SEO) who
is responsible for using the SEM for such entertainment programme.
(b)
As
provided for under section 10 of the Entertainment Special Effects (General)
Regulation (the Regulation), an application for a discharge permit shall
contain the particulars of the person proposed to be engaged as the
operator-in-charge. The
operator-in-charge must hold a SEO licence the type and the scope of
operation of which are acceptable to the Authority. In case of doubts, check with the
Authority first before engaging a licensed SEO as the operator-in-charge.
(c)
Ensure
that the application for a discharge permit contains the type of SEM and
the maximum quantities of each type of SEM to be used. It is not necessary to provide the
exact quantities or to use up all SEM brought to the discharge venue.
(d)
Never
force or give consent to the operator-in-charge or any other persons to use
SEM not specified in the discharge permit or use more than the quantities
specified in the discharge permit.
(e)
Apply to
the Authority for approval prior to the change of the operator-in-charge.
(f)
Never
ask, or give consent to, any person to contravene any provisions of the
Ordinance or any terms or conditions attached to a permit or licence. Exercise all due diligence to
prevent the commission of any offence or the violation of any
licence/permit conditions. In
case of doubt, inform the Authority of any contravention or suspected
contravention of any provisions of the Ordinance.
For enquiries, please call Mr John MAK at
2594 5825.
ESELA
16.3.2001
ESELA
Guidance Notes 1 (16.3.2001)
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