Mao Xuezhong v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 20 May 2020
• Neutral Citation: [2020] SGHC 99
• Plaintiff Counsel: Ang Feng Qian and Seah Ee Wei (Attorney-General's Chambers)
• Docket Number: Magistrate’s Appeal No 9149 of 2019
• Date: 20 May 2020
• Hearing Date: 10 March 2020
• Subject Matter: Sentencing,Benchmark sentences,Criminal Procedure and Sentencing
• Year: 2020
• Defendant Counsel: Ramesh Tiwary (Ramesh Tiwary) (instructed), Khor Wee Siong, Muhammad Mahdi Zain bin Haji Sha Aril Zain (Khor Law LLC) and Chong Soon Yong Avery (Avery Chong Law Practice),Reuben Gavin Peter (Allen & Gledhill LLP) as amicus curiae.
• Court: High Court (Singapore)
• Citation: [2020] SGHC 99
• Published date: 23 May 2020

Tay Yong Kwang JA (delivering the judgment of the court):

The accused, Mao Xuezhong, is a 49 year old citizen of the People’s Republic of China. He was tried in the District Court on the following charge:¹

That you, on 20 January 2014, being a formwork supervisor of Hong Khim Construction Pte Ltd (UEN: 200709452N) of 118 Yunnan Crescent Singapore 638327, at a construction worksite located at 201 Henderson Road, Apex @ Henderson, Singapore 159545, which was a workplace within the meaning of the Workplace Safety and Health Act (Chapter 354A), without reasonable cause, performed a negligent act which endangered the safety of others; to wit, you, (a) instructed two workers under your charge, Md Mastagir Rana (Sohal) Md Aminur Rahman (FIN …) and Khan Alam (FIN…), to descend onto a soffit top of an Aluma formwork when it was unsafe to do so; and (b) failed to ensure that the said Md Mastagir Rana (Sohal) Md Aminur Rahman (FIN…) had anchored his safety harness before descending onto the soffit top,

resulting in the death of the said Md Mastagir Rana (Sohal) Md Aminur Rahman (FIN…), and you have thereby committed an offence under section 15(3A) of the Workplace Safety and Health Act (Chapter 354A), punishable under the same section of the same Act.

Section 15(3A) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“WSHA”) provides as follows:

Duties of persons at work

15.— …

(3A) Any person at work who, without reasonable cause, does any negligent act which endangers the safety or health of himself or others shall be guilty of an offence and shall be liable upon conviction to a fine not exceeding $30,000 or to imprisonment for a term not exceeding 2 years or to both.

The District Judge (“DJ”) convicted the accused and sentenced him to 24 weeks’ imprisonment. The accused appealed against his conviction and sentence while the Prosecution appealed against sentence. For the purposes of this judgment, the accused shall be referred to as “the appellant”.

The Prosecution’s appeal against sentence involved submissions calling for a reconsideration of the WSHA sentencing framework for offences under s 15(3A) of the set out in the High Court decision of Nurun Novi Saydur Rahman v Public Prosecutor and another appeal [2019] 3 SLR 413 (“Nurun Novi”).² A three-Judge High Court was therefore convened to hear the appeals and a Young Amicus Curiae (“the amicus”) was appointed to assist the court on this issue. The appellant contended that the sentence of 24 weeks’ imprisonment for an accident involving the death of one person was “disproportionate even following Nurun’s standards” because Nurun Novi was sentenced to 25 weeks’ imprisonment on appeal to the High Court and that case involved the deaths of two persons. The Prosecution argued for a sentence of at least 12 months’ imprisonment.

Factual background

Most of the facts were not in dispute and were set out in a Statement of Agreed Facts dated 2 May 2018. The worksite in question was a construction site where a 9-storey industrial building was being built at Henderson Road. The construction company named in the charge was contracted to supply labour and tools for the reinforced concrete structure work which included the construction of formwork, the fixing of reinforcement and concrete casting. The labour supplied would report to and receive instructions from the main contractor of the building project. The main contractor used traditional formworks and also rented a modular formwork system from a formwork supplier.

The appellant was employed by the said construction company for about one and a half years before the incident. He was deployed as a formwork supervisor at the worksite for about three months before the incident. His duties included the deployment of workers and the assignment of work to them at the worksite.

On 20 January 2014 at about 2pm, the appellant was supervising the lifting of Aluma formworks (which we shall refer to as “table forms”) from the fourth to the fifth floor of the building under construction. The photograph in Annex 1 of this judgment shows what such a table form looked like. Md Mastagir Rana (Sohal) Md Aminur Rahman, a 25 year old Bangladeshi national (“the deceased”), Khan Alam (“Khan”) and their co-workers in the construction company were involved in this endeavour.

The table form was approximately 1,170kg in weight and measured approximately 6m in length, 3.6m in width and 4.8m in height. Before it was lifted from the fourth floor to the fifth floor, it would be positioned such that it protruded partially from the edge of the fourth floor. The photograph in Annex 2 of this judgment shows how a table form would be positioned prior to lifting. This was meant to facilitate the lowering of lifting gears through the openings on the top of the table form to secure it. This top portion of the table form is a platform known as a “soffit top” but for simplicity, we refer to the whole structure as a table form. The lifting gears would be lowered using a tower crane and they would be threaded through the openings. The table form rested on rollers (or wheels) to facilitate its movement. Each table form should be secured with two guide ropes and there would ordinarily be workers holding onto the table form to further secure it.

At the material time, the deceased and Khan were working on the fifth floor while their co-workers were working on the fourth floor. The role of the deceased and Khan was to facilitate the threading of the lifting gears through the openings, by descending onto the top of the table form to guide the lifting gears through the openings. The workers on the fourth floor would then secure the lifting gears to the table form. Following this, the table form would be lifted up to the fifth floor.

The workers started at about 7am on 20 January 2014. The workers had lifted seven or eight table forms in this manner before they stopped for lunch at noon. At about 1pm, they resumed the lifting works. After lifting another two or three table forms, the lifting work was paused as the tower crane had to be deployed for other operations. During this pause, the table form was secured with a guide rope.

At about 2pm, when the tower crane became available again, the lifting work resumed. The deceased and Khan climbed out beyond the horizontal guard rails at the edge of the fifth floor and descended onto the top of the protruding table form. While both the deceased and Khan wore body safety harnesses, only Khan secured his safety harness to the guardrail before the descent. The deceased did not secure his safety harness to an anchorage point despite being reminded to do so by Khan.

The deceased, who was in front of Khan, walked towards the openings near the top edge of the table form. As he did so, the table form suddenly started to tilt downwards, causing the deceased to slide off the table form and fall to the third floor vehicle ramp. The deceased was brought to a hospital where he succumbed to his injuries four days later.

It was undisputed that previously and on several occasions, the appellant had instructed his workers to descend onto the top of similar table forms to perform the same task during lifting operations.

Proceedings in the District Court The parties’ cases in the District Court

The Prosecution’s case was that the appellant had, without reasonable excuse, performed a negligent act which endangered the safety of others, by (a) instructing the deceased and Khan to descend onto the table form when it was unsafe to do so; and (b) failing to ensure that the deceased had anchored his safety harness before he descended onto the table form, thus causing the deceased to fall and resulting in his death.

The Prosecution called Khan as its witness. Khan testified that: The appellant had instructed him and the deceased to descend onto the top of the table form. The appellant was with them on the fifth floor when he gave those instructions, about one and a half arm’s length away from him.³ There were also two others present – a construction worker, Al-Amin, and the signalman, Lyton. Lyton’s duty was to signal to the crane operator on when to lift up the table form.⁴ Lyton and Al-Amin were not called as witnesses at the trial. Khan asked the appellant for a lifeline but the appellant did not say anything. He did not dare to ask the appellant a second time because he was afraid that the appellant would be angry. There was a previous occasion when Khan asked the appellant for something a second time and the appellant got angry.⁵ On his own initiative, Khan anchored his safety harness to the guard rail (which Khan referred to as a “GI pipe” in his oral evidence⁶) at the edge of the fifth floor before he descended.⁷ Khan advised the deceased to do the same but the deceased did not listen to him.⁸ When Khan and the deceased descended onto the top of the table form, the formwork suddenly tilted and the deceased fell off.

Khan testified that before the accident, he had made two similar descents. On those occasions, he and the other workers involved acted under the appellant’s instructions.⁹ On both those occasions, Khan was provided with a lifeline and had secured his safety harness to the lifeline, which was in turn secured around a column on the fifth floor.¹⁰

The Prosecution also called one Liow Kim Chong (“Liow”), the Formwork Technology Supervisor of the manufacturer of the table forms and who was the manufacturer’s representative responsible for training the appellant and his workers on the safe use of the table forms. Liow testified that he had given specific instructions that workers should not climb onto the top of table forms because of the risk of falling and that workers standing at the edge would need a lifeline. Liow also said that he confirmed with the appellant that he understood the instructions.¹¹

Applying Nurun Novi, the...